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2000 DIGILAW 330 (PAT)

Kamla Kant Pathak v. State Of Bihar

2000-03-01

R.N.SAHAY

body2000
Judgment R.N.Sahay, J. 1. The petitioner by this writ petition has prayed for issuance of mandamus against the respondents for the reliefs mentioned in paragraph 1 of the writ petition. 2. The petitioner superannuated on 30.4.1995 from the post of Supervisor Grade I in the Office of Executive Engineer, Mechanical Division No. 1, Water Resources Department, Birpur. The initial appointment of the petitioner was in the post of Storekeeper in the Mechanical Division of Koshi Project, Birpur on 7.1.1958 in the Work Charge Establishment in the Scale of Rs. 75-3-105. The petitioner was promoted as Work Supervisor with effect from 2.12.1963. He was promoted to the post of Supervisor Grade I with effect from 1.9.1967 in the scale of Rs. 120-225. According to the petitioner the admissible scale-of Supervisor Grade I is Rs. 250-550. The petitioner filed representation that he was entitled to the scale of the Rs. 250-550 (Annexure 1). It appears that pursuant to the decision of the State Government contained in letter bearing No. 1661 dated 20.8.1981 all the work charge employees of Koshi Project including the petitioner who had completed five years of service on 1.4.1977 were made regular and given the status of permanent employees on the post they were holding in the Work Charge Establishment (Annexure 2). The petitioner sent several reminders for grant of correct scale of pay of Supervisor Grade-I. Ultimately, he succeeded in getting the order from the Superintending Engineer, Mechanical Circle, Birpur for fixation of his pay in the approved scale of Supervisor Grade I with effect from 1.9.1967 and the petitioner be made permanent in that post (Annexure 3). The Executive Engineer, Mechanical Division No. 1 issued order of permanency of the petitioner by the Office Order dated 21.9.1987 (Annexures 4, 5 and 6). 3. The first grievance of the petitioner is that his pay-scale was fixed vide Annexures 4, 5 & 6 but he was not given arrears of difference of pay and allowances fixed and the Actual pay and allowances paid to him for the period 1.9.1967 to 30.9.1987. No favourable or adverse order was passed by the authorities to whom the representation was filed by the petitioner. 4. The second-grievance of the petitioner is that in. terms of the Resolution of the State Government, the petitioner was entitled to two time-bound promotions. No favourable or adverse order was passed by the authorities to whom the representation was filed by the petitioner. 4. The second-grievance of the petitioner is that in. terms of the Resolution of the State Government, the petitioner was entitled to two time-bound promotions. The first time-bound promotion was to be given after completion of 10 years of service and the second after 25 years of service. Time-bound-promotion is given to those employees who are not being given any promotion on completion of 10 years of service. The petitioner claims that having completed 10 years of service on 7.1.1968, he became entitled to first time-bound promotion with effect from 1.4.1981 and having completed 25 years of service on 7.1.1983 he was entitled to second time-bound promotion to be fixed on 1.4.1984. The petitioner was granted first time-bound promotion from 1.4.1981 but monetary benefit was given only with effect from 27.3.1987 (Annexure 7). Accordingly the pay of the petitioner was fixed by the Executive Engineer, Mechanical Division vide letter dated 27.7.1994 (Annexure 8). The petitioner superannuated with effect from 30.4.1995. After retirement the petitioner submitted his pension papers. He was sanctioned Rs. 21,983 towards final payment of Group Insurance. Sanction of 90% of provisional pension to the petitioner was accorded but full pension has not been paid. The provisional pension has been paid to the-petitioner without dearness allowance (Annexure 11). 90% of death-cum-retirement gratuity amounting to Rs. 54,351.00 was sanctioned without assigning any reason as to why full gratuity has not been sanctioned. 5. It was submitted that the petitioner is entitled to arrears of difference of pay and allowances fixed and the Actual pay and allowances paid for the period 1.9.1967 to 30.9.1987 pursuant to Annexure-2. It was further submitted that provident fund has not been sanctioned and released to the petitioner. The petitioner further claims monetary benefit from 1.4.1981 for first time-bound promotion. In absence of final sanction of pension there has been no order of commutation of 1/3 amount of pension. 6. The respondents in their counter-affidavit have come out with a plea that since the petitioner was in the Work Charge Establishment he was not entitled to any promotion, hence the earlier order of the petitioner to post him as Work Supervisor with effect from 2.12.1963 and further promotion to then post of Supervisor Grade I with effect from 1.9.1967 is without jurisdiction. The petitioner was illegally promoted to the post of Supervisor Grade I without being promoted to the lower post of Supervisor Grade III and Supervisor Grade I. The entire plea of the Respondents is that regularisation of the service of the petitioner on the post of Supervisor Grade I was illegal. He could have been regularised only on the lower post of Store Clerk in compliance of the policy decision of the State Government (Annexure 2). Consequently, the direction of the authority to pay petitioner in the promoted post of Supervisor Grade-I is illegal. Being in the Workcharge Establishment the petitioner was also not entitled to time-bound promotion and the order passed in this regard was illegal and without jurisdiction. 7. The Respondents then relied on the decision of this Court in Koshi Project Workers Association and Ors. V/s. The State of Bihar and Ors. 1997 (2) PLJR 355 . The learned Single Judge of this Court has held that promotion of the employees in the Work Charge Establishment was illegal. 8. Learned Counsel for the petitioner has submitted that the decision of S.N. Jha, J. in Koshi Project Workers Association (supra) is distinguishable on facts. He further relied on reported decision of this Court in Braj Nandan Kumar Sinha and Ors. V/s. State of Bihar and Ors. C.W.J.C. No. 6219 of 1995, disposed of on 8.12.1995. 9. The question in that case was whether the employees of the State Government are entitled to time-bound promotion after counting the period rendered in the Work Charge Establishment or not and further, if such time-bound promotion is granted, after counting the period rendered in the Work Charge Establishment, whether such employees are entitled to full salary from the date he is so promoted on such time-bound promotion or not. In that case, time-bound promotion granted to 44 petitioners with effect from 11.4.1981 was cancelled. The petitioners in those petitions as in the present case founded the claim for time-bound promotion on the basis of the Resolution of the State Government dated 27.3.1987. 10. According to the contention of the State in the case referred to the employees were entitled to arrears from the date of issuance of the Resolution, i.e., 27.3.1987. The petitioners in those petitions as in the present case founded the claim for time-bound promotion on the basis of the Resolution of the State Government dated 27.3.1987. 10. According to the contention of the State in the case referred to the employees were entitled to arrears from the date of issuance of the Resolution, i.e., 27.3.1987. The learned Judge after close scrutiny of the Resolution of the State Government dated 30.12.1981 observed- From the aforesaid Resolution (Annexure-3) it will be manifest and clear that the time-bound promotion policy has been laid down by the Respondent-State with respect to the State Government employees. No distinction has been made vis-a-vis the employees who are working in the Regular Establishment and the employees who are working in the Work Charge Establishment. Paragraph 12 of the Resolution aforesaid further makes it clear that the said revision of scale of pay was made applicable even with respect to the employees of the Work Charge Establishment, who were employees on full time basis against a post in the time scale of pay. Though, in the matter of time-bound promotion, the word promotion is being used, but for all purposes, the word promotion is redundant. A person is neither given any higher rank and/or status merely on completion of certain years of service, such person is provided with the next higher scale of pay. It is for the said reason, according to me, on completion of a particular years of service (ten years in this case), a person merely entitled to receive the next higher grade in the revised scale of pay. As the revised scale of pay has been equally made applicable with respect to the employees of the Work Charge Establishment, they are also entitled for the next higher grade on completion often years of service in terms with paragraph 11 of the Resolution dated 30th December, 1981 (Annexure 3). Apart from the same, if the Resolution of the Finance Department dated 23rd March, 1987 (Annexure A) is taken into account, then the position will be like this. The petitioners having completed more than ten years of service, their date of time-bound promotion will be fixed to 1st of April, 1981 in accordance with Annexure-A, but in that case, they will be paid the arrears of salary only with effect from 27th March, 1987. 11. The petitioners having completed more than ten years of service, their date of time-bound promotion will be fixed to 1st of April, 1981 in accordance with Annexure-A, but in that case, they will be paid the arrears of salary only with effect from 27th March, 1987. 11. The learned Judge held that the petitioner in that case is entitled to first time-bound promotion with effect from 1.4.1994 and the cancellation of the order at the time of promotion was illegal. 12. In the instant case, there is no order either cancelling the promotion of the petitioner to Supervisor Grade I. The petitioner has been granted time-bound promotion with effect from 1.4.1981 but monetary benefit has been given to him with effect from 23.7.1987 which should have been allowed with effect from 1.4.1981. The petitioner is, therefore, entitled to pensionary benefit on the basis of the promotion in Supervisor Grade I. Other dues which have not been paid to the petitioner was also to be paid to him. 13. The application is, therefore, allowed. It is made clear that the petitioner is entitled to time-bound promotion with effect from 1.4.1981 and the arrears should be calculated accordingly. So far as second time-bound promotion is concerned, the authorities are directed to pass order in accordance with law in the light of claim of the petitioner.