TRILOKI NATH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Since the filing of the M J. C. for initiating contempt proceeding subsequently converted into a writ petition, the controversies raised are now limited to only one question. Are the two petitioners both Deputy Commissioners of Commercial Taxes promoted as Joint Commissioners vide notification dated 9-1-91 with effect from the date of notification (Annexure 4) are entitled to such promotion with effect from 12.4-88 and issue of appropriate writ, order or direction to the respondents for the same.

(2.) The case has a chequered history Both the petitioners belonged to the Bihar Finance Service While being posted as the Deputy Commissioners of Commercial Taxes both become entitled to promotion to the rank of Joint Commissioner of Commercial Taxes some time in the year 1988 by virtue of their seniority and clean service record Under the relevant Rules there was reservation in promotion for the members belonging to the Scheduled Castes and Scheduled Tribes to the extent of 14% and 10% respectively. However, with a view to deny the benefit of promotion to the petitioners, the State Government promoted officers belonging to the Scheduled castes and Scheduled Tribes in excess of the quota reserved for them. The petitioners case is that both of them had been found fit for promotion as Joint Commissioner of Commercial Taxes with effect from 12-4-88 by the Departmental promotion Committee and they had been denied their due in the matter of promotion on account of the State promoting 7 officers belonging to Scheduled Castes and Scheduled Tribes as Joint Commissioners of Commercial Taxes in excess of the quota reserved for them. The petitioners along with others filed Service Case No. 261 of 1988 before the Bihar Administrative Tribunal for their promotion to the rank of Joint Commissioner of Commercial Taxes. Respondents 1 and 2 admitted before the Tribunal in the show case filed by them that members of the Schedule Castes and Scheduled Tribes were promoted in exce-s of the quota permissible under the law. When the Tribunal became defunct with the retirement of its Chairman, the two petitioners filed C W. J. C. No. 3183 of 1900 The respondents 1 and 2 in their counter affidavit before this Court accepted the grievances of the petitioners as just and legal. It was suggested that some shadow posts of Joint Commissioner of Commercial Taxes could be created to facilitate the promotion of the petitioners. By order dated 19-9-90 (Annexure-1) passed in the aforesaid writ petition the respondent-State was directed to create requisite number of posts of Joint Commissioner of Commercial Taxes and to consider the cases of the petitioners on or before 15th November 1990. Subsequently on the prayer of the respondent-State the Court by its order dated 10-12-90 (Annexure-1/1) was pleased to extend the period up to 26th December 1990.

(3.) The petitioners in their supplementary affidavit narrated the events that took place subsequent to the expiry of the dead line i e 26th December 1990 fixed by the Court in C. W. J. C. No 3183 of 1990 for implementation Of its direction. Three notifications all dated 9-1-91 were issued by the Commercial Taxes Commissioner and copies thereof are Annexures 2, 3 and 4 Five officers belonging to the S. C./S. T. who had been promoted as Joint Commissioners by notification dated 12-4-88 (Annexure-2) were demoted with effect from the date of their promotion. By Annexure-3 five officers belonging to the general category were prompted as Joint Commissioners of Commercial Taxes against the five vacancies created by the demotion of five officers of S C /S. T from the rank of Joint Commissioner, Commercial Taxes vide Annexure-2. The five officers by Annexure-3 were promoted with retrospective effect with the stipulation that they would not be entitled for arrears of pay although the benefit of fixation of pay would be given with effect from the date of promotion. By the 3rd notification (Annexure-4) seven officers of the rank of Deputy Commissioner. Commercial Taxes including the two petitioners as also two of the officers who had been demoted from the post of Joint Commissioner, Commercial Taxes by Annexure-2 were given ad hoc promotion for six months with effect from the date of notification. Both the petitioners have retired in 1991, petitioner No. 1 by the end of May 1991 and petitioner No 2 by the end of January 1991. Their claim is that the respondent-State by not giving them the benefit of promotion with retrospective effect /. e. with effect from the due date some time in the year 1988 when they were found fit for such promotion by the Department promotion Committee had acted in a mala fide manner only to deprive them of their retirement benefits. The petitioners stand is that requisite number of vacancies were available to enable the respondent-State to promote them as Joint Commissioner of Commercial Taxes with effect from due date in the year 1988 when they were found fit for such promotion.