Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 330 (ORI)

Ramesh Chandra Samal v. State of Orissa

2016-04-26

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. This writ petition has been filed for following reliefs:- (i) Petitioner be granted annual increments w.e.f. the year 2001 with all service and financial benefits; (ii) petitioner be paid revised pay scale on the basis of 5th and 6th pay commission recommendation implemented by Government of Orissa under Annexure-5 and 7; and (iii) To disburse the differential arrear salary within a stipulated period. 2. The brief facts of the case of the petitioner is that he was appointed as Octroi Tax Collector under opposite party no.3 in the year 1976. He was promoted to the post of Junior Assistant vide resolution no.24 dtd.30.4.1990 against the permanent vacancy. The petitioner has joined the post of Jr. Assistant w.e.f.14.5.1990 and continued with the said post after getting salary and ultimately was superannuated w.e.f. the month of April, 2012. The grievance of the petitioner is that he has been given the salary of the post of Jr. Assistant but on the basis of the pay scale of the recommendation of 4th Pay Revision Committee and he has not been extended the benefit of pay scale of 5th and 6th Pay Revision Committee and as such the writ petition has been filed for directing to disburse the differential amount of the salary. It is the further case of the petitioner that he has been granted promotion to the post of Jr. Assistant by the authorities of the Municipality, Jajpur but the Government has not approved it while the work of Jr. Assistant was taken from him and ultimately he was superannuated from the said post after getting salary of the post but on the basis of recommendation of 4th pay Revision Committee and as such the authorities have acted arbitrarily in continuing him with the post of Jr. Assistant but not paying the pay scale of the said post, hence this writ petition. 3. Counter affidavit has been filed by opposite party no.3, however, no counter affidavit has been filed by the opposite party – State. The opposite party no.3, Vyasnagar Municipality, Jajpur Road has inter alia therein stated that the petitioner was promoted to the post of Jr. Assistant from the post of Octroi Tax Collector on ad hoc basis subject to approval of the Government which would be evident from Annexure-C/2. The petitioner has joined as Jr. The opposite party no.3, Vyasnagar Municipality, Jajpur Road has inter alia therein stated that the petitioner was promoted to the post of Jr. Assistant from the post of Octroi Tax Collector on ad hoc basis subject to approval of the Government which would be evident from Annexure-C/2. The petitioner has joined as Jr. Assistant on 14.5.1990 but the Government of Orissa through Housing and Urban Development Department vide its letter no.18835 dtd.21.6.1997 has intimated that due to lack of fitness of the petitioner, his case has not been considered for promotion which would be evident from Annexure-C/4. When the petitioner was given ad hoc promotion, he was allowed the benefit of 4th pay financial benefit without annual increment as Jr. Assistant from 15.5.2000 till date, however, the council has recommended the case of the petitioner before the Government to regularize the promotion of the petitioner with financial benefit, but no decision has been taken. Since the promotion of the petitioner has not been approved by the Government who is the competent authority, so no annual increment has been sanctioned to the petitioner w.e.f.15.5.2000 4. Learned counsel representing opposite party no.1 has opposed the prayer of the petitioner by submitting that the petitioner was only granted ad hoc promotion as Jr. Assistant, subject to approval by the Government. The case of the petitioner was considered by the competent authority of the Government but due to lack of fitness his promotion was not approved and as such he cannot claim the benefit of the post of Jr. Assistant. It has been contended by him that the order of promotion is to be passed by the competent authority and in the case in hand, the competent authority to take final decision regarding promotion of the petitioner was the Government and the case of the petitioner was considered but he was not found to be fit for approval of his order of promotion to Jr. Assistant and as such he cannot claim any benefit of higher post merely by virtue of rendering service on that post. He further contends that the decision taken by the authority on 16.7.1997 has never been challenged by the petitioner. 5. Heard the learned counsels for the parties and perused the documents on record. Assistant and as such he cannot claim any benefit of higher post merely by virtue of rendering service on that post. He further contends that the decision taken by the authority on 16.7.1997 has never been challenged by the petitioner. 5. Heard the learned counsels for the parties and perused the documents on record. The grievance raised by the petitioner in this writ petition is regarding the benefit of the recommendation of 5th and 6th Pay Revision Committee of the post of Jr. Assistant, the post on which the petitioner has performed his duty by virtue of an order of promotion granted by opposite party no.3 vide order passed in this regard on 18.5.1990 as would be evident from Annexure-C/3 and from its perusal it is evident that the case of the petitioner was considered for promotion as Jr. Assistant from Octroi Tax Collector and the recommendation was sent before the Addl. Secretary to Government for its approval. From annexure-C/3 it is evident and also after going through the statutory provision the final decision for taking promotion is vested upon the State Government and that is the reason the recommendation of the petitioner for promotion as Jr. Assistant was sent by the opposite party no.3 before the Addl. Secretary to Govt. and in anticipation the petitioner was allowed to continue with the post and he was also released the pay scale of the said post. The Govt. on its end has considered the request of the authority regarding approval of the case of the petitioner for promotion to the post of Jr. Assistant but the petitioner was not found to be fit due to lack of fitness, i.e. no good performance as would be evident from the communication dtd.16.7.1997 (Annexure-C/4). It has been informed to the Court that the petitioner has not challenged the order dtd.16.7.1997 which attains its finality. There is no dispute about the admitted position of the petitioner that the case of the petitioner was considered for promotion as Jr. Assistant sent before the Government for its approval but the Government has declined its approval and the moment it has been declined, the petitioner will be said to have got no promotion in the eye of law as Jr. Assistant, but however, he was allowed by the authority of opposite party no.3 to continue as Jr. Assistant sent before the Government for its approval but the Government has declined its approval and the moment it has been declined, the petitioner will be said to have got no promotion in the eye of law as Jr. Assistant, but however, he was allowed by the authority of opposite party no.3 to continue as Jr. Assistant and got the pay scale by virtue of recommendation of 4th pay Revision Committee and now he is claiming the pay scale on the basis of pay scale of 5th and 6th Pay Revision Committee and its consequential benefits and when it has not been paid, this writ petition has been filed. In this context it is necessary to deal with the definition of promotion which means advancement or preferment in honour, dignity, rank or grade. Promotion thus not only covers advancement to higher position or rank, but also implies advancement to higher grade. In service Law also the expression “promotion” has been understood in the wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post. In this regard reference may be made to the paragraph 8 of the judgment rendered by Hon’ble Apex Court in the case of State of Rajasthan Vrs. Fateh Chand Soni, 1996 1 SCC 562 which is being reproduced herein below:- “8. The High Court, in our opinion, was not right in holding that promotion can only be to a higher post in the Service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word “promote” means “to advance to a higher position, grade, or honour”. So also “promotion” means “advancement or preferment in honour, dignity, rank, or grade”. “Promotion” thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression “promotion” has been understood in the wider sense and it has been held that “promotion can be either to a higher pay scale or to a higher post.” Thus it is evident that promotion means advancement in post as well as pay scale. It is also not in dispute that the promotion is a condition of service and it has to be given by the competent authority. It is also not in dispute that the promotion is a condition of service and it has to be given by the competent authority. It is also not in dispute that the final authority to take final decision regarding promotion of an employee of municipality or council is vested to the State Government under the statute and that is the reason opposite party no.3 after taking into consideration the candidature of the promotion has recommended the case of the petitioner for promotion as Jr. Assistant before the competent authority of the Government, but the same has not been approved as would be evident from the communication dtd.16.7.1997 and the said order has never been challenged by the petitioner, hence it is held that the petitioner has never been granted any promotion as Jr. Assistant. However, the petitioner claims that he has been granted promotion w.e.f. 18.5.1990 but that was in anticipation of approval by the State Government and the moment the State Government has not approved it, there will be no legal sanctity of the order of promotion dtd.18.5.1990 as contained in Annexure-C/3. 6. Now the second argument advanced by the learned counsel for the petitioner that he has been paid the salary of the post of Jr. Assistant since the work has been taken from him of the post of Jr. Assistant and also allowed to be superannuated from the said post, is entitled to get the benefit of the said post. But that argument of the learned counsel for the petitioner cannot be accepted for the reason that if anything has been done contrary to the settled norms and procedure and the statute, the petitioner cannot derive the benefit on the garb of violation of Art.14 of the Constitution of India. In this respect the judgments of Hon’ble Apex Court rendered in case of Basawaraj and Another Vrs. Special Land Acquisition Officer, 2013 XIV SCC 81 needs to be referred where in it has been held that Art.14 of the Constitution is not meant to perpetuate illegality or fraud, even by accepting the wrong decisions made in other cases, for ready reference para 8 of the judgment is being reproduced herein below:- “8. It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief / benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order / decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible.” This principle has again been followed in the case of Chaman Lal Vrs. State of Punjab, AIR 2014 SC 3640 . Thus the entire case of the petitioner is that since he has been allowed to perform his duty as Jr. Assistant from 1990 till the year of superannuation and he has been given the pay scale of Jr. Assistant, he is entitled to get the benefit of 5th and 6th Pay Review Committee pay of the post of Jr. Assistant cannot be allowed for the principles laid down by the Hon’ble Apex Court as discussed herein above as because however the petitioner was granted promotion way back in the year 1990 in anticipation of approval of the order of promotion by the competent authority but that has not been approved, rather it has been rejected vide communication dtd.16.7.1997 and even thereafter he was allowed to continue in the higher post, that does not mean that a right has been accrued to him to remain on the higher post having not been promoted by way of order passed by the competent authority. In view thereof the relief sought for by the petitioner cannot be allowed. Accordingly the case is dismissed.