JUDGMENT :

Through Video Conferencing

1. Heard Mr. Gaurav Abhishek, learned counsel appearing on behalf of the petitioner.

2. Heard Mrs. Vandana Singh, learned counsel appearing on behalf of the respondents.

3. This writ petition has been filed challenging the order as contained in memo No. 4939 dated 16.08.2010 issued by the respondent No. 2 whereby the claim of the petitioner for promotion has been rejected on the ground that the petitioner has already superannuated from service w.e.f. 31.07.2009 while promotion has been granted in favour of others prior to 03.08.2009. A further prayer has been made to forthwith release the arrears of difference of salary consequent upon grant of promotion to the petitioner and also to fix the pension of the petitioner by giving the entire arrears of pensionary benefit w.e.f. 31.07.2009.

Arguments of the petitioner

4. Learned counsel appearing on behalf of the petitioner submits that the petitioner had earlier moved this court in W.P. (S) No. 2131 of 2010 which was disposed of vide order dated 22.07.2010 as contained in Annexure-1 to the present petition and by the said writ petition it was directed that if a representation is made by the petitioner before the Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, the claim of the petitioner will be considered in right perspective. He submits the impugned order in the present case has been passed pursuant to such direction issued by this court in W.P. (S) No. 2131 of 2010. The learned counsel submits that the case of the petitioner for promotion was kept pending by the appropriate committee and the petitioner was not promoted on account of the fact that departmental proceeding was still pending and his ACRs were not received by the department. Learned counsel submits that the procedure of keeping the case of the petitioner under sealed cover was not followed and accordingly the judgment passed by the Hon’ble Supreme Court in the case of Union of India vs. K.V. Janikraman reported in 1991 (4) SCC 109 was not followed and the respondents have also not followed their own resolution as contained in Annexure-E to the counter affidavit. Learned counsel submits that so far as ACR is concerned, it is for the department to take appropriate steps and the petitioner has nothing to do in this matter.

5. Learned counsel has also referred to the case of one Ganesh Prasad whose case for promotion was also considered with that of the petitioner and decision in connection with his promotion was reserved and one post was kept vacant. He submits that in his case also, as in the case of the petitioner, departmental proceeding was initiated and the enquiry officer had recommended for his exoneration from the charges but the final order of the disciplinary authority was not passed. Learned counsel submits that case of the petitioner is similar as that of Ganesh Prasad. The learned counsel submits that subsequently the petitioner, after his retirement, has been discharged from the allegations in the departmental proceedings vide order dated 10.12.2009 and therefore refusal to grant him promotion vide the impugned order has not been passed in accordance with law and it calls for interference. He submits that said Ganesh Prasad was granted promotion after his exoneration from the charges in the departmental proceedings.

6. Learned counsel has referred to the following judgments passed by this Court: -

W.P. (S) No. 2013 of 2015 dated 11.11.2020;

L.P.A. No. 211 of 2019 dated 19th May, 2020;

W.P. (S) No. 4013 of 2011 dated 18.05.2018;

W.P. (S) No. 19 of 2010 dated 20.04.2010 reported in 2010 SCC Online Jhar. 622, and

W.P. (S) No. 6055 of 2010 dated 27.08.2021.

7. Learned counsel for the petitioner submits that there has been no fault on the part of the petitioner and the claim for promotion of the petitioner was not rejected by Annexure-6 but it was kept pending and subsequently the petitioner has been exonerated in the departmental proceeding