S. Chandrashekhar, J.@mdashThis writ petition has been filed seeking quashing of order dated 19.7.2004 and with a further prayer for grant of
promotion to the petitioner on the post of Head-Clerk. The brief facts of the case are that, the petitioner was appointed on a Class-IV post on
6.6.1973 and respondent No. 6 was appointed on 3.11.1973. It appears that when one Tarini Shankar Kabi was promoted on the post of Head-
Clerk and consequently, the respondent No. 6 was reverted from the post of Head-Clerk, he approached this Court by filing writ petition being
W.P.(S) No. 5696 of 2002. The said writ petition was disposed of on 15.9.2003 with a direction to the Secretary, P.H.E.D. Government of
Jharkhand to give reasonable opportunity to the respondent No. 6 and the said Tarini Shankar Kabi and to decide the issue afresh. Pursuant to the
direction of this Court, by impugned order dated 19.7.2004. it has been ordered that though the promotion granted to the said Tarini Shankar
Kabi was legal or illegal could not be decided as the record was not produced however, as the respondent No. 6 who is senior to the petitioner,
was illegally reverted from his promoted post, it has been thus decided that the respondent No. 6 should be given promotion on the post of Head-
Clerk and if necessary, petitioner can be reverted to the lower post. Challenging the said order dated 19.07.2004, the petitioner has approached
this Court by filing the present writ petition.
2. A counter-affidavit has been filed on behalf of the respondent-State whereunder a plea has been taken that by order dated 23/24.12.1980, the
petitioner as well as the respondent No. 6 were promoted/appointed on Grade III post. In the said order it has been mentioned that the
respondent No. 6 would be appointed with effect from 6.6.1973 whereas, the petitioner would be appointed w.e.f. 3.11.1973 and in that view of
the matter, the respondent No. 6 is senior to the petitioner and therefore, he was granted promotion.
3. A counter-affidavit has also been filed on behalf of respondent No. 6 whereunder a similar stand has been taken by the respondent No. 6
stating that since by the same order dated 23/24.12.1980 both, the petitioner as well as the respondent No. 6 were promoted however, the date
of promotion of the respondent No. 6 has been shown as 20.06.1980, therefore, respondent No. 6 was senior to the petitioner. It has been
contended that since several persons junior to the respondent No. 6 were promoted, the respondent No. 6 had gone to the Hon''ble High Court
by filing writ petition in which a direction was given by the Hon''ble High Court to consider his case. In the impugned order dated 19.7.2004 it has
been recorded that the respondent No. 6 was wrongly reverted to the lower post inspite of being senior to the petitioner. A Chart indicating the
seniority as well as order of the High Court and other documents have been brought on record.
4. Heard learned counsel for the parties and perused the documents on record.
5. Learned counsel appearing for the petitioner has contended that admittedly the petitioner was appointed on a Grade-IV post on 6.6.1973
whereas, the respondent No. 6 was appointed on the said post on 3.11.1973 and thus, at the initial stage itself the petitioner was senior to the
respondent No. 6. The petitioner cleared the departmental examination in the year 1991 whereas, the respondent No. 6 cleared the departmental
examination in the year 1997. Rule 157 of the Bihar Board''s Miscellaneous Rule, 1958 has been relied upon by the petitioner. Both the petitioner
as well as respondent No. 6 were required to pass the departmental examination before promotion to the post of Head-Clerk and admittedly, the
petitioner has cleared the departmental examination much prior to the respondent No. 6 however, he was wrongly reverted and denied the benefit
of the promotion on the post of Head-Clerk. Learned counsel for the petitioner has further submitted that the order of the promotion which was
issued on 23/24.12.1980 would disclose that the petitioner was placed at serial No. 1 whereas, the name of the respondent No. 6 has appeared at
serial No. 12. Though, it has been mentioned in the order dated 23/24.12.1980 that the respondent No. 6 has been appointed w.e.f. 20th June,
1980, however, no reason whatsoever has been disclosed by the respondent-State for such retrospective appointment/confirmation of the
respondent No. 6 on the post of correspondence clerk. Moreover, in the impugned order itself it has been mentioned that though the respondent
No. 6 belongs to a reserved category, he has been promoted on the post which was available for general category candidate which cannot be
legally done.
6. Learned counsel appearing for the respondent No. 6 has also placed reliance on the office order dated 23/24.12.1980 and contended that the
respondent No. 6 was admittedly senior to the petitioner. In view of the said order and in pursuance of direction passed by the Hon''ble High
Court, the claim of respondent No. 6 has been rightly adjudicated by the respondent-State and therefore, no interference is required in this matter
by this Court.
7. Learned counsel appearing for the respondent-State has also supported the impugned order and placed reliance on the office order passed on
23/24.12.1980.
8. It appears that the said Tarini Shankar Kabi was made In-charge Head Clerk however, subsequently, the petitioner was given the charge of the
said post by order dated 12.04.2001 and therefore, the said Tarini Shankar Kabi moved the High Court in C.W.J.C. No. 2234 of 2001. The writ
petition was disposed of with a direction to the respondents to fill up the post of Head Clerk on regular basis however, the Court declined to
interfere with order dated 12.04.2001. From the impugned order dated 19.07.2004, it appears that for being promoted on the post of Head Clerk
one is required to clear the Accounts examination and such promotion is granted on the basis of seniority-cum-eligibility. It is also stated in the
impugned order that an employee is required to clear the Accounts examination within two years and if an employee fails to clear the departmental
examination/Accounts examination within the prescribed period of two years, a person junior to him can be promoted, if he has cleared the
departmental examination/Accounts examination within the prescribed period of two years and therefore, in such a situation, seniority would be
overlooked. From the order passed by the High Court in W.P.(S) No. 5696 of 2002, which was preferred by the respondent No. 6 in the present
proceeding, it appears that an issue with respect to the legality of the appointment of the said Tarini Shankar Kabi was raised and a specific
direction was issued by the High Court to the Secretary, PHED, Government of Jharkhand, to decide the issue within a period of four months.
However, from the impugned order dated 19.07.2004, it appears that without deciding the issue of appointment of the said Tarini Shankar Kabi,
impugned order has been passed reverting the petitioner from the post of Head Clerk. In my opinion, the respondents could not have done so
particularly in view of orders passed in earlier writ proceedings in which this Court had expressed its displeasure on the adhoc arrangements made
by the department and that was the reason a direction was given for making regular appointment. The specific direction issued by this Court in
W.P.(S) No. 5696 of 2002 has not been complied with by the respondents and again, an order has been passed which is noting but an adhoc
arrangement only. Without deciding the legality of the appointment of the said Tarini Shankar Kabi and thus, without deciding whether he was
entitled for grant of promotion on the post of the Head-Clerk, the impugned order dated 19.07.2004 could not have been passed by the
respondents whereby the respondent No. 6 has been promoted on the post of Head-Clerk.
9. A perusal of the impugned order dated 19.07.2004 would clearly disclose that the respondent No. 6 has been promoted to the post which was
available for the general category candidate and at that time no post was available for the reserved category candidate. The respondent No. 6
belongs to a reserved category. Admittedly, the petitioner joined the service on 6.6.1973, that is. prior to the respondent No. 6, who joined the
service on 3.11.1973. Further, the petitioner has cleared the departmental examination in the year 1991 itself whereas, the respondent No. 6 has
cleared the departmental examination in the year 1997. It is thus clear that the respondent No. 6 failed to clear the departmental examination within
the prescribed period of two years. No reason whatsoever except that, the respondent No. 6 has been shown senior to the petitioner in order
dated 23/24.12.1980, has been disclosed by the respondent-State in the impugned order dated 19.07.2004. No reason has been disclosed,
except the above, why the respondent No. 6 was granted promotion on the post available for the general category candidate on which the
petitioner was promoted. In view of the aforesaid, I am of the opinion that petitioner was illegally reverted and denied the benefit of promotion and
respondent No. 6 was wrongly given promotion on a vacancy for the general category candidate, for which the petitioner is eligible. The writ
petition is allowed and the impugned order dated 19.07.2004 is quashed. It is further ordered that the direction as contained in order dated
15.09.2003 passed by this Court in W.P.(S) No. 5696 of 2002 should be carried out by the Respondent-State in its true letter and spirit.
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