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2007 DIGILAW 963 (PAT)

Shiv Nandan Prasad v. State Of Bihar

2007-05-17

MRIDULA MISHRA

body2007
Judgment 1. Petitioner has retired on 29.2.2004 as Chief Engineer Current-charge i.e. in his own scale of Superintending Engineer. 2. This application has been filed by the petitioner for shifting of his date of promotion to the post of Executive Engineer and Superintending Engineer, for correction in the gradation list and for consequential financial benefits including payment of salary from the corrected date of promotion on these posts. Further prayer of the petitioner is for regular promotion to the post of Chief Engineer from the date his juniors have been given promotion and for consequential benefits including fixation of pension and payment of arrears of pension. 3. Petitioner joined as Junior Engineer in Bihar Subordinate Engineering Service in Water Resources Deparment, Government of Bihar on 31.1.1966. Petitioners place in the final gradation list of Junior Engineers was at sI. no. 1676. He was promoted to the rank of Assistant Engineer in Schedule Tribe category on regular basis with effect from 27.12.1978. After much controversy gradation list of Assistant Engineers was finalised in which petitioner was at SI. No. 2368 and his immediate junior Sri Bindeshwar Das (S.C. category) was at SI. No. 2369. Ramadhar Prasad also belonging to S.C. category was just immediate senior to the petitioner at SI. No. 2367. Bindeshwar Das was promoted to the rank of Executive Engineer with effect from 27.12.1986. Juniors to the petitioner Bolawan Uraon and Jagannath Hansada at SI. No. 2005 and 2010 in the gradation list were also promoted to the post of Executive Engineer with effect from 27.12.1986, but the petitioner was not promoted. 4. Petitioners prayer is for giving promotion to the post of Executive Engineer with effect from 27.12.1986 with all consequential benefits. Since the date of petitioners promotion in the rank of Executive Engineer was delayed, in the gradation list of the Executive Engineer he was not placed correctly. Prayer is also for correction in the gradation list and putting his name in between SI. No. 230 and SI. No. 231 instead at SI. No. 352. Further case of the petitioner is that since the promotion to the post of Executive Engineer was delayed, he was not given promotion to the rank of Superintending Engineer with effect from 27.12.1993 i.e. the date juniors to the petitioner were promoted. Petitioner was promoted to the post of Superintending Engineer vide Memo No. 3113 dated 11.6.1996. No. 352. Further case of the petitioner is that since the promotion to the post of Executive Engineer was delayed, he was not given promotion to the rank of Superintending Engineer with effect from 27.12.1993 i.e. the date juniors to the petitioner were promoted. Petitioner was promoted to the post of Superintending Engineer vide Memo No. 3113 dated 11.6.1996. Prayer of the petitioner is that he should be promoted to the rank of Superintending Engineer in ST. quota, with effect from 27.12.1993 instead from 30.12.1995, with all consequential benefits from the shifted date of promotion. In the gradation list of Superintending Engineer published by Government order bearing Memo No. 7725 dated 15.11.2002 petitioner has not been placed correctly as such his prayer is to place him in between SI. Nos. 208 and 209 in order to reflect his seniority, then at SI. No. 251. 5. Petitioner was given delayed promotion to the post of Executive Engineer and Superintending Engineer. Thereafter he was posted in current charge of Chief Engineer vide Government Notification bearing Memo No. 478 dated 19.1.2002 and posted as In-charge Chief Engineer, Water Resources Department, Siwan. He retired as Incharge Chief Engineer, without being promoted to the post of Chief Engineer on regular basis. His service records were scrutinised for regular promotion to the post of Chief Engineer but was kept on waiting for regular promotion and retired on 29.2.2004. Juniors to the petitioner were given regular promotion to the post of Chief Engineer but his case was not considered though it was due and should have been allowed prior to his superannuation. 6. In the counter affidavit filed on behalf of respondent nos. 2 and 3 it has been admitted that the petitioner was entitled for his promotion to the post of Superintending Engineer with effect from 27.12.1993 and to the post of Executive Engineer with effect from 27.12.1986. The department has duly considered the same and rectified this discrepancies. Proposal has also been sent to the Finance Department for approval. Regarding gradation list of Executive Engineer and Superintending Engineer it has been stated that gradation list of Executive Engineer and Superintending Engineer have been provisionally published and final list is under, preparation, in the light of 85th constitutional amendment and on account of different interim orders of the High Court and the Supreme Court, it was delayed. 7. Regarding gradation list of Executive Engineer and Superintending Engineer it has been stated that gradation list of Executive Engineer and Superintending Engineer have been provisionally published and final list is under, preparation, in the light of 85th constitutional amendment and on account of different interim orders of the High Court and the Supreme Court, it was delayed. 7. This statement has been replied by the petitioner in his rejoinder stating that the respondents after realising their mistake have shifted back the date of promotion of the petitioner in the rank of Executive Engineer and Superintending Engineer, but it is only notional promotion from retrospective dates i.e. 27.12.1986 and. 27.12.1993 respectively. Giving notional promotion without any benefits of arrears of salary is illegal and of no avail. Once notional seniority is restored it should be for all purposes and all such benefits should have been granted to the petitioner from the date of such promotions. Petitioner has placed reliance on a decision in the case of Deo Muni Ram vs. State of Bihar and Anr. [ 2007(1) P.L.J.R. 608 ] wherein it has been held that: "Law is well settled that in each and every case, an employee cannot claim arrears of salary if he is retrospectively promoted, but in certain case, an employee can be entitled for the same. There can be two circumstances for such retrospective promotions, which can thus be classified in two categories. The first is that when the authorities themselves notionally promote a person without any right accruing to him and in this case such person cannot claim arrears of salary for the period of such retrospective promotion until the authorities themselves decide to grant the same under the provision of Rule 74 of the Bihar Financial Rules. In this category, the principle of "no work no pay" can also be made applicable. The second one is that if on the basis of any right accrued to a person he is promoted, but due to any action or inaction of the authorities concerned, he is not promoted in time and in spite of that notional promotion has been given with retrospective date, such person is definitely entitled for arrears of salary for such retrospective promotion even if he has not worked on the said post for the period concerned. This view finds support from the decision of this Court in case of Sri Mahavir Pandey vs. The State of Bihar & Ors., reported in 2000(1) P.L.J.R. 768 relying upon decisions of the Hon ble Apex Court as well as decisions of this Court, namely, in case of Union of India vs. K.V. Jankiraman etc. reported in AIR 1991 S.C. 2010 , in case of Paras Nath Prasad vs. State of Bihar & Ors. reported in 1990 (2) P.L.J.R. 248, in case of State of Haryana vs. O.P. Gupta & Ors., reported in (1996)7 SCC 537 as well as order passed by this court in case of Ramakant Singh & Others vs. State of Bihar & Ors. (C.W.J.C. No. 11130 of 1998) on 13.5.1999." 8. I find that the petitioner comes under second category and as such entitled for arrears of salary as well as all consequential benefits for which he would have been entitled, given promotion on due date. The respondents are thus directed to give all consequential benefits to the petitioner with retrospective date for his promotion to the post of Executive Engineer as well as Superintending Engineer. 9. Regarding the gradation list the statement made in the counter affidavit that the final gradation list is under preparation in the light of 85th Constitutional amendment, the petitioner has stated that he has properly been placed in the gradation list of Superintending Engineer but his name has not been included in the gradation list of Executive Engineers as such the respondents should at least include petitioners name by placing him at SI. No. 238 of the gradation list of Executive Engineer. The respondents should take care of this submission as petitioner has duly been promoted with retrospective effect and accordingly his place in the gradation list should also be corrected. 10. So far the regular promotion of the petitioner to the post of Chief Engineer is concerned in the counter affidavit it has been stated that the matter of petitioners promotion to the post of Chief Engineer alongwith other officers was placed before the Departmental Promotion Committee held on 5.4.2004 and the Departmental Promotion Committee has recommended for giving petitioners promotion in sealed cover vide letter no. 6/Pro-7-01/2004-153 dated 4.5.2004. 11. 6/Pro-7-01/2004-153 dated 4.5.2004. 11. Counsel for the petitioner in reply to this statement has contended that the Departmental Promotion Committee has recommended to keep name of the petitioner in sealed cover, while considering his promotion to the post of Chief Engineer, on account of a proceeding initiated on 22.7.2004 i.e. after retirement of the petitioner on 29.2.2004. Petitioners promotion was due since 21.1.2002 i.e. the date since when he was discharging the duty of Chief Engineer in independent current charge. The Departmental Promotion Committee which met on 5.4.2004 could not have adopted sealed cover procedure taking into account, recourse of future years. 12. The respondents thereafter filed supplementary counter affidavit in which stand for not considering petitioners promotion on regular basis to the post of Chief Engineer has been changed. Now the new stand taken by the respondents is that the petitioner being a diploma holder is not eligible for entering in Bihar Engineering Service Class-I. 13. Counsel for the petitioner has contended that this is a peculiar stand adopted by the authorities when they themselves have promoted the petitioner to Bihar Engineering Service Class-I as Executive Engineer and further to the higher post of Superintending Engineer. The respondents cannot take this plea that the petitioner did not fulfill the required qualification for Bihar Engineering Service Class-I. A lame excuse has been given by the respondents considering the fact that the respondents themselves had sent the requisition to B.P.S.C. vide letter no. 10377 dated 31.12.2003 in which all persons belonging to Schedule Caste and Schedule Tribe category were diploma holders and their names were considered those diploma holders were promoted to, the post of Chief Engineer in the meeting of the Departmental Promotion Committee in which the Secretary of the Water Resources Department had also participated. 14. In the given facts and circumstances of the case the respondents cannot take a different stand in case of the petitioner. I find that the stand taken by the respondents is not sustainable considering decision of this court reported in 2005(4) P.L.J.R. 755 . In that writ application direction was given to the respondents to reconsider the case of the writ petitioners vis-a-vis others including those juniors in higher post of Engineer-in-Chief on the basis of seniority and reservation. I find that the stand taken by the respondents is not sustainable considering decision of this court reported in 2005(4) P.L.J.R. 755 . In that writ application direction was given to the respondents to reconsider the case of the writ petitioners vis-a-vis others including those juniors in higher post of Engineer-in-Chief on the basis of seniority and reservation. Respondents have also taken plea of pendency of L.P.A. No. 1318 of 2005, I find that pendency of L.P.A. does not come in the way of giving promotion to the petitioner on the post of Chief Engineer. 15. Counsel for the petitioner in support of his claim has placed reliance on the Government decision bearing Memo No. 995 dated 26.8.2006 issued by the Road Construction Department addressed to Bihar Public Service Commission with a copy to Secretary to the Government, Water Resources Department, whereby and wherein decision of State Government has been communicated for granting promotion to the diploma holders Junior Engineers on higher post in Bihar Engineering Service Class-I. Counsel for the petitioner states that the Road Construction Department being the nodal department its recruitment rule is applicable to all Bihar Engineering Service of Public Works Department including the Water Resources Department. Against the Government decision bearing Memo No. 9995 dated 26.8.2006 C.W.J.C. No. 11788 of 2006 has been filed in which the High Court has not passed any stay order, as such the respondents cannot take plea regarding the pendency of this writ application. Counsel for the petitioner has also given instance of giving promotion to diploma holders by the Water Resources Department, namely Jagdish Prasad and Shri Nathuni Ram who were promoted as Chief Engineer by notification no. 1542 dated 16.6.1993 with effect from 15.9.1992. Another case is of Jamwant Ram and Surendra Prasad Chaudhary who were promoted as Chief Engineer on regular basis on the recommendation of B.P.S.C. by Government Notification No. 1685 dated 29.4.2002 and 429 dated 20.3.2006. 16. Counsel for the petitioner has also contended regarding availability of sanctioned vacant post on the date, when promotion was due to the petitioner. Posts of Chief Engineer under reserved category quota for scheduled tribe was unfilled, as such the respondents cannot take plea regarding non-availability of sanctioned vacant post under Scheduled Tribe category. This statement of the petitioners counsel has. not been denied by the respondent State and its authorities. Posts of Chief Engineer under reserved category quota for scheduled tribe was unfilled, as such the respondents cannot take plea regarding non-availability of sanctioned vacant post under Scheduled Tribe category. This statement of the petitioners counsel has. not been denied by the respondent State and its authorities. The instances of promotions given to diploma holder in paragraphs 11 and 12 of the rejoinder has also not been denied. The grounds taken by respondents for not giving regular promotion to the petitioner is not sustainable. Accordingly when the petitioners case was being considered for regular promotion by the Departmental Promotion Committee on that date no departmental proceeding was pending against him D.P.C. could not have taken recourse of future proceedings for denying promotion to the petitioner on regular basis to the post of Chief Engineer. Further I find that other diploma holders, have been promoted to the post of Chief Engineer and Engineer-in-Chief. Once the diploma holders have been given promotion to Class I post of Bihar Engineering Service Class I they cannot be deprived from being promoted to the post of Chief Engineer or Engineer-in-Chief. Accordingly the stand taken by the respondents for not giving regular promotion to the petitioner with effect from 19.1.2002 is arbitrary. The respondent nos. 2 and 3 are directed to consider the case of the petitioner for giving promotion to the post of Chief Engineer on regular basis with effect from 19.1.2002 with all consequential benefits including arrrears of salary. As a consequence of this promotion petitioners pension be also fixed in higher scale of Chief Engineer. He is also entitled for payment of arrears of pension fixed in revised scale. All such exercise must be completed within three months from today. The fixation of pay and payment of arrears of pension must also be paid within this period only. 17. With the aforesaid direction/observation this application is allowed.