IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9481 of 2001 PAR MOHAN DAS, S/O SRI TARANI DAS, R/O SABOUR, P.S.-SABOUR, DISTRICT-BHAGALPUR, PRESENTLY POSTED AS CHAUKIDAR IN THE DEPARTMENT OF PLANT PATHOLOGY, BIHAR AGRICULTRUAL COLLEGE, SABOUR, DISTRICT- BHAGALPUR. ……………PETITIONER. Versus 1. THE VICE-CHANCELLOR, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR. 2. THE DIRECTOR ADMINISTRATION, RAJENDRA AGRICULTURE UNIVERSITY, PUSA, SAMASTIPUR. 3. THE PRINCIPAL, BIHAR AGRICULTURE COLLEGE, SABOUR, DISTRICT-BHAGALPUR. 4. THE HEAD OF DEPARTMENT OF PLANT PATHOLOGY, AGRICULTURE COLLEGE, SABOUR, DISTRICT- BHAGALPUR. ……………RESPONDENTS. ----------- 11 27.11.2009 Heard learned counsel for the petitioner, learned counsel for the University and learned counsel for the State. Petitioner has filed this writ application for a direction to the respondents to issue appointment letter in his favour, appointing him on a class-III post on promotion, being successful in the limited competitive examination. Case of petitioner is that he was working on daily wages in the Bihar Agricultural College, Sabour since 1977. In 1991 a selection process was held by the University in which petitioner’s case was also considered along with many others who had applied for their regular appointment on class-IV posts. Petitioner was found eligible for such appointment, since he was already working under - 2 - the University on daily wages having been appointed on compassionate ground. Therefore, by office order issued from the office of Director (Administration) of the University, he, along with many others, was appointed on class-IV posts on regular basis, vide Annexure-1. His services, along with services of some other appointees, were placed under the control of Principal, Bihar Agricultural College, Sabour. Petitioner submitted his joining and thereafter, on the orders of the Principal, he was assigned the work of Chowkidar as he was working as Chowkidar from before on daily wages. While in service petitioner sought for and was granted permission to appear in Matriculation examination, in which he appeared in the Session 1988-89 and passed in 2nd Division. A limited competitive examination, for promotion of class-IV employees to class-III in the University, was scheduled to be held in 1999 and eligible class-IV employees were asked to apply for the same. Petitioner, along with many others, applied for permission for appearing in the said examination. As he was found eligible and qualified, his name was included in the list of eligible class-IV staffs who were granted permission to appear in the limited competitive - 3 - examination, vide Annexure-3. However, when merit list of successful candidates was published, he did not find his name there. He made enquiries and was informed that though he was successful in the test, but since he was working on the post of Chowkidar, from which post no promotion was permitted to class-III posts, his name was not included in the merit list for promotion. Petitioner filed representations and also got sent a legal notice on his behalf to the respondents. However, no orders were passed on his representation and, therefore, he filed this writ application. Learned counsel for the petitioner submits that petitioner had applied for permission to appear in the limited competitive examination and he was allowed to appear in the same and was successful also in the examination. Therefore, he was entitled to be considered for promotion on class-III post. He submits that, on the date on which, petitioner had applied for permission to appear in the limited competitive examination, there was no rule in the University to prohibit a Chowkidar working on the class-IV post from appearing in such examination and from getting promotion to class-III post. Therefore, under the - 4 - rules applicable in the University at that point of time he was validly allowed to appear in the examination and, being successful, he was entitled to be considered for promotion to class-III post. Counter affidavit has been filed in the case on behalf of the University. With the counter affidavit an office order of the office of Director (Administration) dated 4.12.2001 has been annexed as Anneuxre-B. This letter shows that, letter of the State Government dated 14.10.1960, laying down guidelines for promotion from class-IV to class-III posts, was adopted by the University. The said office order contained a table of class- IV posts from which promotion to Class-III post was permissible, in which the post of Chowkidar is not there. Learned counsel for the University submits that as in the table of Class-IV posts, from which promotion was permissible to class-III posts, does not contained the post of Chowkidar, and petitioner was holding the post of Chowkidar, he was not eligible for his promotion to class-III post. Learned counsel for the petitioner submits that, through this letter Government guidelines have been adopted by the University in December, - 5 - 2001. He submits that the limited competitive examination was held much prior to that, in 1999 itself, and petitioner was allowed to appear in the same and he was successful also. Therefore, he submits that, this guidelines, and the said office order dated 4.12.2001, will not be applicable to the limited competitive examination held earlier and to the petitioner who validly appear in the same and was successful. Learned counsel for the University submits that the letter does not talk about any limited competitive examination and provides for promotion, only on the basis of educational qualification, seniority and work experience. Counter affidavit of the University does not show that prior to this letter there was any prohibition in the University for an incumbent working on the post of Chowkidar from getting a promotion on class-III post. Learned counsel for the University also submitted that this guidelines of the State Government was in vogue from before and, therefore, the University had to act upon that under the statute. But the fact remains that, in terms of the Government letter, policy decision to fill-up class-III posts from class-IV employees was taken by the University by said letter dated - 6 - 4.12.2001 only, and not before. This is also not disputed that petitioner was working on a class-IV post and was assigned the duty of the Chowkidar by the Principal without any option to the petitioner and without any application or request made by him for that particular post. It is obvious that his posting was made as per the discretion exercised by the Principal. Therefore, the fortuitous circumstances under which petitioner was assigned the duties of Chowkidar was beyond his control. Learned counsel for the University has submitted that the work experience had to be taken into account for promotion to class-III post. This Court fails to appreciate as to how this submission of the learned counsel for the University is of any help to the University in the matter. The table of posts shows that Class-IV employees as ‘Mali’ (Gardener), ‘Halwaha’ and ‘Pashu Parichar’ are some of the posts from which promotion to class-III post was permissible. If the work experience of the ‘Mali’, ‘Halwaha’ and ‘Pashu parichar’ are considered to be appropriate for promotion to class-III posts, it is not understandable why the work experience of a Chowkidar should not be considered as appropriate - 7 - for promotion to class-III posts. So far educational qualification is concerned, there is no denial that petitioner had educational qualification for his promotion to class-III post. Therefore, merely due to absence of name of the post of Chowkidar in the table of class-IV posts in annexure-B dated 4.12.2001 does not make the petitioner ineligible for his promotion to class- III post on the basis of his appearance in limited competitive examination held in 1999, if he had passed the examination and otherwise had come within the zone of consideration on merits on the basis of his result. In the circumstances, this Court does not find any merit in the submissions of the learned counsel for the University in support of non- consideration of the case of the petitioner for his promotion to class-III post on the basis of his result in the said limited competitive examination. In the result, this writ application is allowed. The respondents are directed to consider the case of petitioner for promotion to class-III post, in the light of the result of the petitioner on the basis of the said limited competitive examination in which petitioner had appeared, and - 8 - if the petitioner is found otherwise eligible on merits, the respondents are directed to pass appropriate orders for his promotion to class-III post within a period of three months from the date of receipt/production of a copy of this order. The respondents are also directed to grant promotion to petitioner with retrospective effect, and from the date from which next incumbent on merit has been promoted and to give him all consequential benefits of the same. While granting promotion to petitioner from retrospective effect, the respondents shall also examine whether he was eligible for promotion in the reserved quota also on an available vacant class-III post. The writ application is accordingly allowed with the above observations and directions. Arvind/ (J. N. Singh, J.)