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2013 DIGILAW 979 (JHR)

Jaiprakash Singh v. State of Jharkhand

2013-08-20

APARESH KUMAR SINGH

body2013
ORDER Heard learned counsel for the parties. 2. By the impugned order contained in letter no. 879 dated 20.5.2010 issued by the Deputy Secretary, Mines and Geology Department, Government of Jharkhand, Ranchi, respondent no. 4, the claim of the petitioner for release of arrears of difference of salary with retrospective effect consequent upon regular promotion on the post of Deputy Director w.e.f. 1.7.2001 has been rejected. Petitioner also seeks direction upon the respondents to forthwith release entire arrears of difference of salary w.e.f. 2.7.2007 to 15.12.2009 on account of the regular promotion to the post of Additional Director on which post, according to him, he was regularly discharging his duties from 2.7.2007 itself. 3. According to the petitioner, he was given additional charge to the post of Deputy Director under the Mines and Geology Department vide notification no. 4198 dated 1.11.1999 vide Annexure-1. He is said to have assumed charge on 4.11.1999 vide Annexure-2. Vide Annexure-3 notification no. 723 dated 28.5.2009, he was promoted to the post of Deputy Director with retrospective effect from 1.7.2001. The instant notification also refers that he was working as In-charge Director, Geology, Government of Jharkhand at the relevant point of time i.e. issuance of the notification no. 900 dated 28.5.2009. Vide Annexure-4, he assumed full-fledged charge of Deputy Director on 28.5.2009, which is counter signed by Secretary, Mines and Geology Department, Government of Jharkhand. Vide Annexure-5 dated 29.6.2007, he was given additional charge of Additional Director vide notification no. 1468 dated 29.6.2007. The said notification also recorded that he was working as In-charge Deputy Director in the respondents Department at the time of issuance of notification of 29.6.2007. Vide Annexure-5/1, he assumed charge as In-charge Additional Director, Geology, Government of Jharkhand, on 2.7.2007 pursuant to the notification dated 29.6.2007. Again vide notification no. 1903 dated 16.12.2009, Annexure-6, he was given regular promotion to the post of Additional Director, Department of Geology, Government of Jharkhand w.e.f. 2.7.2007. The said notification also refers that the petitioner being in capacity of Deputy Director was also working as In-charge Director, in the Geology Department. In the said circumstances, the petitioner's claim for financial benefit to the promoted post on which he was promoted with retrospective effect on 1.7.2001 and 2.7.2007 is being refused vide impugned order dated 20.5.2010, Annexure-7. 4. The said notification also refers that the petitioner being in capacity of Deputy Director was also working as In-charge Director, in the Geology Department. In the said circumstances, the petitioner's claim for financial benefit to the promoted post on which he was promoted with retrospective effect on 1.7.2001 and 2.7.2007 is being refused vide impugned order dated 20.5.2010, Annexure-7. 4. The respondent in their counter affidavit have stated that such claims have been rejected upon the instruction of the Finance Department. The impugned order is a cryptic order which simply says that the financial benefit arising out of the retrospective promotion is being refused on the basis of the resolution dated 4.4.1995. The reliance basically is based upon Rule 58 of the Jharkhand Service Code which reads as under:– "58(a). Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. (b) Unless in any individual case the State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows:- (i) in the case of a person who receives a first class passage to India, from the date of his arrival in India, [subject to his proceeding to take up his duties without avoidable delay]. (ii) in the case of a person who receives a second class passage to India from the date of his embarkation for India." 5. Learned counsel for the petitioner has relied upon the judgment of this Court in the case of Kedar Nath vs. State of Jharkhand & Ors. in W.P.(S) No. 1100 of 2007 vide judgment dated 22.6.2012 where according to him after consideration of the said rule, the said petitioner was allowed to avail the salary on the promoted post since he had assumed charge on that post. The said petitioner had also been officiating as In-charge Chief Engineer from the date of retrospective promotion dated 7.9.2001. in W.P.(S) No. 1100 of 2007 vide judgment dated 22.6.2012 where according to him after consideration of the said rule, the said petitioner was allowed to avail the salary on the promoted post since he had assumed charge on that post. The said petitioner had also been officiating as In-charge Chief Engineer from the date of retrospective promotion dated 7.9.2001. Learned counsel for the petitioner has also brought to notice of this Court that Letters Patent Appeal being LPA No. 471 of 2012 preferred by the respondents-State against this judgment has also been dismissed vide judgment dated 3.5.2013. 6. After hearing learned counsel for the parties and having gone through the relevant materials on record, it appears that the petitioner had already been functioning as In-charge Deputy Director from the date on which retrospective promotion was given to him i.e. on 1.7.2001 in the respondents-Department of Geology. He was also functioning as In-charge Director from the date on which retrospective promotion was given to him i.e. on 2.7.2007 on the post of Additional Director, Department of Geology. The judgment relied upon by the counsel for the petitioner is also in support of the case of the petitioner. The material facts and the dates of notification as also assumption of charge by the petitioner from the respective date have been also indicated in the earlier part of the judgment, which is not disputed by the respondents. In the said circumstances, even the grounds, which are relied upon under Rule 58 of the Jharkhand Service Code does not appear to have been made out in the instant case. The petitioner was admittedly working in the capacity of Deputy Director on the date 1.7.2001 and in the capacity of In-charge Director on the date 2.7.2007 when he was promoted as Additional Director vide notification dated 29.6.2009, Annexure-5 and vide notification dated 16.12.2009, Annexure-6 respectively. 7. In the circumstance, therefore, the impugned order, which is cryptic and suffers from non-application of mind as well, cannot be sustained in law as well as on facts. Hence, it is quashed. The respondents are directed to release the arrears of difference of salary to the petitioner on post of Deputy Director to which he has been promoted with retrospective effect 1.7.2001 as also arrears of difference of salary w.e.f. 2.7.2007 on which post he was promoted as Additional Director retrospectively. Hence, it is quashed. The respondents are directed to release the arrears of difference of salary to the petitioner on post of Deputy Director to which he has been promoted with retrospective effect 1.7.2001 as also arrears of difference of salary w.e.f. 2.7.2007 on which post he was promoted as Additional Director retrospectively. Let the said exercise be completed within a period of 12 weeks from the receipt of a certified copy of this order. 8. This writ petition is accordingly, disposed of in the aforesaid terms.