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2020 DIGILAW 1071 (JHR)

Arun Kumar Sinha v. State of Jharkhand

2020-11-11

DEEPAK ROSHAN

body2020
JUDGMENT : 1. Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred for a direction upon the respondent authorities to give promotional benefits to the petitioner retrospectively; as the petitioner was found fit by DPC for promotion on 14.05.2008; before the date of his retirement i.e. on 31.07.2008, but the notification was issued on 06.11.2008 w.e.f. 20.07.2007, and by that time the petitioner retired from his service. 3. A detailed order has been passed in this case on 11.12.2018, which is reproduced here under:- “In pursuance to the order passed by this Court, learned counsel for the State-respondent has filed counter affidavit by serving the copy of the same upon the learned counsel for the petitioner. The same has been taken on record. Learned counsel for the petitioner has submitted that the matter may be heard, in view thereof and with consent, the matter is being heard. The issue raised by the learned counsel for the petitioner is that the Departmental Promotion Committee in its meeting dated 14.05.2008, has recommended the case of the petitioner for promotion as First "Sopan" (Senior Superintendent of Police), the authorities have not taken final decision on the basis of the aforesaid recommendation of the Departmental Promotion Committee. The petitioner has retired w.e.f. 31.07.2008. The grievance of the petitioner is that, once the Departmental Promotion Committee has recommended to be promoted and as such he is entitled to get monetary benefit, but the same has been denied merely on account of the fact that the petitioner has retired from service w.e.f. 31.07.2008. The issue raised by the learned counsel for the petitioner is that when the DPC has recommended way back on 14.05.2008, the authority ought to have taken final decision at least when the petitioner was in service but he has been forced to retire from service. The Annexure-3 has been issued on 06.11.2008 granting promotion to the petitioner along with others w.e.f. 20.07.2007 with a stipulation therein that all the officers would get monetary benefit of promotion from the date when they will assume the charge. The Annexure-3 has been issued on 06.11.2008 granting promotion to the petitioner along with others w.e.f. 20.07.2007 with a stipulation therein that all the officers would get monetary benefit of promotion from the date when they will assume the charge. The grievance of the petitioner that since on 06.11.2008, although, the petitioner has been granted promotion w.e.f. 20.07.2007, therefore he would be entitled to get monetary benefit from 20.07.2007 along with the consequential monetary benefit in fixation of pension since on the day when the promotion has been granted, the petitioner was on the roll of the service. It is the case of the petitioner that since the aforesaid notification was issued on 06.11.2008 and the petitioner since has retired from service on 31.07.2008, therefore, there is no question of assumption of charge by him. It has been submitted that there is no laches on the part of the petitioner rather it is the State authorities who, reasons known to them, has come out with the notification on 06.07.2008 for giving effect to the recommendation of Departmental Promotion Committee, who has taken decision on 14.05.2008, and therefore, he cannot be made to suffer. Counter affidavit has been filed by respondent No.2 and 3 wherein stand has been taken at paragraph-5, particularly, that the promotion to the post of Senior Deputy Superintendent of Police is not a regular promotion, only promotion in scale is given, hence it shall be given with effect to the date of issuance of notification. Learned counsel appearing for the petitioner has submitted by setting an example that some of the employees who were to retire from service but got the benefit of promotion one and four days before their retirement namely, Satanjeev Jha and Nripendra Kumar Singh. This Court after going through the stand taken by the State-respondent in the counter affidavit is not satisfied with the stand taken. It is for the following reasons:- (i) It is the admitted position that the DPC has convened a meeting on 14.05.2008 recommending for promotion as Senior Superintendent of Police i.e., first "Sopan" of hierarchy of the State police service, whose basic cadre start from the post of Deputy Superintendent of Police. (ii) The notification has been issued for promotion giving effect to the recommendation made by the DPC on 14.05.2008 vide notification dated 06.11.2008. (ii) The notification has been issued for promotion giving effect to the recommendation made by the DPC on 14.05.2008 vide notification dated 06.11.2008. Denying the monetary benefit on the ground that the petitioner in the meanwhile has retired from service w.e.f. 31.07.2008. (iii) The question is that when the DPC has recommended the case of the petitioner for promotion, what led the State authority to delay the matter, even though, they were conscious about the date of retirement of the petitioner. (iv) The stand taken by the authority at paragraph15 that since the Senior Superintendent of Police is not a regular promotion and as such the scale can be given only with effect from the date of issuance of notification, under which provision of law or the notification, the aforesaid statement has been made, the authority would require to substantiate the aforesaid statement. In view thereof, let this be listed on 07.01.2019 enabling the learned counsel for the State-respondent to file appropriate affidavit clarifying the position.” Pursuant to the aforesaid order, the respondent had filed a supplementary counter affidavit on 03.01.2019, however, the specific queries made under the last para of the aforesaid order have not been replied with. 4. Learned counsel for the petitioner contended that when the DPC has recommended the case of the petitioner for promotion on 14.05.2008, the authority ought to have taken final decision at the earliest, when the petitioner was in service but he has been forced to retire from service. There is no dispute that the promotional order was retrospective in nature and was effective from 20.07.2007 itself. However, only due to one erroneous clause that financial benefit would be given to the employee from the date of taking charge, the petitioner has been denied the benefits for no fault on his part; rather it is the fault on the part of the respondents for not issuing the notification of promotion during the service tenure of the petitioner. He further submits that pursuant to issuance of promotional order, a clarification was sought for from the competent authority wherein it has been clarified that the financial benefit of the salary shall be counted from the date of promotion itself. He further referred to the judgment passed by this Court in the case of Radha Krishna Prasad Vs. He further submits that pursuant to issuance of promotional order, a clarification was sought for from the competent authority wherein it has been clarified that the financial benefit of the salary shall be counted from the date of promotion itself. He further referred to the judgment passed by this Court in the case of Radha Krishna Prasad Vs. The State of Jharkhand in W.P.(S) No.4013 of 2011 wherein this Court has held at paragraph no.8 as under:- “8. After hearing learned counsel for the respective parties and on perusal of the records the case of the petitioner merits consideration in view of the following facts and reasons:- (I) Admittedly the petitioner alongwith others were recommended from promotion to the rank of Joint Secretary vide decision of the departmental promotion committee held on 24.08.2010 and the said decision of the DPC was approved by His Excellency, The Hon’ble Governor of Jharkhand on 25.08.2010 thereafter, only formal notification was to be published but on some pretext or other, the notification was not published which compelled the similarly placed colleagues of the petitioner to file a writ application in W.P.(S) No. 5545 of 2010 which was disposed of on 15.06.2011 directing the respondents to expedite the publication of notification and thereafter, the notification was published on 18.06.2011, by then the petitioner attained the age of superannuation on 31.05.2011. The petitioner has been made to suffer because of such fortuitous and avoidable circumstances. Similar matter came up for consideration before the Division Bench of Hon’ble Patna High Court and learned Single Judge of this Court in case of Suryadeo Prasad Vs. State of Jharkhand & Ors. as reported in 2010 (3) JCR 238 (Jhr) has observed as under paragraph nos. 8 and 9:- “8. Both the aforesaid Rules were considered by the Division Bench of the Patna High Court in the case of Dr. Paras Nath Prasad Vs. State of Bihar, reported in 1990 (2) PLJR 248 . The Division Bench in that case held that where an employee deserved promotion but was not granted the same for no fault of the employee, but because of wrong decision on the part of the State the employee would be entitled to not only to be granted promotion with retrospective but also financial benefits as a consequence of such promotion as also the interest on delayed payment of the financial benefits. The Division Bench expressly overruled the applicability of the Rule 58 to such situations. 9. Following the aforesaid Division Bench decision a learned Single Judge of this Court in the case of Shri Mahavir Pandey Vs. State of Bihar & Ors. reported in 2000 (1) PLJR 768 held that not only Rule 58 but also Rule 74 would have no application in such situation. (II) In view of the settled position of law as observed by the learned Single Judge of this Court in the case of Suryadeo Prasad (supra), if an employee is denied promotion for no fault of him, he shall be paid salary on the promotional post with effect from the date promotion was granted. Therefore, the Rule 58 and Rule 74 would have no application to deny the notional promotion. He further submits that the State had challenged the aforesaid order dated 18.05.2018 passed in W.P.(S) No.4013/2011 in L.P.A. No.507 of 2018 and the Division Bench of this Court after discussing at length refused to interfere with the order of the writ court. Relying upon the aforesaid contention and the judgments, learned counsel for the petitioner submits that his case may be considered for payment of financial benefits at the earliest. 5. Learned counsel for the respondent-State opposed the prayer of the petitioner and submits that the instant application should be dismissed on the ground of delay and latches, inasmuch as, the order of promotion has been issued in the year of 2008 and the same being challenged in the year of 2015 after a delay of about seven years as such, the petitioner is not entitled for any relief. 6. Replying to the aforesaid argument of learned counsel for the respondent-State, learned counsel for the petitioner referred to paragraph 17 and 28 of the writ application and submits that the petitioner had already explained the delay and the same has not been controverted by the respondents in their counter affidavit. 7. Having heard learned counsel for the parties and after going through the materials available on record, it appears that it is an admitted position that the DPC has convened its meeting on 14.05.2008, recommending for promotion as Senior Superintendent of Police i.e., first "Sopan" of hierarchy of the State police service, whose basic cadre start from the post of Deputy Superintendent of Police. Further the notification has been issued for promotion giving effect to the recommendation made by the DPC on 14.05.2008 vide notification dated 06.11.2008, denying the monetary benefits on the ground that the petitioner in the meanwhile has retired from service w.e.f. 31.07.2008. The question is that when the DPC has recommended the case of the petitioner for promotion, what led the State authority to delay the matter, even though, they were conscious about the date of retirement of the petitioner and the stand taken by the authority at paragraph-15 that since the Senior Superintendent of Police is not a regular promotion and as such, the scale can be given only with effect from the date of issuance of notification. It further appears that this Court in the case of Suryadeo Prasad Vs. The State of Jharkhand & Ors. as reported in 2010 (3) JCR 238 (Jhr) has already held that if an employee is denied promotion for no fault of his, he shall be paid salary on the promotional post w.e.f. the date of promotion was granted, respectively. The judgment passed in W.P.(S) 4013 of 2011 has been upheld in LPA No.507 of 2018. In view of the aforesaid facts and circumstances of this case, I am not in agreement with the contention of the learned counsel for the State that this case should be dismissed on the ground of delay and latches. Further, the delay has been duly explained in paragraph 17 and 28 of the writ application, which has not been denied. 8. In view of the aforesaid finding, I hereby allow the instant writ application by directing the respondent to calculate the retiral benefit of the petitioner considering his salary on the promoted post with effect from 20.07.2007 and all consequential benefit including arrears of salary shall be calculated within a period of three months from the date of receipt / production of copy of this order and the same shall be paid to him within a further period of two months. 9. With the aforesaid observations and directions the instant writ application stands disposed of.