Rajani Kant Ojha vs The State Of Bihar
2023 Latest Caselaw 2345 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.12307 of 2022
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Rajani Kant Ojha, Son of Late Laxman Ojha, Resident of Village and P.O. - Chhota Singhanpura, Police Station - Simri, District- Buxar at present posted as Block Welfare Officer, Arwal, and Deputed in the office of Deputy Director SC and ST Welfare Department, Patna. ... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Department of SC and ST Welfare, Government of Bihar, Patna.

2. The Secretary SC and ST, Department of Welfare, Govt. of Bihar, Patna.

3. The Joint Secretary, Scheduled Caste and Scheduled Tribe Welfare Department, Govt. of Bihar, Patna.

4. The Director SC and ST Welfare, Department, Govt. of Bihar, Patna.

5. The District Magistrate, Shivhar, Bihar.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Bipin Bihari Singh, Advocate Mr. Uday Shankar Pandey, Advocate For the Respondent/s : Mr. Md. Raisul Haque, SC-10 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 12-05-2023

Heard learned counsel for the petitioner and learned

counsel for the State.

2. Petitioner in the present case is seeking the following

reliefs:-

"(i) For issuance of writ of certiorari and thereby to set aside the transfer and posting order issued vide memo No. 1873 dated 28.06.2022 by the Respondent No. 03 i.e. the Joint Secretary, schedule case and schedule tribe welfare Department, Govt. of Bihar, whereby and whereunder the petitioner's service have been transferred from the post of In-Charge District Welfare Officer, Shivhar to the post of Block Welfare Officer, Arwal, with deputation in the office of Deputy Director, Welfare, Patna.

Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

(ii) For issuance of writ(s), order(s) or direction

(s) commanding the Respondents to grant and post the petitioner on the due post of deputy director Welfare whereon his junior colleagues have been posted.

(iii) And further issue a direction to the Respondents to pay all consequential benefits and reliefs as your Lordships may deem fit and proper."

Brief facts of the Case

3. It is the case of the petitioner that he was appointed in

the year 1989 on the post of Block Welfare Officer under Welfare

Department, Government of Bihar. As per Service Rules of Block

Welfare Cadre, the hierarchy in ascending order are Block Welfare

Officer - Sub-Divisional Welfare Officer - District Welfare

Officer - Deputy Director Welfare Officer.

4. It is the case of the petitioner that after serving at

several places, he was lastly transferred and posted as In-Charge,

District Welfare Officer, Khagaria from where he was posted as In-

charge, District Welfare officer, Sheohar vide Annexure '1' to the

writ application.

5. It is stated that at Sheohar, he was served with a show

cause notice and after his reply, the Disciplinary Authority

imposed a punishment of Censure upon the petitioner. The case of

the petitioner is that when he filed a protest petition before the

Respondent No. 4 i.e. Director, SC and ST, Welfare Department, in

retaliation, the Department has come out with transfer and posting Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

order issued vide Memo No. 1873 dated 28.06.2021 which is

Annexure '8' to the writ application. By this order, the petitioner

has been transferred to the Basic Grade Post of Block

Development Officer, District Arwal with a further direction that

the petitioner service is deputed at the office of Deputy Director

Welfare at Patna.

6. It is further case of the petitioner that the petitioner

has rendered continuous service of more than 30 years but has

neither been granted any regular promotion nor has been given

benefits of Assured Career Progression/Modified Assured Career

Progression (in short 'ACP/MACP') for the reason best known to

the Department. The contention is that without granting regular

promotion, the Department is adopting pick and choose method in

the matter of posting of officers in the Block Welfare Cadre to the

post of In-Charge, District Welfare Officer and even on the post of

Deputy Director, Welfare.

7. It is alleged that the persons junior to the petitioner

have been posted as In-Charge, District Welfare Officer or the

Deputy Director, Welfare. In this regard, the petitioner has raised

his grievance for which he has been saddled with this order of

transfer on a lower post.

Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

Stand of the State

8. A counter affidavit has been filed on behalf of the

Respondent Nos. 1 to 4. It is stated that in the interest of

government work and administrative exigencies, the petitioner has

been transferred from Sheohar district where he was holding the

post of In-Charge, District Welfare Officer to the office of Block

Welfare Office, Arwal with deputation in the office of Deputy

Director, Welfare, Patna. It is admitted that while posted as In-

charge, District Welfare Officer, Sheohar, he would be entitled for

only the admissible pay scale as applicable to the transferred

officers but the petitioner cannot claim pay scale of regular

promotional post. It is admitted that the petitioner on date

substantively continues to the Block Welfare Officer only and no

promotion whatsoever has been granted to him.

9. A supplementary counter affidavit has also been filed

on behalf of the Respondent Nos. 1 to 4.

10. Learned counsel for the State is unable to controvert

that there is no specific denial of the averments made in

Paragraphs '15', '16', '17', '18' and '19' of the writ application. In

these paragraphs, the petitioner has alleged that because of the

protest made by him, he has been transferred and further that

without granting regular promotion, the Department is doing Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

posting of the Block Welfare Cadre officers on pick and choose

basis.

11. Learned counsel is unable to demonstrate from the

records that there is any denial of the statement that the persons

junior to the petitioner have been posted as In-Charge, District

Welfare Officer or the Deputy Director, Welfare.

12. Learned counsel for the State has submitted that the

petitioner has been posted as Block Welfare Officer at Arwal

where the District Welfare Officer, Arwal is senior to him in the

departmental provisional seniority list as contained in Annexures

'I' and 'J' of the supplementary counter affidavit.

Consideration

13. Having heard learned counsel for the petitioner and

learned counsel for the State as also on the analysis of the

pleadings on the record, this Court finds that there is no denial of

the statement of the petitioner that the Department is engaged in

posting of the officers in the Block Welfare Officer Cadre on pick

and choose basis. Instead of granting regular promotion to the

eligible officers from the cadre, the Department is making some of

them as In-Charge and in the process, the persons junior to the

petitioner have been made In-charge of the post of Deputy

Director.

Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

14. In such circumstance, this Court is of the considered

opinion that the posting of the petitioner from the post of District

Welfare Officer where he was discharging his duty as In-Charge,

District Welfare Officer to the Block level Welfare Officer is

malafide, it amounts to lowering down the petitioner from

enjoying a status where he was discharging duty of a higher post,

this has to be seen in the background of the fact that the juniors to

him have been made In-Charge of the District Welfare Officer

post. It is not the case of the respondent that the petitioner is not

eligible to be considered for the promotional post.

15. Mr. Bipin Bihari Singh, learned counsel for the

petitioner submits that in the Cadre Rules known as Bihar

Scheduled Caste and Scheduled Tribe Welfare Officer Cadre

Rules, 2010 (herienafter referred to as "the Cadre Rules, 2010"),

there are promotional avenues available to the petitioner but the

Department is not considering the case of the petitioner and others

for promotion and people are being made to retire even after

service of 30 years without granting any promotion to the higher

post. The Department is denying even the benefit of the Assured

Career Progression on flimsy ground that the petitioner has not

passed departmental examination.

Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

16. Relying upon the Hon'ble Division Bench judgment

of this Court in the case of The State of Bihar and Ors. Vs. Sri

Ram Subhag Singh (LPA No. 4 of 2021), learned counsel

submits that in the said case, this Court has after going through the

judgment of the Hon'ble Apex Court in SLP (Civil) No. 782 of

2022 held that the writ petitioner was entitled for consideration for

grant of due benefit under the ACP and MACP scheme without

passing the departmental examination.

17. In the aforesaid view of the matter, this Court sets

aside the impugned order as contained in Letter No. 1873 dated

28.06.2022 in so far as it relates to the petitioner and directs the

respondents to immediately reinstate the petitioner in the same

position from where he was brought to Arwal.

18. The respondents are also directed to initiate the

process of promotion as per the Cadre Rules, 2010 and in case, the

petitioner is found entitled for promotion, the same be allowed to

him within a period of three months from the date of

receipt/production of a copy of this order.

19. In case, there is no promotional avenue available to

the petitioner, his case for grant of ACP/MACP shall be considered

keeping in view the judgment of the Hon'ble Division Bench in Patna High Court CWJC No.12307 of 2022 dt.12-05-2023

the case of Sri Ram Subhag Singh (Supra) within the same

period and consequential order shall be issued accordingly.

20. This writ application is allowed.

(Rajeev Ranjan Prasad, J) lekhi/-

AFR/NAFR
CAV DATE
Uploading Date          13.05.2023
Transmission Date