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2008 DIGILAW 1174 (PAT)

Jagdish Jha v. State Of Bihar

2008-08-18

AJAY KUMAR TRIPATHI

body2008
Judgment 1. Petitioner has been fighting for his right for grant of regular promotion on the post of Executive Engineer. Petitioner has been working as Incharge Executive Engineer under the respondent Bihar State Housing Board by virtue of a notification dated 23.11.1996. He continued to work on that post for quite a while. For reasons best known to the respondents a decision to grant regular promotion to the petitioner was finally taken in the 200th proceeding of the Housing Board only on 22.9.2003 but this was subject to approval being granted by the State Government in this regard. The 200th meeting and the extracts have been brought on record as Annexure-5/1. Final notification dated 27.9.2003 was issued by virtue of which petitioner had been given regular pay scale of Executive Engineer as well as promotion from 1.10.1994. Petitioners filed the present writ application because monetary benefits was not coming his way despite the notification contained in Annexure-5/2 from the date of promotion. 2. Counter affidavit therefore was ordered to be filed in the present writ application. Respondent Housing Board has taken a stand that the petitioner is not entitled to grant of salary on the promotional post with retrospective effect. But they are willing to grant benefit to the petitioner from the date he assumed charge even in the officiating capacity which according to them was 26.2.1997. They also state that they have no role to play in such a position and they have brought an order dated 5.6.2007 annexed as Annexure-1 to the counter affidavit. 3. Learned counsel for the petitioner submits that the stand taken by the respondents is neither in conformity with the law laid down in this regard but it is also contrary to the notification dated 5.6.2007 contained in Annexure-1 to the counter affidavit. The communication in the counter affidavit clearly states that the benefit is to accrue to the petitioner either from the date of promotion or from the date of his assuming charge. 4. Payment of monetary benefit based on notional promotion or substantive promotion from the date of promotion has troubled this Court in many a cases. The communication in the counter affidavit clearly states that the benefit is to accrue to the petitioner either from the date of promotion or from the date of his assuming charge. 4. Payment of monetary benefit based on notional promotion or substantive promotion from the date of promotion has troubled this Court in many a cases. In several cases reliance has been placed by the respondent-State that some of the circulars of the Finance Department read with Rule 74 of the Bihar Financial Rules as well as Rule 58 of the Bihar Service Code are good grounds to deny monetary benefit to the employess but the Courts after considering various provisions have categorically held that the monetary benefit arising out of promotion, notional or substantive, cannot be held back from an employee merely because the respondents have taken their own sweet time to grant promotion to the employees. Some of the decisions relied upon by the counsel for the petitioner are Dudh Nath Upadhyay vs. State of Bihar [ 2001(2) PLJR 420 ], Md. Hafiz vs. State of Bihar, [ 2003(2) PLJR 44 ], Ram Bharosa Das vs. State of Bihar [ 2004(3) PLJR 405 ] etc. 5. From reading of the above decisions as well as ratios laid down there seems to be a predominant opinion that an employee is entitled to grant of monetary benefit from the date the promotion had been granted in his favour. It may be either substantive or notional. 6. In the present case after much deliberations and consultations the claim of the petitioner for grant of substantive promotion on the post of Executive Engineer finally materialized on 27.9.2003. This order categorically states that promotion is being granted to the petitioner from 1.10.1994. If this is so, merely because the Finance Department has communicated to respondent-Housing Board that they should grant monetary benefit to the petitioner either from the date of promotion or the date when he took charge of the post, it does not mean that they have liberty to take a decision in a manner which suits them. 7. If this is so, merely because the Finance Department has communicated to respondent-Housing Board that they should grant monetary benefit to the petitioner either from the date of promotion or the date when he took charge of the post, it does not mean that they have liberty to take a decision in a manner which suits them. 7. One thing is evident from the pleading of the respondent Housing Board that they are willing to pay the difference of salary to the petitioner from the date on which he assumed charge even in officiating capacity in the year 1997 but it may not be good enough in view of the decisions which have been taken note of in early part of this order. Respondent- Housing Board is directed to grant benefit of pay to the petitioner in terms of notification contained in Annexure-5/2 dated 27.9.2003 from the date of promotion on the post of Executive Engineer i.e. 1.10.1994. 8. Since it is an old matter it is hoped and expected that the exercise of payment of monetary benefit to the petitioner due to difference of pay and salary would be worked out within a period of three months from the date of communication/production of a copy of this order. 9. The writ application stands allowed.