IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3383 of 1997 ANIL CHANDRA MALLIK, S/O LATE RAM NARAYAN MALLIK, R/O VILLAGE & P.O BHARWARA, DISTRICT DARBHANGA.. ............PETITIONER. Versus 1.THE STATE OF BIHAR. 2.THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, RANCHI,BIHAR. 3.THE REGIONAL CHIEF CONSERVATOR OF FOREST, MUZAFFARPUR. 4.CONSERVATOR OF FOREST, EXTENTION CIRCLE, MUZAFFARPUR. 5.DIVISIONAL FOREST OFFICER, TIRHUT EXTENSION DIVISION, MUZAFFARPUR. ..............RESPONDENTS. ----------- 10/ 16.05.2011 In this writ application, the prayer of the petitioner is confined to following reliefs:- 'That this is an application for issuance of writ of certiorari by quashing the order dated 17.03.1997 issued vide letter no. 1299 contained in Annexure-6 under the signature of Principal Chief conservator of Forest, Bihar to all the Regional Chief Conservator of Forest, with a direction to cancel the promotion of petitioner as Foresters given on 14.03.1986 as he did not possess the requisite qualification for promotion. This writ application is further for a direction to the respondents not to disturb the petitioner from working to the post of Forester as he had been promoted on that post on 14.03.1986 and working continuously since the date of his joining i.e. 24.03.1986. Mr. Rajkumar, learned appearing on behalf of the petitioner has submitted that the impugned order dated 17.03.1997 cannot be sustained in law, inasmuch as, the same has 2 been passed after allowing the petitioner to continue with his promotion for more than 12 years and the solitary reason given for passing such order is also based on non-est and non-existent material, inasmuch as, the petitioner had passed the training examination with credits in three subject and the certificate also mentions the petitioner to have passed such training course with credit. In this case, the respondents have filed their counter affidavit and have explained that the issue relating to grant of promotion to the Forest Guard, had been under some sort of dispute and the promotion given on the post of Forester had to be reviewed whereafter when an order dated 19.12.1991 was passed by the competent authority for cancellation of all such promotion given to Forest Guards who had not passed the training examination with Credit. It has been also explained in the counter affidavit that the said issue got resolved by a Division Bench judgment of this Court in the case of Nawal Kishore Sharma vs The State of Bihar and others in C.W.J.C. NO. 118 of 1982 disposed of on 11.03.2000, upholding that any 3 promotion from the post of Forest Guard to Forester without fulfilling the requirement of passing training examination with credits would not be sustainable. Counsel for the intervenor, Subordinate Service Association has also submitted that such decision of the Division Bench of this Court in Nawal Kishore Sharma (supra) was not the first one on this issue rather the matter was earlier also gone into by the Ranchi Bench of Patna High court in C.W.J.C. NO. 505 of 1989(R) and C.W.J.C NO. 136, 305, 387 and 704 of 1992 (R) and the issue was remitted back to the State Government, whereafter an impugned order was passed on 19.12.1991 laying down the necessity of cancellation of all promotion in which the Forest guard had not secured 75% aggregate marks in training examination. It has also been explained that during the pendency of the case of Nawal Kishore Sharma (supra), the matter had travelled to the Apex Court in S.L.P No. 7402 of 1994 which was dismissed on 11.11.1994 upholding the Government decision dated 19.12.1991 with regard to cancellation of promotion to such Forest Guards who had not passed training examination with aggregate 4 75% i.e. with credits. He would therefore, submit that impugned order passed in this case is only by way of implementation of the order dated 19.12.1991 and since, the main order has been upheld by the Division Bench of this court as also by the Apex Court, there would be no need now to go into any question as to whether the petitioner had fulfilled the requisite condition for grant of promotion. He, however, has stated that the petitioner had not obtained 75% aggregate marks in his training examination and as such will not be treated to have passed the training examination with credits. In the considered opinion of this Court, the issue raised in this writ application is confined to the correctness of Annexure-6, the order dated 17.3.1997 inasmuch as, it is not even the case of the petitioner that the earlier order dated 19.12.1991 of the State Government is unjustified and/or incorrect. Learned counsel for the petitioner infact proceeds that even if the order dated 19.12.1991 is correct its implementation in form of the impugned order dated 17.3.1997 has not been made in a correct manner. In order to resolve this controversy it 5 would be necessary to first take into account the government decision contained in the order dated 19.12.1991. The said order dated 19.12.1991 is Annexure-D to the application filed by the intervenor Subordinate Service Association represented by Mr. Alok Kumar, the learned counsel and reads as follows :- fcgkj ljdkj ou ,oa i;kZoj.k foHkkx] izs"kd] Jh Mh0 ,u0 oekZ ljdkj ds mi lfpo lsok es iz/kku eq[; ou laj{kd fcgkj] jkaph fnukad 19-12-91 fo"k;& ekuuh; iVuk mPp U;k;ky; jkaph csap }kjk ds'k la[;k lh0MCyw0ts0lh0 505@89 Avkj0A esa fn;s x;s funsZ'kksa dk dk;kZUo;uA egksn;] funs'kkuqlkj mi;qZDr fo'k; ij dguk gS fd ekuuh; iVuk mPp U;k;y; jkaph csap }kjk ds'k la[;k lh0MCyw0ts0lh0 505@89 Avkj0A esa fnukad 3@12@90 dk fn;s x;s vkns'k ds vkyksd esa fuEufyf[kr fu.kZ; fy;k x;k gS& 1- ftu oujf{k;ksa dks izf'k{k.k fo|ky; esa llEeku izFke gksus ds QyLo:I 11 Qjojh 1982 ls izksUufr nh x;h gS] mldh iqu% leh{kk dh tk; ,oa izksUufr ds iwoZ ikap o"kZ dh lsok vfHkys[kksa dh tkap dh tk; ;fn mudh lsok LoPN gS vkSj os izksUufr ds ;ksX; ik;s tkrs gS rks muds izksUufr vkns'k dks ;Fkkor le>kk tk;A ;fn mudh lsok larks"ktud ugha gS rks muds izksUufr vkns'k dks jn~n fd;k tk;A izksUufr dh frfFk dh ftudk lsok 5 o"kksZa dks ugha Fkh muds izksUufr vkns'k dks jn~n fd;k tk,A fdlh dks Hkh Hkqry{kh izHkko ls ojh;rk dk ykHkk ugha fn;k tk,A 2- ftu oujf{k;ksa dks flQZ lEeku ds lkFk mRrhZ.krk ds vk/kkj ij izksUufr nh xbZ gS] muds izksUufr vkns'k dks jn~n fd;k tk,A 3- izksUufr dh vof/k esa tks izksUur in dk osru ,oa HkRrk ik pqds gSA mls muds izksUufr jn~n djus ds le; rd Hkqxrku dh xbZ jkf'k ls caf/kr ugha fd;k tk;A 4- tks ouj{kh lsok fuo~Rr gks pqds gSa ,oa mUgsa tks ykHk fey pqdk gS mls oafpr ugha fd;k tk;A 5- ftu oujf{k;ksa us eqyr% izek.k i= nsdj izksUufr ik yh gS mldh tkap dh tk;A tkapksijkUr ;fn tkyh izek.k i= izLrqr djus dk vkjksi ugha ik;k tk; rks muds fo:n~/k foHkkxh; dk;Zokgh dj mUgsa lsok eqDr fd;k tk; rFkk /kks[kk ?kMh dk eqdnek Hkh mu ds fo:n~/k pyk;k tk;A 2- iz/kku eq[; laj{kd fcgkj ,oa jkaph ds vkns'k la[;k fnukad 17-12-86 rFkk i=kad 4706 fnukad 7-8-81 ,oa eq[; ou laj{kd fcgkj ds i=kad 903 fnukad 1-2-82 rFkk i=kad 4836 fnukad 20-5-85 dks foHkkxh; i=kad 3510 fnukad 12-9-91 }kjk igys gh jn~n fd;k tk pqdk gSA ljdkj ds i=kad 177 fnukad 1-1-91 dks vodzfer fd;k tkrk gSA fo'oklHkktu g0@& vLi"V 6 19-12-91 ¼Mh0 ,u0 oekZ½ ljdkj ds mi lfpo Thus from a bare perusal of the aforesaid order it would become clear that two categories of promotees were sought to be carved out on the basis of date of promotion and the cases of only such promotees earing promotion on or after 11.02.1982 was sought to be reviewed. It was also, clearly specified therein that such Forest Guards who have been given promotion only on the basis of having passed the examination with Credit and without completion of satisfactory service for a period of five years would will have to be subjected cancellation of their promotion. It is not in doubt that the petitioner's promotion was given on 14.03.1986 (Annexure- 5) by the Conservator of Forest, Ranchi, only on the ground that he had stood first in the training examination pursuant to the training course undergone by him between October 1984 to April 1985. This order of promotion dated 14.03.1986 being after 11.2.1982 was subject to review in terms of the aforesaid order dated 19.12.1991, validity of which has already been upheld by the Division Bench of 7 this Court in the case of Nawal Kishore Sharma(supra). Thus the only question for testing the impugned order would be as to whether the petitioner had passed his training examination with aggregate 75% marks i.e. with credits in terms of statutory rules and the instruction issued thereunder so as to be held to be eligible for being promotted on the part of Forester. Annexure A and B to the counter affidavit of Respondents State is in fact are complete answer to such submission on behalf of either side, inasmuch as in the circular dated 10.1.1940 (Annexure-A) reading as follows:- "For a pass certificate a student must obtain 60 per cent of the marks for each major subject (i.e. Silviculture, Utilisation and Engineering and survey) and 30 per cent in each of the remaining (minor) subjects. For a pass with regard to student will be required to obtain not less then 75 per cent of the aggregate marks. It will be at the discretion of the Conservator of Forests to award a pass certificate to a student who may fail to obtain the requisite number of marks is not more than one subject. A Prize will be awarded to the student who will stand first in the final examination. (Government of Bihar, Revenue Department, letter no. 7266 R-111F-386, dated the 07th September 1980) (Correction slip no. 103, dated the 10th January 1940)." 8 makes absolutely clear that a person undergoing such training course will get a pass certificate, if he obtains 50 per cent marks for each of the major subject and 30 per cent in each of the minor subject. In the same circular dated 10.01.1940, it has also been laid down that a person in order to have passed with credit will be required to obtain not less than 75 per cent of the aggregate marks. The subsequent decision introducing the concept of pass or pass with credit was only clarificatory in nature and in the circular of the State Government dated 06.07.1987 as contained in Annexure-B it was mentioned as follows:- dk;kZy;] iz/kku eq[; ou laj{kd] fcgkj i= la[;k& 3211 lsok es] lHkh eq[; ou laj{kd] fcgkjA lHkh vij eq[; ou laj{kd] fcgkj lHkh ou laj{kdA lHkh ou izeaMy inkf/kdkjh jkaph] fnukad 6-7-87 fo"k;& ouj{kh ls ouiky ds in ij izksUufrA egk'k;] bl dk;kZy; ds vkns'k la[;k 1279 fnukad 17-12-86 dk voyksdu fd;k tk;A ftlesa ouj{kh ls ouiky ds in ij izksUufr ds fu;e larqfyr fd;s x;s gSA bl laca/k esa dqN fcUnq Li"V ugha gSA buds ckjs esa fuEufyf[kr vkns'k fuxZr fd;k tkrk gSA%& oSls gh ouj{kh izf'k{k.k fo|ky; ls llEeku mRrhZ.k le>s tk;saxs ftUgksus ijh{kk esa de ls de 75 izfr'kr vad izkIr fd;k gSA bl dk;kZy; dk vkns'k la[;k 1279 fnukad 16-12-86 Hkwry{kh izHkko ls ykxq ugha gksxkA ;g vkns'k vius fuxZe dh frfFk ikfjr 17-12-86 ls gh ykxw gksxkA vkidk fo'oklh g0@& vLi"V iz/kku eq[; ou laj{kd] fcgkj 9 Counsel for the petitioner does not dispute this position but he says that clarification came on 06.07.1987, much after the petitioner was already given promotion on 14.3.1986 and therefore the same will not be applicable in his case. Unfortunately such reading of Annexure-B of the counsel for the petitioner is wholly misplaced, inasmuch as, Annexure-B is only a clarification in keeping the earlier provision which was also prevailing in the year 1940, inasmuch as, even 1940 circular contained in Annexure-A as quoted above had left nothing for speculation that a student shall pass only after obtaining 50 per cent marks and he shall be deemed to have passed training examination with credit only after he would obtain 75 per cent aggregate marks in the training examination. The submission of learned counsel for the petitioner that since, the petitioner was given the first prize in the training examination he will be deemed to have passed with credits is neither here nor there, inasmuch as, he may have stood first but if he had not secured 75 per cent marks in aggregate that will render him in eligible 10 for grant of promotion because the requirement was/is that one must have passed training examination with credits i.e. 75 per cent marks in aggregate credit. In the present case, it is not in doubt that the petitioner had secured only 431 out of 600 i.e 71.8 per cent or say 72 per cent in aggregate and therefore, the remarks in the certificate of the petitioner showing him to have obtained first position with credits in three subjects will not change the fact that the petitioner had not secured 75 per cent aggregate marks in the training examination so as to become entitled to retain his promotion. The requirement of the scheme was not that one should be given promotion if he had stood first even if he had not secured 75 per cent marks in aggregate. This Court would also find that the government policy contained in Circular dated 19.12.1991, which was upheld by this Court in the case of Nawal Kishore Sharma(supra)was correctly applied in the case of the petitioner and he was rightly reverted by the impugned order due to not possessing the prescribed marks in training examination. The plea of long continuation of 11 12 years of the petitioner on the promoted post has not only been explained in the counter affidavit but it has also been taken into account that the petitioner was not eligible or entitled to be promoted, inasmuch as, he did not possess post requisite qualification. Thus the promotion of the petitioner being itself contrary to Rules can not can not be upheld specially when the promotion of all similarly situated persons has been cancelled and also upheld by this Court and the Apex Court. At this stage, learned counsel for the petitioner has tried to make out a case that certain more persons having secured less than 75 per cent aggregate marks are still continuing on the basis of their earlier promotion. If there be any such person who is still continuing despite having not secured 75 per cent aggregate marks in the training examination, his case will also be covered by the Government policy dated 19.12.1991 and if such cases are brought to the notice of the Chief Conservator of Forest by the petitioner he who would take his decision strictly in accordance with law but only after giving notice and/or affording 12 opportunity of hearing to such person whose continuation of promotion is assailed by the petitioner on the aforesaid ground of their securing less than 75% of aggregate marks in training examination. With aforementioned observation and liberty, this application is disposed of. Ranjan (Mihir Kumar Jha, J)