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2002 DIGILAW 1079 (PAT)

Dharmendra Kumar v. State Of Bihar

2002-10-04

NARAYAN ROY

body2002
Judgment 1. Heard learned counsel appearing on behalf of the petitioner and JC to GP 8 for the State. 2. The petitioner is the son of the deceased headmaster and by this writ application, he has prayed for issuance of a direction upon the respondents to pay the difference of salary with effect from 1.9.1990 to 31.7.1998 treating his father as the headmaster of Bakhauri Singh High School, Ismilepur, Gaya. 3. Short facts giving rise to this application are as follows: Vide notification dated 1.9.1990, as contained in annexure 1, the father of the petitioner, late Haridwar Singh, was promoted to the post of headmaster against a pay scale of Rs. 3000-4500. The order of promotion, however, was not given effect to, as the recommendation of the State Government to promote the father of the petitioner to the post of headmaster was challenged by one Raj Kumar Sharma before this Court in Civil Writ Jurisdiction Case No. 4894 of 1990. 4. The writ application, however, was dismissed on 17.7.1998 and the recommendation made by the State authorities to promote the father of the petitioner on the post of headmaster was held to be valid. Even after dismissal of the writ application on 17.7.1998 the same was not implemented and, in the meantime, the father of the petitioner retired with effect from 31.7.1998 and, subsequently, he died on 1.12.1999 and the son of the deceased, therefore, has approached this Court for the reliefs as indicated above. 5. Learned counsel appearing on behalf of the petitioner submitted that since the recommendation of the State Government to promote the father of the petitioner was affirmed by this Court and even though the father of the petitioner subsequently retired, he is entitled to get the consequential benefit on account of his notional promotion. 6. Two sets of counter affidavits have been filed-one on behalf of respondent no.2, the Director, Secondary Education, and another by the District Education Officer, Gaya stating therein that by virtue of the order passed by this Court in Civil Writ Jurisdiction Case No. 4894 of 1990, the departmental order dated 1.9.1990 promoting the father of the petitioner as headmaster was cancelled and the same was communicated to him vide memo no. 610 dated 19.9.1990, and, therefore, the claim of the petitioner even for consequential benefit is not maintainable. 7. 610 dated 19.9.1990, and, therefore, the claim of the petitioner even for consequential benefit is not maintainable. 7. The fact that the petitioner was promoted to the post of headmaster by virtue of annexure 1 is not in dispute. 8. It appears that the order of promotion could not be given effect to on account of pendency of the writ application aforesaid and by the time the writ application was dismissed, the father of the petitioner superannuated few days thereafter and consequently thereof, the order of promotion was not implemented. There is nothing in the counter affidavit to show that after dismissal of the writ application, the order of promotion, which was subsequently, cancelled, was restored. 9. In the given facts and circumstances of the case, the respondents could not have cancelled the order of promotion merely on the ground of pendency of the writ application and even though it was so done, by deeming fiction of law the same must have been treated to have been restored after dismissal of the writ application. 10. Now the question for consideration arises as to whether the petitioner would be entitled to get difference of salary with effect from 1.9.1990 to 31.7.1998. 11. The petitioner admittedly is the heir of the deceased headmaster and he can maintain this writ application for the consequential benefits, which were made available to his deceased father on account of the order of promotion, as contained in annexure 1. In this connection reliance may be placed on the case of Smt. Sudha Shrivastava vs. Comptroller and Auditor General of India (AIR 1996 Supreme Court, 571). In the case of Smt. Sudha Shrivastava (supra) in the similar circumstance of the case, the Apex Court held as follows:- "The claim of the appellant was rejected by the Tribunal primarily on the ground that the right to promotion was a personal right and the heirs of the deceased have no right to make any claim in regard thereto. The Tribunal fell in error inasmuch as the process for promotion to the post of Accountant General (Grade-II), regarding late S.S. Shrivastava had already been undertaken and the "sealed cover" procedure followed. Whatever the rights the deceased had, as a result of this "sealed cover" the procedure having been followed, stood established as on that date. The Tribunal fell in error inasmuch as the process for promotion to the post of Accountant General (Grade-II), regarding late S.S. Shrivastava had already been undertaken and the "sealed cover" procedure followed. Whatever the rights the deceased had, as a result of this "sealed cover" the procedure having been followed, stood established as on that date. Along with the right to work in the higher post, if he was to be promoted, he would have also got a right to salary in the higher scale. The effect of the acquittal of the appellants husband must be regarded as if he had been wrongly convicted. He, therefore, would have had a right to have been piaced in the higher scale of pay, if he had been selected for promotion and this is a right which would devolve on the legal heirs, if during the pendency of the proceedings, the said employee expired." 12. For the reasons aforementioned and in view of the legal proposition, as noticed above, it is held that this writ application is maintainable at the behest of the petitioner, who is the son of the deceased headmaster and he would be entitled to get the consequential benefit of the notional promotion. The authorities, accordingly, are directed to pay the consequential benefits to the petitioner in accordance with law within a period of three months from the date of receipt/production of a copy of this order. 13. With this direction/observation, this application is disposed of.