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2013 DIGILAW 348 (JHR)

Dinesh Singh v. State of Jharkhand

2013-03-08

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. By Court.-The petitioner has sought a direction upon the respondents for grant of promotion on the post of Senior House Master with effect from 1.1.1995. The brief facts of the case are that the petitioner was appointed as Junior House Master on a sanctioned vacant post in the Borstal School, Daltonganj. There is one post of Junior House Master and one post of Senior House Master in the said Borstal School. It is the case of the petitioner that on 31.12.1994 one Jagdish Pathak who was working on the post of Senior House Master retired and thereafter, from 1.1.1995 the petitioner was directed to officiate and work on the vacant post of Senior House Master. The petitioner continued to work till 2003, however, he was not granted regular promotion on the post of Senior House Master in spite of several representations. The petitioner has been working on the post of Cashier also, as there is no post of Cashier or Assistant Cashier in the school. The petitioner requested for grant of cash handling allowance also which has been ordered by Government of Bihar to be paid to such employees who had been discharging functions of Cashier in their office/institution ,though not appointed on the said post however such allowance has also not been paid to the petitioner. Notification dated 5.1.2000 of the Finance Department, Government of Bihar has been brought on record by the petitioner in support of his claim for payment of allowances for cash handling in the Borstal School. 2. A counter-affidavit has been filed in which it has been admitted that the petitioner has been performing the daily routine work of Senior House Master besides performing the duties of his own post i.e., Junior House Master. The claim of the petitioner is sought to be denied on the ground that merely because he has been performing the daily routine' works of Senior House Master, he would not automatically become eligible for promotion. The petitioner has been granted two time bound promotions and thus, he has been given promotions due to him. 3. Heard learned counsel for the parties and perused the documents on record. 4. The petitioner has been granted two time bound promotions and thus, he has been given promotions due to him. 3. Heard learned counsel for the parties and perused the documents on record. 4. The learned counsel for the petitioner has submitted that though the post of Senior House Master is vacant in the school since 1.1.1995 and the petitioner has been discharging the duties of Senior House Master since then, he has been illegally denied regular promotion on the post of Senior House Master. On the other hand, the learned counsel for the respondents' has contended that the petitioner was not "asked to officiate on the post of Senior House Master and he has already been given two time bound promotions therefore, his claim for grant of promotion and pay scale on the post of Senior House Master is not justified. 5. From the counter-affidavit filed on behalf of respondent Nos. 2 and 4, I find that the post of Senior House Master which fell vacant after the retirement of Sri Jagdish Pathak on 13.12.1994 till the time the counter-affidavit dated 3.3.2003 was filed remained vacant, has not been denied. In the counter-affidavit it, has been stated that;- "9. That it is true that the Senior House Master Shri Jagdish Pathak has retired on 31.12.1994. 10. That Junior House Master Shri Dinesh Singh (Petitioner) has already been granted two time bound promotions on two occasions i.e. on 1.4.1981 in the scale of Rs. 1500-2700/- and on 23.11.1995 in the pay scale of Rs. 1600-2780/- and he has been given two promotions till 1995. Thus he has got due promotions. 11. That the petitioner (Shri Dinesh Singh) is not working as Senior House Master. The fact is that he is the only performing the daily routine works' of Senior House Master. This does not enable him legible for promotion. Thus his petition is fit for dismissal at very outset as he has already got due promotions. 15. That with regard to the statement made in paragraph 2(b) of the writ application it is submitted that the truth is that he is only performing daily routine work of Senior House Master in addition to his own work. It has wrongly been submitted that he is working as Senior House Master since 1.1.1995 as he has never been promoted to this position." 6. It has wrongly been submitted that he is working as Senior House Master since 1.1.1995 as he has never been promoted to this position." 6. Nowhere in the counter-affidavit a plea has been raised that the petitioner is not entitled for promotion on the post of Senior House Master nor it has been denied that the case of the petitioner was recommended by the authorities for regular promotion on the post of Senior House Master. The claim of the petitioner that cash handling allowance has also not been paid to the petitioner has also not been denied by the respondents even during the course of hearing. The petitioner has brought on record Order No. 170 dated 31.12.1994 whereby he was given the charge of Senior House Master by the Superintendent of Borstal School, Daltonganj Jail and this has also riot been disputed by the respondents. Thus, it is clear that the petitioner was required to work on the post of Senior House Master which included the duties of cash handling also for about 9 years without being given the regular promotion on the post of Senior House Master and without any allowances for officiating on the said post. The petitioner has performed the duties of Senior House Master but without adequate remuneration and this appears to me would amount to "begar". The petitioner had a legitimate, expectation that he would be given regular promotion on the. post of Senior House Master, however, in spite of several representations by the petitioner and recommendations by the authorities, the petitioner has been denied the benefits which would have accrued to him on account of his promotion and regular posting on the post of Senior House Master. 7. The Supreme Court of the United States of America, in the case of "Baily vs. Alabama" [reported in 219 US 219] has pointed out as under:- "Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage however created, is compulsory service, involuntary servitude. The peon can release himself there from, it is true, by the payment of the debt, but otherwise the service is enforced. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage however created, is compulsory service, involuntary servitude. The peon can release himself there from, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labour or rendering of services in payment of a debt. In the latter case the debtor though contracting to pay his indebtedness by labour or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, an no law or force compels performance or a continuance of the service." 8. It is well accepted that even if forced labour springs from a contract voluntarily entered into, it would still be covered under the prohibition of Article 23 of the Constitution of India. The Supreme Court 'of United States of America has also approved such view in the case of "Pollock vs. Williams" [reported in 322 US 4]. 9. In the case of "People's Union for Democratic Rights vs. Union of India" [reported in (1982)3 SCC 235 ], the Hon'ble Supreme Court has held as under:- "We are therefore of the view that where a person provides labour or service to another for remuneration whi9h is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23." 10. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23." 10. Although in the case of "Secretary, State of Karnataka and Others vs. Umadevi (3) 'and Others" [reported in (2006)4 SCC 1 ][: 2006(2) JLJR (SC) 282], the Hon'ble Supreme Court has rejected the argument advanced on behalf of the persons who had worked for 10 years or more but their services were not regularized, that it would offend Article 23 of the Constitution of India, I am of the opinion that respondents acted in a manner contrary to "fairplay in action" and the petitioner was not under any legal compulsion to perform the duty of Senior House Master, still he was forced to perform the duty of Senior House Master for about 9 years without any compensation which cannot be approved of. 11. On a consideration of the materials on record I am of the opinion that the petitioner is entitled for grant of pay scale for the post of Senior House Master. The petitioner has already retired from service and therefore, the respondents are directed to calculate the difference in the pay scale of the petitioner and the post of Senior House Master with effect from 1.1.1995 till the petitioner superannuated from service. The amount so calculated would be paid with 8% interest to the petitioner within the period of 8 weeks from the date of communication of this order. 12. The writ petition is disposed of in the aforesaid terms.