IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1747 of 2011 Rajendra Kumar SON OF LATE DUKHI DAS RESIDENT OF BAURI, P.S. KASHICHAK, DISTRICT NAWADAH. Versus 1. The State Of Bihar 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY (MANAGEMENTR), WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. with CWJC No.1733 of 2011 Birju Das son of SHRI PHAGUNI DAS RESIDENT OF MASATHU, P.S. BARH, DISTRICT PATNA. Versus 1. The State Of Bihar 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY (MANAGEMENTR), WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. with CWJC No.1762 of 2011 Jawahar Lal Mandal SON OF BALDEO MANDAL RESIDENT OF KACHHARIYA, P.S. KAHALGAON, DISTRICT BHAGALPUR. Versus 1. The State Of Bihar 2. THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE JOINT SECRETARY (MANAGEMENTR), WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. ----------- 4 25/07/2011 All these three writ applications have been heard - 2 - together and are being disposed of by this common order as common question of law and facts are involved in all these cases. Two of the petitioners who are supposed to be the Assistant Engineers later promoted to the post of Executive Engineer belong to the Scheduled Caste category and one of Scheduled Tribes category. By the decision taken by the Departmental Promotion Committee promotions came to be granted to large number of persons including these three petitioners on substantive basis. Those notifications are annexure-2 to the writ applications. Once the petitioners started drawing the advantage of the said notification/promotion, a subsequent decision contained in annexure-1 came to be issued on 14.01.2011. The authorities decided to undo the substantive promotion granted to these petitioners under the circumstances indicated in the order contained in annexure-1. The order indicates that when the cases of these petitioners were considered for promotion, there were atleast three other persons belonging to similar category, admittedly senior to these petitioners, who were not granted promotion because - 3 - their cases were put in sealed cover. When they stood exonerated, the Departmental Promotion Committee subsequently decided to grant them promotion with effect from the date they were entitled to. When these promotion orders came to be issued, due to the number of posts being available under the cadre these three petitioners had to be relegated. Petitioners, therefore, rushed to the High Court claiming arbitrariness in the decision taken by the State. Their uniform stand is that in the notification issued by the State in terms of annexure-2 there was nothing to show that these promotions were conditional or contingent to any development which may happen in future. Taking away the benefit, therefore, causes serious prejudice to them and this cannot be done without giving them opportunity of hearing. So far as the opportunity of hearing is concerned, the petitioners have a case in this regard but no purpose would be served now by quashing the order and remitting the case back to the respondents in view of the fact that counter affidavit has been filed explaining the conduct or the action of the State. - 4 - From the submissions made in the counter affidavit, there is reiteration of the fact that atleast three persons, whose names figure in the notification dated 14.01.2011 annexed as Annexure-B to the counter affidavit filed in C.W.J.C. No. 1747, are senior to these petitioners. If they were not granted promotion due to their cases pending by adoption of sealed cover procedure, it is not that they lost their right to beget promotion, once they are exonerated. Their cases were re-considered in light of the Personnel Department Circular and resolution and it was found that they were entitled to beget promotion from the date their juniors had been accommodated. Since all these three petitioners were down the ladder, therefore, there was no option left for the respondents but to issue annexure-1. The explanation offered by the State, therefore, does merit consideration but then may be valuable time of the Court would have been saved if these positions were indicated both in the promotion order as well as if the petitioners were given a notice or show cause but since neither of these two procedures were followed, naturally there were reasons for the petitioners to find - 5 - foul play. But, now that the factual position has been stated with supporting material by the State counsel appearing in the three writ application, the Court does satisfy that there were reasons existing to reconsider the decision in terms of annexure-1 and the same cannot be labeled as arbitrary in any manner. In reply a stand has been taken on behalf of the petitioners that there are vacancies pending among the Scheduled Caste as well as Scheduled Tribe category on the post of Executive Engineers and this aspect is required to be considered by the respondents in light of the interim observation of this Court dated 23.02.2011. Since such an affidavit has been served on the learned counsel for the State today, the matter, obviously, would require verification. However, in view of the order which is going to be passed directing the respondents to consider this aspect of the matter within a reasonable time frame, the Court is not inclined to adjourn the matter any further. All these three writ applications are disposed of with a direction upon the Principal Secretary, Water Resources Department, Govt. of Bihar, Patna that he will - 6 - carry out the exercise to find out whether there are vacancies available during the interregnum due to retirement or otherwise among the cadre to which these petitioners are claimant and if such vacancies have come into existence, steps will be taken to give substantive promotion to these petitioners because there were nothing against them as such when their cases for promotion was initially considered and notified whatever be the circumstance under which subsequent decision came to be taken. The Court expects such exercise to be completed within three months from the date of production of communication of a copy of this order. All these three writ applications stand disposed of with the observation aforesaid. AMIN/ (Ajay Kumar Tripathi, J.)