Allowed

Niranjan Kumar Ghosh And Anr. v. the State of Jharkhand And Ors.

Jharkhand HC8 Feb 2018WPC/3695/2007

Case brief

AI extract

What is this about?

The Court quashed decisions rejecting promotion claims of two retired Forest Guards eligible under Rule 3.21(b)(ii) of the Forest Rules. The Court directed the State to grant notional promotion from the date an eligible junior was promoted and other consequential benefits.

What did the court decide?

The impugned decisions quashed; respondents directed to grant notional promotion and consequential benefits from 24.04.2006.

Niranjan Kumar Ghosh And Anr. Vs the State… — Pension and Retirement Benefits | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3695 of 2007

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1.Niranjan Kumar Ghosh son of Shri Ramni Mohan Ghosh, resident of Khalasi Mohalla, Madhupur, P.O. and P.S.-Madhupur, District-Deoghar 2.Lakshman Choubey son of Late Ramshish Choubey, resident of Mohalla-Gopibandh, P.O. and P.S.-Sarath, District-Deoghar

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..... Petitioners

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-V e r s u s-

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1.The State of Jharkhand

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2.The Secretary, Department of Forest and Environment, Government of Jharkhand, Ranchi.

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3.The Principal Chief Conservator of Forest Jharkhand, Ranchi.

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4.The Regional Chief Conservator of Forest, Dumka.

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5.Conservator of Forest, Santhal Pargana Circle, Deoghar.

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.... Respondents

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CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK.

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For the Petitioners : - M/s. Manoj Tandon, Shiv Shankar Kumar and Kumari Rashmi, Advocates. For the Respondents: - Mr. Binod Singh, S.C. (L&C).

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19/08.02.2018 In the accompanied writ application, the petitioners have, inter alia, prayed for the following reliefs:-

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(i) To quash/set aside the decision of respondent no. 5 contained in letter no. 139 dated 6.2.2007, whereby the claim of the petitioners for promotion from the post of Foreset Guard to the post of Forester has been rejected. (ii) For a direction commanding upon the respondents concerned in particular respondent no. 5 to consider the case of the petitioners for promotion from the post of forest Guard to the post of Forester immediately in the light of the provision contained in Rule 3.21 (b) (ii) of Bihar (now Jharkhand) Forest Rules inasmuch as both the petitioners have stood first with honours at the Guards Training School, Mahilong, Ranchi from January, 2004 to June, 2004 so far it relates to the petitioner no. 1 and from January, 2005 to June, 2005 so far it relates to petitioner no.2. and

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(iii) To quash/set aside the decision contained in Memo

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No. 3470 dated 11.8.2006 whereby the provisions contained in Rule 3.21 (b) (ii) Bihar (now Jharkhand) Forest Rules has been sought to be amended by an executive order and the provisions relating to promotion/appointment from amongst the Forest Guards has been abolished.

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The facts, as has been delineated in the writ application, in a nutshell, are that the petitioners were appointed as Forest Guard in the year 1981 and after joining the said post, they have rendered meritorious services, having put in more than 25 years of service, at the time of filing of the writ application. The service records of the petitioners were without any blemish.

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Rule 3.21 (b) (ii) of the Bihar (now Jharkhand) Forest Rules, envisages that a Forest Guard may be promoted to the post of Forester, if he stood first with Honours in Guards’ Training School and have put in at least 5 years of satisfactory service and for this purpose, 25 per cent of total posts of Forester are kept earmarked and reserved for the post of Forester, as evident from the Forest Rule as per Annexure-1 to the writ application. From time to time, the Government has taken decisions for promotion of one or the other Forest Guards to Forester in the light of the provisions of the aforesaid Rule. In the light of the said provisions, Government issued letter dated 29.11.2002 vide Annexure-2 to the writ petition, which, inter alia, stipulates that the seniority of those promoted persons to the post of Forester shall be counted from the date of their actual appointment in asmuch as their services were through direct recruitment. It would be relevant to mention that the petitioner no. 1 was sent for training of Forest Guard and he successfully completed the training of Forest Guard from January, 2004 to June, 2004 and stood first with Hons. and the petitioner no. 2 also completed the training from the month of January, 2005 to June, 2005 with first Class Hons. in the said training as evident from Annexure-4 and 5 to the writ petition. After successful training, the petitioners submitted representations to the competent authorities, requesting for consideration of their promotion from the

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post of Forest Guard to the post of Forester, as evident from Annexure-6, 7 and 8 series. Thereafter, the case of the petitioners were considered by the Establishment Committee of Santhal Pargana Circle, Deoghar and it was decided unanimously that both the petitioners be promoted from the Forest Guard to the post of Forester as per the decision dated 19.06.2006 vide Annexure-11 to the writ application. It would not be out of place to mention that one Mr. Bharat Pandey, who completed his training from July, 2004 to December, 2004 after the petitioner no. 1 was promoted from the post of Forest Guard to the post of Forester vide Office Order dated 24.04.2006, as evident from Annexure-10 to the writ petition. But to the utter surprise, a decision has been taken vide letter dated 11.08.2006 that the provisions relating to promotion from the post of Forest Guard to the post of Forester on or after 16.07.1990 has been abolished as per Annexure-12 to the writ application and thereafter, the Conservator of Forests, Santhal Pargana Circle, Deoghar vide letter dated 06.02.2007 has rejected the claim of the petitioners for promotion in the light of the letter dated 15.06.2006 vide Annexure-13 to the writ petition, which is impugned in the writ application and the letter dated 11.08.2006 vide Annexure-12 is also under challenge in the writ application. Being aggrieved by the impugned decisions dated 11.08.2006 and 06.02.2007 vide Annexure-12 and 13 to the writ application, the petitioners, left with no other alternative, have been constrained to knock the doors of this Court under Article 226 of the Constitution of India.

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Mr. Manoj Tandon, learned counsel for the petitioners has strenuously urged that the petitioners being eligible in all respects for promotion to the post of Forester as per the provisions contained in Rule 3.21 (b) (ii) of the Bihar (now Jharkhand) Forest Rules, the respondents-authorities ought to have considered the case of the petitioners for promotion/appointment in view of the fact that the juniors to the petitioners were promoted from the post of the Forest Guard to the post of Forester. Learned counsel for the petitioners submits that the action of the respondents in not considering the case

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of the petitioners for promotion to the aforesaid post amounts to violation of Articles 14 and 16 of the Constitution of India. Learned counsel submits that the decision dated 11.08.2006, is without, jurisdiction, mala fide and in colourable exercise of power and de hors the relevant Rule. Learned counsel further submits that the provisions contained in Bihar Forest Rules, could not have been amended, modified or rescinded by an Executive Order, as contained in Memo No. 3470, dated 11.08.2006.

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Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, it has been submitted that the petitioners submitted representation before the respondent no. 5 for promotion to the post of Forester in the light of Rule 3.21. (b) (ii) of the Bihar Forest Manual and the matter was placed before the Establishment Committee of Santhal Pargana Circle, Deoghar in its meeting held on 19.06.2006, wherein, it was decided to give promotion to the petitioners to the post of Forester. However, before any order could be issued giving promotion to the petitioners to the post of Forester, it has been informed by the Government vide letter dated 15.06.2006 to the Principal Chief Conservator of Forest, Jharkhand, Ranchi, respondent no.3 that the Government has taken decision to abolish the Rule for accelerated promotion to the forest guards to the post of Forester and on the basis of letter dated 15.06.2006, respondent no. 5 vide impugned letter dated 06.02.2007 (Annexure-13) rejected the claim of the petitioners for promotion to the post of Forester and the decision so taken by the Government to abolish the Rule for accelerated promotion of forest guard to the post of the Forester after considering the pros and cons of the matter because the said Rule was being misutilized for giving undue promotion to the undeserving persons by the subordinate officer and the decision was taken to abolish the provision for accelerated promotion from 16.07.1990, therefore, the petitioners are not entitled for promotion to the post of the Forester.

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A supplementary counter affidavit on behalf of the respondent no.2, dated 02.05.2017 has been filed by the Principal Secretary,

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Forest, Environment & Climate Change Department, Ranchi, Jharkhand in pursuance to the order of this Court dated, 20.01.2017 for submission of reply on certain issues. One of the issues, was whether ‘Accelerated Promotion’ has been granted to other Forest Guards after 15.06.2006 or not? With regard to the said issue, it has been submitted that as per the available records, the Forest Guards have been granted ‘Accelerated Promotion’ after 15.06.2006 in respect of the writ petitioners, namely, Prabhunath Dubey and Sri Awadh Kishore Dubey vide Office Order dated 02.01.2003 in compliance of the order passed in W.P. (S) No. 929 of 2011 and Sri Kamal Kishore Sao vide Office Order dated 25.01.2014 of Conservator of Forest, Hazaribagh in compliance of the order passed in W.P. (S) No. 3234 of 2013 and Sri Binod Nand Rai vide order dated 09.01.2016 in compliance of the order passed in W.P. (S) No. 1081 of 2013

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Learned counsel for the Respondent-State apartfrom reiterating the submissions made in the counter affidavit and the supplementary counter affidavit has vociferously submitted that the decision of the respondents to do away with the ‘Accelerated Promotion’ of the petitioners from the post of Forest Guard to the post of Forester as has been enshrined in Rule 3.21 (b) (ii) of the Bihar (now Jharkhand) Forest Rules has been taken after taking into consideration the material facts as well as the rampant mis-utilisation of the said provision, because the said provision has led to breeding ground of nepotism and favouritism, therefore, the action of the respondents vide Annexure-12 and 13 to the impugned decision, cannot by any stretch of imagination be construed to be an act of arbitrariness, thereby imperiling the provisions of the Constitution of India.

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Having heard learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioners have been able to make out a case for interference due to the following facts and reasons : -

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(i) Admittedly, both the petitioners completed their training, having stood first with Hons. at the Forest

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Guards Training School and as per the provisions of Rule 3.21 (b) (ii) of the Bihar (now Jharkhand) Forest Rules, the petitioners were eligible in all respects for promotion/appointment from the post of Forest Guard to the post of Forester. Prior to the impugned decision, dated 11.08.2006, whereby, it has been contended that the said provision of the Bihar Forest Rules has been amended by an Executive Order but the petitioners were eligible prior to the aforesaid impugned decision and the juniors to the petitioners have been promoted in the light of the aforesaid provision and more particularly, one Mr. Bharat Pandey, who received Training of Forest Guard from the month of July, 2004 to December, 2004, was promoted from the post of the Forest Guard to the post of Forester vide Office Order dated 24.04.2006 vide Annexure-10 to the writ petition, therefore, there is absolutely no justifiable reason to deny the promotion to the petitioners from the post of Forest Guard to the post of Forester in view of the provisions of the aforesaid Rule.

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(ii) It would also be apposite to refer the supplementary affidavit, filed by the respondent no. 2, the Principal Secretary, Forest, Environment & Climate Change Department, Ranchi, Jharkhand, whereby it has been candidly admitted that some of the Forest Guards have been given ‘Accelerated Promotion’ after 15.06.2006 in the year 2013 and 2014 and 2016 also, therefore, the petitioners are entitled to be extended with the parity of treatment, as has been extended to the similarly placed employees, even after abolition of the aforesaid provision.

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(iii) Since, in the meantime, the petitioners have already retired from the post of the Forest Guard, no direction can be issued to the respondents for consideration of promotion to the post of Forester. However, the

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petitioners are entitled to be considered to get notional promotion from the date one Bharat Pandey was promoted i.e. 24.04.2006.

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In view of the reasons stated in the foregoing paragraphs, this Court is inclined to interfere with the impugned decisions dated 11.08.2006 vide Annexure-12 and the decision dated 06.02.2007 vide Annexure-13 and accordingly, the said decisions are quashed and set aside and the respondents are directed to consider the case of promotion of the petitioners from the date when Mr. Bharat Pandey got promotion vide Annexure-10 and the respondents are directed to give notional promotion with all consequential service benefits.

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Accordingly, the writ petition stands allowed.

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(Pramath Patnaik, J.)

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APK

Niranjan Kumar Ghosh And Anr. v. the State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Niranjan Kumar Ghosh And Anr. v. the State of Jharkhand And Ors.

Case brief

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