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2018 DIGILAW 1509 (JHR)

Chandra Shekhar Prasad v. State Of Jharkhand

2018-07-11

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - In this writ application, the petitioner has sought for direction upon the respondents for quashing the part of the order by which the petitioner has been denied monetary benefit with effect from 09.08.1996, the date when the petitioner has been granted promotion in the rank of Sub Divisional Officer and the monetary benefit has also been denied with effect from 24.12.2005 when the petitioner has been granted promotion in the rank of Deputy Collector, on the ground that salary for the rank of the promoted post shall be granted with effect from the date of joining on the said post. Further, prayer has been made for granted of arrears of difference of salary w.e.f the date of promotion to the post of Additional Collector which has been granted vide notification dated 02.03.2009 with retrospective effect from 24.12.2005. 2. The brief facts, as has been disclosed in the writ application, is that petitioner joined in the year 1990 having qualified in the State Administrative Service. In the year 1990-91 a seniority list was prepared for the said service in which the name of the petitioner appeared at Serial no.2800 and one Sri Mahadeo Dhan appeared at Serial No.2803. In the year 1999 another seniority list was prepared in which the name of the petitioner appeared at Serial no.1876 while the name of Shri Mahadeo Dhan appeared at Serial no.1879. Subsequently by the State of Jharkhand a gradation list was prepared in which the name of the petitioner figured at Serial No.596 and the name of Shri Mahadeo Dhan appeared appears at Serial no.599 as evident from Anexure-3 to the writ petition. Since the junior to the petitioner namely Smt. Suman Katherin Kispotta was granted Junior Selection Grade and Senior Selection Grade in the year 1998 and 2005 respectively and the case of the petitioner was not considered, the petitioner preferred W.P.(S) no.2821 of 2007 before this Court and the said writ petition was disposed of vide order dated 28.04.2008 with liberty to the petitioner to make fresh representation and the respondents were directed to consider the same and pass appropriate orders. Thereafter, a notification dated 02.03.2009 has been issued by which the petitioner has been granted Junior Selection Grade with effect from 09.08.1996 and Senior Selection Grade with effect from 24.12.2005 vide Annexure-5 to the writ petition. Thereafter, a notification dated 02.03.2009 has been issued by which the petitioner has been granted Junior Selection Grade with effect from 09.08.1996 and Senior Selection Grade with effect from 24.12.2005 vide Annexure-5 to the writ petition. But the respondents directed to pay the monetary benefit with effect from the date of joining. It has been averred in the writ application that though the juniors to the petitioner have been granted promotion to Junior Selection Grade and Senior Selection Grade along with monetary benefit but for the irregularities and arbitrariness, petitioner''s monetary benefits have not been paid. Being aggrieved by the order, the petitioner submitted representations vide Annexures-6 and 7 to the writ petition. Due to non-disposal of the representations, the petitioner has been constrained to approach this Court in the instant writ application under Article 226 of the Constitution of India for redressal of grievance. 3. A Supplementary affidavit dated 05.04.2018 has been filed wherein case of the petitioner has been recommended by the departmental promotion committee by the erstwhile State of Bihar under Scheduled Tribe category has been annexed as Annexure-8 and the petitioner''s name is at Serial No.222. It has further been submitted that even the name of the petitioner was recommended two times in the year 2000 and 2001 for the post of Sub Divisional Officer''s rank under Scheduled Tribe category, but due to laches on the part of the respondents no promotion has been given. It has further been submitted that after creation of the State of Jharkhand and cadre bifurcation, the name of the petitioner was erroneously listed under Scheduled Caste category. The petitioner submitted representation vide Annexure-10 dated 20.05.2002 to the State of Bihar. Further, the petitioner has submitted representation vide Annexure-11 series to the State of Jharkhand for correction of his category from Scheduled Caste to Scheduled Tribe. In the said affidavit petitioner provided a copy of the service records to the respondent authority vide Annexure-12 wherein category has been mentioned as Scheduled Tribe. It has further been submitted that the petitioner''s representation for correction of his category from Scheduled Caste to Scheduled Tribe fell on deaf ears, in spite of several representations. 4. In the said affidavit petitioner provided a copy of the service records to the respondent authority vide Annexure-12 wherein category has been mentioned as Scheduled Tribe. It has further been submitted that the petitioner''s representation for correction of his category from Scheduled Caste to Scheduled Tribe fell on deaf ears, in spite of several representations. 4. Learned counsel for the petitioner has strenuously urged that the petitioner is legally entitled to get differences of salary to the promoted post of Sub Divisional Officer with effect from 09.08.1996 and to the post of Additional Collector with effect from 24.12.2005 on the ground of notification issued vide dated 02.03.2009 with retrospective effect. Since the petitioner has not been granted monetary benefit, the petitioner is entitled to get the same benefit from the date of promotion not from the date of joining, otherwise that would amount to violation of Article 14 of the Constitution of India. 5. In support of his contention, learned counsel for the petitioner has referred to the decision of this Court reported in [ 2013 (4) JCR 233 (Jhr)] (Para-6, 7, 8 and 9) as well as the decision of the Hon''ble Apex Court reported in (2007) 11 SCC 447 (para-16). 6. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. In the counter affidavit, it has been submitted that the petitioner was allotted provisionally Jharkhand cadre as a Scheduled Caste officer and hence in the gradation list prepared by the department, the petitioner was shown as a Scheduled Caste officer. After due consideration of the representation given by the petitioner regarding category, his category has been corrected as Scheduled Tribe vide Sudhi Patra Memo no.2440 dated 17.05.2006. Hence the petitioner was treated as a Scheduled Caste Officer up to 17.05.2006 as evident from Annexure-A to the counter affidavit. It has further been submitted that in pursuance to judgment of this Court passed in W.P.(S) No.2821 of 2007, departmental promotion committee duly considered the question of promotion of petitioner in its meeting held on 27.11.2008 and 28.11.2008 and the petitioner has been given promotion as Scheduled Tribe Officer notionally, as per rules. It has further been submitted that as per the Finance Department letter 20.11.2006, the financial rules and service code rule, the financial benefit can accrue from the date a person joins the post. It has further been submitted that as per the Finance Department letter 20.11.2006, the financial rules and service code rule, the financial benefit can accrue from the date a person joins the post. Hence the question of giving monetary and other benefit without actually performing the duty of promotional post does not arise and the letter dated 20.11.2006 has been annexed as Annexure-B to the counter affidavit. 7. Learned counsel for the State has submitted that in fact there is no fault on the part of the State of Jharkhand, in so far as giving notional promotion is concerned. Learned counsel further submits that it is not clear as to why even if the petitioner''s case for promotion was recommended in the departmental promotion committee held in the year 2000-01 then why the petitioner was not promoted earlier by the State of Bihar, is not borne out from the records and the State of Jharkhand cannot be blamed for any laches or negligence on the part of the State of Bihar. Moreover, Rule 58 of Jharkhand Service Code and Rule 74 of the Bihar Financial Rules are squarely applicable to the case of the petitioner and the decisions cited by the learned counsel for the petitioner do not come to the aid of petitioner. 8. After having heard learned counsel for the respective parties and on perusal of the record, it appears that in pursuance to the order passed in W.P.(S) no.2821 of 2007, the departmental promotion committee considered the case of the petitioner for promotion as a Scheduled Tribe candidate vide notification dated 02.03.2009 and the notional promotion from 09.08.1996 on the promotional post of Sub-divisional Officer and from 24.12.2005 on the post of Deputy Collector was granted to the petitioner. Financial benefit has been denied to the petitioner supposedly in view of Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules. 9. During cadre allocation, the petitioner has been allocated Jharkhand cadre. Though the petitioner was a Scheduled Tribe but inadvertently he has been treated as a Scheduled Caste candidate and vide Sudhi Patra Memo no.2440 dated 17.05.2006 petitioner has been treated as Scheduled Tribe as per Annexure-A to the counter affidavit. 9. During cadre allocation, the petitioner has been allocated Jharkhand cadre. Though the petitioner was a Scheduled Tribe but inadvertently he has been treated as a Scheduled Caste candidate and vide Sudhi Patra Memo no.2440 dated 17.05.2006 petitioner has been treated as Scheduled Tribe as per Annexure-A to the counter affidavit. Therefore, there was no laches or negligence on the part of the State of Jharkhand in not considering the case of the petitioner for promotion under Scheduled Tribe category though junior to the petitioner has been promoted earlier. While being posted in the State of Bihar, when the case of the petitioner was recommended in the departmental promotion committee held in the year 2000-01 as disclosed from Annexures-8 and 9 series to the supplementary affidavit but nothing has been brought on record by the learned counsel for the petitioner as to under what circumstances the recommendation in the departmental promotion committee have not been given effect to. Had the petitioner been aggrieved by the non-promotion, in spite of said recommendation, the petitioner ought to have agitated the matter at the appropriate forum, but the petitioner appears to have slept over the matter and agitated the matter for the first time in W.P.(S) no.2821 of 2007 before this Court and, accordingly, the case of the petitioner has been considered by the State of Jharkhand and order of notional promotion has been passed. Therefore, from perusal of the records, no apparent error appears to have been committed by the State of Jharkhand in granting notional promotion to the petitioner. 10. The decision cited by the learned counsel for the petitioner, has no application, since his case is to be decided on the basis of facts involved therein. In the instant case, the case of the petitioner for notional promotion has been considered in pursuance to order passed by this Court in W.P.(S) no.2821 of 2007 and no laches or mistake has been committed by the State of Jharkhand. Had there been any laches or mistake by the State of Jharkhand, in view of the Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules, the decision reported in ( Dr. Paras Nath Prasad vs. State of Bihar & Ors. , (1990) 2 PLJR 248 ) would have come to the aid and rescue to the petitioner. 11. Paras Nath Prasad vs. State of Bihar & Ors. , (1990) 2 PLJR 248 ) would have come to the aid and rescue to the petitioner. 11. In such circumstances, this Court feels loath to accede to the prayer of the petitioner. Resultantly, the writ petition is dismissed being devoid of merit.