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2019 DIGILAW 565 (JHR)

Girja Prasad Singh v. State Of Jharkhand

2019-02-26

RAJESH KUMAR

body2019
JUDGMENT 1. Heard learned counsel for the parties. 2. The present writ petition has been filed for direction upon the respondents to grant monetary benefit of promotion in the pay scale of the post of Area Education Officer w.e.f 10.07.1995 as the petitioner had been posted on the said post w.e.f. 10.07.1995 and he had been given promotion on the said post vide notification dated 01.07.2009 w.e.f. 15.11.2000. 3. As per the pleading, petitioner had joined in the year 1973 on the post of Science Supervisor in the office of S.D.O., Nawada. The petitioner had been posted on different places. On the post of Science Supervisor and subsequently, by notification No.144 dated 30.06.1995, petitioner had been posted on the post of Area Education Officer, Samastipur. It has been specifically stipulated that the petitioner had been posted on the higher post but it will not be treated as promotion. Thereafter, petitioner was transferred by various notifications and by each and every notification, he had been posted on the post of Area Education Officer and as such, he had worked on the said post till the order of promotion. 4. Thereafter, vide notification dated 29.06.1996, petitioner had been posted on the post of Area Education Officer, Ranchi. Subsequently, vide notification dated 23.11.2001, petitioner had been given posting as Principle of Primary Teachers Training College, Hummaguda, which had again Class-II post, equivalent to the Area Education Officer. Subsequently, vide order dated 30.06.2002, petitioner had been given posting as a Lecturer in Government Teacher Training College, Deoghar, which was again equivalent post of Area Education Officer. On 31.10.2006, petitioner had been retired on attaining the age of superannuation while he was working as Principle, Government Teacher Training College, Deoghar. 5. Vide notification dated 01.07.2009, petitioner had been given promotion w.e.f. 15.11.2000 in the cadre of Bihar Education Service on Class-II post. 6. The present writ petition has been filed for grant of pay scale of the post of Class-II Officer of the Bihar Education Service as petitioner had been working on the said post since 10.07.1995. 7. A detailed counter affidavit has been filed but it has been admitted in the counter affidavit that the petitioner had worked on the post of Area Education Officer i.e. Class-II post w.e.f. 10.07.1995. 7. A detailed counter affidavit has been filed but it has been admitted in the counter affidavit that the petitioner had worked on the post of Area Education Officer i.e. Class-II post w.e.f. 10.07.1995. Stand has been taken that the said posting of the petitioner in ClassII was work/adhoc arrangement and as such, petitioner is not entitle for the salary on the said post. 8. Learned counsel for the petitioner has relied upon the judgment passed by the Apex Court in the case of State of Punjab & Anr. vrs. Dharam Pal reported in AIR 2017 SC 4438 . Para-18 to 22 of the said judgment is relevant and quoted hereinunder:- 18. In A. Francis (supra), the Court was dealing with the entitlement of the appellant to the salary in higher pay of Assistant Manager wherein he had worked from 28.02.2001 till 31.05.2005. The employer had denied certain benefits and the employee preferred a Writ Petition before the High Court which was allowed by the learned single Judge. The Corporation filed Letters Patent Appeal which reversed the judgment of the learned single Judge. The appellant before this Court placed reliance on Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and others7. On behalf of the Corporation terms of the order were pressed into service contending that there were specific conditions stipulated in the order with regard to salary and emoluments and, therefore, the claim with regard to higher post was not tenable in law. 19. The Court appreciating the factual score held thus: "The order dated 28-2-2001, by which the appellant was allowed to discharge duties in the post of Assistant Manager had made it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored. The decision of this Court in Secy.-cum-Chief Engineer was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher post. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. The decision of this Court in Secy.-cum-Chief Engineer was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher post. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. Such a condition was incorporated in an undertaking taken from the employee which was held by this Court to be contrary to public policy." 20. In Hari Om Sharma ( AIR 1998 SC 2909 ) (supra), the respondent was promoted as a Junior Engineer I in 1990 and had been continuing on that post without being paid salary for the said post and without being promoted on regular basis. It was in this situation, he approached the Central Administrative Tribunal which allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I. That apart certain other directions were also issued. The Court took note of the fact that the respondent was promoted on a stop-gap arrangement as Junior Engineer I and opined that this by itself would not deny his claim of salary for the said post. In that context, the Court held: "... If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement." 21. After so stating, the Court proceeded to opine thus: "Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop- gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma- holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872." [Emphasis added] The principle postulated in the said case is of immense significance, for it refers to concept of public policy and the conception of unconscionability of contract. 22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in Smt. P. Grover ( AIR 1983 SC 1060 ) (supra) and Hari Om Sharma ( AIR 1998 SC 2909 ) (supra). As far as the authority in A. Francis (supra) is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma (supra) and resultantly we hold that the view expressed by the High Court is absolute impeccable. 9. Thus, the law has been settled by the Apex Court that if department has taken work of a higher post from its employee and subsequently he/she gets promoted on that post, he/she is entitled for salary of the said post from the date of posting. 10. 9. Thus, the law has been settled by the Apex Court that if department has taken work of a higher post from its employee and subsequently he/she gets promoted on that post, he/she is entitled for salary of the said post from the date of posting. 10. The said principle has been followed by the Single Bench of this Court in the case of Naresh Prasad Keshri Vrs. The State of Jharkhand & Ors. reported in [2018 (1) J C R 319 (Jhr)] . 11. Thus, law is clear that an employee is entitle for salary of the higher post from the date he/she has been given posting and if posting on the promoted post has continue and subsequently, employee has been promoted on the said post and on the ground of such continuance working on the higher post, an employee will be entitle for the salary of the higher post. 12. In view of above discussion, the present writ petition is allowed. Respondent-State of Jharkhand is directed to release the salary to the petitioner of the promoted post of Bihar Education Service-Class-II w.e.f. 10.07.1995, i.e. the date on which the petitioner had been given first posting on the post of Area Education Officer and has continued till the date of retirement. 13. It is pertinent to mention herein that petitioner was getting salary for his original post and as such, he will only be entitled for difference of salary.