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2019 DIGILAW 749 (JHR)

Pramod Kumar v. State of Jharkhand

2019-03-27

RAJESH KUMAR

body2019
ORDER : Rajesh Kumar, J. 1. Heard counsels for the parties. 2. From the arguments and pleading, it appears that the petitioner had been appointed as Assistant Electrical Engineer under the respondents on 18.9.1997 after following due process. On bifurcation of State, the service of the petitioner has been allocated to the State of Jharkhand. 3. The petitioner has been given officiating charge on the next higher post i.e. Electrical Inspector (Electrical Executive Engineer)! vide office order dated 25.6.2008. This officiating posting continues till the date of regular promotion given to the petitioner vide impugned order dated 24.1.2011. 4. The petitioner has been given promotion to the post of Electrical Executive Engineer vide office memo no. 215 dated; 24.1.2011 with effect from date of joining. This order has been subsequently modified by notification dated 30.12.2015 to the effect; that the petitioner has been given regular promotion to the Electrical Executive Engineer with effect from 27.6.2008 and the financial benefit with effect from 24.1.2011 i.e. the date on which the petitioner joined on the post of Electrical Executive Engineer in pursuance of the earlier notification dated 24.1.2011. 5. A counter affidavit has been filed by the counsel for the respondents wherein stand has been taken that the claim of the petitioner has been duly considered and in fact after granting promotion his date of promotion has also been shifted after due consideration. 6. The petitioner is not entitled for salary with effect from notional date of promotion i.e. 27.6.2008 as the same, in against the financial rule, especially Rule 58 and Rule 103 and has also relied upon the judgment dated 12.1.2015 passed in L.P.A. No. 162 of 2014. 7. Heard counsels for the parties. 8. It is admitted positions and not in dispute:- (a) there is existence of vacant and sanctioned post with effect from 27.6.2008. (b) As per roster, the post was available for the petitioner. (c) Petitioner has worked upon that post in in-charge; capacity. (d) The petitioner was entitled in all respects for promotion with effect from 27.6.2008. 9. Thus, the petitioner fulfils all the criteria for holding the post of Electrical Executive Engineer with effect from 27.6.2008 and; further the post was ready to accommodate the petitioner in all respects and further the petitioner has worked on said post also. 10. (d) The petitioner was entitled in all respects for promotion with effect from 27.6.2008. 9. Thus, the petitioner fulfils all the criteria for holding the post of Electrical Executive Engineer with effect from 27.6.2008 and; further the post was ready to accommodate the petitioner in all respects and further the petitioner has worked on said post also. 10. The reliance placed by the State on Rule 58 and Rule 103, is not applicable in the facts of the present case, as the petitioner has worked on the said post and Rule 58 is not applicable. Rule 58 is applicable in the case of person who has not worked against the promoted post. So far as Rule 103 is concerned i.e. regarding the officiating allowance, in the present case, as petitioner has worked upon that post and also promoted hence he is entitled for regular salary for promoted post and Rule 103 cannot be interpreted as suggested by the State Counsel to negate the claim of the petitioner. 11. Counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court reported in (2017) 9 Supreme Court Cases 395, Para 21 of the said judgment is relevant which is quoted here in below:- "21. After so stating, the Court proceeded to opine thus: (Hari Om Sharma case, SCC pp. 89-90, para 8) "8. The learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-1, 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 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. 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 supplied) 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." 12. Thus the law is settled, if a person has worked against higher post and the post was vacant and sanction available for promotion then holder is entitled to regular salary attached to post. Further the petitioner was eligible for promotion from the date of joining and as such, the petitioner is entitled for salary of higher post for the period he has performed duty on the higher post. 13. In view of above discussion, the impugned order dated 30.12.2015 is modified to the extent that the petitioner will be entitled for salary for the post of Electrical Executive Engineer from the date of promotion i.e. 27.6.2008. 14. With the above observation and direction, the present writ petition stands disposed of.