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2018 DIGILAW 2479 (JHR)

Manimay Arun v. State of Jharkhand

2018-11-05

PRAMATH PATNAIK

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ORDER : Heard Mr. S.S. Choudhary, learned counsel for the petitioner as well as Mr. Abhijeet Kumar Singh, learned A.C. to S.C.-V appearing for the Respondents-State. 2. In the accompanied writ application, the petitioner has prayed for issuance of mandamus commanding upon the respondents for payment of monetary benefits with increment on account of promotion of the petitioner on the post of Assistant Engineer with effect from 01.04.1993 alongwith interest @ 12 per cent per annum and other consequential benefits, including arrears of salary. 3. Shorn of unnecessary details, the facts, as has been delineated in the writ application is that in pursuance to the Memo No. 3901, dated 16.11.1998, the petitioner was promoted to the post of Assistant Engineer with effect from 01.04.1993. The said promotion has been confirmed vide Notification dated 15.09.2001, whereby the promotion of the petitioner alongwith 23 persons have been confirmed with effect from 01.04.1993. In pursuance to the promotion order, similarly situated candidates excluding the petitioner and others received all the monetary benefits and other consequential benefits. Aggrieved by the inaction of the respondents, the petitioner submitted representation vide Annexure-3 series, but the said representation did not yield any result. It has been averred in the writ application that the case of the petitioner is squarely covered by the decisions of the Hon’ble Patna High Court passed in CWJC No. 612 of 2004, wherein, the Hon’ble Patna High Court, in the case of similarly placed employee directed for payment of consequential monetary benefits and the said decision of the Patna High Court has been based on the judgment of the Hon’ble Apex Court and other High Courts. Being aggrieved by the non-consideration of the case of the petitioner for grant of monetary as well as consequential benefits, the petitioner has been constrained to knock the doors of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Learned counsel for the petitioner has strenuously urged that the action of the respondents is violative of Articles 14 and 16 of the Constitution of India, since the petitioner has been subjected to hostile discrimination. 4. Learned counsel for the petitioner has strenuously urged that the action of the respondents is violative of Articles 14 and 16 of the Constitution of India, since the petitioner has been subjected to hostile discrimination. Learned counsel further submits that since all others similarly situated employees have received all the monetary and consequential benefits from the date of their promotion, there is no justifiable reason not to extend the same benefits to the petitioner, therefore, the action of the respondents smacks of arbitrary exercise of power. 5. A counter affidavit has been filed by the respondent nos. 1 and 2 controverting the averments made in the writ application. In the counter affidavit, it has been, submitted that though the petitioner as well as one Nityanand Kumar has been promoted by the same promotion notification dated 16.11.1998 but the petitioner has been finally allocated the State of Jharkhand and the monetary benefits given to Nityanand Kumar is from the State of Bihar, as such, the extension of monetary benefits with retrospective effect may be a policy decision of the State of Bihar. It has further been submitted that no monetary benefits with retrospective effect has been given to any of the petitioner like employees in the State of Jharkhand in the light of Rule 58 of the Bihar/Jharkhand Service Code read with Rule 74 of the Bihar/Jharkhand Financial Rule, wherein, it has been specifically mentioned that retrospective effect should not be given to financial sanction, except in exceptional circumstances, without the special approval of the Government, as evident from Annexure-B and B/1 to the counter affidavit. 6. Learned counsel for the Respondent-State in order to buttress his submissions has referred to the judgment of the Hon’ble Apex Court rendered in the case of State of Punjab vs. B.K. Dhir reported in (2017) 9 SCC 337 and in the case of State of Punjab and Another vs. Dharam Pal reported in (2017) 9 SCC 395 . 7. Having bestowed my anxious consideration to the rivalised submissions and on perusal of the records, this Court is of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons : - (i) On perusal of the decisions rendered in the case of Nityanand Kumar vs. The State of Bihar & Ors. in C.W.J.C. No. 612 of 2004 vide order dated 10.05.2004, it appears that the case of the petitioner is squarely covered by the aforesaid decisions. The Hon’ble Patna High Court by categorically referring to Rule 58 of the Bihar Service Code, has been pleased to hold as under:- “This question was raised before this Court time without number and this Court repeatedly has held that any promotion to which person concerned was entitled and the same is given at a later date, must visit the person concerned with full consequential benefits. This Court on the basis of the judgments rendered by the Apex Court has further held that in such a case, Rule 58 of the Bihar Service Code would not apply and a person, who has been promoted with due date, would be entitled for consequential monetary benefits irrespective of the fact as to whether he had worked during those periods on the promotional post or not. In this connection reference may be made to the case of Alappat Narana Menon Vs. State of Kerala (1977 Volume II S.L.R. 656); in the case of Food Corporation of India Vs. S.N. Nagarkar ( AIR 2002 SC 808 ); in the case of Dr. Paras Nath Prasad Vs. State of Bihar and others { 1990 (2) PLJR 248 }; in the case of Shiva Narayan Lal Vs. State of Bihar and others ( 1999 (1) PLJR 243 ) and also in the case of Md. Hafiz Vs. State of Bihar and others ( 2003 (2) PLJR 44 ). In view of the ratio laid down by this Court and also by the Apex Court, as referred to above, it was incumbent upon the authorities concerned to pay consequential monetary benefits to a Government servant with due date of promotion irrespective of the fact as to whether he had worked on the promoted post during those periods.” On perusal of the aforesaid decision, it is no more res integra that Rule 58 of the Bihar/Jharkhand Service Code and Rule 74 of the Bihar Financial Rules would not come in the way of grant of financial benefits. (ii) So far as the decision cited by the learned counsel for the Respondent-State is concerned, there is absolutely no quarrel over the proposition of law laid down by the Hon’ble Apex Court in the aforesaid decision, but in the facts and circumstances of the case, the decision cited by the learned counsel for the Respondent-State is not applicable to the case in hand, rather the case of the petitioner is squarely covered by the decision rendered vide Annexure-4 to the writ application of the Hon’ble Patna High Court. 8. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur, the writ petition is disposed of with a direction to the respondents to pay the monetary benefits to the petitioner alongwith increment on account of promotion with effect from 01.04.1993 within a period of three months from the date of receipt/production of a copy of the order. 9. With the aforesaid direction, the writ petition stands disposed of.