PREM NATH GARG Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the parties. Mr. S.K. Sharma, Secretary, Road Construction Department is also present.

(2.) THE petitioner has come to this Court inter alia submitting that number of the persons/juniors have been promoted on 17.7.2001 and despite to adverse entries or adverse remarks against the petitioner he has not been promoted nor his case has been considered. Placing reliance upon Annexure -1, the seniority list, the petitioner submits that the petitioner is placed at SI. No. 35, while number of the persons who are below 35 have already been promoted. Placing reliance upon Annexure -2 it is submitted that four juniors were given charge of the post of the Superintending Engineer and under Annexure -5 on 5.9.2002 the said four juniors have also been promoted regularly. The petitioner submits that the policy of the State Government is not to consider the cases for promotion if such an incumbent is under suspension or is facing a departmental enquiry after service of the charge -sheet or is an accused facing a trial in a criminal matter. Learned counsel for the petitioner submits that two show -cause notices were issued to the petitioner on 13.9.1997 and 29.3.1995, the replies to the same were filed on 13.12.1997 and 17.9.1995 and despite submission of the replies/showcause no further action was taken in the matters and till date no enquiry has been initiated or commenced against the petitioner. Placing reliance upon the judgment of the Supreme Court in the matter of Union of India & Ors. vs. K.V. Jankiraman & Ors., reported in A.I.R. 1991 SC 2010 and yet other judgments of the Supreme Court and this Court it is contended that cases for promotion are required to be considered in their true perspective. It is contended that even if the departmental proceedings are contemplated the same would be no ground to refuse promotion. in any case not to consider the case of the incumbent. It is also submitted that various allegations made by the respondents ever in their counter should have been substantiated by producing substantial materials and a bald and bold statement that the petitioner is facing certain charge in itself would not be sufficient. It is also submitted placing reliance upon the judgment of this Court reported in 2000(2) PLJR 703 that pendency of departmental enquiry should not provide any sufficient ground in favou of the Department not to give promotion to the petitioner. It is contended that as the petitioner is entitled to be considered and is also entitled to his promotion from the date when his juniors were promoted to the post of Superintending Engineer the respondents are obliged to consider the petitioner 'scase.

(3.) PLACING reliance upon Annexure -10 filed by the petitioner it is contended that undisputedly on 23.12.2000 when the meeting of the D.P.C. was held the petitioner was facing a charge and in fact a charge sheet was filed against him. For this submission learned counsel for the State relies upon a statement made in paragraph 2 of the said judgment wherein the learned Judge has observed that the case came before him on 27.4.1995.