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2012 DIGILAW 335 (JHR)

Rajeshwar Prasad v. State of Jharkhand

2012-03-05

P.P.BHATT

body2012
JUDGMENT Hon'ble Mr. Justice P.P. Bhatt 1. Heard the Learned Counsel for the parties. 2. With the consent of the Learned Counsel for the parties, this writ petition is being disposed of at the stage of admission itself. 3. The petitioner, by way of filing this writ petition under Article 226 of the Constitution of India, has prayed for issuance of writ of mandamus commanding upon the respondents to promote the petitioner on the post of Superintending Engineer on regular basis and pay the pay scale thereof w.e.f. 6.10.98 i.e. the date when the petitioner was posted and joined as Incharge Superintending Engineer, Public Health Engineering Department (Now known as Drinking Water and Sanitation Department) in view of notification dated 26.9.1998 and also for all consequential benefits treating the petitioner in the pay scale of Superintending Engineer w.e.f. 6.10.98, which in fact, has been given to the petitioner only w.e.f. January 2003 even when the petitioner has been given regular promotion w.e.f. 1.7.1999 by virtue of notification on 1/P-2101/2000-22 as contained in Memo No. 24 dated 4.1.2003. 4. Learned Counsel for the petitioner referring Annexure-1 to the petition submitted that the petitioner was posted as Incharge Superintending Engineer by order dated 26.9.1998 and in pursuance thereof, he joined the duty on 6.10.1998. It is further submitted that thereafter by order dated 4th January, 2003, the petitioner was given regular promotion w.e.f. 1.7.1999 vide Annexure-4 to this petition. It is further submitted that though the effect of promotion was given from 1.7.1999, the financial benefit of salary was not extended to the petitioner w.e.f. 1.7.1999. So far as financial benefit of the promotional post is concerned, the same was granted prospectively w.e.f. 4th January, 2003. Learned Counsel for the petitioner referred to and relied upon the decision given in the case of Bhim Sen Singh Vs. the State of Bihar and Another in CWJC No. 6167 of 1992 and submitted that in the said case the petitioner was working as Incharge Executive Engineer w.e.f. 27.4.1989 and while dealing with the said case, the Patna High Court observed that "since the similarly situated persons have been granted regular promotion under Govt. Order as contained in Annexure-17 from the date they are discharging functions of executive Engineer as Incharge, we do not find any reason why the petitioner should not be granted similar relief". Order as contained in Annexure-17 from the date they are discharging functions of executive Engineer as Incharge, we do not find any reason why the petitioner should not be granted similar relief". It is further submitted that the said decision was also followed in CWJC No. 596 of 1999 (R) (Sajjad Hassan and Ors. Vs. The State of Bihar and Ors.) in which the Learned Counsel for the Sate fairly conceded that this case is fully covered by the decision of a Division Bench of this Court dated 28.3.1993, in CWJC No. 6167 of 1992 and accordingly this writ application was disposed of in terms of the aforesaid decision. Learned Counsel for the petitioner while referring Annexure-9 i.e. Notification dated 8/9-5-2003 submitted that in the case of Sajjad Hassan (Supra), one Sajjad Hassan who was appointed as Incharge Executive Engineer w.e.f. 27.4.89 was given regular promotion on 4.12.1992 but subsequently, in light of order passed in CWJC No. 596/1999 the actual effect of promotion with financial benefit was given to him from 27.4.1989 i.e. from the date of his initial appointment as Incharge, Superintending Engineer on the substantive post. It is further submitted that in the present case, the petitioner is similar to that of Sajjad Hassan and therefore, the petitioner is eligible and entitled to get the benefit which has been given in the case of Sajjad Hassan. Learned Counsel for the petitioner while referring para-5 of the counter affidavit, filed by respondent No. 1 submitted that even respondent authorities have admitted the fact that the petitioner was posted as Incharge Superintending Engineer and he joined the said post on 6.10.98 and therefore, according to the Learned Counsel for the petitioner there is no dispute about the date of joining as Incharge, Superintending Engineer w.e.f. 6.10.1998. While referring para 6 of the said affidavit, Learned Counsel for the petitioner submitted that the respondent authorities have taken shelter under Rule 58 of Jharkhand Service Code r/w Rule 74 of the Jharkhand Financial Rules so as to deny the claim of the petitioner but this plea of the respondent State is not sustainable in view of the decision referred in the case of 1999 (1) PLJR 272 [Ranjit Sahay Jamuar & Anr. Vs. State of Bihar and Ors.] and the Learned Counsel for the petitioner has pointed out paras 6, 7 and 8 of the said judgment. Vs. State of Bihar and Ors.] and the Learned Counsel for the petitioner has pointed out paras 6, 7 and 8 of the said judgment. The Hon'ble Patna High Court was pleased to allow the petition and the respondents were directed to pay to the petitioners all arrears of salary etc. Learned Counsel for the petitioner also referred to and relied upon the judgment reported in 1998 (5) SCC 87 [Secretary cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Ors.] and while pointing out para 8 of the said judgment, it is submitted that an agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. The Learned Counsel for the petitioner also referred to and relied upon the judgment reported in 2003 (2) PLJR 44 [Md. Hafiz Vs. State of Bihar], wherein, the applicability of Rule 58 of Bihar Service Code r/w Rule 74 of the Financial Rules has been discussed and the plea taken the respondent State was rejected and while allowing the writ petition and the respondent authorities were directed to pay the consequential monetary benefits on account of the promotions given to the petitioner. 5. As against this, Learned Counsel appearing for the State while referring the counter affidavit filed by respondent No. 1 submitted that the petitioner was given promotion to the post of Superintending Engineer on regular basis w.e.f. 1.7.99 vide Memo dated 4.1.2003 which specifically mentions that he will be entitled to the financial benefits thereof only after joining the post of superintending Engineer after issuance of this notification and therefore, the claim of the petitioner regarding arrears of pay w.e.f. 1.7.99 in the pay scale of Superintending Engineer is not maintainable. It is further submitted that the petitioner was asked to officiate the post of superintending Engineer PHED, Circle, Hazaribagh in his substantive post of Executive Engineer as an administrative arrangement and the petitioner joined the post without any grudge. But after an expiry of more than two years, he has put his claim for financial benefits thereof which is bad in law. But after an expiry of more than two years, he has put his claim for financial benefits thereof which is bad in law. While referring para 8 of the said counter affidavit, Learned Counsel for the respondent authorities has further stated that the Finance Department's Memo dated 4.4.85 provides that an employee officiating on higher post will not be entitled to promotional benefits related to that higher post. The benefits of higher post cannot be given in absence of the notification for regular promotion which can be notified only after due formalities and procedures are completed and therefore, in view of this circular the petitioner is not entitled to any benefit of higher post before the date of notification dated 4.1.2003 when he joined on the higher post in pursuance to the said Notification. Learned Counsel for the State also referred para 10 of the said affidavit and submitted that the petitioner has filed representation on expiry of nearly 2 years from the date of notification which is a time barred claim under rule 104 of the State Financial Rules and even on this score the claim of the petitioner in the present case is not maintainable. 6. Learned Counsel appearing for the State of Jharkhand tried to distinguished the case of Mr. Sajjad Hassan from the case of the petitioner and submitted that in the said case the effect of promotion was given from 27.4.89, the date from which, Mr. Bhim Sen Singh was promoted in compliance of Patna High Court's Order passed in CWJC No. 6167 of 1992 and also in compliance of order dated 25.1.2001 passed in CWJC No. 596 of 1999(R ) and it is submitted that this matter relates to inter se seniority and therefore, the facts of the present case are different from the case of Mr. Sajjad Hassan. 7. Sajjad Hassan. 7. Learned Counsel for the State of Bihar while referring para 6 of the counter affidavit filed respondent No. 4 submitted that the petitioner was made Incharge Superintending Engineer vide Departmental Notification dated 26.9.98 in the office of the Superintending Engineer PHED Circle, Hazaribagh and he took over the charge on the Circle on 6.10.98 from Sri Suresh Prasad, Superintending Engineer, PHED, Circle, Hazaribagh who has been made incharge Chief Engineer (Rural) in PHED, Bihar Patna vide Departmental Notification dated 13.8.98, hence it is clear that the post of the Superintending Engineer (Civil) was not vacant for regular promotion to the petitioner from the date he has claimed in the writ petition. It is further submitted that the name of the petitioner in the seniority list is at Sr. No. 34, whereas his senior Sri Dwarika Prasad Singh is at Serial No. 33 of the said seniority list who has been promoted to the post of the Superintending Engineer (Civil) on regular basis w.e.f. 1.7.1999 against the vacant post made available in the department and accordingly, Sri Prasad was also promoted to the post of the Superintending Engineer (Civil) on regular basis against the vacant post made available w.e.f. 1.7.99. 8. Considering the rival submissions of the Learned Counsel for the parties and from perusal of the material on record, it appears that the present petitioner was appointed as Incharge Superintending Engineer by Notification dated 26.9.1998 in pursuance thereof he joined the said post on 6.10.98, thereafter, by office order dated 4th January, 2003, vide Annexure-4, regular promotion was given to the petitioner w.e.f. 1.7.99. The sole question, which arises in the present writ petition, is as to whether the petitioner is eligible and entitled to get the financial benefit of the promotional post from retrospective effect. The regular promotion was given to the petitioner vide Annexure-4 to the writ petition i.e. by order dated 4.1.2003 and the effect of pay scale of promotional post was also given prospectively from the date of order, whereas the petitioner is claiming the benefit of promotional post w.e.f. 6.10.98 i.e. from the date of his posting as Incharge, Superintending Engineer on officiating duty. In this context, I have also perused the judgment reported in 1999 (1) PLJR 272 cited by the Learned Counsel for the petitioner and from para-6 of the said judgment, it appears that in the counter affidavit filed by the respondent authorities reliance was placed on Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules for denying the benefits followed by the promotions with retrospective effect. Paras-7 and 8 and said judgment read as under; 7. The stand taken by the respondent authorities and the reliance placed on the aforesaid rules is not acceptable to me. In my view the provisions of Rule 58 of the Service Code and Rule 74 of the Bihar Financial Rules have no application to the case of the petitioners for the simple reason that those rules envisage promotions given in the normal course of administration and at due time when the right of promotion accrued to the concerned employee. The two rules do not by any stretch of imagination, deal with cases where promotions were given not at the due time but with retrospective effect not for any fault on the part of the concerned employee but due to the latches and mistakes committed by the department. 8. In a number of decisions, this court has observed that an employ7ee being given promotion with retrospective effect cannot be denied the material benefits accruing from the promotion and the position is now sell established. If any authority is needed on this point one may see 1990 (2) PLJR 248 [ Dr. Paras Nath Prasad Vs. State of Bihar and Ors.] In light of the aforesaid judgment, it appears that an employee being given promotion with retrospective effect cannot be denied the material benefits accruing from the promotion and this position is now well established. In this context, I have also perused the judgment having similar issue reported in 2003 (2) PLJR 44 [Md. Hafiz Vs. State of Bihar and ors.]. 9. In this context, I have also perused the judgment having similar issue reported in 2003 (2) PLJR 44 [Md. Hafiz Vs. State of Bihar and ors.]. 9. So far as the stand taken by the State of Jharkhand as well as the State of Bihar in the counter affidavit that the office order dated 4.1.2003 specifically provides that the petitioner will be entitled for the financial benefit thereof, only after the joining the post of Superintending Engineer after issuance of notification and since the petitioner has accepted this order and accordingly, he joined the post without any grudge now after lapse of two years, he cannot be permitted to raise such issue. This argument can not be accepted in view of another judgment cited by the Learned Counsel for the petitioner reported in 1998(5) SCC 87 , wherein the Hon'ble Apex Court while dealing with the said case in para 8, has observed as follows; 8. Learned Counsel for the appellant attempted to contended that when the respondent was promoted in stop gap arrangement as Jr. Engineer I, he had given an undertaking to the appellant that on the basis of stop stop gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Jr. Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872. It appears that the Hon'ble Apex Court has deprecated the practice adopted by the State by observing that the Govt. in its capacity as model employer cannot be permitted to raise such an argument. Now the factual aspect with regard to vacant post is concerned, it reveals from the counter affidavit filed by respondent No. 4 that the petitioner was in the seniority list at Sl. No. 34 whereas his senior Sri Dwarika Pd. Singh at Sl. No. 33 of the seniority list, who has been promoted to the post of Superintending Engineer on regular basis w.e.f. 1.7.99 against the vacant post made available in the Department and accordingly, Sri Singh was promoted to the Superintending Engineer on regular basis against the vacant post made available w.e.f. 1.7.99 and therefore, it appears that the petitioner has been given effect on promotion from 1.7.99 against the said post; and therefore, from that date, the respondent authorities granted promotion prospectively from the dater of order i.e. 4th January, 2003 to the petitioner without financial benefit with retrospective effect. Therefore, in my view, the claim with regard to claim for financial benefit with retrospective effect made by the petitioner can be sustained in light of the above referred decisions reported in 1999 (1) PLJR 272 as well as 2003 (2) PLJR 44 and also in view of the judgment referred in CWJC No. 6167/1992 which was followed in CWJC No. 596/1999(R), but at the same point of time, the claim with regard to getting financial benefit with retrospective effect from 6.10.98 is concerned, the same cannot be accepted in view of the factual position, which emerges from the record that the post in question was vacant w.e.f. 1.7.99. 10. In view of the above discussions and in light of the settled principles of law, the petitioner is entitled to get monetary benefit w.e.f. 1.7.1999 and accordingly, the State of Jharkhand is directed to give effect of promotion with regard to monetary benefit w.e.f. 1.7.1999 within a period of four weeks from the date of receipt/production of a copy of this order. 11. With these above observations, this writ petition is allowed with no order as to cost.