JUDGMENT
S.B. Sinha, J.
1. In this writ petition the petitioner, initially prayed for issuance of an appropriate writ for constituting a fresh departmental promotion committee for promoting him to the post of Engineer-in Chief with effect from the date mentioned therein; but after the amendment in the writ petition, the petitioner inter alia, prayed for a direction upon the respondents-State to give promotion to the petitioner to the post of Engineer-in-Chief in accordance with the due date of the recommendations of the departmental promotion Committee.
2. The facts of the case lie in a very narrow compass.
3. The petitioner was appointed in the post of Engineer Class I service by direct recruitment in the Irrigation Department of the State of Bihar on 22-12-1959. In January, 1968 the petitioner was recommended by the Bihar Public Service Commission for promotion to the post of Superintending Engineer. In that post he was later on promoted and confirmed by a notification dated 1-3-1977 with effect from 110 1972.
4. In the year 1979 a departmental promotion Committee was constituted which, inter alia, recommended that the petitioner be given charge of the Chief Engineer with effect from 5th February, 1980. On 24-5-1982 the petitioner was promoted to the post of Chief Engineer cm an ad hoe basis with effect from 4th December, 1981.
5. In the year 1986 a departmental promotion committee was constituted for the purpose of filling up the post of the Chief Engineer. The said committee inter alia consisted of one of the members of the Bihar Public Service Commission and the petitioner was recommended by the said committee for promotion to the post of Chief Engineer on regular basis. By a notification dated 29-9-1986 the petitioner was promoted pursuant to the aforementioned recommendation to the post of Chief Engineer with retrospective effect from 5-2-1980. By another notification dated 29-9-1986, the petitioner was confirmed in that post with effect from 1st May, 1984.
6. In January, 1987 the departmental selection committee, inter alia, considered the case of the petitioner along with others for ad hoc promotion to the post of Engineer-in-Chief.
However, in the meanwhile, it appears that by an order dated 30-8-1983 the State Government published a gradation list of the candidates, who were in Bihar Engineering Class I service wherein the name of the petitioner was shown at serial No. 23. The petitioner stated that those persons whose names appeared in senior Nos. 1 to 22, either they had already retired or had been promoted to the post of Engineer-in-Chief.
The petitioner, therefore, contended that the petitioner was the senior most candidate for the purpose of being considered in the post of Engineer-in-chief.
7. By a notification bearing No. 1448 dated 1-5-1987, the respondent Nos. 4, 5 and 6 were promoted to the post of Engineer-in-chief. The petitioner initially challenged this order as being illegal and arbitrary.
8. The petitioner, thereafter filed a writ petition in this Court which was registered as C.W.J.C. No. 1959 of 1987 wherein he prayed for issuance of a writ of prohibition presumably for prohibiting the State from passing any order promoting others to the post of Engineer-in-chief. The said writ petition, however, was permitted to be withdrawn by this Court on the ground that the same was premature.
So far as the petitioner is concerned from the minutes of meeting dated 3-44987 of the departmental promotion committee, it appears that the petitioner’s case could not be considered in absence of the confidential character rolls and as the department had not taken any decision with regard to the alleged charge of lack of integrity on the part of the petitioner. The petitioner, thereafter, filed the instant case challenging inter alia, the aforementioned notification dated 1-5-1987.
However, during the pendency of this writ petition the departmental promotion committee recommended the name of the petitioner for his promotion to the post of Engineer-in-Chief in its meetings held on 14-7-1987 and 21-7-1987.
However, in the said recommendations it was mentioned that the State shall determine the date from which said promotion should be given in the light of the order of promotion passed in favour of the persons, who were junior to the petitioner. This recommendation was received by the State of Bihar on 3-8-1987. It appears that on 12-8-1987 a first information report was lodged against the petitioner.
9. The petitioner thereafter filed an application for amendment of the writ petition. This writ petition was admitted by an order dated 1-3-1988 but although at that time the said application for amendment of the writ petition was already on records, no order was passed by this court thereon. By an order dated 11-4-1988 this court allowed the said application for amendment and granted two weeks time to the Standing Counsel No. 1 to file a counter affidavit to the said application for amendment.
10. By reason of the said application for amendment now the prayer made in the writ petition has been substituted inter alia in the following terms :-
This writ petition is for an appropriate writ, order or direction directing the respondent-State to promote the petitioner as Engineer-in-Chief on the basis of the recommendation of the ‘ departmental promotion committee.
Thereafter, a supplementary counter affidavit was filed on behalf of the respondents.
11. The case was again adjourned to 26-4-1988 in order to enable the learned Standing Counsel No. 1 to take instruction as to what was the stage of enquiry in respect of the alleged charges pending against the petitioner.
12. Thereafter another supplementary counter affidavit has been filed by the State of Bihar enclosing therewith the confidential reports recorded in the case of the petitioner and which were communicated to him as also other relevant documents.
13. However, at the time of hearing the learned Standing Counsel No. 1 stated that no departmental proceeding is pending against the petitioner. He, however, stated that the first information report, as mentioned hereinbefore, was lodged against the petitioner after holding a preliminary enquiry in that regard.
14. Mr. M. S. Madhup, the learned Standing Counsel No. 1 has raised a preliminary objection with regard to the maintainability of the writ petition. Learned Counsel submitted that in view of the withdrawal by the petitioner of the earlier writ petition filed by him being C.W.J.C. No. 1959 of 1987, the petitioner is disentitled from filing a fresh writ petition in view of the fact that at the time of withdrawal of the said writ petition, no leave was obtained from this Court by the petitioner to file a fresh writ petition as envisaged under Order 23, Rule 1 of the Code of Civil Procedure.
The learned counsel, in this connection, has referred to Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others .
The said preliminary objection, in my opinion, has no substance.
15. The petitioner in paragraph 33 of the writ petition has stated as follows :
The petitioner has not moved before this Hon’ble court any time before against the order impugned in this petition. Earlier the petitioner has filed a writ petition C.W.J.C. No. 1959 of 1987, prematurely prevent appointments to the post of Engineer-in-Chief made, and the same was permitted to be withdrawn by this Hon’ble Court.
16. From the said statements it is clear that the writ petition was permitted to be withdrawn on the ground that the said application was premature.
17. This writ petition was filed challenging the notification dated 1-5-1987. However, even during the pendency of this application their occurred subsequent events, as a result whereof the petitioner was recommended by the departmental promotion committee to be promoted to the post of Engineer-in-Chief.
18. The petitioner in this application in substance prays for issuance of an appropriate writ by this court directing respondent-State for implementing recommendation of the departmental promotion committee. This has been allowed by this court by allowing the petitioner’s application, for amendment of the writ petition. In such a situation, there is absolutely no doubt that this writ petition is based on a separate cause of action, which was not available at the point of time when the earlier writ petition was permitted to be withdrawn.
In my opinion, on this ground too the principle of Order 23, Rule 1 of the Code of Civil Procedure will have no application to the present case and consequently the decision of the Supreme Court in Sarguja Transport/ Service’s case (supra) also does not apply in the present case.
19. Mr. Tara Kant Jha, the learned counsel appearing for the petitioner has raised a very short question. According to the learned counsel from Annexure-V to the counter affidavit it would appear that all the purported adverse remarks against the petitioner were more than 5 years old and steps had been taken to expunge of the said remarks and as the departmental promotion committee found that the confidential remarks of the authorities in the later years in respect of the petitioner were good.
The departmental promotion committee, it appears was further informed that no charge subsists as against the petitioner and further it was pointed out that even after the said charges were made (which were old), the petitioner had been promoted to the various posts including the post of Chief Engineer and as such the departmental promotion committee on taking into consideration all aspects of the matter including the entries in the confidential character roll, integrity certificate and other documents found the petitioner suitable for promotion in the post of Engineer-in-Chief.
However, in the margin of the said minutes there appears to be a note to the-effect that before passing an order of promotion the department should ensure that the State may pass a final order in this regard; meaning thereby with regard to the adverse remarks made against the petitioner in the earlier years.
20. The learned counsel, therefore, submits that there is no reason as to why the State should not implement its own decision.
The learned counsel further submits that the State had been passing the order of promotion in favour of the other persons although criminal cases were pending against them also and as such the petitioner should not be discriminated against.
21. The petitioner has further brought on record by way of a supplementary affidavit filed on 15-4-1988, certain documents including the resolution of the Stabs of Bihar dated the 1st of May, 1973, which has been marked as Annexure-1 to the said supplementary affidavit wherefrom it appears that the State has taken a decision that the promotion of an employee should not be withheld unless and until a primes facie case is found against the concerned officer.
22. The State has further laid down a policy with regard to the lodging of the first information reports and arrests 01′ the Engineers as is evident from a circular dated 17th November, 1986 issued by ..he Home Department of the State of Bihar. In the said circular letter (Annexure-2 to the Supplementary affidavit) it was pointed out that before the first information report is lodged or the Engineer is arrested prior permission therefor should be obtained from the concerned department.
23. The learned counsel, therefore, contended that all the adverse remarks against the petitioner being more than five years old, the same will have no application whatsoever nor the said adverse remarks could be taken into consideration for withholding the order of promotion pursuant to the recommendations of the departmental promotion committee.
24. Mr. M. S. Madhup, the learned Standing Counsel No. 1, on the other hand, submitted that the conduct of the petitioner is not good. He had earlier challenged even the constitution of this departmental promotion committee but now he has been relying upon its recommendations.
The learned counsel further stated that the representation of the petitioner with regard to the expunction of the adverse remarks made in the year 1981-82 and 1982-83 are still pending decision.
The learned counsel further submitted that in terms of the circulars issued by the State of Bihar from time to time the minister incharge of a department is entitled to make his remarks in the service book of an officer.
The learned counsel in this connection had drawn my attention to the Annexure ‘A’, ‘B’ and ‘C’ to the supplementary counter affidavit filed on behalf of the State on 6-5-1988.
25. From Annexure ‘A’ to the said counter affidavit it appears that the then Engineer-in-Chief, Irrigation had formed a bad opinion against the petitioner and made various adverse remarks. In his report he opined that the integrity of the petitioner is doubtful. Adverse remarks ware also made by the Irrigation Commissioner as also the minister incharge against the petitioner.
26. From Annexure ‘B’ to the said counter affidavit, which is confidential report as against the petitioner for the period 1-4 1981 to 31-1-1982, it has been mentioned that the petitioner although was an intelligent officer but unfortunately he was proved to financial irregularities. It was further mentioned therein that he is an officer of doubtful integrity. The Commissioner agreed with the remarks of Engineer-in-Chief and the minister !t appears did not pass any remarks against him.
27. So far as the confidential report for the year 1986-87 (Annexure ‘C’) is concerned, the Engineer-in Chief, Irrigation had high praises in respect of the petitioner. In the said report the Engineer-in-Chief stated that his technical knowledge is very good and he has made a place in the matter of completion of his jobs (presumably completion of the job within the stipulated time).
It was further stated that the petitioner can be counted as an Engineer of the highest order. The Irrigation Commissioner agreed with the aforementioned remarks of the Engineer-in-Chief.
However, the minister incharge did not agree with the said remarks and stated that the petitioner carries no reputation.
28. Mr. M. S. Madhup submitted that it is for the State of Bihar to pass an order of promotion taking into consideration the entire facts and circumstances of the case.
He further submitted that this court in exercise of its jurisdiction conferred upon it under Articles 22S and 227 of the Constitution of India cannot direct the State to promote a person more so when the said post is an Ex-cadre post.
29. According to the learned counsel, the petitioner cannot be said to have any legal right to be promoted to the post of Engineer-in-Chief.
In this connection, the learned counsel has referred to the decisions of Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal and Ors. ; State of Mysore v. C. R. Sheshadri, and Ors. and Mani Subrat Jain v. State of Haryana and Ors. .
The learned counsel further relied upon a well known decision of the Supreme Court in The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and Ors. . It is true that a writ of mandamus can only be issued when there exists a legal right in the petitioner but it is well known that an employee has a legal right to be considered for promotion to a higher post.
30. There is no dispute with regard to the proposition of law that a person does not have any legal right of promotion unless the order of promotion is to be passed automatically dependant upon the seniority of the person concerned. There is also no dispute that the post of Engineer-in-Chief being an Ex-cadre post and also being a selection post no body can claim a right in himself to be promoted to that post.
31. However, it is well known that an employee has a legal right to be considered for promotion.
32. As an employee has a legal right to be considered for promotion to the higher post, it is evident that such consideration must be based on relevant facts. While purporting to consider the case of an employee the State cannot also rely upon an irrelevant matter nor can it base its decision on an irrelevant factors or on extraneous considerations. The considerations at the hands of the employer must be fairly and reasonably.
33. From the facts of the case, as mentioned hereinbefore, it is absolutely clear that on the earlier occasion, the case of the petitioner was not considered at all by the departmental promotion committee on, the ground of non-availability of the confidential remarks and other relevant documents.
It is further evident that even despite the said entries of the adverse remarks as against the petitioner in his service book, he was considered fit for promotion to the higher post including the post of Chief Engineer and in fact he was so promoted to the said higher posts. It is further evident from the minutes of the meeting of departmental promotion committee, as contained in Annexure V to the counter affidavit, that the departmental promotion committee itself took into consideration the various confidential remarks against the petitioner and opined that the latest remarks made by the competent officer in respect of the petitioner were not such so as to disentitle him to the benefit of promotion. The departmental promotion committee upon consideration of all the records came to the conclusion that the petitioner was fit to be promoted to the post of Engineer-in-Chief.
34. From the supplementary counter affidavit filed on behalf of this State as also from the submissions made by Mr. M. S. Madhup, it is evident that the petitioner is not being promoted only because of adverse entries in the confidential character rolls of the petitioner as contained in Annexures ‘A’, ‘B’ and ‘C’ thereto as also owing to the fact that a first information report has been lodged as against the petitioner.
35. Plainly enough the confidential remarks for the year 1980-81 and for the period from 1-4-1981 to 1-1-1982 cannot be taken into consideration. Mr. M. S. Madhup, the learned Standing Counsel No. 1 very fairly placed before me the resolution dated 6th June, 1981 wherein it was stated that normally entry in the confidential character roll made in the preceding three years shall be taken into consideration.
36. However, the learned counsel submits that the practice prevalent in the department is to consider the confidential remarks of five years preceding the year in which an employee is going to be promoted.
37. Even assuming that the said practice is prevalent, evidently the confidential remarks made as against the petitioner for the year 1980-81 and 1981-82 cannot be and could not have been taken into consideration irrespective of the fact as to whether the petitioner’s representation for expunction of the said adverse remarks made in the year 1983 has been disposed of or not.
38. However, at this juncture, it may be mentioned that I do not find any justification whatsoever for keeping the representation of the petitioner, which was evidently made in the year 1983, pending for such a long time. The said confidential remarks as against the petitioner for the aforementioned years therefore, obviously could not have been taken into consideration by the State.
39. However, it appears that the matter relating to the promotion of the petitioner was placed before the council of ministers in the light of the recommendation of the departmental promotion committee dated 14-7-1987 and 21-7-1987 in terms of memo No. 4522 dated 19-10-1987. The council of ministers in the said meetings approved the proposal to keep the one post vacant for the petitioner pending completion of the enquiry against him in the said vigilance case. It is clear from the records that the first information report as against the petitioner was lodged on 12-8-1987.
40. Even in the supplementary counter affidavit filed on behalf of the State it has not been clarified as to whether even by now, any prima facie case has been found as against the petitioner by the vigilance department or not. As noticed hereinbefore, the State of Bihar itself has adopted a resolution to the effect that an order of promotion should not be withdrawn only on the ground of pendency of a criminal case unless a prima facie case is established as against the concerned employee.
41. In view of the fact that the first information report was lodged in the month of August 1987 it was expected that the State of Bihar by now would be in a position to inform this Court as to whether a prima facie case has been established against the petitioner or not and particularly when by my order dated 26-44988 I asked the counsel appearing for the State to inform me in this regard and although pursuant thereto a supplementary counter affidavit sworn on 6-5-1988 has been filed in this court on 10-5-1988; but unfortunately no definite statement in this regard has been made.
42. Taking into consideration all the facts and circumstances of this case, in my opinion, the State of Bihar should be directed to consider the recommendations of the departmental promotion committee in terms of the minutes of its meetings dated 14-7-1987 and 21-7-1987, in the light of the observations, as mentioned hereinbefore, as also in the light of the resolutions dated 1st May, 1973 and 17-11-1986, which are contained in Annexures-1 and 2 to the supplementary affidavit filed on behalf of the petitioner on 154-1988 and in this view of the matter this writ petition must succeed.
43. The State, on its own showing, has kept a post reserved for the petitioner and in view of the fact the petitioner may be promoted, if at all, pursuant to the recommendations of the departmental promotion committee with effect from such date as the State may consider fit and proper upon taking into consideration that various persons junior to the petitioner have already been promoted; the State is hereby directed to take a final decision in this regard within a period of two months from the date of the receipt of a copy of this order.
44. In the result this writ petition is allowed to the extent mentioned hereinbefore but in the facts and circumstances of the case, there will, however, be no order as to costs.