Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 410 (JHR)

Bipin Bihari Singh v. State of Jharkhand

2014-03-21

APARESH KUMAR SINGH

body2014
JUDGMENT 1. Heard learned counsel for the parties. 2. By the impugned order contained in letter no. 179 dated 20.05.2010, Annexure-12, issued by the Deputy Secretary, Mines and Geology Department, Government of Jharkhand, Ranchi, respondent no. 3, the claim of the petitioner for release of arrears of salary for the post of Deputy Director and Additional Director, Mines w.e.f. 15.11.2000 and 15.11.2004 respectively has been refused on the advise of the Finance Department and in view of the Rule 58 of the Jharkhand Service Code and Rule 74 of the Finance Rules. According to them, the said benefit can not be extended in a retrospective manner to the petitioner. The petitioner has consequently sought direction upon respondents to pay the salary of the respective posts with effect from the aforesaid respective dates along with interest. 3. According to the petitioner, while he was serving as District Mining Officer, Dumka vide Annexure-1 dated 15.12.1999 he was transferred and posted as Deputy Director, Mines, which is the next promotional post and authorized to discharge the duties and responsibilities of the said post. The petitioner assumed joining on the said post on 20.12.1999, vide Annexure-2. The petitioner was once again given additional charge of the post of Additional Director, Mines vide notification no. 2759 dated 31.07.2000, Annexure-3, issued under the signature of the Special Secretary, Mines and Geology Department, Government of Jharkhand. Vide charge report dated 31.07.2000, Annexure-4, the petitioner was handed over charge for the post of Additional Director by the previous incumbent. Vide Annexure-5 dated 10.05.2005, the petitioner was given additional charge of the post of Director, Mines and was posted with immediate effect. Vide Annexure-6, notification dated 31.03.2008 of the same department he was made as In-charge Director, Mines. He assumed charge vide Annexure-7 dated 31.03.2008 to the post of In-charge, Director, Mines. Thereafter vide notification dated 28.05.2009 bearing Memo No. 724, the petitioner was substantively promoted to the post of Deputy Director in the scale of Rs. 12000-16500/-pre-revised w.e.f. 15.11.2000 itself. The petitioner was again promoted vide another notification bearing Memo No. 1968 dated 23.12.2009 of the same department to the post of Additional Director in the scale of Rs. 14,300-18,300/-pre-revised w.e.f. 15.11.2004 itself, while also indicating that he would continue to be In-charge, Director, Mines. 12000-16500/-pre-revised w.e.f. 15.11.2000 itself. The petitioner was again promoted vide another notification bearing Memo No. 1968 dated 23.12.2009 of the same department to the post of Additional Director in the scale of Rs. 14,300-18,300/-pre-revised w.e.f. 15.11.2004 itself, while also indicating that he would continue to be In-charge, Director, Mines. In the aforesaid background, the petitioner staked the claim for grant of benefits of the promoted posts from the dates on which the said promotion order were made effective w.e.f. 15.11.2000 and 15.11.2004 as per Annexures-8 and 9 respectively. The same has been rejected by the respondents vide impugned order dated 03.02.2012, Annexure-12, on the advise of the Finance Department and in view of Rule 58 of the Jharkhand Service Code and Rule 74 of the Finance Rules. Learned counsel for the petitioner has relied upon the judgment rendered in the case of Jaiprakash Singh Vs. the State of Jharkhand & Ors in W. P. (S) No. 2986 of 2010 dated 20.08.2013 in order to advance his submission that the petitioner's case is clearly covered by the said judgment and the facts are more or less identical. Therefore, the impugned order needs to be quashed while directing the respondents to pay arrears of salary to the petitioner of the posts of Deputy Director and Additional Director, Mines to which he was promoted with retrospective effect as aforesaid. 4. Learned counsel for the respondent-State has relied upon the provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Finance Rules and submits that the Government servant is entitled to draw the pay and allowances attached to the post to which he is substantially promoted from the date on which such promotion is granted. He has also submitted that the said Rules have been interpreted through administrative instruction by the respondent Department itself as per the circular dated 04.04.1985, Annexure-A. In such circumstances, learned counsel for the respondents has resisted the claim of the petitioner for grant of arrears of difference of salary from the date prior to the issuance of the order of promotion of the petitioner vide Annexures-8 and 9. 5. I have heard learned counsel for the parties and have gone through the relevant materials on records. 5. I have heard learned counsel for the parties and have gone through the relevant materials on records. The chronology, which has been indicated in the earlier part of the judgment are not disputed so far as grant of additional charge of Deputy Director and Additional Director, Department of Mines and Geology to the petitioner is concerned. It is also true that the petitioner has been promoted with retrospective effect vide notification contained at Annexures-8 & 9 w.e.f. 15.11.2000 and 15.11.2004 to the post of Deputy Director, Mines and Additional Director, Mines respectively. Admittedly from the date the aforesaid notifications of promotions have been made effective, the petitioner was already serving on the post of Deputy Director and Additional Director, Mines as per the notification at Annexure-1 dated 15.12.1999 and as per the notification at Annexure-3 dated 31.07.2000 itself. 6. In the wake of the aforesaid admitted facts, the issues raised in the present writ petition appears to have drawn attention of this Court in a similar matter, which was decided in the case of Jaiprakash Singh (Supra) vide judgment dated 20.08.2013. In the said case also, the petitioner was admittedly working in the capacity of the Deputy Director and In-charge Director on the dates with effect from which he was granted promotion in a retrospective manner by the department of Mines and Geology. The Rule 58 of the Jharkhand Service Code and Rule 74 of the Finance Rules was also evidenced in the said judgment after being raised as ground to reject the claim of the said petitioner by the respondents. The relevant extracts of the judgment, which has material bearing upon the present issue is being reproduced hereinbelow:- “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 04.04.1995. 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 04.04.1995. 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 beg in 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.” 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 22.06.2012 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 07. 09. 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 03.05.2013. After hearing learned counsel for the parties and having gone through there levant material son 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 01.07.2001 in the respondents-Department of Geology. After hearing learned counsel for the parties and having gone through there levant material son 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 01.07.2001 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 02.07.2007 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 Jharkand 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 01.07.2001 and in the capacity of In-charge Director on the date 02.07.2007 when he was promoted as Additional Director vide notification dated 29.06.2009, Annexure-5 and vide notification dated 16.12.2009, Annexure-6 respectively. 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 01.07.2001 as also arrears of difference of salary w.e.f. 02.07.2007 on which post he was promoted as Additional Director retrospectively. Let the said exercise be completed with in a period of 12 weeks from the receipt of a certified copy of this order.” 7. In the aforesaid background of the facts and circumstances, the stand taken by the respondents to refuse the arrears of difference of salary to the post of Deputy Director, Mines w.e.f. 15.11.2000 and Additional Director, Mines, w.e.f. 15.11.2004 by the impugned order at Annexure-12 dated 03.02.2012 cannot be sustained in the eyes of law as well as on facts. Accordingly, the same is quashed. 8. Accordingly, the same is quashed. 8. The respondents are therefore directed to release the arrears of difference of salary to the petitioner on the post of Deputy Director, Mines to which he was promoted with retrospective effect i.e. w.e.f. 15.11.2000 and also to that of the Additional Director, Mines, w.e.f. 15.11.2004. 9. Let the said exercise be completed within a period of 12 weeks from the date of receipt of a certified copy of this order. Accordingly, the writ petition is allowed in the aforesaid terms.