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2018 DIGILAW 2198 (JHR)

Shambhu Nath Munda v. State Of Jharkhand

2018-10-03

S.N.PATHAK

body2018
JUDGMENT S.N. Pathak, J. - Heard the parties. 2. Petitioners have approached this Court with a prayer for a direction upon the respondents to grant grade-4 promotion from the date of their promotion i.e. 15.09.2002 and 03.10.2002 and further monetary benefits from the date of their promotion and not from the date of joining. Further prayer has been made for quashing the order issued under Memo No. 273, dated 08.04.2017 (Annexure10), whereby respondents have rectified promotion order granted to the petitioners. 3. Shorn of unnecessary details, the brief facts of the case is that the petitioners were appointed as Assistant Teachers in the Elementary Schools of the State of Jharkhand. The petitioner nos. 1 and 2 were granted Grade-4 with effect from 15.09.2002 and petitioner no. 3 with effect from 03.10.2002. It is the case of the petitioners that despite their requests, the petitioners along with others were not granted promotions in Grade-I scales w.e.f. the date of their respective appointment. As such, similarly situated persons moved before the Hon''ble High Court for grant of Grade-1 scale from the date of their appointment and the Hon''ble High Court in case of Arun Sinha Vs. State of Jharkhand and Others., W.P.(S). No. 638 of 2006, passed order on 04.04.2008, holding therein that, "the petitioners, who were untrained are also entitled for grant of Grade-I scale from the date of their appointments, if they undergone/ completed training during the course of their employment." Against the said order, the State had filed L.P.A. No. 214/2008 which has been dismissed by the Division Bench holding that such persons like the petitioners were entitled for grant of Grade-I SCALE from the date of their respective appointments. Thereafter, the State also preferred S.L.P. (Civil) Nos. 5520-5522 of 2013 before the Hon''ble Supreme Court which also stood dismissed by order dated 08.03.2013 and as such, the judgment passed in Arun Sinha''s case had attained its finality. Inspite of the orders passed by the Hon''ble Supreme Court, when the petitioners of the aforesaid cases were not granted the benefits, they represented before the respondents for extending them the benefits as prayed for in the aforesaid writ petition but the respondents had not taken any decision and as such, the petitioners filed W.P.(S). Inspite of the orders passed by the Hon''ble Supreme Court, when the petitioners of the aforesaid cases were not granted the benefits, they represented before the respondents for extending them the benefits as prayed for in the aforesaid writ petition but the respondents had not taken any decision and as such, the petitioners filed W.P.(S). No. 5746 of 2014 (Annexure5/A) and the Hon''ble Court vide its order dated 06.04.2015 disposed of the said writ petition holding therein that, "writ petition is being disposed of by directing the respondent No. 6, the Deputy Commissioner, Khunti and respondent No. 7 (D.S.E. Khunti), to arrive at an infirm decision in the matter in respect of other outstanding claim of the petitioners for promotion in Grade-IV within a reasonable time, preferably within a period of 10 weeks from the date of receipt of a copy of this order." In compliance of the order passed by this Court, petitioners were granted Grade-4 promotion from 15.09.2002, 15.09.2002 and 03.10.2002 respectively. In view of the orders passed by the Hon''ble Court, the respondents vide their memo no. 1427, dated 02.11.2016 have granted Grade-IV promotion w.e.f. 2002 but the monetary benefits of the said promotion has not been granted and it is indicated in the said order that monetary benefits shall be given from the date of joining to the said promotional posts and joining in the school. It is the specific case of the petitioners that due to the laches on the part of the respondents, the promotions were granted in the year 2016 though it was fallen due w.e.f. 2002. The petitioners represented several times for grant of the said promotion as well as payment of the consequential monetary benefits with effect from the due date but the respondents have not passed any orders on their representations and as such, the petitioners have knocked the door of this Hon''ble Court for redressal of their grievances. 4. Mr. Amit Kumar Tiwary, learned counsel appearing for the petitioner strenuously urges that Hon''ble Court had been pleased to hold that the petitioners are entitled to get Grade-I from the date of their joining with all consequential benefits and further promotions in higher grades and the respondents cannot be allowed to interpret the order of the Hon''ble Court in its own choice and suitability. Although, the promotion had been granted with effect from the due date but the denial of the consequential monetary benefits from the due date is not sustainable in the eyes of law. Any promotion which has been granted retrospectively due to laches on the part of the respondents cannot take away the monetary benefits to the concerned employees. Learned counsel further argues that Hon''ble Patna High Court as well as Jharkhand High Court in cases of Dr. Paras Nath Singh Vs. State of Bihar , (1990) 2 PLJR 248 ; Md. Hafiz Vs. State of Bihar , (2003) 2 PLJR 44 ; Suryadeo Prasad Prasad Vs. State of Jharkhand , (2010) 3 JCR 238 and in case of W.P.(S). 1932 of 2005 (Rajeshwar Prasad Vs. the State of Jharkhand) have clearly held that promotion should be granted with all consequential benefits from the date it fallen due and as such, the respondents cannot be allowed to proceed against the orders passed by the Hon''ble Courts. 5. Per contra counter-affidavit has been filed on behalf of the respondents. J.C. to learned SC (Mines) has appeared on behalf of the respondent-State and has vehemently opposes the contention of the learned counsel for the petitioners. Learned counsel argues that as per Bihar/ Jharkhand Elementary School Teachers Promotion Rule, 1993, seniority list for promotion was prepared and on the basis of said seniority list, vacancy and roaster, the petitioners have been granted promotion in Grade-IV scale vide letter dated 02.11.2016 from the date of their joining to the post of Trained Graduate Assistant Teacher but inadvertently, the date of promotion was marked in Column-V of the said letter which is contrary to the letter dated 20.11.2006 issued by the Finance Department. When such discrepancy came to the knowledge of the respondents, the matter was again placed in the meeting of the District Education, Khunti wherein it was decided to remove Column-5 of the letter dated 02.11.2016 and to rectify the earlier promotion order of the petitioners. Thereafter, as per the decision taken in the meeting, a letter dated 08.04.2017 to the aforesaid extent it has been issued by correcting the earlier order dated 02.11.2016. Learned counsel further argues that Hon''ble Apex Court in case of Union of India Vrs. S.S. Uppal and Anr. Thereafter, as per the decision taken in the meeting, a letter dated 08.04.2017 to the aforesaid extent it has been issued by correcting the earlier order dated 02.11.2016. Learned counsel further argues that Hon''ble Apex Court in case of Union of India Vrs. S.S. Uppal and Anr. , (1996) 2 SCC 168 has held that, "the seniority of a person is to be determined according to the seniority rule applicable on the date of appointment. It has also been observed that weightage in seniority cannot be given with retrospective effect unless it is specifically provided in the rule in force at the material time". Further, in case of State of Karnataka Vs. J. Lalitha , (2006) 2 SCC 747 , the Hon''ble Court was of the view that, "it is well settled that seniority should govern by rules and a person should not be allowed to derive any undue advantage over other employees for concept of justice demands that one should get what is due to him or her as per law". In the matter of State of Uttaranchal and Anr. Vs. Dinesh Kumar Sharma , (2007) 1 SCC 683 it has been held that, "seniority has to be decided on the basis of rules in force on the date of appointment and no retrospective promotion or seniority can be granted from a date when employee was not even born in that cadre". Learned counsel lastly submits that in view of the aforesaid facts, the instant writ petition is fit to be dismissed and the petitioners are not entitled for any relief as claimed by them. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that cases of the petitioners need consideration. The issue regarding giving benefits of pay-scale fell for consideration before this Hon''ble Court and the Hon''ble Court had observed that teachers are entitled for benefits from the date of their initial appointment and the same was affirmed upto the Hon''ble Apex Court and hence, the issue is no more res-integra. The Hon''ble Patna High Court in case of Dr. Paras Nath Singh Vs. State of Bihar has held that, "... .... The Hon''ble Patna High Court in case of Dr. Paras Nath Singh Vs. State of Bihar has held that, "... .... (i) the petitioner is entitled to be promoted to Junior Selection Grade, Senior Selection Grade and Super Time SCALE of Pay w.e.f. the due date, (ii) the petitioner is entitled to receive the difference of pay at each selection grade of promotion and fixation of pay including the Super Time SCALE of Pay and also to fixation of pay in the Super Time SCALE of Pay for the purpose of determination of pension, gratuity, etc. and, accordingly, receive pension, gratuity etc. w.e.f. the due date". In case of Md. Hafiz it was held that, "the plea taken by the State respondents that the material benefits will be given to the petitioner from the date of his joining appears to be wholly misconceived and at the same time, the stand of the State that the meaning of notional promotion is only for the sake of promotion and not for the material benefits also appears to be wholly misconceived. The concept of notional promotion is to ensure monetary benefits to the employees and, therefore, the petitioner was entitled to get the monetary benefits on account of the promotion given to him with effect from the dates already notified vide notifications, as contained in Annexures 2 and 3. 7. The teachers are suffering as they are not getting their benefits though the issue has been set at rest by the Hon''ble Apex Court. Thereafter, several writ petitions have been filed for the same relief and several orders have been passed by the Hon''ble Court for granting the benefits of Grade-4 with effect from due date. As such, respondents are directed to take a uniform decision in case of teachers for granting the benefits of Grade-4 SCALE keeping into account the decision of this Hon''ble Court in case of Arun Sinha and Others. Vs. the State of Jharkhnad and Others. passed in W.P.(S) No. 638 of 2006 which was affirmed upto the Hon''ble Apex Court and also in case of Dr. Paras Nath Singh Vs. State of Bihar. 8. As a cumulative effect of the aforesaid facts, observations, rules, guidelines, judicial pronouncements and legal propositions of law, Office Order dated 08.04.2017, issued by the Deputy Development Commissioner, Khunti so far it relates the present petitioners is hereby quashed and set aside. 9. Paras Nath Singh Vs. State of Bihar. 8. As a cumulative effect of the aforesaid facts, observations, rules, guidelines, judicial pronouncements and legal propositions of law, Office Order dated 08.04.2017, issued by the Deputy Development Commissioner, Khunti so far it relates the present petitioners is hereby quashed and set aside. 9. Needless to say that as the petitioners are legally entitled for the benefits as prayed for by them in writ petition from 15.09.2002 and 03.10.2002, in view of catena of decisions of the Hon''ble Apex Court and this Court, the same shall be granted to them, in accordance with law, within a period of 6 weeks from the date of receipt/ production of a copy of this order. 10. The State shall consider that each and every teachers are not required to knock the door of this Court for getting the said benefits and a decision to that effect shall be passed, granting the benefits to each and every teachers, who are entitled for the same, in accordance with law. 11. Resultantly, the writ petition stands allowed.