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PATNA HIGH COURT
S.N.Hussain, J.
Syed Mozammil Ashraf
Versus
State Of Bihar
Criminal Writ Jurisdiction No. 1846 of 2000 ;
Decided On : JANUARY 04, 2007
Promotion - Senior Accounts Clerk - Rules 156 and 157 of the Bihar Board Miscellaneous Rules, Finance Department Circular No. 2132(F) dated 01.04.1980 - Mithilesh Kumar Sinha V/s. State of Bihar and Ors. 2006(1) PLJR 282 - Maheshwar Prasad Singh and Ors. V/s. State of Bihar and Ors. 2000(4) PLJR 262
Fact of the Case:
The petitioner sought promotion to the post of Senior Accounts Clerk with all consequential benefits. The respondents denied the promotion citing the petitioner's failure to pass the Accounts Examination as per Rules 156 and 157 of the Bihar Board Miscellaneous Rules and Finance Department Circular No. 2132(F) dated 01.04.1980. The petitioner had passed some accounts papers but the department had not conducted the examination regularly and had even cancelled a scheduled examination without holding a re-examination.
Finding of the Court:
The court found that the requirement of passing the Accounts Examination for promotion was not mandatory as claimed by the respondents. The court also noted that the department's failure to hold examinations regularly and the cancellation of an examination were the reasons for the petitioner's inability to fulfill the requirement. The court also criticized the department's improper handling of the promotion process and the placement of a person from outside the cadre above the petitioner.
Issues: The main issue was whether the petitioner's failure to pass the Accounts Examination was a valid reason to deny his promotion to the post of Senior Accounts Clerk.
Ratio Decidendi: The court held that the requirement of passing the Accounts Examination for promotion was not mandatory as claimed by the respondents. The court also emphasized the department's failure to hold examinations regularly and the improper handling of the promotion process.
Final Decision: The impugned office order denying the petitioner's promotion was quashed, and the court directed the respondent to reconsider the petitioner's case and issue necessary notification regarding his promotion within two months.
1. Heard learned Counsel for the petitioner and learned Counsel for the respondents.
2. This writ petition has been directed against office order of the Road Construction Department, Govt. of Bihar, issued vide memo No. 11256 (S) dated 29.12.1999 (annexure-7) under the signature of Under Secretary of the Department. The petitioner has also sought promotion to the post of Senior Accounts Clerk with effect from 01.05.1999 with all consequential benefits as at the time of filing of the writ petition, he was working as Junior Accounts Clerk in the Office of Executive Engineer, Advance Planning National Highway, Division, Lakhisarai.
3. Learned Counsel for the petitioner submitted that as per the gradation list issued by the department on 15.06.1990 (annexure-1), the petitioner was at serial No. 2 among the Junior Accounts Clerk and thereafter Sri Vidyapatti Sinha, who was at serial No. 1 of the said list retired on 30.04.1999, whereafter the petitioner became the senior most Junior Accounts Clerk. He further averred that earlier the petitioner had filed CWJC No. 2365 of 1994 for directing the respondents to grant promotion to him in accordance with law and the said writ petition was disposed of on 09.03.1995 (armexure-2) with a direction to the petitioner to file a comprehensive representation before the Superintending Engineer, Advance Planning, Road Construction Department, Bhagalpur and the said authority was directed to hear the petitioner and pass a speaking order within three weeks from the date of filing of such representation without being prejudiced by the earlier orders and if the claim of the petitioner is found to be genuine, necessary appropriate order was directed to be passed forthwith. Learned Counsel for the petitioner also stated that on the basis of the said order, the petitioner filed his representation, but when the order of this Court was not complied, he filed a petition for initiating a proceeding of contempt against the authorities concerned bearing MJC No. 1533 of 1995 which was dropped on 02.04.1996 (annexure-4) as in the meantime, the authority concerned had passed order dated 17.07.1995 (annexure-3) and this Court directed that the Chief Engineer shall examine the said order of the Superintending Engineer and take appropriate action.
4. Learned Counsel for the petitioner submitted stated that in his order dated 17.07.1995 (annexure-3), the Superintending Engineer specifically mentioned that there was only one post of the Senior Accounts Clerk vacant on which post Sri Vidyapatti Sinha, who was Senior-most Junior Accounts Clerk, was given promotion, and hence as soon as any post of Senior Accounts Clerk falls vacant, the petitioner will be promoted. Hence in view pf the said order of the Superintending Engineer and the observations of this Court when the said Vidyapatti Sinha, Senior Accounts Clerk retired on 30.4.1999, the petitioner filed applications before the Superintending Engineer on 02.07.1999 and 29.12.1999 (annexures 5 and 5/A) requesting that he should be promoted to the said post as per the aforesaid earlier orders and also because he was now seniormost Junior Accounts Clerk and was doing the work of the Senior Accounts Clerk.
5. Learned Counsel for the petitioner also stated that inspite of the aforesaid facts and circumstances, the Executive Engineer, National Highway, Division, Lakhisarai sent a letter dated 01.12.1999 (Annexure-6) to the Secretary, Road Construction Department, Govt. of Bihar, Patna, stating that there was an immediate requirement of Accounts Clerk in the Division and requesting Sri Varendu Bhushan Chaturvedi (respondent No. 7) to be sent to fill that post and on that letter, the impugned office order was issued by the Road Construction Department vide No. 11256(S) dated 29.12.1999 (annexure-7) under the signature of Under Secretary of the Department posting the said respondent No. 7 on the vacant post of Accounts Clerk in the Circle without even considering the c
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