Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 161 (JHR)

Surendra Prasad v. State of Jharkhand

2022-02-10

S.N.PATHAK

body2022
JUDGMENT : Heard the parties. 2. Though the petitioner has approached this Court with multiple prayers, but during course of hearing, learned counsel for the petitioner confines his argument only on the point that the petitioner should get the difference of salary for the period from 31.12.2013 to 5.2.2015 when he was working as in-charge Deputy Director (Drugs), Drugs Control Directorate, Ranchi (minus the benefits accrued on grant of 2nd MACP with effect from 20.5.2014) and from 5.2.2015 till his superannuation on 30.09.2021 when he was working as In-charge Joint Director, Drugs Control Directorate, Ranchi, as also the consequential pensionery benefits. 3. Brief facts of the case are that the petitioner was appointed as Drug Inspector on 19.5.1994. As per Jharkhand State Drug Control Service (Appointment & Service Condition) Rules, 2011, the Kalawadi for promotion to the next higher post in the cadre of the Drug Inspector was stipulated as five years for each post. However, the Government by Resolution contained in Memo No. 10483(3) dated 24.10.2014, relaxed the said Kalawadi to one year, provided the concern employee has completed 20 years of service and further if posts are vacant, the compulsion to continue working in the present held post for at least one year for promotion is not required and now it will be mandatory to take charge of each level of promotion and only after taking charge, promotion to the next level will be given. Thereafter, instead of granting promotion on regular basis, the petitioner was posted as In-charge Deputy Director (Drugs), Drugs Control Directorate, Ranchi by Notification No. 141(16) dated 31.12.2013 and subsequently by Notification No. 11(16) dated 5.2.2015 as Joint Director (Drugs), Durgs Control Directorate, Ranchi. However, during his posting as Joint Director, the petitioner was granted the benefit of 2nd MACP with effect from 20.5.2014 in the pay scale of Rs. 15,600-39,100/- Pay band-III, Grade Pay 7600, which is equivalent to pay scale of Deputy Director, by Notification No. 34(16) dated 7.4.2016. 4. It is further case of the petitioner that this petitioner along with others earlier moved before this Court in W.P.(S) No. 3185 of 2013, with the grievance that they were not given regular promotion. Pursuant to the order passed by this Court, formal order granting promotion to the petitioner on the post of Assistant Director (Drugs) was issued by Notification No. 223(16) dated 31.7.2019. Pursuant to the order passed by this Court, formal order granting promotion to the petitioner on the post of Assistant Director (Drugs) was issued by Notification No. 223(16) dated 31.7.2019. Though the petitioner retired in the month of September, 2021 serving as Joint Director from 5.2.2015 itself, but his substantive post was of Assistant Director. 5. Mr. Krishna Murari, learned counsel appearing on behalf of the petitioner confines his argument only on the point that petitioner should get the difference of salary for the period from 31.12.2013 to 5.2.2015 while he was working as in-charge Deputy Director (minus the benefits accrued on grant of 2nd MACP with effect from 20.5.2014) and likewise the petitioner is also entitled for the difference of salary from 5.2.2015 till 30.9.2021, when he was working as In-charge Joint Director and also to pay consequential pensionery benefits. 6. Learned counsel contended that now, the law is well settled that if any employee is working on any post, may not be on substantive posting, but he is entitled for the difference of salary if the incharge post is not an ad hoc arrangement and the petitioner worked from 31.12.2013 to 5.2.2015 as Deputy Director and further from 5.2.2015 till his retirement as Joint Director on In-charge basis, so it cannot be said to be an stop gap arrangement. To buttress his arguments, learned counsel places heavy reliance upon the decision in the case of Arindam Chattopadhyay & Ors. Vs. State of W.B. & Ors, reported in (2013) 4 SCC 152 . Learned counsel also relies upon the decisions reported in 2013 vol.4 JLJR 306, 2013 vol.4 JLJR 308 and the order delivered in W.P.(S) No.1661 of 2010. To strengthen his argument, learned counsel places heavy reliance upon a recent decision of this Court rendered in the case of Chanda Hembrom Vs. The State of Jharkhand & Ors, in W.P.(S) No. 6618 of 2013. He lastly submits that the Hon’ble Apex Court has held that if it is not a stop-gap arrangement then the employee is entitled for difference of salary of the in-charge post. 7. Mr. The State of Jharkhand & Ors, in W.P.(S) No. 6618 of 2013. He lastly submits that the Hon’ble Apex Court has held that if it is not a stop-gap arrangement then the employee is entitled for difference of salary of the in-charge post. 7. Mr. Mukesh Kumar Sinha, learned Sr.S.C.-I, representing the respondent State, opposes the prayer of the petitioner and submits that in the very first line of notification dated 31.12.2013, it has been indicated that the employee will get the salary of his substantive post itself and will not get the salary of incharge post and if the petitioner was not interested then he should have not joined the post. Learned counsel submits that the issue of promotion of the petitioner to the post of Deputy Director was under consideration, but in view of Annexure-A to the counter affidavit, the same could not be done, as all promotions in the State services were banned by the order of the State. He further relied upon the judgment passed in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India and ors. reported in AIR 1991 SC 1145 in which the Hon’ble Apex Court has held at para 6 as under: “6. The third contention is that appellant's ‘in-charge’ arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an ‘in-charge’ arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, ‘equities or expectations could be built upon it.’ The third contention is also unmeritorious.” Relying upon the aforesaid decision, learned counsel submits that there is no error in the action of the respondents since the petitioner was on in-charge post, as such he was not entitled for difference of salary. 8. Having heard learned counsel for the parties across the Bar, it appears that the petitioner along with others earlier moved before this Court praying for a direction upon the respondent authorities to consider their case for promotion. 8. Having heard learned counsel for the parties across the Bar, it appears that the petitioner along with others earlier moved before this Court praying for a direction upon the respondent authorities to consider their case for promotion. The said writ petition, being W.P.(S) No.3185 of 2013 was disposed of by giving direction to the respondent authorities to take a decision in the matter of promotion of the petitioners which the department finally took in the year 2019 by promoting the petitioner to the post of Assistant Director. 9. The dispute in this case arose from 31.12.2013 when the petitioner was given in-charge post of Deputy Director by Notification dated 31.12.2013. Admittedly, in the said notification, it was indicated that the petitioner will get the salary of his substantive post. At that very moment, the petitioner was not in a position to refuse that offer for the sole reason that in the said notification; no period was mentioned that as to whether it is an ad hoc or stop-gap arrangement or as to whether it is a type of permanent incharge post. Even otherwise, appointment or promotion of any employee is a contract in service jurisprudence and unreasonable contract cannot stand in the eye of law. Reference in this regard may be made to the decision rendered in the case of Central Inland Water Corpn. & anr v. Brojo Nath Ganguly & anr. reported in AIR 1986 SC 1471 wherein the Hon’ble Apex Court has held in paragraph 90 as under: “90. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to “uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to “uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today’s complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances”. Emphasis supplied 10. It further transpires that the issue involved in this case came for consideration before the Hon’ble Apex Court in the case of Arindam Chattopadhyay & Ors. v. State of W.B & Ors. reported in (2013) 4 SCC 152 wherein the Hon’ble Apex Court has held at para 13 as under: “13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS Projects. If this would have been a stopgap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post i.e. CDPO. However, the fact of the matter is that as on the date of filing of the original application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor has any material been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs since July 1999. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs since July 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government’s failure to undertake the exercise of making regular promotions.” Emphasis supplied 11. Upon going through the aforesaid judgment, it appears that the Hon’ble Apex Court has taken note of the fact that if the in-charge posting is a stop-gap arrangement or for a fixed period then the matter would have been otherwise but certainly if a person has worked on in-charge post for years together; he would be entitled for difference of salary. 12. The argument advanced by the learned counsel for the respondent State that it was an ad-hoc arrangement and tries to impress this Court by drawing attention to the Annexure-6 series, whereby the petitioner was given ad hoc in-charge to discharge the work of Deputy Director and Joint Director, is not acceptable to this Court, as the respondents have misunderstood the very meaning of “ad hoc arrangement” , inasmuch as, this petitioner is working as in-charge Deputy Director from 31.12.2013 and Joint Director from 5.2.2015 till his superannuation. Even otherwise, this Court has earlier taken a similar view in W.P.(S) No.6799 of 2018 and W.P.(S) No. 1661 of 2010 and recently by order dated 03.09.2021 passed in W.P.(S) No. 6618 of 2013. 13. As a cumulative effect of the aforesaid rules, guidelines and legal propositions, this Court is of the considered view that the petitioner is entitled for difference of salary from 31.12.2013 to 5.2.2015 when he was working as in-charge Deputy Director (minus the benefits accrued on grant of 2nd MACP with effect from 20.5.2014) and from 5.2.2015 to 30.09.2021 when he was working as In-charge Joint Director. This is a typical case where ad hoc arrangement has continued for years together. 14. Consequently, the instant writ application is partly allowed. This is a typical case where ad hoc arrangement has continued for years together. 14. Consequently, the instant writ application is partly allowed. The concerned respondent is directed to calculate the difference of salary 31.12.2013 to 5.2.2015 when he was working as in-charge Deputy Director (minus the benefits accrued on grant of 2nd MACP with effect from 20.5.2014) and from 5.2.2015 to 30.09.2021 when he was working as In-charge Joint Director and pass an order of payment including the consequential pensionery benefits. 15. It is made clear that since the matter is very old as such, the entire payment of difference of salary shall be paid to the petitioner within a period of 16 weeks from the date of receipt/production of copy of this order, failing which, the petitioner shall also be entitled for simple interest @ 6% per annum from the date of entitlement till the date of payment.