BISHWANATH PRASAD PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner in this writ-application prays for issuance of an appropraiate writ in the nature of certiorari for quashing the order dated 21.4.1995 of the Commissioner, commercial Taxes, Bihar, Patna communicated vide letter No. 1090 dated 24.4.1995, as contained in Annexure 1 and for issuance of writ in the nature of writ of mandamus directing the respondents to place his name above Prabhakar Pd. Das (respondent No. 5) in the gradation list of Assistants and to promote him on the post of Section Officer with effect from 4.6.1995 and in consequence thereof to promote him also on the post of Registrar.

(2.) In short, the relevant facts are that in the year 1961 the Finance Department arranged a competitive examination for recruitment of Secretariat Assistants as per the Rules contained in the Secretariat Instructions, 1952 (hereinafter referred to as 'the Rules'). The petitioner and respondent No. 5 along with others appeared in the said examination. Out of the successful candidates the Finance Department allotted three candidates to the Finance (Commercial Taxes) Department vide memo No. 10401 dated 17.1.1965. The names and merit position of the said three candidates are as follows: 1. Shri Jyotendra Pd. - 496. 2. Shri Bishwanath Pandey (petitioner) - 503. 3. Shri Prabhakar Das (respondent No. 5) -504. 2. A photocopy of the said Memo is annexed is Annexure 5 to the writ petition. As per the said memo the candidates were required to join the respective departments by 30th November, 1965. The aforementioned three persons joined the Commercial Taxes Department well within time, Jyotendra Pd. joined on 26th November 1965, the petitioner joined on 30th November, 1965 and respondent No. 5 joined on 22nd November, 1965. The petitioner, as well as respondent No. 5 were confirmed in lower division on 18.11.1977 and both were promoted as Upper Division Assistants and got junior selection grade also on the same date, i.e. 3.10.1975 and 14.5.1983 respectively. Respondent Nc. 5, however, was promoted as Section Officer with effect from 4.6.1985 vide Annexure 6 and the case of the petitioner and the aforementioned Jyotendra Pd. were considered later. Jyotendra Pd. filed representation that he being higher in merit to the respondent No. 5, should be declared senior and given promotion on the post of Section Officer with effect from 4.6.1985 i.e. the date on which respondent No. 5 was given promotion. Respondents considered his case and promoted him also on the post of Section Officer with effect from 4.6.1985 vide office order No. 743 dated 31.1.1991. But the case of the petitioner was again left out. On 26th November, 1994 a notification was issued giving promotion to said Jyotendra Prasad and Prabhakar Pd. Das (respondent No. 5 ) in the rank of Registrar. A photocopy of the said notification is annexed as Annexure 8. It is significant to note here that in the said notification Jyotendra Prasad was placed above Prabhakar Pd. Das (respondent No. 5) obviously, according to their merit position at the time of initial recruitment. However, it appears that in the meantime, the petitioner was pursuing internal remedy for redressal of his grievance against his supersession in the rank of Section Officer and with respect to the same a decision was taken by the Commissioner, Commercial Taxes, Bihar in consultation with the Personnel and Administrative Reforms Department of the Government of Bihar to promote the petitioner by creating shadow post as Section Officer with effect from 4.6.1985, i.e. the date when his junior respondent No. 5 was promoted. However, when pursuant to the said decision no further action was taken in the matter and the petitioner was deprived of being considered for promotion as Registrar, he filed writ bearing C.W.J.C. No. 6076 of 1994 in this Court. The aforementioned decision of the commercial Taxes Department was annexed as Annexure 13. This Court having perused the said decision as well as having considered the fact that Sri Das, who had been found to be junior to the petitioner had already been promoted as Registrar, as also the fact that the petitioner was going to superannuate on 31st March, 1995, considered it expedient to dispose of the writ petition vide order dated 27.1.95 (Annexure 2) with the direction to respondents to forthwith consider the grievance of the petitioner in the light of the aforementioned decision taken by the Commissioner, Commercial Taxes, Bihar, Patna and grant him all consequential reliefs, for which he is entitled in law.

(3.) The petitioner filed representation along with copy of the said order of this Court before the competent authority for consideration of his grievance. However, when no action was taken by the concerned authority, he filed M.J.C, No. 735 of 1995 for initiating contempt proceeding against the respondents of the writ case. As in the meantime, the impugned order was passed on 21.4.1995 the said M.J.C. application was permitted to be withdrawn with an observation that the petitioner may file a writ-petition challenging the said decision of the authority, whereafter the present writ application was filed. It is alleged that instead of sanctioning shadow post for the period 4.6.1985 to 30.4.91 to regularise the promotion of the petitioner on the post of Section Officer, the respondent Nos. 1 to 4 and 6 re-examined the inter se seniority of the petitioner vis a vis respondent No. 5, which was also finally decided by the Commissioner. Commercial Taxes, Bihar, Patna, vide Annexure 3 to the earlier writ-petition, a photo copy whereof has been annexed as Annexure 4 to the present writ petition and passed the impugned order.