NARENDRA NATH TIWARI, J. - (1.) IN this writ application the petitioner has prayed for quashing the order dated 20.2,1996 as contained in Annexure -12 passed by the respondent No. 5 and also for issuance of writ of mandamus directing the respondents to give the same benefits of notional seniority to the petitioner as has been given to others similarly situated persons. Bulaki Ram Versus Jatru Mahali
(2.) ACCORDING to the petitioner, the said order as contained in Annexure -12 is wholly arbitrary and illegal and the same is not sustainable in law in view of the order dated 7.12.1995 passed in CWJC No. 2578 of 1994(R). The case of the petitioner, in brief, is that he was initially appointed to the post of artisan (fitter) on 21.8.1965 and was in the service of respondent No. 1. Subsequently he was posted in HMBP, a unit plant of HEC Limited. The petitioner was, thereafter, given promotion to the post of Fitter "B" grade with effect from 20.2.1971 in the scale of Rs. 444 -701. According to the petitioner, in the year 1977 respondent -corporation issued instruction for rectifying the anomalies in seniority as relative seniority was used by promoting junior artisans superseding senior artisans. The said promotion order was issued with effect from 13.8.1977. The said date was thus fixed for giving notional promotion to all the superseded senior fitters. Grade A including the petitioner as he was also superseded by his juniors. In accordance with the said instruction, all eligible workers who were superseded, were granted notional seniority in Grade "A" with effect from 13.8.1977 vide office No. 1135 to 1140 dated 19.12.1977 and office order No. 1157 dated 22.12.1977. However, the petitioner was not included in the said order and was not given notional seniority as were given to other similarly situated persons. According to the petitioner, a departmental proceeding was deliberately initiated against him only in order to deprive him of the notional seniority while giving the same to other similarly situated persons and the consequential benefits of refixation of pay at the appropriate scale. The pay of the other which was done in the cases of other workmen. According to the petitioner, the said departmental proceeding was concluded completely exonerating him vide office order dated 28.12.1979 as contained in Annexure -7 to the writ application. It is stated that pendency of the said departmental proceeding was quoted as a ground for not fixing his pay in Grade A from the date pay scale of the others were refixed. According to the petitioner, after his exoneration in the departmental proceeding, he filed a representation requesting the respondents to grant the benefits as has been given to others similarly situated persons but the same was not considered. Then the petitioner had preferred writ application before the Patna High Court, Ranchi Bench, as then was, being CWJC No. 448 of 1994(R). The said case was disposed of directing the petitioner to file representation before the respondent No. 2. Accordingly the petitioner filed a representation but the same was rejected by passing a cryptic order dated 24.5.1994. The petitioner challenged the said order in the writ application, CWJC No. 2578 of 1994(R), which was disposed of vide order dated 7.12.1995 directing the respondents to consider the case of the petitioner and to give him benefit of notional seniority if the juniors to the petitioner have been given the same and the petitioner is not other disqualified. Annexure -12 is the order passed in purported compliance of the said order dated 7.12.1995 passed in CWJC No. 2578 of 1994 (R) which is under challenge in this writ application.
(3.) THE respondents -corporation appeared in this case and filed counter affidavit refuting the claim of the petitioner and supporting the order contained in Annexure -12. In the counter affidavit it has been stated, inter alia, that the petitioner was not given promotion as he did not possess minimum qualifying marks and was not found suitable for promotion to Grade "A" by the Departmental Promotion Committee. According to the respondents, the petitioner was charge -sheeted and disciplinary proceeding was pending against him at the relevant time and in that view he was not given promotion with effect from 13.8.1977.;