Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 310 (PAT)

State Of Bihar v. Paras Nath Singh

2008-02-13

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Heard learned counsel for the parties. 2. This appeal is directed against the order dated 20th September, 2006. The petitioner has been appointed as a Junior Engineer on 2nd June, 1960, and while he was so functioning in the Irrigation Department with effect from 16th February, 1981 he was required to discharge the function of Assistant Engineer but without actually promoting him. He was allowed to draw his salary of original post alongwith rupees thirty as additional pay. 3. Continuing in this position the petitioner superannuated on 31st July, 1997. 4. After the petitioner superannuated in the first instance, by the order dated 28th March, 2002 he was promoted as an Assistant Engineer with effect from 1st January, 1992 which was later on modified to 1st April, 1992 vide order dated 21st October, 1994. 5. Thereafter, the petitioners promotion as Assistant Engineer was approved to be with effect from 27th December, 1978 vide order dated 5th December, 2003. 6. In pursuance of this direction the petitioner was paid emoluments for the post with effect from 16th February, 1981 but not with effect from the date he was given promotion that is to say, 27th December, 1978 though his notional promotion was also made with effect from 27th December, 1978. 7. Petitioner having made a representation and demand of justice, without success, had filed this writ petition out of which this appeal has arisen to claim emoluments of the post with effect from the date of his promotion at par with those who have been promoted with the same date. 8. The learned single Judge vide judgment under appeal has allowed the writ petition holding that once the petitioner had been promoted with effect from retrospective date he is entitled to monitory benefit attached to his post. Hence this appeal. 9. The learned counsel for the appellant has challenged the order of learned single Judge, inter alia, on the grounds that the petitioner actually discharged the duties of Assistant Engineer with effect from 16th January, 1981 and emoluments has been given to the petitioner with effect from the date. Hence this appeal. 9. The learned counsel for the appellant has challenged the order of learned single Judge, inter alia, on the grounds that the petitioner actually discharged the duties of Assistant Engineer with effect from 16th January, 1981 and emoluments has been given to the petitioner with effect from the date. He is not entitled to emoluments prior to the date for having not discharged the functions to the post and the second reason that is being given that since he has not passed the departmental examination within three years from the date he held the post he was not entitled to the increments with effect from 1978. 10. Both the contentions, in our opinion, must fail. Firstly, the petitioner having not been given the post of Assistant Engineer till he superannuated he cannot be said to be holding the post of Assistant Engineer prior to retirement which could enable him to face the examination. The petitioner cannot be deprived of reaping the fruits of emoluments of the post with effect from the date on which he has been promoted. 11. The second contention that since the petitioner has not actually discharged the duties of the post of Assistant Engineer prior to 27.12.1978 he was physically not entitled to actual emoluments and was only entitled to notional benefit of the post. 12. This contention should ordinarily have prevailed but for the reasons that the petitioner has been notionaSly promoted with effect from 1978 because of the fault of the appellants by promoting the juniors to the petitioner eariier than him from 1978. That being the position, the date of anti-dating the date of promotion of the petitioner was only correcting their own mistake by the respondents. The petitioner cannot be denied the benefit of the emoluments attached to the post with retrospective effect. This principle is deducible from a recent decision of the Supreme Court in the case of State of Kerala vs. E.K. Bhaskaran Pillar, 2007(3) PUR 26 (SC). 13. State of Kerala in somewhat like circumstances had contended that when retrospective promotion is given the promotee is not entitled to actual emoluments for the post and for the period he has not actually discharged the functions of the post on the ground of no work no pay. 14. 13. State of Kerala in somewhat like circumstances had contended that when retrospective promotion is given the promotee is not entitled to actual emoluments for the post and for the period he has not actually discharged the functions of the post on the ground of no work no pay. 14. The court explained that the principle of no work no pay cannot be accepted as straightjacket formuia or as a rule of thumb but dependent on the facts and circumstances of each case. The case before the Supreme Court was that the respondents-petitioners who had not been given promotion while his juniors have been given promotion earlier to them and that the benefit of promotion, in terms of arrears was not paid with retrospective effect. In such circumstances, direction of the Kerala High Court to allow the benefits with effect from the date they have been promoted retrospectively with effect from the date their juniors have been promoted was upheld by the Supreme Court on the ground that the retrospective promotion was necessitated on the ground ol promoting the juniors to the petitioner which was the fault of the Department. 15. The present case has the similar circumstances in which the petitioners retrospective promotion has been necessitated on the ground of juniors having been given promotion earlier to the petitioner. 16. Consequently, we do not find any force in the appeal and the same is dismissed.