SURYA NATH PANDEY Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The order impugned herein is at Annexure 12 dated 10th May, 2001 bearing Memo No. 355 issued by the Superintending Engineer, Public Health and Engineering Department, Urban Circle, Ranchi to the effect that the petitioner has been granted promotion/appointment in Class III post by order dated 9.12.1994 bearing memo No. 963, Annexure 6. The claim of the petitioner that he should be promoted w.e.f. 1978-79 is not entertainable. The petitioner had approached the Patna High Court in three successive writ petitions; firstly in CWJC No. 1431/1991, which was disposed of by an order dated 19.5.1994 after recording the submissions of the petitioner in respect of his grievances that certain persons named therein had been promoted earlier while the claim of the petitioner had not been considered, by directing the respondent-State authorities to consider the case of the petitioner for promotion to Class III posts in accordance with law within a period of three months. The petitioner in the meantime was appointed/promoted on Class III post as Store Keeper by office order No. 57 dated 9.12.1994, Annexure-6. However, he preferred the second writ petition being CWJC No. 3669/1996(R) alleging grievances that despite time granted in the earlier writ petition, no decision has been communicated to the petitioner even after having made representation, the writ petition was disposed of by a simpliciter direction that respondents-authorities of the Department would consider the case of the petitioner for promotion, if not already done, within six weeks from the date of his representation. Apparently, the fact that he had been appointed/promoted on class III post vide Annexure 6 issued in December, 1994 was not brought to the notice of the learned Court nor the petitioner raised any grievance. It is, however, argued that the said promotion was in fact appointment and would also appear from the language used in the office order at Annexure 6. Even then the petitioner chose to prefer a third writ petition being CWJC No. 2840/1998 (R) once again seeking a direction upon the respondents to consider his case for promotion to class III posts within stipulated period and complaining that the order passed earlier in CWJC No. 3669/1996(R) had not been complied with. The learned Single Judge on that occasion disposed of the writ petition once again with an observation that the order passed in the earlier writ petition be complied with within a period of three months by a speaking order. From Annexure 9, which is a memo No. 677 dated 28.5.1997 issued by the Chief Engineer and addressed to the petitioner, it appears that he was communicated in respect of his representation dated 2nd May, 1997 itself that he has already been granted promotion/appointment in class III post by office order No. 57 dated 9.12.1994 and the order passed in CWJC No. 3669/1996(R) had been fully complied with. The writ petitioner, however, seems to have preferred the present writ petition once again impleading certain private respondents as well with a grievance that his claim for promotion w.e.f. 1978-79 has been rejected by the impugned order at Annexure 12 dated 10.5.2001. One of the arguments raised by the petitioner is also that promotion to Class III post from class IV post has to be made Division wise and not Circle wise in view of the judgment rendered in CWJC No. 1632/1990(R) dated 15.11.1990, Annexure-4, passed by Patna High Court.

(3.) It appears from the stand taken by the respondent-State as is reflected in the letter dated 25.10.1994, Annexure C, issued by the Chief Engineer to the Superintending Engineer, Urban Circle, Ranchi that the claim of the petitioner for such promotion in the light of the order passed in CWJC No. 1431/1991 was considered. From perusal of the said order it appears that the petitioner had been appointed on 10.11.1972 as a Choukidar in PHED Department. In the year 1979 a panel was prepared for promotion from class IV to Class III post Division wise and certain persons were also granted promotion after following due procedure. It is indicated that at the relevant point of time the petitioner was under the Health Division, Hatia where no such exercise for promotion to Class III post was undertaken. However, in the year 1987 a panel was prepared for promotion from Class IV to Class III posts in the Circle level, in which petitioner participated but was declared ineligible. Therefore, he could not get promotion in the year 1987. In the year 1992 again the petitioner participated in the promotional exercise by facing interview before the Superintending Engineer but was again declared ineligible. It is, therefore, recorded in the said letter, Annexure C, that whenever the exercise was undertaken for promotion, even though the petitioner participated earlier but he was declared ineligible and could not get promotion. It seems, however, that as per direction passed in CWJC No. 1431/1991 the respondents granted him promotion to Class III post vide Annexure 6, the order dated 9.12.1994 on the post of Store Keeper. The judgment relied by the petitioner in CWJC No. 1632/1990 about the observation that the exercise of promotion to Class III post be made Circle wise, therefore, could not have made any difference to the exercise, which were earlier undertaken in the year 1979. In the year 1987 when the petitioner was not found eligible apparently the exercise was held circle wise. It, therefore, appears that on the one hand the judgment passed in the case of the petitioner in CWJC No. 1431/1991(R) was duly complied with by granting him promotion to class III post vide Annexure 6 dated 9.12.1994 but this fact was perhaps not brought to the notice of the learned Single Judge when he preferred the subsequent writ petitions in 1996 and 1998. The claim of the petitioner otherwise also does not seem to be maintainable as it appears that in the earlier exercise undertaken by the respondents he was found ineligible for such promotion to class III post in the year 1987 and in 1992. In the matter of a claim for promotion one of the important considerations is also as to whether the claim has been raised within a reasonable time and not after a substantial delay so that rights, which may have crystallized in favour of 3rd parties, may not be upset. Though the petitioner raised a grievance in the year 1991 itself in the first writ petition in relation to certain juniors said to have been promoted on that occasion but neither the promotions of the said juniors were quashed by the learned Single Judge nor the petitioner perhaps brought to the notice of the Court that his case for promotion was considered earlier and he was found ineligible by the respondents. At this stage after 20 years from grant of promotion in December, 1994, such a claim for retrospective promotion w.e.f. 1978-79 made on behalf of the petitioner, therefore, is not sustainable in law as well as on facts and the reasons, which have been discussed hereinabove.