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2003 DIGILAW 190 (PAT)

Md. Hafiz v. State Of Bihar

2003-02-17

NARAYAN ROY

body2003
Judgment 1. Heard counsel for the parties. 2. The question, which falls for consideration in this case is as to whether the benefit of notional promotion can be granted only after joining of the post or from the date the promotions are notified and also as to whether the petitioner is entitled for consequential monetary benefits on account of notional promotion granted to him. 3. It is submitted by learned counsel appearing on behalf of the petitioner that the petitioner vide order, as contained in Annexure 1 dated 30.8.1993, was promoted to the post of Registrar in the Secretariat and the order of promotion as directed vide order, as contained in Annexure 1, was given retrospective effect vide notification as contained in Annexure 2 dated 27.6.1996 with effect from 5.10.1989 and thereafter the petitioner was again promoted to the post of Under Secretary under the respondents vide notification, as contained in Annexure 3, dated 17.8.1998 with retrospective effect from 17.8.1998, whereas the petitioner superannuated with effect from February 1997. It is further submitted that the consequential benefits of promotion granted to the petitioner to the post of Registrar vide orders as contained in Annexures 1 and 2, have not been given to him only on the ground that the benefit will be payable from the date of his joining and not from the retrospective date, as notified vide Annexure 2 with effect from 5.10.1989. It is also submitted by learned counsel appearing on behalf of the petitioner that the consequential monetary benefit, which was made available to the petitioner vide Annexure 3, is also not being given to him as he superannuated with effect from February 1997, though the notification, as contained in Annexure 3, was given effect to retrospectively, with effect from 5.10.1993. Learned counsel submits that the petitioner is entitled to get consequential monetary benefits of the promotions from the date the same were notified and not from the date the Government employee joined the post. 4. Learned counsel submits that the petitioner is entitled to get consequential monetary benefits of the promotions from the date the same were notified and not from the date the Government employee joined the post. 4. A counter affidavit has been filed on behalf of the State respondent stating therein, inter alia, that in view of the circular of the Finance Department dated 4th April, 1985, as contained in Annexure A to the counter affidavit, the promotional benefits are admissible from the date the Government servant assumes charge of the promoted post as Rule 58 of the Bihar Service Code and Rule 17 of the Assistants Joint Cadre Rules, 1992. 5. The scope of Rule 58 of the Bihar Service Code has been interpreted by a Bench of this Court in Dr. Paras Nath Prasad V/s. State of Bihar and others 1990 (2) Patna Law Journal Reports 248. In paragraph 19 of the case of Dr. Paras Nath Prasad (supra), this Court held as follows: The other contentions of the learned counsel for the respondents that Rule 58 of the Bihar Service Code prohibits any grant of pay and allowances to the petitioner on a fictional and notional promotion granted to him is, in my view, misconceived. A notional promotion has to be as if, for service benefits, he had been given due promotion. A person, who is entitled to promotion and is not promoted, can always invoke the jurisdiction of this Court under Article 226 of the Constitution for a mandamus to the employer State to consider his case for such promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and the service contract of the employee concerned. In the case of Alappat Narana Menon V/s State of Kerala (1977 Volume II S.L.R. 656) the Supreme Court has stated : "The foregoing discussion with reference to the pronouncement of the Supreme Court and the Gujarat, Allahabad and Mysore High Courts clearly establish that a Government servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his. The Governments plea the petitioner was given only a notional promotion is not sustainable in law. The Governments plea the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as notional in the context of the peculiar facts and circumstances of this case.The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears of salary and other material benefits cannot be denied to him on the plea that was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioners claim. I, therefore, hold that the petitioner is entitled to succeed." 6. It appears that this Court held that notional promotion is one, which a Government servant gets under particular exigencies of situation, which he cannot claim as of right, but the petitioner of that case was entitled as of right to get the promotion from 1.4.1955, and, therefore, necessary directions were issued for payment of salary and other material benefits to that petitioner. In sum and substance, this Court held that the material benefits cannot be denied to a Government servant, who have been granted even notional promotion. 7. Again in the case of Shiva Narayan Lal V/s. State of Bihar and ors. [1999 (1) Patna Law Journal Reports 243], this Court held that a Government servant being granted promotion from retrospective date cannot be denied the material benefits accruing from the promotion. 8. This question was also considered by the apex court in the case of Food Corporation of India V/s. S.N. Nagarkar (AIR 2002 Supreme Court 808) and the apex court held that the Government servant is entitled to the arrears of pay and allowances from the date of promotion. 9. 8. This question was also considered by the apex court in the case of Food Corporation of India V/s. S.N. Nagarkar (AIR 2002 Supreme Court 808) and the apex court held that the Government servant is entitled to the arrears of pay and allowances from the date of promotion. 9. From the pleading of the parties, it is admitted position that the petitioner firstly was promoted to the post of Registrar under the respondents vide order, as contained in Annexure 1, and the same was given retrospective effect by virtue to notification, as contained in Annexure 2, as noticed above, and vide order, as contained in Annexure 3, the petitioner was again promoted to the post of Under Secreatary with effect from 5.10.1993. 10. Since the petitioner was promoted firstly to the post of Registrar with effect from 5.10.1989, he would be entitled to get the arrears of benefits with effect from 5.10.1993 and not from the date of his joining. On account of the subsequent promotion given to the petitioner by virtue of the notification, as contained in Annexure 3, the petitioner would be entitled to get the monetary benefit from the retrospective date fixed in the notification with effect from 5.10.1993 and even though the petitioner retired prior to issuance of Annexure 3 dated 17.8.1998 the material benefits will be available to him with effect from 5.10.1993. 11. The plea taken by the State respondents that the material benefits will be given to the petitioner from the date of his joining appears to be wholly misconceived and at the same time, the stand of the State that the meaning of notional promotion is only for the sake of promotion and not for the material benefits also appears to be wholly misconceived. The concept of notional promotion is to ensure monetary benefits to the employees and, therefore, the petitioner was entitled to get the monetary benefits on account of the promotion given to him with effect from the dates already notified vide notifications, as contained in Annexures 2 and 3. 12. Since the petitioner has retired from services with effect from February 1997, the State authorities are directed to pay the consequential monetary benefits on account of the promotions given to the petitioner, as referred to above, within a period of three months from the date of receipt/production of a copy of this order. 13. 12. Since the petitioner has retired from services with effect from February 1997, the State authorities are directed to pay the consequential monetary benefits on account of the promotions given to the petitioner, as referred to above, within a period of three months from the date of receipt/production of a copy of this order. 13. With this direction/observations, this application is disposed of.