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2014 DIGILAW 263 (PAT)

State of Bihar v. Akhaury Dadan Prasad

2014-02-18

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2014
ORDER This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent State of Bihar against the judgment and order dated 13th December 2010 passed by a learned Single Judge in CWJC No. 7725 of 2003. 2. The respondent writ petitioner has approached this Court under Article 226 of the Constitution of India in CWJC No. 7725 of 2003 for two fold prayers. The petitioner has claimed that although he was appointed as Junior Engineer, under order dated 26th February 1980, he was called upon to be Incharge of the Sub-division (Mechanical) for monthly allowance of Rs.30/-. The said arrangement was continued till he retired from service in the year 2003. The petitioner has, therefore, prayed for salary as an Assistant Engineer from 28th February 1980 till the date he retired from service. He has also prayed for promotion as Assistant Engineer (Mechanical) with effect from 17th June 1986. It appears that in 2003 the State Government has prepared a list of Junior Engineers indicating the dates they became eligible for consideration for promotion as Assistant Engineer. Against the name of the petitioner the date 17th June 1986 has been recorded. The petitioner has accepted the said date as the date he was due for promotion. 3. There is no dispute that the petitioner was appointed as Junior Engineer. While working as Junior Engineer [Diploma in Engineering (Mechanical)] he was placed in charge of Sub-division (Mechanical) under order dated 26th February, 1980 made by the Chief Engineer. The order clearly stipulated that the petitioner would be entitled to a monthly allowance of Rs.30/-. 4. The petition was contested by the State Government. The learned Single Judge has allowed the Writ Petition. According to the learned Single Judge, the petitioner having held the charge of the post of Assistant Engineer for long 23 years, it cannot be said to be a temporary arrangement. The petitioner is, therefore, entitled to regular pay and allowances of that of an Assistant Engineer from the date he was allowed to hold the charge as Assistant Engineer. In respect of his promotion as an Assistant Engineer, the learned Single Judge has observed that the question of promotion be considered in accordance with law and the petitioner be granted consequential benefits. Therefore, this Appeal. 5. Learned advocate Mr. Piyus Lal appears for the appellant State of Bihar. In respect of his promotion as an Assistant Engineer, the learned Single Judge has observed that the question of promotion be considered in accordance with law and the petitioner be granted consequential benefits. Therefore, this Appeal. 5. Learned advocate Mr. Piyus Lal appears for the appellant State of Bihar. He submits that the direction issued by the learned Single Judge is in contravention of Rule 7 of the Bihar Public Works Department Code (hereinafter referred to as the PWD Code). He submits that Rule 7 of the PWD Code clearly postulates that Overseers (now re-designated as Junior Engineers) placed in charge of a Sub Division are entitled to a special pay of Rs.30/- per month. That was the condition mentioned in the order dated 26th February 1980. Now, the petitioner cannot be allowed to claim pay and allowances of an Assistant Engineer contrary to Rule 7 of the PWD Code and contrary to the terms and conditions of his appointment under order dated 26th February 1980. He has also relied upon Rules 103 and 89 of the Bihar Service Code. 6. The appeal is contested by learned advocate Mr. Bipin Kumar Sinha appearing on behalf of the respondent writ petitioner. He has relied on the counter affidavit filed in the present Appeal and the order of this Court annexed thereto. He has also relied upon the judgment of the Hon’ble Supreme Court in the matter of Arindam Chattopadhyay Vs. State of West Bengal [ AIR 2013 SC 1535 ] and the judgments of this Court in the matters of Prafulla Ranjan Shrivastava Vs. State of Bihar [ 2008(3) PLJR 144 ] and of The Bihar Engineering Services Association Vs. State of Bihar [ 2013(1) PLJR 410 ]. 7. We have considered the above referred Rule 7 of the PWD Code, and Rules 103 and 89 of the Bihar Service Code. Note 3 below Rule 7 of the PWD Code specifically provides that Overseers when placed in charge of a sub-division would be entitled to a special pay of Rs.30/- per mensem. That is what was offered to the petitioner and two others under order dated 26th February 1980. It is not the case of the petitioner that on 26th February 1980 he was eligible for promotion or was within the zone of consideration for promotion to the post of Assistant Engineer. That is what was offered to the petitioner and two others under order dated 26th February 1980. It is not the case of the petitioner that on 26th February 1980 he was eligible for promotion or was within the zone of consideration for promotion to the post of Assistant Engineer. The writ petitioner has also accepted 17th June 1986 as the due date of his promotion. Unless the petitioner was eligible and was within the zone of consideration for promotion, he could not have claimed regular promotion or even officiating promotion to the post of Assistant Engineer. He did accept the order dated 26th February 1980 without demur. In our opinion, it would not be fair on the part of the petitioner to claim promotion to the post of Assistant Engineer from 28th February 1980, irrespective of his eligibility and seniority vis-à-vis other Overseers/Junior Engineers in the cadre. 8. It is not fair on the part of the State Government also to allow its employee to be Incharge of a post for a long time without paying him salary for the said post. The petitioner’s case for promotion from the due date, i.e. on 17th June 1986 should be considered by the State Government considering the fact that the petitioner did hold the post and performed the duty of an Assistant Engineer. The learned Single Judge has directed that the matter should be considered by the State Government in consultation with the Bihar Public Service Commission. However, in the present case, the State Government allowed the petitioner to discharge duty as Assistant Engineer as Incharge of a sub-division without considering his case for promotion even on the due date, i.e. 17th June 1986. He was allowed to function as Assistant Engineer continuously till the date of his superannuation in the year 2003. In the above scenario, we consider it unnecessary to refer the matter to the State Government or the BPSC after the retirement of the petitioner from service. 9. In the above referred matter of Bihar Engineering Service Association (supra), the question was that of promotion in the Bihar Engineering Class-I Service. In the above scenario, we consider it unnecessary to refer the matter to the State Government or the BPSC after the retirement of the petitioner from service. 9. In the above referred matter of Bihar Engineering Service Association (supra), the question was that of promotion in the Bihar Engineering Class-I Service. This Court held that “diploma holders from any polytechnic, having done courses not academically equivalent to degree course in Engineering cannot have any access to Bihar Engineering Class-I Service even though they may be part of Bihar Engineering Class-II Service.” In our view, the post of Assistant Engineer being a Class-II service this judgment will have no applicability. 10. In the matter of Arindam Chattopadhyay (supra) a similar issue came up before the Hon’ble Supreme Court. The appellants before the Hon’ble Supreme Court were Assistant Child Development Project Officers. However, they were transferred and posted on the post of Child Development Project Officer (CDPO) and they discharged the duty as such. That was neither a stop gap arrangement nor it was the case of giving additional charge of the higher post for a certain period. They continued to discharge the duty as CDPO continuously for 14 years. In the circumstances, the Hon’ble Court held that the said appellants having taken up the responsibility of the higher post of CDPO they cannot justiciably denied the salary of the post of CDPO. 11. The judgment in the matter of Prafulla Ranjan Srivastava (supra) deals with the question of pay fixation when a government servant is called upon to hold the charge of a post carrying higher responsibility. The Bench has relied upon on Rule 103 of the Bihar Service Code. The Bench has held that Rule 103 envisages a situation where an employee has been given an additional charge of purely temporary and transitional post, where permanent arrangement is not required or pending finalization of the permanent arrangement. 12. In the present case also, it is the case of the petitioner that since 28th February 1980 he has been performing the duties of higher post of an Assistant Engineer continuously till he retired from service in 2003. The said claim of the petitioner has not been denied by the State Government except for relying upon Rule 7 of the PWD Code. The said claim of the petitioner has not been denied by the State Government except for relying upon Rule 7 of the PWD Code. The State Government has also not denied that the petitioner was due for promotion on 17th June 1986, nor has the State Government explained why was the petitioner not regularly promoted on 17th June 1986 or soon thereafter. The petitioner should, therefore, be held entitled to regular promotion as on 17th June 1986. 13. For the aforesaid reasons, the appeal is partially allowed. We hold that the petitioner will be entitled to the allowance/ special pay of Rs.30/- per month as envisaged by Note 3 below Rule 7 of the PWD Code, Vol. I, from 28th February 1980 till 17th June 1986. From 17th June 1986, the due date of promotion, till the date of his retirement from service, the petitioner will be deemed to have been promoted as Assistant Engineer (Mechanical) and his pay will be fixed accordingly. He will be entitled to increments, revision of pay, and other monetary benefits as if the petitioner were promoted as Assistant Engineer on 17th June 1986 and that he continued as such till the date of his superannuation on 31st July 2003. The impugned judgment and order is accordingly modified. 14. Before we signed the above order, we have noticed that Note 3 below Rule 7 of the PWD Code, Volume I, provides that “Overseers when placed in charge of a subdivision are entitled to a special pay of Rs.30 per mensem”. On closure scrutiny it appears that the said Note 3 does not provide for additional charge of the higher post of Assistant Engineer as Sub Divisional Engineer. We, therefore, have notified the Appeal for re-hearing. 15. Having heard the learned advocates Mr. Piyush Lal and Mr. Ashok Kumar Choudhary, specifically on this point, we are of the opinion that the entire claim of the petitioner of having held the post of Assistant Engineer and having discharged the duties of an Assistant Engineer since 28th February 1980 is erroneous and imaginary. There is nothing in the PWD Code that being in charge of a Sub Division amounts to holding the post of Assistant Engineer. It only connotes that amongst many Overseers (Junior Engineers) posted in a Sub Division, one is called upon to be incharge of the Sub Division. There is nothing in the PWD Code that being in charge of a Sub Division amounts to holding the post of Assistant Engineer. It only connotes that amongst many Overseers (Junior Engineers) posted in a Sub Division, one is called upon to be incharge of the Sub Division. It is like in a class of 50 students, one is nominated to be the monitor. That does not mean that the monitor is not the student in the same class. The petitioner has admitted that he remained on the same post throughout till he retired from service in 2003. Thus at no point of time the petitioner was appointed as an Assistant Engineer or was called upon to perform the duty of an Assistant Engineer or to hold the post of Assistant Engineer. 16. In our opinion, this being not a case of holding of charge of a post in addition to the substantive charge or of temporary or officiating appointment, neither Rule 103 nor Rule 89 of the Bihar Service Code nor the judgment in the matter of Prafulla Ranjan Srivastava (supra) has any application. 17. One more question that arises is whether the petitioner did ever become eligible for promotion to the post of Assistant Engineer. The petition is entirely bereft of pleadings in this respect. The petitioner has not made out a case whether or not he was eligible for appointment as Assistant Engineer by promotion, or when did he come within the zone of consideration or whether any of his juniors was promoted as Assistant Engineer before the petitioner retired from service. In absence of any pleading before us either by the petitioner or by the respondents, we are unable to hold that the petitioner was eligible for appointment as Assistant Engineer. 18. Mr. Piyush Lal has, however, submitted that the gradation list prepared in 2003 indicates the dates on which the Junior Engineers became eligible for promotion to the post of Assistant Engineer. Against the name of the petitioner the date mentioned in the list is 17th June 1986. In the submission of Mr. Piyush Lal, on that date the petitioner became eligible for promotion to the post of Assistant Engineer. Mr. Piyush Lal has further submitted that till date no statutory rules are framed for appointment to the posts of Assistant Engineer. Against the name of the petitioner the date mentioned in the list is 17th June 1986. In the submission of Mr. Piyush Lal, on that date the petitioner became eligible for promotion to the post of Assistant Engineer. Mr. Piyush Lal has further submitted that till date no statutory rules are framed for appointment to the posts of Assistant Engineer. He has submitted that the promotions are made on the basis of circulars issued from time to time as per the requirement. Mr. Bipin Kumar Sinha has relied on the Government Resolution dated 29th July 1997. He has submitted that the said resolution provides for promotion of Junior Engineer to the posts of Assistant Engineer in Bihar Engineering Service Class II. Under the said resolution, the appointment to the cadre of Assistant Engineer in Bihar Engineering Service Class II is made by promotion of the Junior Engineers (diploma holders in Subordinate Engineering Service); by promotion of Junior Engineers possessing qualification of A.S.I. or equivalent qualification; and by direct recruitment of candidates possessing degree in engineering or equivalent qualification in the ratio of 35: 03: 62. The submission or the resolution has not been controverted by Mr. Piyush Lal. We, therefore, hold that the petitioner had become eligible for promotion as Assistant Engineer as on 17th June 1986. 19. The next question that arises is that of the date on which the petitioner came within the zone of consideration, availability of vacancies and suitability for promotion. In the above referred gradation list the petitioner has been shown to be fit for promotion in 2000-2001 and 2001-2002. Mr. Piyush Lal has submitted that immediate junior to the petitioner one Vishwanath Jha was promoted as Assistant Engineer in 2005 after the petitioner retired from service. He has submitted that there is no information available in respect of any Junior Engineer junior to the petitioner having been promoted as Assistant Engineer superseding the petitioner. He has further submitted that since the petitioner had not been given promotion during his service tenure, he was allowed higher pay scale under the scheme for time bound promotion. He has also been allowed the benefit of the first and the second Assured Career Progression under the relevant rules. On the date of his retirement he was receiving the pay in the pay scale admissible to Executive Engineer in Class-I service. He has also been allowed the benefit of the first and the second Assured Career Progression under the relevant rules. On the date of his retirement he was receiving the pay in the pay scale admissible to Executive Engineer in Class-I service. In the event of the petitioner being found suitable for promotion on any date in 1986 or thereafter if he were given such date of promotion, he will not gain any monetary benefit. In the process, the State Government will also have to withdraw the time bound promotion given to the petitioner. The factum of the petitioner having received the benefit under the time bound promotion scheme and the Assured Career Progression Rules and he having been placed in the pay scale admissible for Executive Engineer is not controverted. In our opinion, in absence of proper pleadings, the petitioner cannot be directed to be appointed as Assistant Engineer on 17th June 1986, the day when he became eligible for promotion. The real issue is the zone of consideration, availability of vacancies and suitability for promotion. 20. In the above circumstances and in absence of the proper pleadings, we are of the opinion that relegating the issue to the respondents for consideration more than ten years after the date of retirement of the petitioner will be an exercise in futility. Even in absence of a formal order of promotion the petitioner has gained monetary benefits equal to the promotion. Retrospective promotion now will neither bring monetary benefits to the petitioner nor the benefit of power of a higher post. We do not suppose that this Court should, in exercise of power of judicial review under Article 226 of the Constitution, issue any direction which is not meaningful. 21. For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 13th December 2010 passed by the learned Single Judge in CWJC No.7725 of 2003 is set aside. CWJC No. 7725 of 2003 is dismissed. ?