- (1.) PRAYER in this writ application is for issuance of an order quashing the Memo No. 873 dated 28.06.2008 (Annexure -8), issued by the Respondents, whereby the claim of the petitioners for their promotion on the post of Sub -Inspector of Excise, has been rejected. Further prayer has been made for issuance of an order commanding upon the Respondents to grant promotion to the petitioners on the post of the Sub -Inspector of Excise from the date, from which the juniors to the petitioners have been given promotion after relaxing the upper age limit of 35 years.
(2.) THE impugned order has been challenged mainly on the ground that it is contrary to the judgment dated 13.02.2008, passed by this Court in the case of Tripurari Kumar and Another -versus -State of Jharkhand and Others, in W.P. (S) No. 6346 of 2007. The facts of the case in brief are that both the petitioners were appointed as Clerks in the Excise Department under the Respondents on 10.06.1986 and 01.10.1996 respectively. It is contended that the Appointment Rules stipulate that for appointment on the post of Sub -Inspector of Excise, 75 per cent of vacancies have to be filled up by direct recruitment and 25 per cent by promotion and in each and every year, the vacancies should be filled up by following the aforesaid procedure. Originally the upper age limit of direct recruitment was fixed at 25 years and for appointment by way of promotion at 35 years. By subsequent Notification of the State Government, the upper age limit for direct recruitment has been enhanced from 25 years to 35 years for the General candidates and to 40 years for the candidates of Schedule Castes and Schedule Tribes. However, the upper age limit for appointment through promotion was not enhanced. The further contention of the petitioners is that consequent upon the reorganization of the State of Bihar the services of the petitioners have been allotted to the State of Jharkhand, since after November, 2000 and the petitioners have been working in the State of Jharkhand since then. Although the State of Jharkhand came into existence on 15.11.2000 but no departmental examination was conducted for appointment to the post of Sub -Inspectors by way of promotion. It was for the first time that a letter was issued on 03.01.2007 and circulated to all the Deputy Commissioners and the Assistant Commissioners of Excise, directing them to hold the departmental examinations in between 26th to th May, 2007 for appointment by way of promotion to the post of Sub -Inspectors from the cadre of Excise clerks. Further contention of the petitioners is that the petitioners at the relevant time, being eligible for appearing in the said examinations, had submitted their respective forms duly filled -up and the same was recommended by their Controlling Officer for needful action at their end. The petitioners were allotted Admit -cards and they had appeared at the written examinations. The result of the written examination was published by the Respondents on 12.06.2007, in which the petitioners were declared successful. On having succeeded in the departmental examination, the petitioners were expecting their promotion to the posts of Sub -Inspectors of Excise but when no communication was given to them, they approached the Respondent No. 3, only to be informed by him that the petitioners having crossed the upper age limit of 35 years, their cases cannot be considered for their promotion. Further contentions of the petitioners is that two other Excise Clerks, namely Tripurari Kumar and Mahesh Kumar Das who were similarly denied promotion on the ground of having crossed the upper age limit of 35 years, had filed a writ application before this Court vide W.P. (S) No. 6346 of 2007, praying for a direction to the Respondents to relax the upper age limit and to consider the writ petitioners case for their promotion. Pursuant to the order passed by this Court on 13.02.2008, allowing their writ application, the Respondents considered the cases of both the writ petitioners in the aforesaid writ petition and granted them promotion by relaxing the upper age limit. The further contention of the petitioners is that both the aforesaid co -employees, namely Tripurari Kumar and Mahesh Kumar Das were junior to the petitioners and yet they have been benefited with the privilege of being promoted to the higher posts, whereas the petitioners have been arbitrarily denied such benefits.
(3.) COUNTER affidavit has been filed on behalf of the Respondent -State, wherein, it has been sought to be explained that under the Rules for appointment to the post of Sub -Inspector by way of promotion, the upper age limit has been fixed at 35 years. The petitioners having crossed the upper age limit therefore do not possess the requisite criteria under the Rules and hence, are not entitled to be given promotion. The further stand taken by the Respondents is that the departmental examinations were held in the year 1998 and 2004 for appointment to the higher posts by promotion. All employees aspiring for promotions were required to pass the prescribed departmental examination but the petitioners failed to appear at the departmental examination. It was only after they had individually crossed the upper age limit of 35 years that the petitioners have later appeared and passed at the departmental examinations. As regards, the reference made by the petitioners to the case of the Tripurari Kumar and Mahesh Kumar Das, it is submitted that promotions were granted to both the aforesaid employees, in spite of their having crossed the upper age limit of 35 years but such promotion was granted only pursuant to the specific orders passed by this Court in W.P. (S) No. 3646 of 2007. An attempt has been made to distinguish the case of the petitioners from the case of Tripurari Kumar and Mahesh Kumar Das on the ground that considering the fact that by virtue of their service records, the date of birth of Tripurari Kumar and Mahesh Kumar Das were found to be 03.12.1965 and 24.08.1970 respectively, they were found eligible for promotion, whereas the date of birth of the petitioners as per their service records is 22.07.1959 and 22.07.1961 respectively indicating thereby that the petitioners are considerably older in age than the other two employees, who were granted promotion. ;