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HIGH COURT OF PATNA
B.D. Singh & P.S. Sahay, JJ.
NAWAL KISHORE SINGH – Petitioner
VERSUS
THE STATE OF BIHAR & OTHERS – Respondents
C.W.J.C. No. 315 of 1976
Decided On : 14th September, 1976
PROMOTION - Seniority - Adverse remarks - Policy of the State Government - Bihar Non-Government Elementary Schools (Taking Over of Control) Ordinance, 1976, Section 4 (3).
Fact of the Case:
The petitioner, an employee of the District Board, Gaya, was provisionally transferred to the office of the District Superintendent of Education, Nawadah. He was promoted to the rank of Upper Division on 5.7.1958. In 1973, both the petitioner and respondent no. 5 passed the local body's accountantship examination (rural). The petitioner opted for Government service on 13.3.1974. In February, 1975, there arose a vacancy of assistant accountant in the office of the District Engineer, on which respondent no. 5 was promoted by ORDER :dated 24.2.1975 (Annexure 5), ignoring the claim of the petitioner, on the ground that he was in the office of the District Superintendent and that he had opted for Government service. Subsequently, there arose a vacancy in the office of the Superintendent of Education for the post of accountant. Although, the petitioner is the senior most upper division assistant, having passed accountantship examination, in the office of the District Superintendent of Education, Gaya, he was not considered for promotion by the impugned ORDER :contained under Annexure 6 and respondent no. 5 was promoted by that ORDER :.
Finding of the Court:
The Court held that the petitioner was senior to respondent no. 5 in the cadre of upper division assistants and both the petitioner as well as respondent no. 5 had passed Local Bodies Accounts Examination in 1973. Therefore, both the petitioner as well as respondent no. 5 had the requisite qualification to be considered for promotion for the post of accountant. The Court also held that the petitioner's case ought to have been considered, while making the said promotion as contained in Annexures 6 and 7, along with respondent no. 5.
Issues: 1. Whether the petitioner was entitled to be considered for promotion to the post of accountant, as against respondent no. 5, who was working in the office of the District Engineer? 2. Whether the adverse remarks against the petitioner were the reasons for his not being appointed as assistant accountant in the office of the District Engineer in preference to respondent no. 5 on 24-2-75 under Annexure 5? 3. Whether it was the policy of the State Government to promote assistant accountant to the post of accountant?
Ratio Decidendi: 1. The Court held that the petitioner was entitled to be considered for promotion to the post of accountant, as against respondent no. 5, who was working in the office of the District Engineer, because the petitioner was senior to respondent no. 5 in the cadre of upper division assistants and both the petitioner as well as respondent no. 5 had passed Local Bodies Accounts Examination in 1973. 2. The Court held that the adverse remarks against the petitioner were not the reasons for his not being appointed as assistant accountant in the office of the District Engineer in preference to respondent no. 5 on 24-2-75 under Annexure 5, because the adverse remarks were communicated to the petitioner after the period of three months and the time limit prescribed in the circular was not mandatory. 3. The Court held that it was not the policy of the State Government to promote assistant accountant to the post of accountant, because there was no consistent policy of the State Government in this regard.
Final Decision: The Court allowed the application and quashed the ORDER :s of promotion of respondent no. 5, as contained in Annexures 6 and 7 to the writ petition. The Court directed respondent nos. 1 to 4 to consider afresh the claim of petitioner along with respondent no. 5 for promotion as accountant.
B. D. Singh, J.
This application by Nawal Kishore Singh under Articles 226 and 227 of the Constitution of India is directed against the ORDER :dated 12 1.1976 Annexure 6) passed by the Deputy Secretary, Community Development and Planning (Rural), Government of Bihar, (respondent no. 2) promoting Balmiki Sharma (respondent no. 5) to the post of accountant in the office of the District Superintendent of Education, Gaya, and also against the ORDER :dated 15.1.1976 (Annexure 7) passed by the Administrator, District Board, Gaya, (respondent no. 3) communicating the above ORDER :of promotion contained in Annexure 6 to the persons concerned.
2. In ORDER :to appreciate the point involved in this application it will be necessary to state some material facts contained in the petition as well as in the various counter affidavits and the supplementary affidavits filed on behalf of the respondents and the petitioner, respectively.
3. In the main application the petitioner has stated that he is an employee of the District Board, Gaya, and has been provisionally transferred and posted to the office of the District Superintendent of Education, Nawadah. He was appointed initially as a Hindi typist in the service of the District Board, Gaya, by its Chairman under his ORDER :dated 10.9.1949. He was confirmed on 18.2.1950. According to him, his services were quite satisfactory and, therefore, he was promoted to the higher rank of Upper Division on 5.7.1958. In the gradation list (Annexure 1). which was prepared and circulated on 18.8.1972, his name finds place at serial no. 5 as upper division assistant, whereas the name of respondent no. 5 finds place at serial no. 11 in the lower division assistants. It would also show that respondent no. 5 was working as an officiating upper division assistant from 16.6.1969. Therefore, according to the petitioner, he was much senior in length of service to respondent no. 5, that is, senior to him by 11 years in upper division. On 24.10.1973 both the petitioner and respondent no. 5 passed the local body's accountantship examination (rural). The employees of the District Board are posted either in the Board Office or in the office of the District Engineer, or the office of the District Superintendent of Education or in those of different local boards, as stated by the petitioner in paragraph 8 of the petition. In other part of his application he further stated that for the purpose of promotion the employees of a particular grade serving in any of the aforesaid offices are considered together. The petitioner has been working as cashier in the grade of upper division in the office of the Superintendent of Education, Gaya. Subsequently, he was deputed to the newly created office of the Superintendent of Education, Nawadah, by a provisional transfer by the ORDER :dated 4.8.1974 (Annexure 2). The Bihar Cabinet took a decision on 30.1.1971 to take the services of the assistants and the 4th grade employees of the District Board from the District Board to Government, who were attached with the office of the District Superintendent of Education. A copy of the said resolution contained in memo no. 7-56-0497 (73-67) (Sa) Patna the 9th November, 1973, has been annexed with the petition as Annexure 3'.
4. That the case of the petitioner further is that in pursuance of the notification (Annexure 3), the District Superintendent of Education, Gaya, (respondent no. 4) under his letter dated 22.2.1974 (Annexure 4) asked the District Board employees of his office to give their option within three days of the; receipt of the letter to remain in the District Board service or to go in Government service. The petitioner opted for the Government Service and gave his consent on 13.3.1974, within three days of the receipt of Annexure 4. In paragraph 15 of his application the petitioner stated that despite the aforesaid development the District Board authorities did not clarify the status of the petitioner, who continued to suffer
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