Shatrughana Pathak vs State Of Jharkhand Through The ...
2022 Latest Caselaw 409 Jhar

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            IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P. (S) No. 5638 of 2010

         Shatrughana Pathak, son of Late Chakradhari Pathak, resident of
         Tangratoli, Piskamore, Ratu Road, Ranchi, P.O.-Hehal, P.S. Sukhdeonagar,
         District-Ranchi                      ...     ...     ...    Petitioner
                                  Versus
         1. State of Jharkhand through the Principal Secretary, Department of
            Personnel, Administrative Reforms and Rajbhasa Department,
            Government of Jharkhand, Project Building, H.E.C. P.O. and P.S.
            Dhurwa, District-Ranchi
         2. Principal Secretary, Department of Personnel, Administrative Reforms
            and Rajbhasa Department, Government of Jharkhand, Project Building,
            H.E.C. P.O. and P.S. Dhurwa, District-Ranchi
                                              ...     ...     Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Gaurav Abhishek, Advocate For the Respondents : Mrs. Vandana Singh, Advocate

Through Video Conferencing

14/11.02.2022

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 in 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 and others having been granted promotion and therefore the petitioner is claiming the same relief. Learned counsel for the petitioner submits that on the date of passing of the impugned order, the ACRs were available and there is no adverse remark against the petitioner. He submits that the petitioner cannot be made to suffer on account of delay and latches on the part of the respondents and he is entitled for promotion in view of the DPC which was held prior to his retirement. Learned counsel for the petitioner submits that the rules which have been filed along with the rejoinder has not been followed by the department. Arguments of the State

8. The learned counsel appearing on behalf of the respondent State on the other hand has opposed the prayer and has submitted that merely because the enquiry report indicated that the charge was not proved that is not sufficient and it is for the disciplinary authority to take a call on the same and pass an appropriate order and such order was passed only after the retirement of the petitioner. She also submits that the claim of promotion of the petitioner is not a time bond promotion and the screening committee has to exercise its powers by scrutiny of the entire records and the ACRs were not available on the date when the screening committee has taken a decision in the matter of promotion. She further submits that on the day the petitioner retired, the promotion was not granted to any of persons, rather it was granted on 03.08.2009 and the petitioner had retired on 31.07.2009 and the case of the other person namely Ganesh Prasad is on a different footing due to the reason that on 03.08.2009 he was still in service. She also submits that prior to grant of promotion to Ganesh Prasad, he was fully exonerated in the departmental proceeding and thereafter his case was considered. She has also submitted that

merely because sealed cover procedure was not followed, that is not sufficient for interference in the present case in view of the fact that the case of petitioner was not rejected, but was kept pending. The learned counsel also submits that even if the sealed cover procedure would have been followed, the petitioner could have been promoted only after his exoneration from the departmental proceeding and the petitioner was exonerated only after his retirement. The learned counsel also submits that the judgments relied upon by the petitioner do not apply to the facts and circumstances of this case. The learned counsel submits that the writ petition is fit to be dismissed. Rejoinder arguments of the Petitioner

9. The learned counsel for the petitioner in response submits that even if sealed cover, if any, upon following the sealed cover procedure would have been opened after the retirement of the petitioner only, still the date of entitlement for the promotion of the petitioner is to be considered from the date on which the meeting of the departmental promotion committee was held. He submits that only reason for refusal of promotion of the petitioner is that he has retired and the ACRs were not made available on the date of meeting of department promotion committee. Learned counsel for the petitioner has also referred to para-9 of his rejoinder.

10.Arguments concluded.

11.Post this case for Judgment on 18.02.2022.

(Anubha Rawat Choudhary, J.) Binit/