TITAL SINGH Vs. RAM BALAK SINGH AND ANOTHER

JUDGEMENT

(1.) This application by Nawal Kishore Singh under Articles 226 and 227 of the Constitution of India is directed against the order dated 12.1.1976 (Annexure 6) passed by the Deputy Secretary, Community Development and Planning (Rural), Government of Bihar, (respondent no. 2) promoting Balmiki Sharma (respondent no. 5) to the post of accountant in the office of the District Superintendent of Education, Gaya, and also against the order dated 15.1.1976 (Annexure 7) passed by the Administrator, District Board, Gaya, (respondent no. 3) communicating the above order of promotion contained in Annexure 6 to the persons concerned. In order to appreciate the point involved in this application it will be necessary to state some material facts contained in the petition as well as in the various counter affidavits and the supplementary affidavits filed on behalf of the respondents and the petitioner, respectively.

(2.) In the main application the petitioner has stated that he is an employee of the District Board, Gaya, and has been provisionally transferred and posted to the office of the District Superintendent of Education, Nawadah. He was appointed initially as a Hindi typist in the service of the District Board, Gaya, by its Chairman under his order dated 10.9.1949. He was confirmed on 18.2.1950. According to him, his services were quite satisfactory and, therefore, he was promoted to the higher rank of Upper Division on 5.7.1958. In the gradation list (Annexure 1), which was prepared and circulated on 18.8.1972, his name finds place at serial no. 5 as upper division assistant, whereas the name of respondent no. 5 finds place at serial no. 11 in the lower division assistants. It would also show that respondent no. 5 was working as an officiating upper division assistant from 16.6.1969. Therefore, according to the petitioner, he was much senior in length of service to respondent no. 5, that is, senior to him by 11 years in upper division. On 24.10.1973 both the petitioner and respondent no. 5 passed the local body's accountantship examination (rural). The employees of the District Board are posted either in the Board Office or in the office of the District Engineer, or the office of the District Superintendent of Education or in those of different local boards, as stated by the petitioner in paragraph 8 of the petition. In other part of his application he further stated that for the purpose of promotion the employees of a particular grade saving in any of the aforesaid offices are considered together. The petitioner has been working as cashier in the grade of upper division in the office of the Superintendent of Education, Gaya. Subsequently, he was deputed to the newly created office of the Superintendent of Education, Nawadah, by a provisional transfer by the order dated 4.8.1974 (Annexure 2). The Bihar Cabinet took a decision on 30.1.1971 to take the services of the assistants and the 4th grade employees of the District Board from the District Board to Government, who were attached with the office of the District Superintendent of Education. A copy of the said resolution contained in memo no. 7 -56 -0497 (73 -67) (Sa) Patna the 9th November, 1973, has been annexed with the petition as Annexure '3'.

(3.) That the case of the petitioner further is that in pursuance of the notification (Annexure 3), the District Superintendent of Education, Gaya, (respondent no. 4) under his letter dated 22.2.1974 (Annexure 4) asked the District Board employees of his office to give their option within three days of the receipt of the letter to remain in the District Board service or to go in Government service. The petitioner opted for the Government service and gave his consent on 13.3.1974, within three days of the receipt of Annexure 4. In paragraph 15 of his application the petitioner stated that despite the aforesaid development the District Board authorities did not clarify the status of the petitioner, who continued to suffer wherever there arose any occasion for promotion to higher post. In other part of his application he stated that wherever there arose any vacancy in the office outside that of the Superintendent of Education, the petitioner's case was not considered on the ground that he was posted in the office of Superintendent and that he had opted for Government service. But when any vacancy occurred in the office of the Superintendent of Education, the petitioner was bypassed, though he deserved promotion in view of his established seniority. In February, 1975, there arose a vacancy of assistant accountant in the office of the District Engineer, on which respondent no. 5 was promoted by order dated 24.2.1975 (Annexure 5), ignoring the claim of the petitioner, on the ground that he was in the office of the District Superintendent and that he had opted for Government service. Subsequently, there arose a vacancy in the office of the Superintendent of Education for the post of accountant. Although, the petitioner is the senior -most upper division assistant, having passed accountantship examination, in the office of the District Superintendent of Education, Gaya, he was not considered for promotion by the impugned order contained under Annexure 6, and respondent no. 5 was promoted by that order. This was communicated to respondent no. 5 by the impugned order contained in Annexure 7. The petitioner has submitted in his application that respondent no. 5 had been given unmerited and illegal promotion arbitrarily, by ignoring the claim of the petitioner. The petitioner pointed out that Sri M. Barno, District Engineer, had written to the Administrator pointing out serious acts of omission and commission of respondent no. 5 while acting as a cashier in the office of the District Engineer. He had complained of serious allegations of insubordinations and lapses in financial matter. In December, 1975, there had been a direction by the Government to initiate disciplinary action against respondent no. 5 under letter no. 3833 dated 3.12.1975. In spite of that, respondent no. 5 had been promoted. The petitioner submitted that he held a satisfactory record of service extending over 26 years and he was censured only once during the said long period. In the application, the petitioner has, therefore, prayed for quashing of Annexures 6 and 7 and for direction to respondents 1 to 4 to consider the case of the petitioner for promotion in accordance with law. It may be mentioned that respondent no. 1 is the State of Bihar.