IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1491 of 2009
Janardan Prasad Sinha & Ors .
Versus
The State Of Bihar & Ors .
-----------
For the Petitioners : Mr. P.N.Pathak, Advocate
For the State : SC 9
——–
2. 07.07.2011 Heard learned Counsel for the petitioners and the learned
Counsel for the State.
On the objection of the learned State Counsel, leave is sought
to implead the Secretary, Department of Finance, as Respondent no. 6.
Let it be so done during course of the day. Since learned Counsel for
the State also represents the newly added respondent who is a State
functionary no separate notice need issue.
The petitioners are stated to be Research Assistants in the
Water Resources Department. The next promotional post for them is
Assistant Research Officer. Their grievance is that consideration for
promotion has unreasonably been kept pending since 1990 on pretext
of non framing of the Promotion Rules.
Counsel for the petitioner submitted that on 21.4.1990 the
Personnel and Administrative Reforms Department addressed a
communication to various Departments including the Water Resources
Department and Road Construction Department that it was in the
process of formulating Rules with regard to appointment and promotion
of Research Assistants and till then all cases for promotion of Research
Assistants be put on hold. Subsequently on 8.11.1999 the Road
Construction Department has framed Rules under Article 309 of the
Constitution of India with regard to inter alia promotion of Research
Assistants. Submission is that reading the two documents together
there can be no valid justification for not applying the same rules to the
petitioners in the Water Resources Department, with modification, if
any, that may be required.
The respondents in their counter affidavit, dealing with this
assertion, simply state that it requires no comment. They were expected
to take a clear stand in a proceeding before the Court and not to file an
evasive reply. However the counter affidavit filed on their behalf drawing
sustenance from the letter of the Personnel and Administrative Reforms
Department dated 21.4.1990 states that several meetings have been
held since 2002 – 2003 with the Finance Department for formation of
Research Cadre Service Code under the Chairmanship of Water
Resources Department. The counter affidavit stops at that. The Court is
thoroughly disappointed of the manner in which the respondents appear
to be discharging their duty to assist the Court in a claim by a citizen for
justice.
The law stands well settled that while promotion is not a
fundamental right, right to be considered for promotion is a fundamental
right. The right to be considered for promotion necessarily entails a
timely consideration.
A person in service eagerly looks forward to be considered for
promotion to the higher post not only for an improvement in his status in
service but also for the monetary benefits that it brings. It is this
promotion, the desire to achieve which, motivates the employee to give
his best to the department. As a logical consequence the Department
stands to benefit. Conversely an employee whose morale is low and is
frustrated because of non consideration of his case for promotion as
distinct from a case considered and rejected, when he may have
remedy, not only the financial resources of the State is wasted but
ultimately it is the people who suffer. A frustrated employee will not give
his best to the job and duty. Reference may usefully be made to the
observations of the Supreme Court in the case of Council of Scientific
and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635, at
paragraph-9 as follows:-
“9. ………….It is often said and indeed, adroitly, an organisation
public or private does not “hire a hand” but engages or employs
a whole man. The person is recruited by an organisation not just
for a job, but for a whole career. One must, therefore, be given
an opportunity to advance. This is the oldest and most important
feature of the free enterprise system. The opportunity for
advancement is a requirement for progress of any organisation.
It is an incentive for personnel development as well.1 Every
management must provide realistic opportunities for promising
employees to move upward. “The organisation that fails to
develop a satisfactory procedure for promotion is bound to pay a
severe penalty in terms of administrative costs,
misallocation of personnel, low morale, and ineffectual
performance, among both non-managerial employees and their
supervisors.”2 There cannot be any modern management much
less any career planning, manpower development, management
development etc. which is not related to a system of
promotions………”
Directions are therefore given to the respondents in the
Department of Finance and Department of Water Resources to ensure
that not only are the Rules put in place but the case of the petitioners
and other similarly situated are considered in accordance with law
within a maximum period of four months from the date of receipt and/or
production of a copy of this order.
The writ application stands allowed.
Snkumar/- (Navin Sinha,J.)