Dismissed

Ramdeep Prasad And Ors. v. the State of Jharkhand And Ors.

Jharkhand HC6 Feb 2023WPC/2425/2012

Case brief

AI extract

What is this about?

The Single Judge dismissed a writ petition challenging the promotion of certain officers to Assistant Grade in Jharkhand Secretariat. The Court held that Rule 7(3) mandates a graduation degree for promotion and that petitioners without this qualification had no vested right to the post.

What did the court decide?

The quashing of the Office Order dated 01.02.2011 and 12.04.2012 and direction for promotion is dismissed.

Ramdeep Prasad And Ors. Vs the State of… — Pension and Retirement Benefits | Jharkhand HC (2023)

¶1

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

W.P.(S) No. 2425 of 2012

¶4

Ramdeep Prasad

¶5

Raj Kumar

¶6

Md. Kazim

¶7

Ajay Kumar … … Petitioners

¶8

V E R S U S

¶9

The State of Jharkhand through Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Project Bhawan, Dhurwa, Ranchi

¶10

Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand, Ranchi

¶11

Additional Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Dhurwa, Ranchi

¶12

Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Dhurwa, Ranchi

¶13

Deputy Secretary, Department of Finance, Government of Jharkhand, Dhurwa, Ranchi

¶14

Mahendra Prasad Sinha.

¶15

Subodh Kumar

¶16

Anil Kumar

¶17

Ravindra Prasad

¶18

Shashibhushan Tiwari

¶19

Yogendra Ram

¶20

Shiv Kumar Rai

¶21

Ravindra Kumar Sharma

¶22

Sudhir Kumar Sinha

¶23

Ujjawal Kumar Mishra

¶24

Bhubaneshwar Prasad Sinha

¶25

Shashibhushan Jha

¶26

Satish Kumar

¶27

Budhram Kujur

¶28

Smt. Shanti Nirmala Tirkey

¶29

Smt. Agustina Minz

¶30

Singham Linda

¶31

Narendra Prasad Srivastav

¶32

Subodh Kumar Verma

¶33

Ratneshwar Kumar Sinha

¶34

RC/

¶35

¶36

Mityanand Singh

¶37

Nand Kishore Choudhary

¶38

Subhash Chandra Dey

¶39

Ashwini Kumar Jha

¶40

Arun Kumar Sinha

¶41

Anup Kumar Srivastav

¶42

Chandeshwar Sah

¶43

Ashok Kumar Verma

¶44

Chandrakant Prasad Singh

¶45

Brajendra Kumar Verma

¶46

Rajesh Kumar

¶47

Lalan Kumar

¶48

Arun Kumar

¶49

Abhay Kumar Das

¶50

Devendra Sah

¶51

Shivendra Kumar Sinha

¶52

Anuj Kumar Sinha

¶53

Vinod Kumar

¶54

Manoranjan Prasad Singh

¶55

Kapilmuni Upadhyay

¶56

Jayant Kumar

¶57

Arun Kumar

¶58

Rajkant Thakur

¶59

Gopal Krishna Jha

¶60

Smt. Swapana Mitra

¶61

Vinay Kumar Choudhary

¶62

Nel Naman Rasikan Baba

¶63

Agastus Tigga

¶64

Ghanshyam Prasad

¶65

Rajiv Kumar Singh

¶66

Mrigank Ranjan

¶67

Vijay Kumar

¶68

Om Prakash Mishra

¶69

Arun Kumar Singh

¶70

Rakesh Kumar

¶71

Shakti Samant

¶72

Mithilesh Chandra Mishra

¶73

RC/

¶74

¶75

Chandan Kumar

¶76

Pankaj Kumar

¶77

Smt. Rajeshwari P.

¶78

Tiplal Sah

¶79

Dhirendra Kumar Singh

¶80

Nazar Imam Ansari

¶81

Baijnath Ram

¶82

Manoj Kumar

¶83

Sudipto Bose

¶84

Sanjay Kumar Srivastav

¶85

Smt. Meena Singh

¶86

Vidya Bhushan … … Respondents

¶87

CORAM : HON'BLE DR JUSTICE S.N. PATHAK

¶88

For the Petitioners Mr. Indrajit Sinha, Advocate Ms. Anjali Sinha, Advocate For the State Mr. O.P. Tiwari, GP-III Mr. Mukul Kumar Singh, AC

¶89

10/06.02.2023 Heard.

¶90

PRAYER

¶91

Petitioners have approached this Court with a prayer for quashing Office Order No. 3/Pronnati – 201/2011 Ka. 28, dated 01.02.2011, issued by the respondents no. 4 whereby respondent nos. 6 to 74 have been promoted to the post of Assistant in Jharkhand Secretariat (Pay scale PB-II Rs.9,300 – 34,800/ Grade Pay Rs.4,600) from the post of Upper Division Clerk in sheer derogation of Jharkhand Secretariat Service Rules, 2010. Petitioners have further prayed for a direction upon the respondents to consider their case for promotion to the post of Assistant as per the provisions of Jharkhand Secretariat Service Rule, 2010. Petitioners have further prayed for quashing the Office Order No. 3/ Nyayalaya – 1005/2012 Ka. 88/ Ranchi, dated 12.04.2012, passed by Principal Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand whereby representation filed by the petitioners has been rejected.

RC/

FACTUAL MATRIX:

The petitioner no. 1 was initially appointed to the post of Typist on 21.03.1979 in the Drinking Water and Sanitation Department, Government of Jharkhand. Petitioner no. 2 was initially appointed on 07.09.1997 to the post of Routine Clerk, Medical Education and Family Welfare Department. Petitioner no. 3 was initially appointed on 06.08.1997 as a Routine Clerk in the Industry Department. Petitioner no. 4 was initially appointed on 05.04.1986 as a Bill Clerk in the Industry Department. Since the date of their appointment, petitioners have been discharging their duties efficiently and diligently to the satisfaction of the State and have also been granted the benefits of ACP vide Memo dated 15.10.2007.

¶96

On 27.07.2010, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, the State came out with a Gazette Notification (Extra Ordinary) No. 401, Dated 27.07.2010, framed rules for recruitment and service conditions of the Secretariat Clerks and in order to meet out anomalies the cadre of Secretariat Clerks, the services were reconstituted and was divided into two grades namely Upper Division Clerks and Lower Division Clerk. Pursuant thereto, the Typist/ Bill Clerk/ Accountant/ Cashier/ Routine Clerks who were earlier working in the pay scale of Rs.4,000 – 6,000, were granted revised Pay Band-I in the Scale of Rs.5,200 – 20,200 with Grade Pay of Rs.2,400. Thereafter, in exercise of powers conferred by Proviso to Article 309 of the Constitution of India, vide Gazette Notification (Extra Ordinary) No. 425, dated 03.08.2010, the State framed Rules for constitution, recruitment and service conditions etc. of the Jharkhand Secretariat Service and the matters related thereto. As per Rule 7(3) of the Jharkhand Secretariat Service Rules, 2010, 75% of the regular posts in the Assistant Grade shall be filled up by the direct recruitment on the basis of a competitive examination held by the Commission for this purpose, from time to time. The minimum educational qualification for appointment to the Assistant Grade was fixed as Graduation, 15% of the regular posts shall be filled up by way of promotion of Upper Division Clerks included in the select list for the Assistant Grade and remaining 10% to be filled up through LDCE for Upper Division Clerks of JSCS and Stenographers (both

¶97

RC/

¶98

¶99

having five years’ of approved service and must be graduate) to be held by the Commission for this purpose from time to time.

¶100

It is case of the petitioners that the respondent no. 3, vide its letter dated 07.09.2011 (Annexure-4 to the writ petition) prepared a gradation list regarding Upper Division Clerks working in Jharkhand Secretariat Clerical Service. In the said gradation list, the name of petitioners find place at Sl. Nos. 9, 200, 209 and 49 respectively. It is specific case of the petitioners that vide office order dated 01.02.2011, issued by respondent no. 4, the respondent nos. 6 to 74 were promoted to the post of Assistant in Jharkhand Secretariat (Pay Scale PB-II Rs.9,300 – 34,800/- Grade Pay Rs.4,600) from the post of Upper Division Clerk which was not in accordance with Rules and was in sheer derogation of Jharkhand Secretariat Service Rules, 2010.

¶101

Aggrieved by the said order of promotion dated 01.02.2011, petitioners preferred writ petition vide W.P.(S) No.795 of 2012, which was disposed of vide order dated 15.02.2012 giving liberty to the petitioners to represent before the respondent no. 2 and the respondent no. 2, in turn, was directed to consider the same in accordance with law. Thereafter, petitioners preferred representation before the respondent no. 2 which was however rejected vide order dated 12.04.2012 (Annexure-9). Being aggrieved by the same, petitioners have knocked door of this Court.

¶102

ARGUMENTS ON BEHALF OF THE PETITIONERS

¶103

Mr. Indrajit Sinha, learned counsel assisted by Ms. Anjali Sinha, appearing on behalf of the petitioners vociferously argues that the respondent nos. 6 to 74 have been promoted dehors the rules and as such appropriate order be passed quashing the impugned orders passed by the respondents. Learned counsel further argues that the gradation list was not prepared in accordance with law. It has further been argued that in Central Secretariat, the pari-materia provisions are available as per Central Secretariat Rules, 2009 wherein seniority is the sole criteria for grant of promotion to the post of Assistant. Learned counsel further argues that in the State of Bihar also, vide Gazette Notification (Extra Ordinary) No. 159, dated 26.02.2010, the sole criteria for promotion to the post of Assistant from the post of U.D.C. is the seniority. Learned counsel further submits that admittedly petitioners are

¶104

RC/

¶105

¶106

senior to the respondent nos. 6 to 74 and as such their case ought to have been considered in view of terms and conditions of appointment to the post of Secretariat Assistant.

¶107

ARGUMENTS ON BEHALF OF THE RESPONDENTS-STATE

¶108

Per contra counter affidavit has been filed by the respondents.

¶109

Mr. O.P. Tiwari, learned GP-III assisted by Mr. Mukul Kumar Singh representing State referring to paragraph-18 of the counter affidavit very fairly submits that the promotion to the post of Assistant from the post of UDC is not a cadre promotion rather it is entry to the Jharkhand Secretariat Service Cadre by way of appointment by promotion. Degree from any University has been fixed as the minimum educational qualification for appointment to the post of Assistant under the Jharkhand Secretariat Service Rules, 2010. Learned counsel further argues that even if petitioners are senior in gradation list, the minimum qualification for appointment to the post of Secretariat Assistant cannot be given go bye as the same is the essential qualification and the petitioners having not fulfilled the requisite qualification for appointment by way of promotion to the post of Secretariat Assistant rightly their claim for promotion has been turned down. There is no illegality or any infirmity in the impugned order. There is no merits in the writ petition and the same is fit to be dismissed.

¶110

FINDINGS OF THE COURT

¶111

The legal issued involved in this writ petition is in relation to the construction of Rules 7(3) of the Jharkhand Secretariat Services Rules, 2010. Admittedly, petitioners are having qualification of Matriculation which was the minimum eligibility criteria required at the time of entering in service. Petitioners were allocated Jharkhand cadre upon bifurcation of the parent State of Bihar by virtue of the Provisions of Bihar Reorganization Act, 2000. The Jharkhand Secretariat Service Rule, 2010 were framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India by the order of Governor of the State. It provides for the Constitution of Jharkhand Secretariat Services, Appointment and Service Conditions etc. and such other incidental matter. It has been made effective from the date of

¶112

RC/

¶113

¶114

Gazette Notification i.e. 03.08.2010. Different cadre of Secretariat service are enumerated in Rule 3 starting from Assistant Grade, Section Officer Grade, Grade-I, Selection Grade (equivalent to the rank of Deputy Secretary) and Senior Selection Grade (equivalent to the rank of Joint Secretary). The post of Assistants are Non Gazetted Post while rest of them are gazetted post. The relevant provisions which relate to the petitioner's case are contained in Rule-7, which lays down the provisions for recruitment to the post of Assistant Grade and Section Officer. Both Hindi and English version of the Rules as published in the Extraordinary Gazette Notification and are enclosed by the petitioner. Provisions of Rule 7 are quoted hereinunder:-

¶115

“7. RECRUITMENT TO GRADE I, SECTION OFFICERS' AND THE ASSISTANTS' GRADE:-

¶116

(1) Grade-I

¶117

Vacancies in Grade I shall be filled up by promotion on the basis of Seniority-cum-fitness of the Section Officers who have rendered not less than eight year of approved service.

¶118

(2) Section Officers Grade

¶119

50% of regular posts in the Section Officers' Grade shall be filled by promotion on the basis of seniority-cum-fitness of Assistants who have rendered not less than eight years of approved service in the Assistant Grade. Remaining 50% shall be filled up through Limited Departmental Competitive Examination (LDCE) for Assistants who have completed three years of service in the Assistants Grade and having graduate qualification.

¶120

“Provided that UDC's having graduate qualification and at least seven years of approved service in the respective grades, may also be allowed to appear in the Limited Departmental Competitive Examination to be conducted for appointment to the post of Section Officers as a one time measure, but such a concession shall be limited to be availed of in the first Limited Departmental Competitive Examination (LDCE) only to be held immediately after the extant recruitment rules have become effective. Thereafter this one time special provision shall be deemed to have lapsed permanently.”

¶121

(3) Assistants' Grade

¶122

Seventy five per cent of the regular posts in the Assistants' Grade shall be filled up by direct recruitment on the basis of a competitive examination held by the Commission for this purpose, from time to time. The minimum educational

¶123

RC/

¶124

¶125

qualification for appointment to Assistant Grade shall be Graduation.

¶126

Fifteen percent of regular posts shall be filled up by promotion of Upper Division Clerks included in the select list for the Assistant Grade.

¶127

Remaining ten percent of regular posts shall be filled up through LDCE for Upper Division Clerks of JSCS and Stenographers (both having 5 years of approved service and Graduate Qualification) to be held by the Commission for the purpose, from time to time.

¶128

(4) Department of Personnel, Administrative Reforms and Rajbhasa shall frame Rules for the competitive examination and will allocate candidates on the basis of the results of such examinations to various departments and offices.”

¶129

I have considered the submissions of the parties and gone through the relevant materials pleaded including the Rules 2010. In the construction of provision of any statue, the context and text both are to be kept into regard. As it appears that Rules of 2010 have been for the first time framed providing for Constitution of the Jharkhand Secretariat Services and its recruitment and service conditions. The Assistants' Grade is in the bottom of hierarchy of the grades as prescribed under Rule 3. Upon perusal of Rule-7, which is quoted hereinabove, it is apparent that recruitment to Assistants' Grade, which is the feeder to the next higher grade of the Section Officer is to be undertaken from three sources i.e. through direct recruitment; through promotion from the UDC and through Limited Departmental Competitive Examination of Upper Divisional Clerk. Rule 7(2), provides for promotion from the Assistant Cadre to the Section Officer Grade, up to 50% on the basis of Seniority-cum-fitness of Assistants, who have rendered not less than eight years of approved service in the Assistant Grade. Remaining 50% shall be filled up through Limited Departmental Competitive Examination for Assistants who have completed three years of service in the Assistant Grade and are having graduation qualification. Rule 7(2) proviso indicates that Upper Division Clerk, who have graduation qualification and are having at least 7 years of approved service in the respective grades, may also be allowed to appear in the Limited Departmental Competitive Examination to be conducted for appointment to the post of Section Officers as a one time measure, to be availed in the first Limited Departmental Competitive

¶130

RC/

¶131

¶132

Examination only, to be held after the recruitment rules are made effective. This special provision would be deemed to have lapsed permanently.

¶133

The construction of relevant provisions of Rule 7(3) relating to promotion of UDC in 15% quota of regular post cannot be read out of the context to mean that those who have lesser qualification than graduation are also entitled for promotion to the next higher post of Assistants' Grade, which is in the bottom of the hierarchy of Secretarial Services and from which promotional ladders are available up to the level of Senior Selection Grade, which is Joint Secretary to the Government of Jharkhand or equivalent post in the State Civil Services Grade-A (Ministerial). In the matter of promotion from Section Officers Grade to the next higher Grade-I, the same are to be filled up by promotion on the basis of seniority-cumfitness in the Section Officers who have rendered not less than 8 years of approved service. Higher qualifications has relevance in so far as holding of higher promotional post is concerned in view of the nature of the function and duties attached to the past. It has got a nexus with the object sought to be achieved. Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to those possessing higher educational qualifications.

¶134

In the case of State of Jammu and Kashmir v. Triloki Nath Khosa reported in (1974) 1 SCC 19, by the Constitution Bench of the Hon'ble Supreme Court, classification on the basis of educational qualification made with a view to achieving administrative efficiency, cannot be said to rest on any fortuitous circumstances and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of the classification. Educational qualifications have been recognized by the Hon'ble Apex Court as a safe criterion for determining the validity of the classification. Hardship to one or the other candidate like the petitioner who is only a matriculate, would not overshadow the wider consideration of achieving administrative efficiency considering the nature of duties and functions attached to the higher post. The hierarchies of post in the Secretarial services go up to the rank of Joint Secretary or equivalent post in the State Civil Services Grade-A (Ministerial). Therefore, while constituting

¶135

RC/

¶136

¶137

the basic cadre of Assistant from the category of direct recruits or promotee, a qualification of graduation is prescribed for the integrated cadre. This is perfectly in consonance with the requirement of the services for the purposes of future promotion to the next higher post of such incumbent.

¶138

Opportunity to be promoted to the Assistants Grade is not altogether denied, it is, however, subject to attaining educational qualification of graduation. As is also evident from the stand of the respondents, those incumbents, who have obtained higher qualification of graduation, have been considered and promoted to the Assistant Cadre. In this context Rule 7(3) which contains the provisions relating to recruitment to the post of Assistants' Grade laying down a minimum educational qualification for appointment to Assistants' Grade i.e. Graduation cannot be read in the manner what learned counsel for the petitioner has interpreted. The Assistants' Grade cadre is to be constituted in terms of 2010 Rules. The State is not denied the power to lay down a uniform educational qualification for Constitution of the said cadre. This in no way can be said to have taken away any vested right of promotion of the petitioner to the next higher post i.e. Assistants' Grade. A higher qualification, which has been laid down in the light of governing factors, which determine the Constitution of service, cannot be said to be irrational or arbitrary. In that sense, contention of the petitioner that his service conditions have been altered to his disadvantage upon allocation of successor State of Jharkhand also does not merit acceptance. It is not that petitioner has been reduced in rank or his scale of pay has been changed at the time of allocation of cadre. There is no vested right to be promoted to the next higher post. The promotion to any next higher post is to be guided by the Rule which are in vogue on the date of consideration of promotion. The opinion laid down by Hon'ble Supreme Court in this regard in the case of Deepak Agarwal v. State of Uttar Pradesh reported in (2011) 6 SCC 725 at para-26, reads as under:

¶139

“ 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old

¶140

RC/

¶141

¶142

vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment..”

¶143

Laying down of higher qualification has therefore relevance, in so far as holding higher post is concerned, in view of the nature of functions and duties attached to the post. It has a rational nexus with the object sought to be achieved. The Hon'ble Supreme Court after survey of several precedents has, in the case of Dhole Govind Sahebrao v. Union of India reported in (2015) 6 SCC 727, held in Para-40 of the said judgment as under:-

¶144

“40. As a proposition of law it is imperative for us to record that chances of promotion do not constitute conditions of service, and as such, mere alteration of chances of promotion, would not per se call for judicial interference. The above general proposition would not be applicable in case the chances of promotion are altered arbitrarily, or on the basis of considerations which are shown to be perverse or mala fide.”

¶145

A chance of promotion do not constitute conditions of service and as such, mere alteration of chance of promotion would not per se call for judicial interference, unless they are altered, arbitrary or are shown to be perverse or malafide.

¶146

Considering in totality the aforesaid facts and the reasons recorded hereinabove, this Court is of the view that the provisions of Rule 7(3) do mandate the requirement of minimum educational qualification for appointment of Assistants' Grade as graduation whether it be through direct recruitment or promotion or through Limited Departmental Competitive Examination from the cadre of UDC. This interpretation would be inconsonance with the aim and object of the Rules, which has been framed for the first time in 2010 for the purposes of Constitution of Jharkhand Secretariat Services laying down the provisions relating to its recruitment and service conditions. The terms and conditions for appointment for the post of Assistant in the Secretariat Cadre by way of promotion has also been

¶147

RC/

¶148

¶149

taken care of by this Court in the case of Krishnadeo Prasad Vs. The State of Jharkhand and others in W.P.(S) No. 858 of 2015 .

¶150

It is not in quarrel that the petitioners were denied the opportunity for promotion rather it is case of the petitioners that their cases were equally considered but consideration has to be done only when the concerned employee fulfills the requisite qualification. The opportunity to be promoted to the post of Assistant was not altogether denied but subject to attaining educational qualification of graduation. Admittedly petitioners were not fulfilling the requisite qualification of graduation which has also been fairly admitted by the petitioners. The law is well settled that there is no vested right for promotion and the promotion cannot be termed to be right of the employee. However, there is right of consideration. The case of the petitioner has been duly considered but denied only on the ground that they do not fulfill the requisite qualification.

¶151

No case is made out for any interference, the order of promotion is based on rules, terms and conditions, petitioners not having fulfilling the requisite qualification, are not entitled for promotion.

¶152

As a sequitur to the aforesaid rules, guidelines, judicial pronouncements, legal proposition, no case is made out for any interference. The writ merits dismissal and the same is hereby dismissed.

¶153

(Dr. S.N. Pathak, J.)

¶154

RC/

Ramdeep Prasad And Ors. v. the State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Ramdeep Prasad And Ors. v. the State of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vijay Kumar Singh Vs the State of Jharkhand

Smt Manju Devi Vs the State of Jharkhand

Kumari Sita Vs the State of Jharkhand

Abdul Wahab and Ors. Vs Tourism

Muni Lal Mandal Constable Cisf No 012550182 Alias Munni Lal Mandal Vs the Union of India through Its Secretary

Comelius Kisku Vs Jharkhand State Electricity Board through Its Chairman and Ors.