Dismissed

Rajendra Prasad Dubey v. the State of Bihar and Ors.

Patna HC18 Jul 2012CWJC/10948/2007

Case brief

AI extract

What is this about?

Petitioner, a government employee superannuated in 1996, sought second time bound promotion claiming exemption due to his first promotion being granted in 1981. Court held his entitlement crystallized in 1971, not the exemption period, making the second promotion conditional on clearing an exam which he never did.

What did the court decide?

Writ petition dismissed; impugned order of the Collector requiring no interference upheld.

Rajendra Prasad Dubey Vs the State of Bihar… — Pension and Retirement Benefits | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10948 of 2007 ====================================================== Rajendra Prasad Dubey son of late Amir Dubey, resident of villageDeubey-Dih, P.O.- Sabalbigha, P.S. Sikandara, District- Jamui, at present resident of Mohalla- New Yarpur, Devi Asthan, NYD/149, Janta Road, Gardanibagh, Town and District- Patna. .... .... Petitioner/s Versus 1.The State Of Bihar. 2.The Secretary-cum- Commissioner, Department of Revenue & Land Reforms, Government of Bihar, Patna. 3.The Secretary-cum-Commissioner, Department of Finance, Government of Bihar, Patna. 4.The Joint Secretary (Incharge, Cell-3A), Department of Finance, Government of Bihar, Patna. 5.The Commissioner, Munger Division. 6.The Collector-cum-District Magistrate, Jamui, District- Jamui. 7.The Deputy Collector, Land Reforms, Jamui, District- Jamui. 8.The accountant General (A & E) 11, Bihar, Birchand Patel Path, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajeev Prakash Mr. Binita Sinha For the State : A.A.G.-III For Advocate General : Mr. Madhuresh Prasad ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 2 18-07-2012 The petitioner joined government service as Lower Division Clerk (L.D.C) in 1961. In 1961 itself, the petitioners passed Hindi Noting and Drafting Departmental Examination. By government resolution no. 10470, dated 30.12.1981, the State Government accepted the recommendation of 4^th Pay Revision Committee and provided for time bound promotion to over come

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Patna High Court CWJC No.10948 of 2007 (2) dt.18-07-2012

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stagnation .It, inter alia, provides that a person, who was otherwise fit for promotion but for any reason could not get promotion for first ten years of his service he would get first time bound promotion on completion of ten years of service. If he did not get any further promotion in next fifteen years and was otherwise fit for promotion, he would then get second time bound promotion Thus, the first time bound promotion would be on ten yearns of service and the second time bound promotion on twenty five years of service if he was otherwise fit for promotion. As this resolution was passed in 1981, it was decided that any person who became entitled to first time bound promotion at a date earlier than 1.4.1981, would get first time bound promotion with effect from 1.4.1981 and not earlier.

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It is not in dispute that the petitioner having passed Hindi Noting and Drafting Departmental Examination in 1961 itself became entitled to first time bound promotion with effect from 1971 but in view of resolution, the same was effectuated with effect from 1.4.1981.The petitioner superannuated on 1.2.1996 and by this writ petition he claims that having got his first time bound promotion with effect from 1.4.1981 i.e within two years exemption period of 1980-1982, he would automatically get second time bound promotion, which would be his entitlement in 1985. He has been wrongly deprived of it.

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Patna High Court CWJC No.10948 of 2007 (2) dt.18-07-2012

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Learned counsel for the petitioner, in this regard, relies on three judgments of this Court including the judgment of Full Bench being Lala Devendra Prasad –v- State of Bihar since reported in 2001(1) PLJR 229, Maheshwar Prasad Singh-v-State of Bihar since reported in 2000(4) PLJR 263(FB) and Ramjee Chaubey –v- State of Bihar since reported in2011(1)PLJR 107.

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Learned counsel for the State, on the other hand, relies on the judgment of this Court being Daya Shankar Singh-v- State of Bihar since reported in 2010(3) PLJR 220.

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Consequently, the challenge is to the order dated 10.7.2004 by which the Collector, Jamui, has deprived the petitioner of his second time bound promotion on the ground that he had never passed the Accountancy Departmental Examination, which was necessary for the second time bound promotion. It is this order of the Collector which is under challenge.

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Having heard learned counsel for the parties and with their consent this writ application is being disposed of at the stage of admission itself.

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I have considered the three judgments aforesaid, as cited by learned counsel for the petitioner, The principles stated therein are clear and unexceptionable. What is stated in the three judgments including Full Bench is that for the time bound promotion either first or second , passing of departmental

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Patna High Court CWJC No.10948 of 2007 (2) dt.18-07-2012

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examination is a must except for a short period between 19801982 because of merger of Lower Division Clerk and Upper Division Clerk there was no promotion. In the Full Bench it has been clearly explained that if the first time bound promotion became due in the said two years period, then without passing the examination he would get time bound promotion. The other two judgments clearly laid down that if he gets exemption by virtue of first time bound promotion falling within that period, the second time bound promotion would then be automatically granted.

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In the judgment of this Court being Daya Shanker Singh (supra) this Court has explained the concept of time bound promotion. It is not dependent merely on length of service. It is equally dependent upon the person being qualified and fit for promotion on passing of departmental examination except for the period between 1980-82,

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Learned counsel for the petitioner submits that he was granted first time bound promotion with effect from 1.4.1981 i.e. within the period 1980-1982 and therefore he came within he exemption and was thus entitled to second time bound promotion. I am afraid I cannot accede to the said submission for a simple reason that the petitioner having joined service in 1961 and having passed Hindi Noting and Drafting Departmental Examination in

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Patna High Court CWJC No.10948 of 2007 (2) dt.18-07-2012

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that very year itself had become entitled to first time bound promotion in 1971 and not within the period 1980-1982. As the government resolution granting time bound promotion came in December, 1981, the time bound promotion was effectually granted to him as per resolution with effect from 1.4.1981.This is the basic distinction. His entitlement is of 1971 which was given with effect from 1.4.1981 and not what has been contemplated in the three judgments, noted above, where entitlement crystallized in the exemption period. Thus, the petitioner would be entitled to second time bound promotion in 1986, subject to petitioner’s clearing the Accountancy Departmental Examination. Unfortunately, the petitioner does not dispute that till the time he superannuated in 1996 he did not clear the said examination rather he made no effort to clear the said examination. The petitioner is, thus, ineligible for the second time bound promotion, which became due in 1986, which was ten years prior to his superannuation in 1996 at the age of 58 years. From these facts, it is also clear that even after attaining the age of 50 years, the petitioner made no efforts to clear the examination. It would have been necessary to make efforts to clear the examination in view of subsequent government resolution which provides that he has to make effort to clear the examination after attaining the age of fifty years but if he failed to do so that would not restrict his

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Patna High Court CWJC No.10948 of 2007 (2) dt.18-07-2012

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entitlement to 2^nd time bound promotion. Petitioner made no such effort.

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In that view of the matter, Annexure -9, the impugned

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order of the Collector, Jamui, requires no interference.

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The writ petition merits no consideration and is dismissed

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accordingly.

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(Navaniti Prasad Singh, J)

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singh/-AFR

Rajendra Prasad Dubey v. the State of Bihar and Ors.

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Rajendra Prasad Dubey v. the State of Bihar and Ors.

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