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2009 DIGILAW 773 (JHR)

Bhola Pd. Singh v. State of Jharkhand

2009-05-15

AJIT KUMAR SINHA

body2009
judgment The present writ petition has been preferred for quashing only that part of order by which notional promotion was given without any consequential financial benefits as contained in memo No. 3230 dated 14.9.2006 in the notification of Revenue and Land Reforms Department of Jharkhand dated 14.9.2006 (Annexure-3). In the instant case it appears that the petitioner had initially preferred W.P.(S) No. 1812 of 2005 with a prayer and direction against the respondent to pay his retrial dues including the amount of pension, gratuity, unutilised earned leave salary, salary for the months of September, October and part of November, 2000, 1% D.A. as was mentioned in the Last Pay Certificate issued by the Settlement Officer, Saharsha, transfer T.A. which was payable to him for his transfer from Saharsha to Dumka Settlement in September 2000 and the consequential promotional benefits due from 07.06.1994. This court vide its order dated 17.06.2005 while disposing of the writ petition, directed the respondents to pay all the admitted dues to the petitioner towards his pension, gratuity, arrears of salary, arrears of differences of pay, arrears of transfer, T.A., dearness allowances and other dues admissible to him. It appears that the petitioner retired from the post of Assistant Settlement Officer, Dumka. Pursuant to the direction issued by this Court a Contempt Case (Civil) No. 854 of 2005 was also filed which was disposed of on 25.11.2006. The impugned order dated 14.09.2006 was issued vide memo No. 3230 dated 14.9.2006 by the Under Secretary to the Government in which it has been stated that under the direction and in compliance to order dated 17.6.2005 passed by the Hon’ble High Court in W.P. (S) No. 1812/2005, Shri Bhola Prasad Singh, i.e. the petitioner herein is being given notional promotion w.e.f. 7.6.94 on the post of Assistant Settlement Officer in the pay scale of Rs.2000-60-2300-75-3200-100-3800. At paragraph-2 of the impugned order it has also been indicated that the promotion will not entitle for any claim of arrears for that period. However, it will be applicable for revision of pension. The petitioner is aggrieved by this letter since he has been denied all the arrears in view of the notional promotion given. At paragraph-2 of the impugned order it has also been indicated that the promotion will not entitle for any claim of arrears for that period. However, it will be applicable for revision of pension. The petitioner is aggrieved by this letter since he has been denied all the arrears in view of the notional promotion given. The main contention raised by the learned senior counsel for the petitioner is that it was a default on the part of the authorities and it was their mistake which they have now corrected and thus he was entitled to the benefit of revised pay in view of the notional promotion given w.e.f. 7.6.1994 to 27.8.1996 because thereafter he was given the regular promotion. So the entire dispute revolves round the question as to whether the denial of the arrears in view of the notional promotion w.e.f. 7.6.94 to 27.8.96 was justified. The main contention of the petitioner is that similarly situated persons were given the benefit and the petitioner was discriminated only on the ground of not-availability of confidential report which in any case cannot be a fault on the part of the petitioner. He further submits that even junior were promoted and given the benefit retrospectively. The respondents in their reply in the counter-affidavit have referred to and relied upon Rule-58 of the Jharkhand Service Code to suggest that unless a person assumes the duty of that post he will not be entitle to the benefit accrued to that post. They also referred to a circular which is annexed as Annexure-1 of the counter-affidavit to support its contention and to suggest that in absence of any post or vacancy or a sanctioned post the incumbent cannot be entitled to the benefit of that post or the enhanced salary attached to it. He further refers to Clause-3 which is with reference to any dispute which is pending adjudication or is under consideration then he will not be entitled to the revised pay scale attached to the post. The learned counsel for the respondent has further referred to and relied upon 1990 (2) PLJR page 248 and 193 (1) PLJR page 519 to support its contention. In the instant case the issue is completely different and the circular and the condition as referred to will not apply to the facts of this case. The learned counsel for the respondent has further referred to and relied upon 1990 (2) PLJR page 248 and 193 (1) PLJR page 519 to support its contention. In the instant case the issue is completely different and the circular and the condition as referred to will not apply to the facts of this case. Even Rule-58 of the Jharkhand Service Code 2001 does not apply to the facts of this case. The petitioner is either entitled to legally claim or is not entitled to claim the benefit accrued to that post w.e.f. 7.6.1994 as notionally allowed. Even though the word used is notional but that will not mean that for the default on the part of the authorities and the benefit extended notionally, the petitioner can be made to suffer. Once in compliance to the order passed by this Court it has been held that the petitioner is entitled then the benefit should also have been extended moreso, when they have revised the pension based on notional promotion. Considering the aforesaid facts and circumstance of the case, this writ petition is allowed and the respondents are directed to compute the arrears and pay and the admitted dues for he period 7.6.94 to 27.8.96 within a period of three months from the date of receipt/production of a copy of this order.