Deepak Roshan, J
1. The present writ application was filed by the petitioners, initially, with a prayer to promote them from the post of Assistant (Grade- Pay of Rs.
4600/-) to the post of Section Officer (Grade-Pay of Rs. 4800/-). Prayer was further amended to the effect that this promotion may be granted with
effect from the year 2015, on completion of 2 years of Kalawadhi on the post of Assistant, bearing Grade-Pay of Rs. 4600/-.
2. The promotion on completion of 2 years in the Grade-Pay of Rs. 4800/- was prayed in pursuance to the Government Resolution dated 04.04.2014
(Annexure-6 to the writ application) and provision contained therein at paragraph no. (ii) in the table at serial no.12 which prescribes a Kalawadhi of 2
years for promotion from the Grade-Pay of Rs. 4600/- to Grade-Pay of Rs.4800/-.
3. During pendency of the instant writ application, the respondents granted promotion to the petitioners vide notification dated 29.07.2022 (Annexure-4
to amended writ application). This order was challenged in an interlocutory application being I.A. No. 3757 of 2024 praying for amendment in prayer
portion and pleadings of the writ petition, seeking permission to challenge limited portion of Notification of promotion dated 29.07.2022 so as to make
the promotion effective from the year 2015, more specifically two years from the date on which the petitioners were appointed as Assistant in the
Grade-Pay of Rs. 4600/-. The aforesaid interlocutory application was disposed of vide order dated 25.04.2024, pursuant to which the amended writ
was filed and thereafter two counter-affidavits have been filed by the respondent-Department of Personnel, Administrative Reforms and Rajbhasha.
In pursuance to the above prayers, it is clear that the petitioners now are contesting for shift in the date of promotion from 29.07.2022 to the year
2015, i.e. 2 years after the date of appointment in the Grade-Pay of Rs. 4600/- on the post of Assistant.
4. The brief facts of the case as per the pleadings are that the petitioner nos. 1 to 3 were appointed on the post of Assistant in the Grade-Pay of Rs.
4600/- on 03.07.2013, 01.06.2013 and 31.05.2013 respectively. The appointment of the petitioners was done in pursuance to the Secretariat Service
Rules, 2010 by direct recruitment process on the post of Assistant. The selection process was conducted by Staff Selection Commission and
appointment notification was issued on the approval of the Department of Personnel, Administrative Reforms and Rajbhasa. The Department is the
Appointing Authority and Cadre Controlling Authority of the Secretariat Services.
Before the order of promotion, the respondents had taken a ground that the Kalawadhi provided in the Secretariat Services Rules, 2010 is applicable in
the case of the petitioners for promotion from the post of Assistant to the post of Section Officer. The prescribed Kalawadhi is 8 years under the
Rules. Therefore, on completion of 8 years only, their matter of promotion can be considered. It was in this light that the case of the petitioners was
considered in the year 2022.
5. Learned counsel for the petitioners draws attention of this Court to Jharkhand Secretariat Service Rules, 2010 and submits that this Rule is
applicable to the Assistant Grade employees of the Secretariat and its attached offices. Clause 2(a) of the Jharkhand Secretariat Service Rules, 2010
the English version of which has been produced in the counter-affidavit dated 16.07.2024 filed by the respondents at Annexure-C (page no.64) reads
as under:
“2(a)â€" “Appointing Authority†means the Principal Secretary/ Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government
of Jharkhand in respect of Assistant Grade and Section Officer and State Government for other posts as mentioned in Rule 3.â€
6. Learned counsel for the petitioners submits that the aforesaid Rules therefore makes it clear that the competent authority in the case of Secretariat
services is the Department of Personnel, Administrative Reforms and Rajbhasha. Further, at clause 2(e) of the Jharkhand Secretariat Service Rules,
2010 it has further been said that the Department of Personnel, Administrative Reforms and Rajbhasha is the Cadre Controlling Authority. The said
cause 2(e) is being re-produced herein below:
“2(e)- “Cadre Controlling Authority†in relation to any grade means the Department of Personnel, Administrative Reforms and Rajbhashaâ€.
7. He further submits that for the purpose of promotion from the post of Assistant to the post of Section Officer, it has been provided in clause 7(2) of
the Jharkhand Secretariat Service Rules, 2010 that 50% of regular posts shall be filled by way of promotion from the post of Assistant, who have
rendered not less than 8 years of approved service in the Assistant Grade. The provision as contained in clause 7(2) is being re-produced herein
below:
“50% of regular posts in the Section Officers’ Grade shall be filled by promotion on the basis of seniority-cum-fitness of Assistants who have rendered not
less than eight years of approved service in the Assistant Grade. Remaining 50% shall be filled up through Limited Departmental Competitive Examination
(LDCE) for Assistants who have completed three years of service in the Assistant Grade and having graduate qualification. …â€
8. He further submits that the petitioners were appointed in the year 2013. Thus, in pursuance to the above Rules, the petitioners were considered for
promotion in the year 2022 on 29.07.2022. The promotion was granted making it applicable with effect from the date of Notification. The petitioners
are aggrieved with this part of the order.
Their case is that they should be considered for promotion to be granted with effect from the year, 2015. He contended that the case of the petitioners
is based upon the applicability of another Government Resolution, issued from the same Department of Personnel, Administrative Reforms and
Rajbhasha, as contained in memo no. 398 dated 16.01.2012 (Annexure-2 to the writ petition), which was modified on 04.04.2014 (Annexure-6 to the
writ petition) and 24.10.2014 (Annexure-8 to the writ petition), in continuation of the earlier Resolution. The Resolution establishes the norms of
common Kalawadhi for all the Departments functional in the Government of Jharkhand, on the basis of common Grade-Pay structure that was
introduced in the 6th PRC, which is in lines of Central Government Service Condition.
9. He further submits that the case of the petitioners is that the Resolutions dated 16.01.2012, 04.04.2014 and 24.10.2014 have superseded the
Secretariat Service Rules, 2010 as far as the calculation of requisite Kalawadhi is concerned. Therefore, in the matter of calculation of the required
time period of eligibility on one Grade-Pay against a post for promotion to another Grade-Pay against corresponding post in hierarchy, the Resolutions
of the year 2012 and 2014 have superseded the Secretariat Service Rules, 2010.
10. He further submits that the recruitment and promotion and other service conditions though have to be governed by the Secretariat Service Rules,
2010, the matter of requisite Kalawadhi will be governed by the Resolutions of the year 2012 and 2014.
11. The fact that the Resolution of the year 2014 has been made applicable in the case of other employees of the Secretariat services (same
Department) is also clear from perusal of Annexure-9 and Annexure-9/1 to the writ application. In Annexure-9, inasmuch as, a set of employees of
the Secretariat Services were promoted from the post of Assistant (Grade-Pay of Rs. 4600/-) to the post of Section Officer (GP -Rs. 4800/-).
12. Learned counsel for the petitioners next contented that the Resolution dated 04.04.2014 at Annexure-6, (i) clearly provides that the candidates and
employees who possess the requisite qualification and Kalawadhi, will have to be promoted immediately, in case vacancies are available. The
provisions further clarifies that the process of promotion will have to take place twice a year. The Resolution dated 04.04.2014 is published by the
Department of Personnel, Administrative Reforms and Rajbhasha which as stated earlier is the Cadre Controlling Authority of Secretariat Services.
The Rules of 2010 provides that the Department is the Appointing Authority of the employees of the Assistant Grade and other posts in the
Secretariat Services.
Further, the Resolution dated 04.04.2014 bears direct reference to all the Departmental Head to undertake the process of promotion against the
vacant post, forthwith and to perform the same at least twice a year.
13. Learned Counsel further submits that the Resolution dated 04.04.2014 mandates promotion to happen at least twice a year, on availability of
vacancies. It is thus clear that it is the Department of Personnel, Administrative Reforms and Rajbhasha that is issuing such directives to be made
applicable to all the Departments, then this Department itself cannot remain aloof from the applicability of the provisions mandated by itself for all
Departments. In view of the above, considering that there was vacancy and there was a mandate vide Resolution dated 04.04.2014 of the Department
to consider the promotions against the available vacancies at least twice a year, it would be apposite to say that the case of the petitioners should have
been considered in the year 2015-16, for promotion as per the Kalawadhi provided in the same Resolution, from the Grade-Pay of Rs. 4600/- to
Grade-Pay of Rs. 4800/-, i.e. on completion of 2 years. The case of the petitioners should be considered in light of the Resolution dated 04.04.2014
which has been promulgated by the Cadre Controlling Authority.
14. Learned counsel for the petitioners prays that the date of promotion of the petitioners should be affected from 2015-16, from the post of Assistant
(Grade-Pay of Rs. 4600/-) to the post of Section Officer (Grade -Pay of Rs. 4800/-), instead of the present date of promotion notification dated
29.07.2022. Further all consequential benefits, including seniority, though excluding arrears of salary may also be directed to be granted.
15. Learned counsel for the respondents referring to paragraph nos. 11 and 12 of the counter-affidavit dated 18.07.2024 submits that so far as the
petitioners’ claim in respect of applicability or Departmental Memo No. 3286 dated 04.04.2014 in course of granting promotion is concerned; the
said grievance of the petitioners’ cadre was considered by the respondents at earlier point of time also.
It was found that in terms of provisions contained under (amended) Rule 7(2) of the Jharkhand Secretariat Service Rules 2010, 50% of regular
vacancies in the Section Officers Grade is filled by promotion on the basis of seniority-cum-fitness of Assistant Grade who have rendered not less
than 8 years of approved service in the Assistant Grade. Remaining 50% vacancies are required to be filled up through Limited Departmental
Competitive Examination, for Assistants who have completed 3 years of service in the Assistant Grade and having graduate qualification; provided
that Upper Division Clerk’s having graduate qualification and at least 7 years of approved service in the respective Grades, may also be allowed
to appear in such limited examination, as a one-time measure to be availed of in the first Limited Departmental Competitive Examination only.
Learned counsel for the respondents further submits that the relaxation claimed by the petitioners in the light of the departmental Memo No. 3286
dated 04.04.2014 is not acceptable in their case. Moreover, in the present set of facts, since the petitioners have already received promotion as
Section Officer, their primary grievance is fulfilled and thus the present writ petition has become infructuous.
16. Having heard learned counsel of the parties and after going through the respective affidavits it appears that the petitioners were appointed on the
post of Assistant, in the Secretariat Services on the basis of the Competitive Examination conducted by the Staff Selection Commission (SSC), and
they were appointed on 03 July 2013, 01 June 2013, 31 May 2013 for the Petitioners No. 1, 2 and 3, respectively. The Petitioners are working in the
Grade pay of Rs. 4600/-, as Assistant, and therefore they had to complete requisite Kalawadhi for the purpose of attaining eligibility for promotion to
the post of Section Officer which bears Grade Pay of Rs. 4800/-.
It is also evident that the petitioners are employees of Secretariat Services, and therefore their Nodal department is Department of Personnel
Administrative Rules and Rajbhasa Department, and their service conditions, including the promotional ventures, are governed and regularized by the
Rules and Resolutions framed by the Department of Personnel. The Department of Personnel has framed Secretariat Services Rules in the year 2010,
whereby the process of promotion from the post of Assistant to the post of Section Officer has been dealt with at Rule 7(2). In this the minimum
period of Service to be rendered on the post of Assistant to become eligible for consideration of promotion to the post of Section Officer has been
provided and published as period of 8 years. Thereafter the Department of Personnel, through the Government of Jharkhand has come up with
resolution dated 16.01.2012, and modified resolution dated 12.05.2014, whereby the tenure/Kalawadhi for the purpose of eligibility for promotion, has
been prescribed.
17. It further appears from record that the case of the petitioners is based upon the applicability of another Government Resolution, issued from the
same Department of Personnel, Administrative Reforms and Rajbhasha, as contained in memo no. 398 dated 16.01.2012 (Annexure-2 to the writ
petition). This was further clarified with certain modifications and the subsequent Resolution in the same line was passed on 04.04.2014 (Annexure-6
to the writ petition) and 24.10.2014 (Annexure-8 to the writ petition), in continuation of the earlier Resolution.
The Resolution establishes the norms of common Kalawadhi for all the Departments functional in the Government of Jharkhand, on the basis of
common Grade-Pay structure that was introduced in the 6th PRC, which is in lines of Central Government Service Condition. It is recorded in the
Resolution dated 16.01.2012 that the Central Service Conditions have been adopted by the State Government and therefore in the lines of the Central
Government, the prescribed Kalawadhi for promotion from one Grade-Pay to another was mandated. This Kalawadhi has to be counted in respect of
an employee, who bears the Grade-Pay against the occupancy of a post.
In the present case, the petitioners enjoy Grade-Pay of Rs. 4600/- against the occupancy of the post of Assistant.
Thus, the moot question which has to be decided in this case is, whether the Resolution dated 16.01.2012 and its successive modification vide Resolution dated
04.04.2014 as also 24.10.2014 is applicable in the Secretariat Services Rules?
18. It is evident from perusal of records annexed with the respective affidavits that a resolution came in the year 2012 i.e. on 16.01.2012, wherein it
was stipulated that for promotion from the post of Assistant (Grade Pay Rs.4,600/-) to the post of Section Officer (Grade Pay Rs.4,800/-), will apply
to those candidates who will have two years of experience and prior to January, 2012 (aforesaid resolution), the respondents were acting as per their
Cadre Rules where there was a rule of eight years requisite Kalawadhi. However, in the resolution of 2012 itself, it has been categorically stated that
all earlier rules will not be effective from coming of this resolution, thereafter on 04.04.2014, a fresh resolution came giving further details.
It further appears that that the Resolution of the year 2014 has been made applicable in the case of other employees of the Secretariat Services (same
Department) which is clear from perusal of Annexure-9 and Annexure-9/1 to the writ application. In Annexure-9, a set of employees of the
Secretariat Services were promoted from the post of Assistant (Grade-Pay of Rs. 4600/-) to the post of Section Officer (GP -Rs. 4800/-).
Though the stand of the respondents in this regard is that these are appointees of 1995 batch and they were promoted for the first time after
completion 17 years as such the petitioners cannot claim parity; however, this Court is not in agreement with the contention of respondents as the
question which arises here is that, whether in the same Department, another set of employees governed by the same Secretariat Service Rules, 2010
are getting the benefit of applicability of Resolution, dated 04.04.2014 or not? If answer to this question is yes, then potentially, the respondents cannot
deny that the Department has made the provisions of Resolution dated 04.04.2014 applicable in the case of employees governed by the same
Recruitment Rules, working under the same controlling Authority.
19. Taking an example of such application of the new Resolutions it appears that one Ranjeet Ranjan Prasad at serial no 4 from Annexure-9 to the
writ application was promoted to Grade-Pay of Rs. 4800/- on 01.11.2012. Further at Annexure-9/1 at page no. 175 to the writ application, the same
person gets promotion to Grade-Pay of Rs. 6600/-, on 31.12.2015. Thus, within 3 years he has been promoted from Grade-Pay of Rs. 4800/- to
Grade-Pay of Rs. 6600/-, which is possible on application of the relaxation clause available in Resolution dated 24.10.2024 (Annexure-8 to the writ
application).
As such, from the above discussion it cannot be denied that the resolution dated 04.04.2014 is very well applicable in the Secretariat Services Rules,
though for another set of employees and not for the petitioners. Since Resolution dated 16.01.2012 and its successive modification vide Resolution
dated 04.04.2014 as also 24.10.2014 has been found to have been made applicable by the Department, it would be considered as an admissible
circular to the Department and the petitioners cannot be alienated from enjoying its effect, particularly in due time.
20. It further appears that Resolution dated 04.04.2014 at Annexure-6, (i) clearly provides that the candidates and employees who possess the
requisite qualification and Kalawadhi, will have to be promoted immediately, in case vacancies are available. The provisions further stipulates that the
process of promotion will have to take place twice a year. The Resolution dated 04.04.2014 bears direct reference to all the Departmental Head to
undertake the process of promotion against the vacant post, forthwith and to perform the same at least twice a year. For ready reference the provision
is being produced herein below:-
“(i) /
Â
â€
English Translation:
“(i)The vacant posts of the State Services / Cadres, under the Administrative control of different Departments shall be filled forthwith, with promotion of the
eligible candidates/employees. For this the Departmental Promotion Committee meeting shall at least be held twice a year.â€
21. There is no dispute to the fact that the vacancies have remained on the post of Section Officer since 2015-16, as per the statement made at
paragraph no.18 of the writ petition and Annexure-7, annexed to substantiate such statement of availability of vacancies. This has not been
controverted by the respondents. The Resolution dated 04.04.2014 mandates promotion to happen at least twice a year, on availability of vacancies. It
is further clear that it is the Department of Personnel, Administrative Reforms and Rajbhasha that is issuing such directives to be made applicable to
all the Departments, then this Department itself cannot remain aloof from the applicability of the provisions mandated by itself for all Departments.
Further, the fact that the Resolution mandates that promotion should be carried out at least twice a year, has not been followed. The respondents have
attributed the cause of delay to the non-applicability of Resolution dated 04.04.2014 in their Department. This is a strange situation when a
Department passes a Resolution to be made applicable in all other Departments, then how it can itself remain aloof from its applicability. On the
contrary, in case of another set of employees of the same Department, provisions from the same Resolution were found applicable.
As such, petitioners should not suffer for this dual standard adopted by the respondents.
Further, the Department of Personnel, Administrative Reforms and Rajbhasha is the author of Resolution dated 04.04.2014, which is also the Cadre
Controlling Authority of the Secretariat Services (Petitioners’ Department), then surely the provision has to be made applicable for the petitioners.
22. Hence, this Court is having no hesitation in holding the applicability of the provisions of the Resolution dated 04.04.2014 on petitioners. Now
reading into the Resolution, once it is mandated that DPC should have been held on vacancies being available, and the petitioners were eligible coupled
with the fact of availability of vacancies, the right of consideration for promotion gets created against that relevant year, on occasion of vacancy, and
the respondents are responsible for not holding DPC in the relevant year, despite of availability of vacancy.
23. Having regard to the aforesaid discussion, it is held that the date of promotion of the petitioners should be affected from 2015-16, from the post of
Assistant (Grade-Pay of Rs. 4600/-) to the post of Section Officer (Grade-Pay of Rs. 4800/-), instead of the present date of promotion notification
dated 29.07.2022. To that extent, corrigendum is directed to be published, shifting the date of promotion from 29.07.2022 to the year 2015-16, subject
to availability of the vacancies on the prescribed date, in the year 2015-16 and on completion of 2 years of service, in the Grade-Pay of Rs. 4600/-.
Further, all consequential benefits, including seniority, though excluding arrears of salary, also be directed to be granted.
24. As a result, this writ application is allowed in the manner indicated hereinabove.
