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2004 DIGILAW 1027 (PAT)

Awadhesh Singh v. State Of Bihar

2004-09-24

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for issuance of a writ in the nature of certiorari tor quashing the order dated 30th September, 1999 (Annexure-6) passed by the Director, Primary Education, Bihar, Patna whereby he has directed that the petitioner shall not be entitled to the benefit of grant of B. Sc. trained scale from retrospective effect i.e. from the date it was granted. Petitioner claims monetary benefits right from the date of such grant and accordingly prays for issuance of an appropriate mandamus for that relief. 2. Facts lie in a narrow compass. 3. In the light of the order passed by this Court in CWJC No. 4170 of 1991 and CWJC No. 661 of 1990, the case of the petitioner besides other persons were considered for grant of B.Sc. trained scale and by order dated 3rd of April, 1992 (Annexure-2) petitioner was granted B.Sc. trained scale, hereinafter referred to as the trained scale with effect from 12.2.1982 but while doing so it was directed that petitioner shall get the benefit of grant of trained scale with effect from 1.4.1992. As regards, the arrears of salary on account of promotion, it was observed that the same shaft be paid after sanction by the Director. Petitioner, alongwith other persons aggrieved by the same, preferred CWJC No. 5902 of 1997 before this Court, inter alia, praying for grant of consequential benefits on account of grant of trained scale with retrospective effect. This Court by order dated 7.9.1998 (Annexure-5) directed the Director of Primary Education to take decision in regard to the grant of trained scale with effect from the date of promotion. In the light of the direction given by this Court the Director of Primary Education considered the prayer of the petitioner for payment of arrears of salary and relying on letter no. 2074 dated 4.4.1985 of the Finance Department observed that petitioner shall not be entitled for the arrears of salary on account of his promotion with retrospective effect and accordingly rejected the prayer of the petitioner. 4. Mr. Arun Kumar Tiwari appears on behalf of the petitioner. Respondents are represented by Mr. A.K. Choudhary, Government Pleader no. 8. 5. 2074 dated 4.4.1985 of the Finance Department observed that petitioner shall not be entitled for the arrears of salary on account of his promotion with retrospective effect and accordingly rejected the prayer of the petitioner. 4. Mr. Arun Kumar Tiwari appears on behalf of the petitioner. Respondents are represented by Mr. A.K. Choudhary, Government Pleader no. 8. 5. The question in the present case is as to whether on account of promotion of an employee with retrospective effect, he is entitled for arrears of salary from the date of promotion or shall be entitled for the higher scale of pay from the date such public servant assumes the office of the higher grade. Petitioner contends that in case, in which an employee has not been allowed to assume the responsibility of higher post on account of fault on the part of the employer he shall be entitled for the benefit thereof right from the date of promotion; whereas the respondents contend that in view of Rule 58 of the Bihar Service Code, Rule 74 of the Bihar Financial Rules and the clarification made by the State Government in its letter dated 4.4.1985, an employee shall be entitled for the benefit of promotion from the date from which he starts performing the responsibility of the higher grade. The question, therefore, is as to whether petitioner having not assumed the duties of the higher post can he be denied the salary for the said grade from the date the same was granted. 6. The rival stand necessitates examination of the provisions of the Bihar Service Code, Bihar Financial Rules and the letter of the Finance Department and I will examine the same one by one. Rule 58 of the Bihar Service Code which is relevant for the purpose reads as follows: "58. (a) Subject to any exception specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. xx xx xx 7. xx xx xx 7. From a plain reading of Rule 58(a) of the Code it is evident that a Government servant shall begin to draw the pay and allowances attached to tenure of a post with effect from the date on which he assumes the duties of that post. Undisputedly in the present case the petitioner did not and could not have assumed the duties of trained scale with effect from 13.3.1982 as the order of promotion itself was passed on 3rd of April, 1992 and the petitioner has been conferred with the benefit of trained scale from 1 st of April, 1992. 8. Rule 74 of the Bihar Financial Rules reads as follows: "All authorities which are competent to sanction revision of pay of the grant of concession to Government servants should bear in mind that retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government." 9. So far as this rule is concerned, it does not prohibit grant of financial benefits from the retrospective date altogether but allows the same in exceptional circumstances. 10. Finance Departments memo no. 2074 dated 4.4.1985 inter alia contemplates as follows: (11) (Local language) 11. The aforesaid instruction clearly provides that in case senior is granted promotion with retrospective effect, no arrears of salary from the date prior to the joining is admissible to such Government servant. 12. Therefore, in normal circumstances the benefits of promotion to the public servant is to be given with effect from the date on which such public servant assumes the duties of the post on which he is promoted. This does not create any problem but the problem arises in a case in which a Government servant is deprived of assuming the duties of the higher grade or post for no fault on his part because of order of promotion being made effective from retrospective effect. Can the benefit of promotion be denied on the ground that the public servant had assumed the duties of the higher post later on? To me the answer seems to be very simple. It is well settled that a person cannot be allowed to suffer on account of inaction or failure on the part of the other persons. Can the benefit of promotion be denied on the ground that the public servant had assumed the duties of the higher post later on? To me the answer seems to be very simple. It is well settled that a person cannot be allowed to suffer on account of inaction or failure on the part of the other persons. Here in the present case the petitioner has been granted the grade with retrospective and he did not assume the duties of the higher grade as the order of promotion itself was issued on a date much after the date from which he was given the higher grade. In such circumstance I am of the opinion that all the benefits flowing from the grant of grade has to be given from the date it is granted. Hence on first principle I hold that a public servant promoted or granted scale with retrospective cannot be denied the benefits thereof only on the ground that such public servant has not assumed the duty of higher scale. 13. it is unfortunate that the State Government still persists with its archaic theory of not giving benefits to an employee given promotion with retrospective date for no fault on his part, in spite of a large number of authorities on the question saying to the contrary. It is relevant here to state that this Court had the occasion to consider this question more than a decade ago in the case of Man Mohan Prasad V/s. Nakuleshwar Prasad (1987 PLJR 347) and in categorical term this Court held that once an employee is promoted with effect from retrospective date it cannot be deprived the benefits to which he was otherwise entitled on the ground that he did not perform the work of the higher posts. In the said case it has been observed as follows: "In view of the affidavits filed on behalf of the Board, it has been conceded that the promotion was due to be given to the petitioner and others with effect from 8.10.1970 and, therefore, notional promotion was accorded and given to the petitioner and others. Having done all that, could it now be reasonably said and will it now be justified in the interest of justice to ask them to open another round of litigation for demanding the consequential benefits which legally flows from the notional promotion given to the petitioner and others. Having done all that, could it now be reasonably said and will it now be justified in the interest of justice to ask them to open another round of litigation for demanding the consequential benefits which legally flows from the notional promotion given to the petitioner and others. It is in the interest of justice and also in the circumstances of this case to direct that the respondents concerned will decide the amount of salary which is due to be paid to them, with effect from 8.10.1970 and the same shall be expeditiously decided, preferably within one month from the date of the receipt of this order." 14. A Division Bench of this Court in the case of Dr. Paras Nath Prasad V/s. State of Bihar and Ors. [1990(2) PLJR 248] had the occasion to consider this question in little detail and after referring to the various decisions and the authority it observed that a Government servant is entitled to get his arrears of salary from the date of promotion which were denied to him for no fault of his. The effect of Rule 58 of the Bihar Service Code was considered in that case and it was found that the same does not stand in the way of the Government servant in getting the arrears of salary. In the said case it has been observed 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. 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 Alppat Narana Menon V/s. State of Kerela, (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 that 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 1.5.1955 and, therefore, his claim for arrears of salary and other material benefits cannot be denied to him on the plea that what 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." 15. The situation may be different in the case in which the employee is promoted but he is unwilling to work on the higher post but in a case in which a Government servant is willing to work and he is kept away from the work by the authority for no fault of his, benefits of promotion cannot be denied on the ground that such an employee did not assume the duty of the higher post. The Supreme Court took this view in the case of Union of India V/s. K.V. Jankiraman (1991 SC 2010) wherein the Supreme Court observed as follows: "We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. The Supreme Court took this view in the case of Union of India V/s. K.V. Jankiraman (1991 SC 2010) wherein the Supreme Court observed as follows: "We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz, "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion." 16. For grant of benefits from retrospective date one is to consider as to whether a person although had the right to be promoted but on account of Omission and Commission on the part of the State Government he is not promoted in time and granted promotion with retrospective effect, the employee concerned shall be entitled for arrears of salary from the date of retrospective promotion, even if he has not worked against the higher post and Rule 58 of the Bihar Service Code and 74 of the Bihar Financial Rules and letter dated 4.4.1985 and for that matter principle of no work no pay shall not come in his way. 17. This Court in case of Sri Mahavir Pandey V/s. State of Bihar and Ors. [ 2000 (1) PLJR 768 ] after referring to the decision of the Supreme Court in the case of Alappat Narayan V/s. State of Kerala [ 1977(2) S.L.R. 656 ], Calcutta Iron Merchants Association and another V/s. Commissioner of Commercial Taxes (1996)7 SCC 537 , and of this Court in Dr. Prasad Nath Prasad V/s. State of Bihar (supra) observed as follows: "For example, in a case where promotion was not considered because of pendency of departmental proceeding/suspension/criminal case or matter is pending under sealed cover, on completion of such proceeding and promotion from retrospective date a person is entitled for arrears of salary on such retrospective promotion, though not worked against the higher post. Similarly in a case where for one or other reason, case of senior is not considered and junior promoted but subsequently such mistake is rectified on consideration of case of senior and such promotion is granted from retrospective date. Similarly in a case where for one or other reason, case of senior is not considered and junior promoted but subsequently such mistake is rectified on consideration of case of senior and such promotion is granted from retrospective date. However, the principle of no work no pay on retrospective promotion to selection grade in the same cadre cannot be made applicable, as the person continued to function against the cadre post, even on such promotion to selection grade scale. In such case, on such retrospective promotion, arrear is payable." 18. The Supreme Court had the occasion to consider this question in the case of Food Corporation of India V/s. S.N. Nagarkar ( AIR 2002 SC 808 ) in which it was observed that a public servant cannot be deprived of the pay and allowances of the higher post on account of the fault of the authorities concerned. In the said case it has been observed as follows: "We have earlier extracted the relevant part of the order passed by the learned Judge. The order clearly directs the issuance of a writ of mandamus to give the benefit of pay fixation of the respondent as Assistant Grade Il and Assistant Grade I and also for consideration of his case for promotion to the post of Assistant Manager (D) from the date the persons junior to him were promoted. The order further directs that the arrears of pay shall be paid within one month thereafter, and in case it was not paid, the petitioner (respondent herein was to get interest @ 18% from the date of that order. The learned Judge noticed the facts of the case, that for no fault of the respondent, and solely on account of the fact that his name was not included in the relevant panel by mistake, he was deprived of his promotion to Assistant Grade I and his further promotion to the cadre of Assistant Manager (D). Having regard to the facts and circumstances of the case, the Court was satisfied that the respondent was not only to be considered for promotion to the promotional posts, but was also entitled to arrears of pay and allowances since he had been deprived of those benefits not on account of any fault of his but on account of the fault of the authorities concerned. It is well settled that in exercise of writ jurisdiction, the court may mould the relief having regard to the facts of the case and interest of justice". 19. A learned Single Judge of this court had the occasion to consider this question in the case of Md. Hafiz V/s. State of Bihar [ 2003 (2) PLJR 44 ] in which it has been observed as follows: "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". 20. Further in the case of Judgeshwar Bhatt V/s. State of Bihar [ 2004(2) PLJR 123 ] this Court held as follows: "Learned counsel appearing on behalf of the petitioner, however, submitted that for the fault of the respondents, the petitioner should not suffer inasmuch as that the petitioner was deprived of the promotional avenues earlier due to the fault of the authorities concerned and since he had been promoted with effect from 20.8.1994 he would be entitled to get the consequential benefits from the date of promotion itself irrespective of the fact that he has not discharged his duties in between, therefore, Rule 58 of the Bihar Service Code will not come in his way. It is further submitted by learned counsel for the petitioner that the issue in question is covered by several decisions of this Court and one of the instances has been given in the case of Rana Raghunath Prasad Singh V/s. State of Bihar and others [1993(1) Patna Law Journal Reports, 519]". 21. It is further submitted by learned counsel for the petitioner that the issue in question is covered by several decisions of this Court and one of the instances has been given in the case of Rana Raghunath Prasad Singh V/s. State of Bihar and others [1993(1) Patna Law Journal Reports, 519]". 21. Thus the conclusion reached by me on first principle that a Government employee cannot be deprived of monetary benefits in case of promotion with retrospective effect on the ground that such Government Servant did not perform the work of higher post and Rule 58 of the Bihar Service Code, Rule 74 of the Bihar Financial Rules and the letter of the Finance Department dated 4.4.1985 in no way affects that right also finds support from a long time of authority of the Supreme Court and decision of this Court. 22. It is unfortunate that principle laid by this Court long ago is not being adhered to by the State Government and public servants are denied their legitimate rights, flooding this Court with uncalled for litigations. The State Government shall be well advised to modify its circular in the light of the decision of the Court aforesaid, so as to avoid any future litigation. 23. In the result, the application is allowed, the impugned order Annexure 6 is quashed and it is held that the petitioner shall be entitled for benefit of the trained scale from the date same was granted to him with all monetary benefits flowing from that, which be paid to him within six months from the date of receipt/production of a copy of this order. No cost.