Ashok Kumar Verma vs State of Bihar and Others

Jayanandan Singh, J.—Petitioner is primarily aggrieved by a notification dated 11.11.1996 by which he has been promoted in the higher pay-scale of Senior Geologist with effect from 1.4.1992 whereas three persons, namely, Shyam Sunder Singh, Pradeep Kumar and Akhilesh Prasad, have been promoted with effect from 11.5.1990. Learned Counsel for the petitioner points out that from the final gradation list, as contained in Annexure-3, it would be evident that the said three persons are junior to the petitioner and had joined their service on dates later to the date of joining of the petitioner.

During the pendency of this writ application, representation of petitioner was considered and it was rejected which has also been brought on record through I.A. No. 13536 of 1998, as Annexure-14, and the prayer in the interlocutory application has been made to challenge the rejection order also. The said interlocutory application is allowed. Petitioner is at liberty to challenge the said communication dated 14.1.1998 as Annexure-14 with the same.

Counter-affidavit has been filed in this case. Learned Additional Advocate General appears for the Mines Department and submits that there was a departmental proceeding against petitioner and the same was concluded with adverse entry in his service records and that adverse entry was treated as continuing for three years i.e. for the years 1989-90, 1990-91 and 1991-92. Hence, after expiry of the said period, petitioner was panted promotion with effect from 1.4.1992, as would be evident from the proceeding of the Departmental Promotion Committee annexed as Annexure-13 with the writ application.

Learned Counselor the petitioner refers to Annexure-5 and submits that by this letter dated 27.8.1990, petitioner was communicated the so-called adverse entry in his service record. He submits that this entry was not adverse and it was only suggestive and reformatory and hence, this could not be taken as a ground to deny promotion to the petitioner. He further submits that for the subsequent years, performance of petitioner had improved and, therefore, suggestion was made by the Director (Geology) through his letter dated 29.10.1991 vide Annexure-7, to the Government for expunging the said ''adverse entry from his service records. This letter was responded by the Government through letter dated 12.5.1992, vide Annexure-8, in which it was clarified that the entry was only factual and reformatory and thereafter function of the petitioner had improved and hence, the same were not required to be expunged. In the circumstances, learned Counsel submits that, by this letter, Government itself had accepted that this entry was not an adverse entry and was only reformatory.

Having heard learned Counsel for the petitioner and learned Senior Counsel for the Mines Department, this Court finds that there is substance in the submission of the learned Counsel for the petitioner. The entry made in the service record of the petitioner and communicated to him by Annexure-5 reads as follows:--

A bare reading of this entry shows that it was only suggestive and reformatory and in the form of advice to petitioner to improve his working. This did not cast any aspersion on the petitioner or was made by way of any adverse remarks against him. In the circumstances, apparently, this entry could not be treated as an adverse entry. This also stands clarified by the Government letter dated 12.5.1992, as contained in Annexure-8, referred by the leaned Counsel for the petitioner.

Hence, this Court is of the view that this entry could not be taken into account for denying promotion to the petitioner for three years. Since petitioner has made a grievance that his juniors have been promoted with effect from 11.5.1990, petitioner is also entitled to be promoted from that date. This writ application is, accordingly, allowed. The impugned notification of promotion of the petitioner as contained in Annexure-10 dated 11.11.1996 is quashed and it is held that he is entitled to be promoted from 11.5.1990, the date on which his juniors were promoted. In the circumstances, rejection order of the representation of petitioner as contained in Annexure-14 is also quashed. Respondents are directed to take steps to shift the date of promotion of petitioner to 11.5.1990 and give him all the consequential benefits flowing from such promotion as given to his juniors, if otherwise he is entitled for it on merits. All the steps shall be taken by the respondents within three months from the date of receipt/production of a copy of this order through a representation of the petitioner. However, there will be no orders as to costs.