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Laxmi Prasad Vs. State of Bihar and ors. - Court Judgment

LegalCrystal Citation
Subject;Service
CourtPatna High Court
Decided On
Case NumberCWJC No. 10200 of 1998
Judge
ActsService Law; Cadre Amendment Rules, 2003
AppellantLaxmi Prasad
RespondentState of Bihar and ors.
Appellant AdvocateNarendra Prasad, Sr. Adv., Shiv Sahankar Prasad, Mukeshwar Dayal and Kaushalendra Prasad
Respondent AdvocateAlamdar Hussain, SC
DispositionApplication dismissed
Excerpt:
service law - appointment--initially petitioner was not found eligible for appointment--as in revised seniority-cum- merit list his position was shown at serial no. 15--available vacancies were filled up from amongst the eligible persons shown above to the petitioner in seniority-cum-merft list--two vacancies of enforcement sub--inspector occurred after the order of this court in lpa no. 19 of 1994 in november 2003--before that cadre amendment rules, 2003 were amended on 24.9.2003--said posts would be filled up by way of direct recruitment--case of petitioner can not be considered retrospectively under the old rules--as vacancies occurred after amended cadre rules 2003--application dismissed. - .....the respondents to consider the case of the petitioner for appointment by way of promotion to the post of enforcement sub-inspector-in preference to respondent nos. 6 to 15, who have been appointed by way of promotion to the post of enforcement sub-inspectors. a prayer has also been made to quash the orders of appointment of respondent nos. 6 to 15 as they were juniors to the petitioner as shown in joint and final gradation list of clerks of mofussil subordinate office of the transport department, published in the year 1993.3. during the pendency of this writ application, an amendment application has also been filed on behalf of the petitioners challenging annexure a to the counter affidavit filed on behalf of the state, whereby and whereunder the representation filed by the petitioner.....
Judgment:

Narayan Roy, J.

1. Heard counsel for the parties.

2. This writ application was filed substantially for issuance of a writ of mandamus commanding upon the respondents to consider the case of the petitioner for appointment by way of promotion to the post of enforcement Sub-Inspector-in preference to respondent Nos. 6 to 15, who have been appointed by way of promotion to the post of Enforcement Sub-Inspectors. A prayer has also been made to quash the orders of appointment of respondent Nos. 6 to 15 as they were juniors to the petitioner as shown in joint and final gradation list of clerks of mofussil subordinate office of the Transport Department, published in the year 1993.

3. During the pendency of this writ application, an amendment application has also been filed on behalf of the petitioners challenging Annexure A to the counter affidavit filed on behalf of the State, whereby and whereunder the representation filed by the petitioner pursuant to order passed by this Court in CWJC No. 1437 of 1998 has been rejected.

4. According to the pleadings of the parties, it is the admitted fact that the petitioner is working as clerk in mofussil subordinate office of Transport Department and he was entitled to be appointed by way of promotion to the post of Enforcement Sub- Inspector by virtue of the decision taken by the Transport Commissioner, Government of Bihar, Patna, whereby and whereunder a decision was taken to fill up certain posts of Enforcement Sub- Inspector from amongst the staff of the Transport Department including the clerks. It is also admitted fact that the petitioner earlier had come to this Court in CWJC No. 1437 of 1998 for consideration of his case for appointment by way of promotion to the post of Enforcement Sub- Inspector and this Court vide order, as contained in Annexure 17 to the supplementary affidavit filed on behalf of the petitioner, disposed of the same on 17.1.2000 directing the respondent concerned to consider the case of the petitioner along with other eligible persons to fill up the available posts of Enforcement Sub-Inspector.

5. The representation of the petitioner pursuant to the direction of this Court, as referred to above, however, was rejected on 7.12.2002 and the same was communicated to the petitioner vide memo No. 58 dated 7.1.2003 as contained in Annexure A to the counter affidavit.

6. Learned counsel for the petitioner submitted that certain vacancies of Enforcement Sub-Inspector are available in the Transport Department and as per the decision of the Transport Department, as contained in Annexure 3, the petitioner is eligible to be considered for appointment by way of promotion to the post of Enforcement Sub-Inspector. The main thrust of argument of learned counsel for the petitioner is that the vacancies, which had occurred, should be filled up as per the norms laid down by the State authorities, as contained in Annexure 3, by which process the private respondents were appointed by way of promotion.

7. A counter affidavit and also a supplementary counter affidavit have been filed on behalf of the State stating therein, inter alia, that the petitioner was not considered for appointment by way of promotion to the post of Enforcement Sub-Inspector, as his position in the merit-cum-seniority list is at serial No. 15, below the private respondents, who have already been appointed to the posts aforesaid and at the time of consideration of the cases of the private respondents vis-a- vis the petitioner, the gradation list of 1993 was not in consideration, as the same was found to be defective and subsequently revised and a seniority-cum-merit list was prepared. It is further stated in the counter affidavit that the representation of the petitioner pursuant to the direction of this Court, as referred to above, was considered by the authorities in accordance with law and the same was rejected vide order, as contained in Annexure A to the counter affidavit and the same was communicated to the petitioner vide memo No. 58 dated 7.1.2003. It is also the case of the respondents in the counter affidavit that the State Government in exercise of its power under Article 309 of the Constitution read with Section 213 of the Motor Vehicles Act, 1989 amended the Rules pertaining to appointment/ promotion and service conditions of the Enforcement Wing of the Transport Department, known as Bihar Transport (Enforcement Wing) Cadre Rules, 2003, and after coming into force of the Rules of 2003, the petitioner no longer is eligible to be appointed on promotion to the post of Enforcement Sub-Inspector, as the Rules, as contained in Annexure 3, have been repealed by the Cadre Rules of 2003.

8. Learned counsel for the State, with reference to the statements made in the counter affidavit, submitted that before coming into force of the Cadre Rules, 2003 the petitioner had not come within the zone of consideration for the post of Enforcement Sub-Inspector as number of vacancies were lesser and now after coming into force of the Cadre Rules, 2003 the appointment on the post of Enforcement Sub-Inspector is to be made by direct recruitment through the Bihar Public Service Commission and this writ application, therefore, is liable to be dismissed.

9. Mr. Narendra Prasad, learned counsel for the petitioner, however, submitted that by virtue of the order passed by this Court in LPA No. 19 of 1994 as contained in Annexure 14 to the amendment application two posts pf Enforcement Sub-Inspector are lying vacant under the Transport Department, as they have been repatriated to their parent department, and, thus, the petitioner would be entitled to be considered as per the old rules for one of the posts retrospectively.

10. In support of his contention, learned counsel refers to the cases of. Madan Lal v. State of Bihar and Ors., AIR 1994 SC 647 and Food Corporation of India v. S.N. Nagarkar, AIR 2002 SC 808, in case of Madan Lal (supra) the Apex Court while dealing with a case, quite on different facts, held that the earlier direction of the High Court of pre-amendment eligibility criteria for selection of the petitioner was required to be complied with, as the same remained unassailed and operative.

11. The facts of the case at hand is quite distinct. The earlier direction of this Court in regard to the petitioner, as contained in Annexure 17 to the supplementary affidavit, issued prior to the Cadre Rules, 2003, has already been complied with, which would be evident from Annexure A to the counter affidavit and, therefore, it is not a case that the direction issued by this Court prior to the amended Rules, 2003 is yet to be complied with.

12. In this view of the matter, the case tested by the Apex Court in Madan Lal (supra) is not applicable in the facts and circumstances of this case.

13. Similarly, the decision rendered in the case of Food Corporation of India (supra) is not applicable in the facts and circumstances of the case, as the issue involved in that case was quite different from the facts of this case.

14. From the facts, as noticed above, it appears that initially the petitioner was not found eligible for appointment, as in the revised seniority-cum-merit list his position was shown at serial No. 15 and the available vacancies were filled up from amongst the eligible persons shown above to the petitioner in the seniority-cum-merit list. It further appears that two vacancies of Enforcement Sub-Inspector occurred in the Department after the order of this Court in LPA No. 19 of 1994 in November 2003 and before that the Cadre Amendments Rules, 2003 was amended on 24.9.2003, which would be evident from Annexure 3 to the counter affidavit, and, thus, the posts of Enforcement Sub-Inspector now onwards would be filled up by way of direct recruitment by the Bihar Public Service Commission, and, therefore, the case of the petitioner cannot be considered retrospectively under the old rules, as the vacancies occurred after the amended Cadre Rules, 2003.

15. Having heard counsel for the parties and considering the facts and circumstances of the case, as referred to above, thus, I do not find any merit in the submissions of Mr. Narendra Prasad, learned counsel for the petitioner, and it is held that the petitioner is not entitled to be considered for appointment by way of promotion on the post of Enforcement Sub-Inspector after coming into force of the Cadre Rules, 2003, as the posts now onwards would be filled up by way of direct recruitment by the Bihar Public Service Commission.

16. In that view of the matter, this application does not merit consideration and, is liable to be dismissed.

17. In the result, this application is dismissed, but no order as to costs.


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