NAGESHWAR THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN C.W.J.C. No. 9765 of 2003 the petitioners contended that they were officiating on the post of Sub -Divisional Horticulture Officer with effect from 5 May, 1993 and were given regular promotion to the said post with effect from 30 June, 1997. It was also contended that some seniors to the petitioners were also discharging official duties but when they were given regular promotion on 30 June, 1997 such promotion to those seniors was given effect to from 31 December, 1990. It was therefore, submitted by them in C.W.J.C. No. 9765 of 2003 that while in the vacancies then available seniors were accommodated, they should also be accommodated in the vacancies with effect from the date such vacancies were created and they were asked to discharge duties. The State Government represented to the Court that the matter be decided by the Director, Agriculture and accordingly, this Court by its order dated 16 September, 2003 disposed of C.W.J.C. No. 9765 of 2003 with a direction upon the Director to pass orders into the entitlement of the petitioners with a further direction that if on 5 February, 1993 the petitioners were entitled to promotion and a vacancy was available in the cadre then appropriate order shall be passed. In terms of the said order of this Court, the Director has passed an order but has not at all dealt with the matter in any sense whatsoever. As a result, petitioners have once again approached this Court challenging the order of the Director. As the Director has tried his best to conceal the real issue, so the deponent of the counter affidavit has tried not only to conceal the material facts with a view to mislead this Court, but has also made deliberate untrue statements on sworn affidavit.

(2.) IT is the categorical contention in the counter affidavit that in 1997 vacancies occurred. If vacancies occurred in 1997 how such vacancies could be supplied in 1990 has not been explained. At the same time, it has not been disputed that by Annexure -7 to the writ petition, with effect from 1990 seniors to the petitioners were given promotion. In the counter affidavit at the same time, it has been admitted that the vacancies were available from 5 May, 1993 i.e. the date when the petitioners were asked to discharge officiating duties, inasmuch as in paragraph -6 of counter affidavit, it has been stated that the petitioners were assigned on ad hoc basis the work of Sub -Divisional Horticulture Officer against the post of retired persons. There is, therefore, no dispute that the petitioners were asked to discharge their duties on the higher post, when vacancies in the higher post were available. It is possible that such vacancies were treated as vacancies of 1997 and not of 1993. If that be so, how seniors to the petitioners could be given promotion with effect from 1990 has not been explained at all, except by saying that some of the people were going to retire before 1997. If the vacancy is not available before the person concerned is to retire, what special equity can be applied to grant him such a promotion has not been attempted to be explained. From the counter affidavit it emerges that the Director and other senior officers of the Department have decided to give promotion to the persons without following a yardstick and on the basis of their own personal whims. As a result the alleged 1997 vacancies have been filled in by persons who have retired in 1995. This is a mere explanation aimed at shielding the truth. It was unjust on the part of the Respondents to contend in one breath that the petitioners were asked to discharge the duties of the posts held by retired persons and at the same time, to contend that the vacancies cropped up in 1997. This statement is a deliberate untruth and was used for the purpose of denying the petitioners of their entitlement.

(3.) THIS is a fit case, I think, where step under section 340 of the Criminal Procedure Code is required to be taken but since that will only increase the number of litigations I have refrained myself from initiating such step.