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2007 DIGILAW 146 (PAT)

Shishir Kumar v. State Of Bihar

2007-01-19

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard Mr. Sunil Kumar, learned counsel for the petitioner and learned Standing Counsel No. 1, for the State. 2. The petitioner seeks quashing of memo no. 3296 dated 25.3.2004 (Annexure-6) by which the representation of the petitioner for grant of consequential benefits of promotion in the rank of Sargeant Major with effect from 22.7.1981 and in the rant of Deputy Superintendent of Police with effect from 17.6.1994, has been rejected. 3. The short facts of this case are that the petitioner was appointed as Sargeant on 2.1.1969. Thereafter he was implicated in criminal cases and three departmental proceedings were also initiated against him. Ultimately, however, he was acquitted in the criminal cases and none of the charge against him was proved in any of the departmental proceedings and no punishment was awarded in the said proceedings. In the meantime, while those proceedings were going on, several juniors to the petitioner were promoted to the higher post of Sargeant Major with effect from 22.71981 but after his exoneration the petitioner was given promotion prospectively from 16.10.1987 and not from the date from which the juniors were promoted. Aggrieved by the same the petitioner approached this Court by filing CWJC No. 11196 of 2000 and by order dated 9.11.2000 this Court remitted the matter to the Director General-cum-Inspector General of Police, Bihar for determination as to whether the petitioner should be given the same benefits as his juniors as also the consequential benefits of promotion to the next higher post of Deputy Superintendent of Police with effect from 17.11.1989. 4. By order dated 28.3.2001 passed by the Deputy Inspector General (Human Right) Bihar, Patna, the petitioner was granted promotion notionally with effect from 22.7.1981, the date on which his juniors had been promoted, but the financial benefits of the promotion were denied to him on the plea of the Finance Department memo no. 2074 dated 4.4.1985, Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules. Thereafter, by a further order dated 27.11.2003 of the Government of Bihar, in the Home (Police) Department, the petitioner was granted notional promotion on the post of Deputy Superintendent of Police with effect from 17.6.1994 but again the financial benefits of promotion with retrospective effect was not granted relying upon the circular dated 4.4.1985 of the Finance Department. Thereafter, by a further order dated 27.11.2003 of the Government of Bihar, in the Home (Police) Department, the petitioner was granted notional promotion on the post of Deputy Superintendent of Police with effect from 17.6.1994 but again the financial benefits of promotion with retrospective effect was not granted relying upon the circular dated 4.4.1985 of the Finance Department. Aggrieved by the same the petitioner filed a representation before the authorities which has been rejected by the impugned order dated 25.3.2004 (Annexure-6) passed by the Government of Bihar in the Home (Police) Department. The petitioner has thus come to this Court. 5. Learned counsel for the petitioner submitted that once the benefit of promotion has been granted to the petitioner with effect from the date his juniors have been promoted then it is not open to the authorities to deny the consequential financial benefits from the same date. In support of the said proposition learned counsel for the petitioner relies upon various decisions of this Court, in the case of Shiv Narayan Lal V/s. State of Bihar & Ors.: 1999(1) PLJR 243, Md. Hafiz V/s. State of Bihar & Ors. : 2003(2) PLJR 44 and a Division Bench judgment in the case of Dr. Paras Nath Prasad V/s. State of Bihar & Ors. : 1990(2) PLJR 248. 6. Learned counsel for the State, on the other hand, sought to support the order on the ground that the petitioners case was not one of simply denying the promotional benefits on account of no fault of his since the petitioner had, in fact, been proceeded against in several criminal cases and in three departmental proceedings. For the said reasons, it is stated that the circular dated 4.4.1985 of the Finance Department, Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules will apply and the petitioner would not be entitled to any consequential financial benefits merely because he has been granted notional promotion with effect from the date his juniors had been so granted. 7. On a consideration of the entire facts and circumstances of the case, this Court finds force in the submission of the learned counsel for the petitioner. 7. On a consideration of the entire facts and circumstances of the case, this Court finds force in the submission of the learned counsel for the petitioner. So far as the plea of the State regarding application of Rule 58 of the Bihar Service Code and the consequential Rule contained in Rule 74 of the Bihar Financial Rules as well as the Finance Department circular dated 4.4.1985 is concerned, which is based upon Rule 58 of the Bihar Service Code, the said issue is no longer res Integra and has already been considered and decided by the Supreme Court in the case of Union of India etc. V/s. K.V. Jankiraman : AIR 1991 Supreme Court 2010. In the said case also the relevant memorandum under consideration provided that no arrears of pay shall be payable to the proceedee for the period of notional promotion preceding the date of actual promotion. Further the Union of India sought to rely upon the Fundamental Rule 17(1) which is in pari materia with Rule 58 of the Bihar Service Code. It further sought to rely upon the principles of "No work no pay" and it was thus sought to be impressed upon the Court that a person should only be paid the salary and allowance attached to the post from the date he discharged the duty of that post and not from any date prior to that. Dealing with the same the Apex Court observed in para 7 as follows:- "There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post." 8. With respect to the plea regarding F.R. 17(1) and the application of doctrine of no work no pay the Apex Court was pleased to observe as follows:- "We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases." 9. The said observations of the Apex Court fully apply to the facts of the present case and thus, it is not open to the authorities to deny to the petitioner the consequential financial benefits upon his being granted the promotion with effect from the date from which his juniors have been promoted merely upon the ground that he had earlier been proceeded against in certain criminal cases as well as departmentally when as a matter of fact he was not inflicted with any punishment pursuant to those proceedings. 10. The writ application is accordingly allowed. The impugned order dated 25.3.2004 (Annexure-6) is quashed and it is directed that the petitioner shall be entitled to the consequential benefits with respect to his promotion on the post of Sargeant Major as well as in the rank of Deputy Superintendent of Police with effect from the dates from which those promotions have been granted.