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2022 DIGILAW 1436 (JHR)

Shivchandra Kumar v. State of Jharkhand

2022-12-22

S.N.PATHAK

body2022
JUDGMENT : 1. Heard. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to pay arrear of increased salary from 15.11.2000 to 31.12.2006 with interest @ 18% per annum on the arrear amount consequent upon his promotion to the rank of Class-II officer with effect from 15.11.2000 by Notification No. 185, Dated 01.07.2009, issued by the Human Resources Development, Government of Jharkhand, Ranchi which has been withheld arbitrarily by the respondents for the last ten years. Petitioner has further prayed for a direction upon the respondents to fix pension as per last pay scale admissible to him pursuant to notification no. 185, dated 01.07.2009. Petitioner has further prayed for a direction upon the respondents to pay interest @18% on the arrear of pension amount due to enhanced pension accruing by virtue of promotion. Petitioner has also prayed for a direction upon the respondents to pay penal interest and compensation for causing financial loss and acute mental agony. Petitioner has further prayed for necessary order holding action of the respondents to be in disregard and flagrant violation of the order dated 27.04.2007, passed by this Court in L.P.A. No. 63 of 2006. 3. Case of the petitioner lies in narrow compass. Petitioner was appointed as an Assistant Teacher on 17.07.1971 in the Department of Education, Government of Bihar and he retired from the service on 31.12.2006. Petitioner was granted notional promotion and was promoted as Class-II Officer vide notification no. 185, dated 01.07.2009 effective from 15.11.2000. Petitioner took charge as Area Education Officer, Jamtara and forwarded the charge taken report to the respondents. Petitioner filed several representations to the respondents for grant of monetary benefits arising out of notional promotion but no action had been taken by the respondents and as such he has knocked door of this Court. 4. Mr. Rajeeva Sharma, learned Sr. Counsel appearing on behalf of the petitioner submits that petitioner is not at fault for not getting promotion during his service period. On same and similar facts and similar footing one Ajay Chandra Dhar was granted all monetary benefits arising from his notional promotion from the post of Circle Inspector – cum – Kanoongo to the post of Deputy Collector, which was granted after his retirement by the concerned Department of the Government in compliance of order dated 27.04.2007, passed by this Court in L.P.A. No. 63 of 2006. Said Ajay Chandra Dhar was granted all monetary benefits by Sankalp No. 3190, dated 11.04.2013, issued by the Department of Personnel, Administrative Reforms and Rajbhasha. Learned Sr. Counsel further argues that petitioner is entitled for the monetary benefits and as such appropriate directions may be passed allowing the writ petition. Learned counsel places heavy reliance upon the Judgment passed in the case of Dr. Paras Nath Prasad Vs. State of Bihar reported in 1990 (2) PLJR 248 and further submits that petitioner is fully entitled for the arrears and impugned action of the respondents if not based on foundational facts. Learned counsel further refers to the Judgment rendered in the case of Suryadeo Prasad Vs. The State of Jharkhand and others reported in 2010 (3) JCR 238 (Jhar.) and submits that considering Rule 58 of Jharkhand Service Code and Rule 74 of the Financial Rules of the Government of Jharkhand, the order has been passed and the benefit was provided to the petitioner of that case. In the circumstances, petitioner in the instant case is also entitled for the same and similar benefits. 5. Per contra, counter affidavit has been filed by the respondents. 6. Mr. Raunak Sahay, learned counsel appearing for the respondents submits that the impugned order is fully justified. Petitioner is not entitled for any monetary benefits since he was given notional benefits only. Learned counsel places heavy reliance upon the Judgment passed in the case of State of Haryana Vs. S.K. Khosla reported in (2007) 15 SCC 777 wherein it has clearly been held that the question of payment of arrears of salary with retrospective effect from the notional dates does not arise since indisputably the petitioner had never worked during that period in the promotional post, the settled principle in such being “no work, no pay”. Learned counsel further draws attention of this Court towards several paragraphs of the counter affidavit and submits that petitioner is not entitled for any monetary benefits. 7. In light of the above facts and submission of learned counsel for the parties, this Court is of the considered view that there is no fault on part of the petitioner. The plea of the State that petitioner has been granted notional promotion but he is not entitled for any monetary benefits, is not sustainable in the eyes of law. In light of the above facts and submission of learned counsel for the parties, this Court is of the considered view that there is no fault on part of the petitioner. The plea of the State that petitioner has been granted notional promotion but he is not entitled for any monetary benefits, is not sustainable in the eyes of law. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as a right. Moreover, Rule 58 of the Jharkhand Service Code and Rule 74 of the Financial Rules of the Government of Jharkhand have been considered by the Division Bench of Patna High Court in the case of Dr. Paras Nath (Supra) and the Coordinate Bench of this Court in the case of Suryadeo Prasad (Supra). 8. As a sequitur to the aforesaid rules, guidelines and judicial pronouncements, the writ petition succeeds. The respondents are directed to fix the salary and pay difference of salary and allowances, pension, gratuity etc. payable to the petitioner on the basis of such determination, as prayed in the instant writ petition within a period of eight weeks from the date of receipt/ production of a copy of this order. 9. The writ petition accordingly allowed.