IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 5114 of 2007 With I.A. No. 7293 of 2016 Bhishm Prasad, S/oSri Sakal Deo Singh, Resident ofB/2033/Sector II, Post OfficeDhurwa, Police StationJagarnathpur, DistrictRanchi. … … Petitioner Versus 1. The State of Jharkhand 2. Jharkhand Vidhan Sabha, through its Secretary, Ranchi. 3. The Secretary, Jharkhand Vidhan Sabha, Ranchi.
4. The Under Secretary, Department of Establishment, Jharkhand Vidhan Sabha, Ranchi.
5. Mr. Prem Shankar Premi, S/onot known to the petitioner, presently posted as the Sound Operator, Jharkhand Vidhan Sabha, PODhurwa PSJagarnathpur, Ranchi, Jharkhand 6. Mr. Ajay Kumar, S/onot known to the petitioner, presently posted as the Sahayak Awadhayak, Jharkhand Vidhan Sabha, PODhurwa PSJagarnathpur, Ranchi, Jharkhand ... … Respondents CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Prem Pujari Roy, Adv. For Jharkhand Vidhan Sabha : Mr. Vinod Kumar Sahu, Adv. Mr. Aditya Raman, Adv. 12/28.10.2016 I.A. No. 7293 of 2016 This application has been filed for withdrawing prayers at clauses 1(i), 1(ii) & 1(iii).
2. The learned counsel for the petitioner submits that the petitioner now confines his prayer only to the challenge to order contained in Memo dated 07.10.2014.
3. The learned counsel for respondent no.2 raises no objection. 4. I.A. No. 7293 of 2016 stands allowed. Now, the writ petition is confined to prayer at clause 1(iv). 2 W. P. (S) No. 5114 of 2007 Heard.
2. Mr. Prem Pujari Roy, the learned counsel for the petitioner, submits that impugned order dated 07.10.2014 whereunder promotion granted to the petitioner to the post of Routine Clerk from the post of Library Attendant has been withdrawn/cancelled, discloses a reason which is completely arbitrary and cannot be sanctioned in law. It is contended that once the petitioner was found eligible for promotion and promoted to the post of Routine Clerk, the same cannot be withdrawn. 3. Per contra, Mr. Vinod Kumar Sahu, the learned counsel appearing for the Jharkhand Vidhan Sabha referring to various paragraphs in counteraffidavit dated 18.10.2016, submits that the petitioner is guilty of inappropriate conduct inasmuch as he, after tendering letter dated 24.09.2013, continued to insist on grant of promotion and other benefits since, 2006, for which he is not entitled. It is contended that the petitioner, who is bound by his undertaking in application dated 24.09.2013, has suppressed material facts from the Court and therefore, he is not entitled for discretionary relief from the Court. 4. Briefly stated, the petitioner, who was appointed in GradeIV with effect from 13.10.1998, was promoted to the post of Library Attendant vide letter dated 08.10.2005. In pursuance of the notice for Limited Departmental Examination for promotion on a GradeIII post with higher payscale, the petitioner appeared in the 3 examination on 28.05.2006, of which the result was published on 05.06.2006. The initial grievance of the petitioner was that though he had qualified for a GradeIII post he was directed to join on the post of Security Guard, which allegedly for justifiable reasons he declined to join. The petitioner approached this Court in W.P.(S) No. 515 of 2007, which was disposed of with a direction to the Secretary, Jharkhand Vidhan Sabha to take a decision on the representation of the petitioner, within 3 months. However, when no decision was taken by the respondentauthority, compelled, the petitioner filed Contempt Case (Civil) No. 611 of 2007. During the pendency of the aforesaid contempt case, order dated 17.08.2007 was passed declining the claim of the petitioner for promotion to higher scale in GradeIII. Subsequently, vide order dated 09.01.2014 the respondents notified promotion to the petitioner to the post of Routine Clerk, which was granted through order dated 03.06.2014. As noticed above, vide impugned order dated 07.10.2014, order dated 03.06.2014 was cancelled. This is the order which is now under challenge in the instant writ petition. 5. The respondent nos. 2 to 4 have filed response to the amended writ petition, whereunder they have admitted that the petitioner who secured 40 marks, qualified in the Limited Departmental Examination and his name appeared at serial no.5. It is stated that persons who have secured 40, 42 and 43 marks respectively, were promoted to the post of Security Guard in the payscale of Rs.30504590, however, the petitioner who was also promoted to the post of Security Guard declined to join the said post. Subsequently, on 4 24.09.2013 the petitioner submitted an application to the Hon'ble Speaker, Jharkhand Vidhan Sabha and undertook to withdraw the writ petition. Vide order dated 09.01.2014 and 03.06.2014, he was promoted to the post of Routine Clerk in the payscale of Rs.520020200/, Grade PayRs.2400/ with allowances admissible from the date of charge however, he did not withdraw the writ petition and consequently, a showcause notice was issued to him on 19.05.2014, to which the petitioner did not respond. It is stated that after the petitioner joined the post of Routine Clerk, he submitted another application on 09.09.2014 reiterating his earlier stand for promotion from 01.06.2006. In the aforesaid background, by the impugned order dated 07.10.2014 promotion to the post of Routine Clerk was withdrawn. 6. The above narration of facts unerringly discloses that order dated 03.06.2014, whereby the petitioner was promoted to the post of Routine Clerk, has been withdrawn/cancelled only on the ground that the petitioner inspite of undertaking to withdraw the writ petition did not withdraw the same and instead raised a claim for promotion with effect from 01.06.2006. A perusal of the impugned order dated 07.10.2014 indicates that the respondentauthority construed the aforesaid act of the petitioner as an act of indiscipline. In my opinion, raising a claim for promotion or other service benefits, would not amount to inappropriate conduct much less an act of indiscipline. The alleged undertaking given by the petitioner in his application dated 24.09.2013 would not stop the petitioner from claiming right to 5 promotion which, he thinks, is legally due to him. On the contrary, the respondents are not justified in denying the benefit of promotion to the petitioner, for which he was found eligible and promoted vide order dated 09.01.2014. The plea taken by the respondent nos. 2 to 4 that on the request of the petitioner he has been granted promotion to the post of Routine Clerk is completely misconceived. Promotions are not granted on mere asking. The previous order of promotion to the post of Routine Clerk was not an order extending some favour to the petitioner. In the present proceeding, the respondents have not disclosed how the petitioner is not entitled for promotion to the post of Routine Clerk in the payscale of Rs. 520020200/, Grade PayRs.2400/. The reasons assigned in order dated 07.10.2014 for withdrawing/cancelling the promotion granted to the petitioner to the post of Routine Clerk are wholly unjustified and, in fact, stand taken in various paragraphs of counteraffidavit is inappropriate. The respondents have acted arbitrarily in withdrawing the promotion granted to the petitioner to the post of Routine Clerk.
7. In some what a similar circumstance, while dealing with a contention that an appointee who has given an undertaking not to claim promotion as of right on the basis of the promotion granted as stopgap arrangement, in “SecretarycumChief Engineer, Chandigarh Vs. Hari Om Sharma & Ors.”, reported in (1998) 5 SCC 87, the Hon'ble Supreme Court has observed thus, 8. “Learned counsel for the appellant attempted to contend that when the respondent was promoted in 6 stopgap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stopgap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non diplomaholders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stopgap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.” 8. In view of the discussions hereinabove, I am of the opinion that impugned order dated 07.10.2014 is unsustainable and accordingly, it is quashed. Order dated 03.06.2014 is restored. The petitioner shall join the post of Routine Clerk, and he shall be paid his current salary and arears of salary, if any, except for just exceptions. 9. The writ petition stands allowed, in the aforesaid terms. (Shree Chandrashekhar, J.) R.K./Pankaj/A.F.R.