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2005 DIGILAW 251 (PAT)

Rajendra Prasad Singh v. State Of Bihar

2005-03-03

BARIN GHOSH

body2005
Judgment Barin Ghosh, J. 1. Heard learned counsel for the parties. 2. In the writ petition the petitioner seeks two fold reliefs. In contemplation of a disciplinary proceeding the petitioner was put under suspension. He remained suspended during the period 1.11.1990 to 31.8.1992. In the disciplinary proceeding the petitioner was awarded punishments. While, however, awarding punishments to the petitioner the final order passed in the disciplinary proceeding did not deal with as to how the suspended period spent by the petitioner shall be treated. There is no dispute that during the period the petitioner remained under suspension he was paid subsistence allowance. Because of the order of suspension the petitioner was deprived of receiving his full salary during the period of suspension. The order of suspension stood merged with the final order passed in the disciplinary proceeding. While passing the final order in the disciplinary proceeding it was open to the disciplinary authority to direct as to how the suspension period shall be treated. Since that was not done, the petitioner is entitled to full salary with increments for the period of suspension. 3. In the counter affidavit although it has been stated that it was intended by the disciplinary authority that the petitioner be awarded only subsistence allowance during the period of suspension but that having had not been reflected in the final order passed in the disciplinary proceedings the same cannot be incorporated by way of an affidavit in the final order. In such view of the matter, the first claim of the petitioner on account of difference between salary with increments and subsistence allowance during the period the petitioner remained under suspension is allowed. Let the same be paid within a period of. 12 weeks from the date of service of a copy of this order upon appropriate respondent together with interest at the rate of 6% per annum from the date of final order passed in the disciplinary proceedings until payment. 4. The next claim of the petitioner is on account of difference of salary payable to the petitioner to which he became entitled by reason of his promotion for the period 1.4.1991 to 11.6.1996. The petitioner was promoted to the post of Superintending Engineer by a decision of the Government dated 11.6.1996: In the said decision it was provided that the petitioner would be deemed to be promoted to the said promotional post from 1.4.1991. The petitioner was promoted to the post of Superintending Engineer by a decision of the Government dated 11.6.1996: In the said decision it was provided that the petitioner would be deemed to be promoted to the said promotional post from 1.4.1991. At the same time in Clause 2 of the said decision it was provided that the petitioner shall be entitled to the benefit of his promotion with effect from the date he assumes charge of his promotional post after such promotion is accorded to him. The decision of the Government dated 11.6.1996 nowhere says that the petitioner was otherwise entitled to promotion to the post of Superintending Engineer w.e.f., 1.4.1991 or that, his promotion w.e.f., 1.4.1991 would enure any financial benefit to the petitioner in any manner whatsoever, i.e. either for the purpose of fixation of his pension or for the purpose of fixation of his gratuity or otherwise. On the contrary, it was clearly spelt out in the said order that the petitioner shall be entitled to the benefits of his promotion when he assumes his duties on the basis of such promotion. Clause 58 of the Bihar Service Code specifically provides that 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. In consonance with the said provision of the Bihar Service Code the subject promotion was given to the petitioner with the stipulation that he shall be entitled to draw the benefits of his promotion post with effect from the date he assumes the duties on his promotional post. 5. In such view of the matter, it does not appear that the petitioner is entitled to salaries at the rate payable to a Superintending Engineer for the period 1.4.1991 to 11.6.1996 for he was in fact promoted on 11.6.1996 and assumed duties of the promotional post from 11.6.1996 after such promotion was accorded. 6. The learned counsel for the petitioner submitted that in fact the petitioner was entitled to promotion with effect from 1.4.1991 and that was given to him on 11.6.1996 and by the decision dated 11.6.1996 the Government purported to contend that the petitioner was given notional promotion w.e.f. 1.4.1991. Notional promotion can not be had as a matter of right. The same can only be had in exigencies. Notional promotion can not be had as a matter of right. The same can only be had in exigencies. In the instant case although in the circular it was mentioned that the petitioner shall be entitled to promotion w.e.f., 1.4.1991 but, in the order it was not mentioned as to how the petitioner will be benefitted financially from 1.4.1991. On the other hand it was specifically mentioned in the order itself that the petitioner shall be entitled to the financial benefits attached to his promotion with effect from the date he assumes his charge upon the order of promotion having passed. It may be possible that for the purpose of fixation of the seniority on the promotional post, the seniority of the petitioner may be fixed w.e.f., 1.4.1991, but in terms of the decision of the Government the petitioner is not entitled to any financial benefits w.e.f. 1.4.1991 and, accordingly the claim of the petitioner for the salary at the rate payable to a Superintending Engineer from 1.4.1991 is rejected. 7. It may be possible as submitted by learned counsel for the petitioner that the petitioner had been discharging the duties of a Superintending Engineer with effect from 1993 but then that was an adhoc arrangement when the petitioner was not discharging such duties on the basis of a promotion obtained by him. 8. In those circumstances, the writ petition is allowed to the extent as above.