Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 165 (PAT)

Siya Ram Singh v. State Of Bihar

2012-01-25

AJAY KUMAR TRIPATHI

body2012
ORDER : AJAY KUMAR TRIPATHI 1. The present litigation is not first of its kind, when the petitioner has been compelled by the respondents to approach this Court for assertion of his right to claim benefit of B.A. trained scale, especially in the circumstances, when juniors to the petitioner had been given this benefit years’ ago. 2. The first Writ Application in this regard was C.W.J.C. No. 7626 of 1998, which was heard and decided on 29.09.1999. This ORDER :is Annexure- 1 to the Writ Application. Reading of the said ORDER :would indicate that the only reason why the petitioner was not given the benefit of B.A. trained scale vis-a-vis his juniors was that due to inadvertence the petitioner’s name could not be included in the gradation list, which was prepared. The Court, therefore, gave a clear and categorical direction that: “it is made clear that subsequent date of payment of the said scale would be decided after preparation of the Gradation List. The appropriate ORDER :fixing the petitioner’s pay-scale in B.A. trained scale from the date his juniors have been paid the said scale, should be passed within a period of two months from the date of receipt / production of a copy of this ORDER :”. 3. Despite a categorical direction, issued by the High Court, which has been quoted above, as far back as in the year 1999, things did not move for the petitioner. He had to approach the High Court by filing a Contempt-Application and ORDER :of which is Annexure- 4 to the present Writ Application. During the pendency, the respondent-authorities decided to issue a notification in the year 2004, whereby petitioner was given the benefit, but only from the date of his joining in the school, which was notified in the said notification, which is now Annexure- 9 to the supplementary affidavit filed on behalf of the petitioner. Annexure-9 is dated 10.02.2004, which indicates that in light of the ORDER :of the C.W.J.C. as well as the Contempt, petitioner is being given benefit of Graduate Trained Scale from 13.03.1982, but this promotion and benefit will accrue from the date of his joining. 4. Petitioner, therefore, is again back to the Court making a grievance that this is a totally arbitrary decision on the part of the respondents to deny him substantial benefit of the financial kind for no apparent fault of the petitioner. 4. Petitioner, therefore, is again back to the Court making a grievance that this is a totally arbitrary decision on the part of the respondents to deny him substantial benefit of the financial kind for no apparent fault of the petitioner. If Annexure- 1 is looked into again it is evident that non-denial of the benefit to the petitioner vis-a-vis his juniors was attributable to the respondent-State and not to the petitioner. Despite an ORDER :passed by the High Court in the year 1999 they took more than five years to decide to grant benefit to the petitioner, but only notional. 5. Counsel for the petitioner submits that there are series of JUDGMENT :s which have been rendered by this Court in similar circumstances where decision of such kind denying financial benefit has been held to be arbitrary and directions have been issued for payment of such benefit to such persons or government employee. One such decision cited is the case of Umesh Lal Versus The State of Bihar, reported in 2011(3) PLJR351. Paragraph 11 of the said JUDGMENT : is of significance, which is as follows:- “As far as the third issue is concerned, in the opinion of this Court the notional promotion granted to the petitioner vide Memo No. 203, dated 10.01.2002 w.e.f. 01.02.1996 cannot be granted with a rider that he would not be entitled to the monetary benefits. The reasons given by the State that those persons who have got the monetary benefits had moved this Court, and therefore, they were given the benefits, is not a good enough reason for depriving others from being granted the monetary benefits. It has been held in several decisions including the decisions rendered by the Apex Court in the case of Shiva Narayan Lal Vs. State of Bihar & Ors. [1999(1)PLJR243] and in the case of Md. Hafiz vs. State of Bihar & Ors. [2003(2)PLJR44] that the material benefits cannot be withheld to the Government servant who has been granted promotion notionally or retrospectively. As such the writ application is allowed in part. The petitioner would be entitled to the monetary benefits to the post of an Assistant Engineer from the year 1996. Hafiz vs. State of Bihar & Ors. [2003(2)PLJR44] that the material benefits cannot be withheld to the Government servant who has been granted promotion notionally or retrospectively. As such the writ application is allowed in part. The petitioner would be entitled to the monetary benefits to the post of an Assistant Engineer from the year 1996. The retiral dues should be accordingly recalculated on the basis of this ORDER :within a period of three months from the date of receipt / production of a copy of this ORDER :and the dues should be paid to him within a period of six months thereafter. However, this Court does not accept the contention of the petitioner that he should be granted promotion from 1989, or that he would be entitled to an additional pay under Rules 89 and 103 of the Bihar Service Code.” 6. Similar view has also been expressed in the case of Satyendra Kumar Sharma Versus State of Bihar & Ors., reported in 2011(1) BLJ 103. 7. Stand of the State is limited on the issue. According to them they are bound by Rule 58(A) of the Bihar Service Code, where benefit to a government employee of such kind can only accrue from the date of his joining the post and not from an earlier date. 8. Such stand of the State is arbitrary per se and a wrong reading of the said rule because claim of the petitioner for promotion was not based on a routine kind of decision which was awaited or was pending along with the rest. The present case is case where a clear discrimination has been practiced against the petitioner and a fact taken note of by the High Court as far back as on 29.09.1999. Allowing the State to deny the benefit of financial kind to the petitioner would amount to rewarding inefficiency, incompetence as well as discrimination practiced by the State in the present matter. 9. In view of the above and in the totality of the circumstances, the law, the facts and the submission made at the bar on behalf of the petitioner, this case does tilt in his favour. The decision not to grant financial benefit to the petitioner from the date of promotion so granted, which is dated 13.03.1982 is held to be bad in law. The decision not to grant financial benefit to the petitioner from the date of promotion so granted, which is dated 13.03.1982 is held to be bad in law. Direction is issued upon the respondent to re-work the financial benefit to which the petitioner would be entitled to by virtue of the decision for granting him promotion from the back date. This exercise must be carried out within a period of three months from the date of production of a copy of this ORDER :. 10. Writ is allowed. Annexure-6, dated 23.10.2010 to that extent is quashed.