Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 782 (JHR)

Parma Prasad Singh v. State of Jharkhand

2014-07-22

APARESH KUMAR SINGH

body2014
ORDER : Heard learned counsel for the petitioner and the State. 2. The petitioner was promoted to the post of Sub Divisional Welfare Officer in the Pre-revised scale of Rs.5500-9000/- after due inquiry and completion of qualifying years of service vide notification bearing no. 1822 dated 3rd August, 2010 issued by the Joint Secretary, Welfare Department, Government of Jharkhand under the orders of His Excellency, Governor of Jharkhand w.e.f 30th October, 1996. Prior to that he was provisionally promoted vide Annexure-3 dated 16th January, 2009 to the same post. The order of substantive promotion itself indicated that the financial benefits of such promotion would be granted to the petitioner from the date of notification i.e. 3rd August, 2010. However, by the impugned notification dated 1st March, 2013, Annexure-8 issued by the Deputy Secretary, Welfare Department, the promotion granted to the petitioner earlier has been canceled. The said notification indicates that earlier provisional order of promotion dated 16th January, 2009 shall be operative. The petitioner has challenged the same on the ground that the impugned notification annulling the earlier notification of substantive promotion has been issued without any show cause or notice or any inquiry as contemplated under Article 311of the Constitution of India and it amounts to reduction in rank. 3. The respondents, in their counter affidavit, have taken a plea that the petitioner could not have been promoted from a retrospective date in view of the specific provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules, as per which a government servant is entitled to pay and allowances attached to his substantive post with effect from the date on which he assumes duties of that post. Therefore, after due consideration the impugned notification has been cancelled by the department as such retrospective promotion could not have been granted and that too without the approval of the Finance Department. 4. Learned counsel for the petitioner in response has submitted that the notification at Annexure-5 itself indicated that financial benefits accruing on the basis of such promotion would be granted from the date of notification (Annexure-5). The petitioner is conscious that he would be entitled at least notional benefit of such promotion, though he may not be entitled to the monetary benefits thereafter as he had not been actually posted or serving on the said post from that date. The petitioner is conscious that he would be entitled at least notional benefit of such promotion, though he may not be entitled to the monetary benefits thereafter as he had not been actually posted or serving on the said post from that date. However such notional promotion also from the retrospective date has been cancelled. The benefit of seniority in the cadre and subsequent promotion in the higher cadre that could have also accrued upon him by the notification of substantive promotion has therefore been annulled by the respondents without any reason indicated therein or even without show cause which is mandatory under the principle of natural justice. 5. I have heard learned counsel for the parties and gone through the relevant materials on record including the notifications. The impugned notification at Annexure-8, has annulled the substantive promotion granted to the petitioner earlier vide Annexure-5 on the post of Sub Divisional Welfare Officer w.e.f. 30th October, 1996 on completion of qualifying years of service and upon proper inquiry by the department. The said notification indicated that financial benefits would be payable from the date of issuance of the notification. Therefore the plea of Rule 58 of the Jharkhand Service Code or Rule 74 of the Jharkhand Financial Rules would not come into operation in view of the specific conditions laid down in the notification of promotion itself. These reasons of course have been supplemented by the respondents in their counter affidavit though the impugned notification does not refer to any reasons for such cancellation. The cancellation of notification has been issued without any show cause or notice though the grant of promotion was by a conscious decision of the respondents and the notification was issued under the orders of His Excellency, Governor of Jharkhand. The petitioner was conferred a substantive promotion to a higher post which has been reduced by the impugned notification without even following the principles of natural justice. The same therefore cannot stand the test the legal reasoning and the requirement of following the principles of natural justice. The impugned notification dated 1st March, 2013 bearing No. 438 issued by the respondent department cannot survive in the eye of law and is accordingly quashed. However, it is open to the respondents to take fresh decision in the matter after compliance of the principles of natural justice and after due show cause to the petitioner. 6. The impugned notification dated 1st March, 2013 bearing No. 438 issued by the respondent department cannot survive in the eye of law and is accordingly quashed. However, it is open to the respondents to take fresh decision in the matter after compliance of the principles of natural justice and after due show cause to the petitioner. 6. Accordingly, the writ petition is allowed in the aforesaid manner.