Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 976 (JHR)

Arjun Prasad Singh v. State of Jharkhand

2013-08-17

APARESH KUMAR SINGH

body2013
ORDER 1. Heard counsel for the parties. 2. The grievance of the petitioner arises on account of the notification dated 20.8.2010 contained in memo no. 1577 by which he has been denied promotion to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007 on the ground that he has superannuated on 31.7.2009 and could not have joined on the promoted post retrospectively. 3. This petitioner had earlier come before this Court in W.P.S. No. 1838 of 2009 with a grievance relating to promotion to the post of Assistant Commissioner of Excise and Deputy Commissioner of Excise which was not being considered and granted to him. Learned Single Judge of this Court vide judgment dated 14.9.2009 disposed of the writ petition in the following manner:- “The counter affidavit states that the petitioner has to be considered for regular promotion to the post of Assistant Commissioner of Excise and thereafter he may be considered for the promotion for the reserved/vacant post (roster no.2) of Deputy Commissioner, Excise. It has also been stated that if promotion is granted, the question of financial benefits with retrospective effect will be given by the instruction issued by the Government memo dated 04.04.1985. Considering these averments made in the counter affidavit, the writ petition is finally disposed of with the direction to the respondents to consider the petitioner for the two regular promotions in accordance with the procedure and in accordance with petitioner's seniority in the gradation list of Superintendent of Excise within two months each for the two promotions, claimed by the petitioner. The decision will be communicated to the petitioner also. This writ petition is disposed of, as above”. 4. Thereafter, the petitioner pursued the contempt petition being Contempt(Civil) No. 184 of 2010. The Departmental Promotion Committee(D.P.C.) meeting was held on 26.4.2010, minutes of which is part of Annexure-14 annexed to the writ petition. The said minutes of the D.P.C were obtained by the petitioner under R.T.I and had also been filed along with its reply to the show cause in Contempt(Civil) No. 184 of 2010 i.e. enclosed as Annexure-14 to the present writ application as well. The D.P.C was presided over by the Chairman i.e. Member, Board of Revenue, Jharkhand and was comprised of the Principal Secretary of the Excise Department and the Excise Commissioner as well. The D.P.C was presided over by the Chairman i.e. Member, Board of Revenue, Jharkhand and was comprised of the Principal Secretary of the Excise Department and the Excise Commissioner as well. It made recommendation in favour of the petitioner that he is entitled to be promoted to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007. It also recorded in the said minutes that for promotion to the next higher post of Deputy Commissioner of Excise the minimum period prescribed for the incumbent to remain on the post of Assistant Commissioner of Excise is 4 years, which obviously the petitioner had not been able to fulfill after he was found fit for promotion to the post of Assistant Commissioner of Excise on 31.5.2007. The petitioner had retired on 31.7.2009 before the recommendation for promotion was made. The minutes also stated that the opinion of the Finance Department be taken before issuing order of any promotion to the petitioner. 5. It is the opinion of the Finance Department, which has been made basis of the denial of promotion to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007. The respondents in their counter affidavit have also quoted the opinion of the Finance Department the substance of which is that since the petitioner has already retired on 31.7.2009 and was not in a position to assume charge to the promoted post of Assistant Commissioner of Excise, such promotion with retrospective effect from 31.5.2007 cannot be made. This is the reason as aforesaid for petitioner to move the present writ application. 6. Learned counsel for the petitioner submits that such stand on the part of the respondents based upon the opinion of the Finance Department is wholly untenable in law. Learned counsel for the petitioner submitted that for no fault of the petitioner exercise of promotion got delayed from time to time. Though in the year 2001, the same promotion could have been granted to him but remained pending because vigilance clearance from Lokayukt was not given. The D.P.C meeting was held in the successor state of Bihar, however the services of the petitioner were under Jharkhand. Learned counsel for the petitioner has relied upon the minutes dated 28.9.2001(Annexure-7) to the writ application. In such circumstance, petitioner had been earlier also compelled to move this Court when the respondents were sitting over the matter. The D.P.C meeting was held in the successor state of Bihar, however the services of the petitioner were under Jharkhand. Learned counsel for the petitioner has relied upon the minutes dated 28.9.2001(Annexure-7) to the writ application. In such circumstance, petitioner had been earlier also compelled to move this Court when the respondents were sitting over the matter. In the last writ petition which was preferred by him being W.P.S. No. 1838 of 2009, this Court had directed the respondents to consider the case of the petitioner for regular promotions in accordance with the procedures and petitioner's seniority in the gradation list of Superintendent of Excise within stipulated period. The petitioner had by that time retired and recommendation was made on 26.4.2010 which clearly finds that the petitioner is entitled for promotion to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007. Therefore, for no fault of his, he should not be denied promotion from retrospective date simply on the ground that he has superannuated on 31.7.2009 and could not assume charge of the said post in a retrospective manner. He has further submitted that time without number in several such instances, retired employees have been granted promotions with retrospective effect in cases where the exercise has been undertaken after such retirement or junior persons to the retired employee have been given promotions from retrospective date. In such circumstance, the petitioner is lawfully entitled to all such benefits on account of such notional promotion. 7. Learned counsel for the petitioner in support of his contention has relied upon the judgment reported 1999(1) P.L.J.R. 272 rendered by the learned Single Judge of the Patna High Court in the case of Ranjit Sahay Jamuar Vrs. State of Bihar. He has also relied upon the Division Bench judgment of the Patna High Court in the case of Dr Paras Nath Prasad Vrs. State of Bihar reported in 1990(2)Page 249, which has also been referred in the case of Ranjit Sahay Jamuar(Supra). 8. Learned counsel for the respondent- State on the other hand has defended the decision of the respondent-Authorities on the basis that under Rule 58 of the Bihar Service Code , the petitioner who had retired cannot be granted the actual benefits of the post on which he seeks promotion with retrospective date. 8. Learned counsel for the respondent- State on the other hand has defended the decision of the respondent-Authorities on the basis that under Rule 58 of the Bihar Service Code , the petitioner who had retired cannot be granted the actual benefits of the post on which he seeks promotion with retrospective date. Therefore, the Finance Department, after consideration of the department's circular as well as Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules came to the conclusion that the petitioner cannot be granted promotion to the post of Assistant Commissioner of Excise with retrospective effect. He, however has not been able to dispute that regularly constituted D.P.C. in its recommendation dated 26.4.2010 found the petitioner eligible for promotion to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007. However, since the petitioner has not been able to complete the minimum time period on the post of Assistant Commissioner of Excise i.e. 4 years, he could not have been considered for the promotion to the post of Deputy Commissioner of Excise as per the recommendation of the D.P.C. 9. I have heard counsel for the parties at length and gone through relevant materials on record including the impugned order. From the facts which have been discussed herein above and are borne on record it is apparent that petitioner was recommended by the D.P.C. in its meeting held on 26.4.2010 for being promoted to the post of Assistant Commissioner of Excise w.e.f. 31.5.2007. This committee meeting was convened in view of the order passed in W.P.S. 1838 of 2009 as also in view of the contempt pursued on behalf of the petitioner for compliance of the said order. The D.P.C., however in its recommendation observed that opinion of the Finance Department should be taken before issuance of any notification of such promotion. However, the D.P.C. also found the petitioner did not fulfill the minimum time period of 4 years on the post of Assistant Commissioner of Excise. In the aforesaid circumstance, he has not been found eligible for next higher promotion to the post of Deputy Commissioner of Excise as he has retired on 31.7.2009. However, the D.P.C. also found the petitioner did not fulfill the minimum time period of 4 years on the post of Assistant Commissioner of Excise. In the aforesaid circumstance, he has not been found eligible for next higher promotion to the post of Deputy Commissioner of Excise as he has retired on 31.7.2009. The Finance Department relying upon Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules, however has opined against the petitioner on the ground that petitioner could not have taken charge of the promoted post retrospectively after having superannuated on 31.7.2009. Such a view, however is not sustainable in the eye of law. There are numerous instances where retrospective promotion have been granted under different circumstances to the persons who had retired from service. Reason may be administrative delay in granting promotion from the end of respondent- authorities or the reason may be that some junior to the incumbent may have been promoted to the post from retrospective date which entitles such person for such promotion even after his retirement and consequential benefits arising out of such promotions. In any case the issue is not res-integra in view of the fact that it has attracted the attention of the Patna High Court earlier also in one of the judgment in the Ranjit Sahay Jamuar Vrs. State of Bihar reported in 1999(1) PLJR 272 (supra), which is sufficient to clarify the uncertainty which prevails over the minds of the respondent- Authorities. Para 6 to 8 of the said judgment is quoted herein below:- “Para-6:– A counter affidavit has been filed on behalf of the respondent authorities in which reliance is placed on rule 58 of the Bihar Service Code and rule 74 of the Bihar Financial Rules for denying the petitioners the benefits flowing from the promotions given to them with retrospective effect. Para 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. 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 laches and mistakes committed by the department. Para 8:- In a number of decisions; this court has observed that an employee being given promotion with retrospective effect cannot be denied the material benefits accruing from the promotion and the position is now well established. If any authority is needed on this point one may see 1990(2) P.L.J.R. 248 Dr. Paras Nath Prasad Vrs. State of Bihar and Ors”. 10. Learned counsel for the petitioner submitted that similar view has been taken by learned Single Judge of this Court in the case of Suryadeo Prasad Vrs. State of Jharkhand & others reported in 2010(3) JCR 238 (Jhr). In the said judgment the relevant Rule 58 of the Jharkhand Service Code and Rule 74 of the Bihar Financial Rules have been taken note of. 11. In view of the aforesaid position of law as being reiterated from time to time by the judgments being referred to herein above and the extracts of which have been quoted herein above, the stand of the respondents to deny promotion with retrospective effect to the petitioner from 31.5.2007 cannot be sustained in law as well as on facts and, accordingly, the impugned order dated 20.8.2010 is quashed. 12. In such circumstance, the respondents shall grant retrospective promotion to the petitioner w.e.f. 31.5.2007 on the post of Assistant Commissioner of Excise and also sanction and pay all such consequential benefits to him within a period of 16 weeks from the date of receipt of the copy of this judgment including the consequent revision in post retirement benefits. 13. The writ petition is allowed in the aforesaid manner. Petition allowed.