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2024 DIGILAW 397 (JHR)

Krishna Murari v. State of Jharkhand

2024-04-12

DEEPAK ROSHAN

body2024
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioners praying therein for quashing of that part of the notification as contained in memo No. 122 dated 21.01.2015, issued by the respondent no. 2; whereby the monetary benefit for the promotional post and scale has been given with effect from the date of notification i.e. 21.01.2015 though promotion to the senior selection grade was given w.e.f. 31.01.1997 and in super selection grade w.e.f. 31.01.2002 in respect to petitioner no. 1 to 4. So far as petitioner no. 5 is concerned; senior selection grade was given w.e.f. 01.01.1996 and super selection grade w.e.f. 01.01.2001. The petitioner further prays for a direction upon the respondents to pay the scale of promotional post w.e.f. the date of their actual date of promotion at the revised scale and to pay the difference of arrears of salary to the petitioners from the date of actual promotion. 3. The brief fact of the case as disclosed in the instant writ application is that the petitioners are Associate Professor in different departments at B.I.T. Sindri, Dhanbad. The petitioner no. 1 to 3 and 5 are still working; whereas petitioner no. 4 has superannuated from the post of Associate Professor. The petitioners before bifurcation of the State of Jharkhand were working as Assistant Professor in the Science and Technology Department, Government of Bihar and after bifurcation on cadre division, the services of the petitioners have been transferred to the newly created the State of Jharkhand. It further transpires that during their service, petitioner no 1 to 4 got promotion to the senior selection grade w.e.f. 31.01.1997 and super selection grade w.e.f. 31.01.2002. So far as petitioner no. 5 is concern; senior selection grade was given to him w.e.f. 01.01.1996 and super selection grade w.e.f. 01.01.2001. 4. The case of the petitioner is that the Respondent no 2 issued a notification as contained in letter bearing no. So far as petitioner no. 5 is concern; senior selection grade was given to him w.e.f. 01.01.1996 and super selection grade w.e.f. 01.01.2001. 4. The case of the petitioner is that the Respondent no 2 issued a notification as contained in letter bearing no. 28/8 dated 21.01.2015 that the benefits of promotion to senior selection grade and super selection grade under the career advancements scheme will be given from the date of notification i.e., 21.01.2015 and not from the date of actual promotion; though similarly situated persons working under the Science and Technology Department of the Government of Bihar vide notification contained in Memo No. 3/08 792 dated 30.03 2011, issued by the order of Hon'ble Governor, Bihar, under the signature of Joint Secretary, Science and Technology Department, Government of Bihar have been given the actual benefit of promotion under the career advancement scheme from the actual date of promotion and not from the date of notification. The petitioners on several occasions have represented before the Secretary, Government of Jharkhand, Higher Technical Education and Skill Development, regarding the benefits given to the petitioners of the promotional post from the date of promotion and not from the date of notification, but all went in vain. 5. Learned counsel for the petitioner submits that the petitioners should be given the benefit of promotion from the date of actual promotion as given by the State of Bihar. The respondents who are creature of statute are bound to act within the four corners of their limits and jurisdiction. The act and action on the part of the respondents is illegal, void, and unsustainable in the eyes of law in view of Memo No. 3/08 792 dated 30.03.2011 (Annexure 2) issued under the signature of Joint Secretary, Science and Technology Department, Government of Bihar; whereby the actual benefit of promotion under the career advancement scheme were given the employees from the actual date of promotion and not from the date of notification. Learned counsel strenuously contended that the part of the notification as contained in Memo No. 122 dated 21.01.2015 whereby the monitory benefits have been given w.e.f. the date of notification i.e. 21.01.2015 and not from the actual date of promotion is illegal and arbitrary on the part of the respondents. The respondents are bound to pay the scale of promotional post w.e.f. the date of their actual date of promotion at revised rate. The respondents are bound to pay the scale of promotional post w.e.f. the date of their actual date of promotion at revised rate. The petitioners are entitled for the same treatment and benefit which has been extended to the other similarly situated employees of the State of Bihar. 6. At the outset, learned counsel for the respondents submits that the petitioners are Associate Professor in different department in B.I.T. Sindri, Dhanbad. The department i.e. Higher, Technical Education & Skill Development Department on the recommendation of Department Promotion Committee vide its notification containing memo no. 122 dated 21.01.2015 has promoted the petitioners along with others under the Career Advancement Scheme (CAS) as per the provision of All India Council of Technical Education (AICTE). 7. Learned counsel further submits that it is a state policy that any benefit of promotion is to be extended on the date of notification and the same is duly confirmed by departmental circular as contained in Memo No. 2074 dated 104.04.1985. It has been further submitted that as per the aforesaid circular as contained in Memo No. 2074 dated 04.04.1985, the Department has sent the proposal to the Finance Department which was subsequently turn down, observing that the benefits of promotion under the Career Advancement Scheme (CAS) is applicable from the date of promotion. Under the aforesaid facts and circumstances the claim of petitioner to pay the scale of promotional post w.e.f. the date of their actual date of promotion at the revised scale is not at all justifiable under the eye of law, as such the instant writ application is liable to be dismissed in limine. 8. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that vide notification dated 21.01.2015, issued by the respondents, the monitory benefits and scale for the promotional post under Career Advancement Scheme has been given w.e.f. date of notification i.e. from 21.01.2015, though promotion to the grade of lecturer (senior scale) was given w.e.f. 31.01.1997 and grade of lecturer (selection grade) was given w.e.f. 31.01.2002 so far petitioner no 1 to 4 are concerned and in case of petitioner no. 5 promotion to the grade of lecturer senior scale was given w.e.f. 01.01.1996 and lecturer selection grade was given w.e.f. 01.01.2001. 5 promotion to the grade of lecturer senior scale was given w.e.f. 01.01.1996 and lecturer selection grade was given w.e.f. 01.01.2001. It is evident from record that all the petitioners were initially appointed as Assistant Professor (Lecturer) in Magadh Engineering Collega, Gaya. Petitioner no. 1-Krishna Murari was appointed on 05.07.1984, petitioner no 2-Chitranjan Sharma was appointed on 25.06.1984, petitioner no. 3-Sheo Kumar was appointed on 05.04.1984, petitioner no. 4-Ram Prakash Sharma was appointed on 01.02.1985 and petitioner no 5-Ravindra Sharma was appointed on 21.06.1982. After bifurcation of erstwhile State of Bihar, the services of petitioners fell under the jurisdiction of newly created State of Jharkhand. Since the promotion of petitioners under Career Advancement Scheme was due, as such promotion of petitioner no 1 to 4 in grade of lecturer (senior scale) was given w.e.f. 31.01.1997 and in lecturer selection grade was given w.e.f. 31.01.2002, and in case of petitioner no 5 same was given w.e.f. 01.01.1996 and 01.01.2001, respectively. The said promotion to the petitioners from aforesaid dates was given notionally, and as per stipulation made in notification granting promotion itself, the actual benefit of promotion was granted from the date of notification. 9. It is pertinent to mention here that in the case of similarly situated colleagues of petitioners whose services fell within the State of Bihar after bifurcation of State, monitory benefits of promotion have been given from the date of promotion. A counter affidavit has been filed by the respondent no. 1, in which the claim of petitioners has been denied on the basis of a notification issued under Memo No. 2074 dated 04.04.1985 (Annexure-A to the counter affidavit), and referring that notification it has been stated in Para 8 of counter affidavit that as per Rule 58 of Bihar Service Code, holder of post is entitled for pay and allowance of that post from the date of joining of that post, and as per Rule 74 of Bihar Financial Rules, in finance matters sanction from retrospective effect is generally not applicable. 10. 10. It appears that the respondent authorities have fully misconstrued the Memo No. 2074 dated 04.04.1985 and have relied on opening paragraph of that notification; whereas, in sub-paragraph (i) of that notification, which has dealt in promotion with retrospective effect on the post of selection grade, wherein it has been clearly stipulated that in taking decision regard to estimation of post some delay occurs as such, in relation to the posts in which post of selection grade is created and by reason of promotion if there is no difference in post and nature of service of holder of that post, then after suspending Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules benefit of promotion will be given from the date of availability of post. Vide Letter No. 3 F 12-02/92/1972 dated 29.04.1993 of Finance Department, Govt. of Bihar, it has further been reiterated and clarified that as per Para ¼d½ of notification dated 04.04.1985, in the matter of promotion on the posts of selection grade, Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules have been suspended, and in other matters Rule 58 of Bihar Service Code is applicable. 11. From the aforesaid notifications, it is quite apparent that in the case of promotion in selection grade where nature of work does not change, Rule 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules is not at all applicable, but the respondents concerned by misinterpreting the aforesaid notification dated 04.04.1985 have debarred the petitioners from their valuable rights accrued to them from the date of promotion. As per provision of Rule 58 of Bihar Service Code pay and allowance are paid to the incumbent from the date of joining on the post in the case of direct recruitment but the petitioners are not claiming the benefit on the basis of direct recruitment; rather they are claiming the benefits of pay and allowances keeping their position on previous occupied post. Further, on the basis of promotion in Selection Grade under Career Advancement Scheme neither their post is changed nor work to be discharged by them is changed, and in this course only nomenclatures of pre occupied post is changed and pay scale is enhanced. Further, on the basis of promotion in Selection Grade under Career Advancement Scheme neither their post is changed nor work to be discharged by them is changed, and in this course only nomenclatures of pre occupied post is changed and pay scale is enhanced. Thus, provisions of Rule 58 of Bihar Service Code or Rule 74 of Bihar Financial Rules has no application in the case of petitioners, as has also been clarified by aforesaid notifications issued by Govt. of Bihar suspending aforesaid provisions in case of promotion in selection grade. 12. As a matter of fact, Rule 58 of the Service Code and Rule 74 of the Bihar Financial Rules have no application to the case of the petitioners for the simple reason that those rules envisage promotions given in the normal course of administration and at due time when the right of promotion accrued to the concerned employee. The two rules do not by any stretch of imagination, deal with cases where promotions were given not at the due time but with retrospective effect not for any fault on the part of the concerned employee but due to the laches and mistake committed by the department. 13. As stated hereinabove, similarly situated persons who were appointed along with the petitioners and remain in the State of Bihar after bifurcation have been granted the benefit of promotion from the date of promotion. This issue has also been taken into consideration by this Court in the case of Rajeshwar Prasad Vs. State of Jharkhand & Ors. passed in W.P. (S) No. 1932 of 2005 wherein the Coordinate Bench of this Court has directed the respondent to pay all the consequential/monetary benefits from the date of promotion. The said order was affirmed by the Division Bench of this Court in L.P.A. No. 471of 2012 and analogues case. 14. Before parting it is necessary to hold that giving promotion from the retrospective date and monetary benefits from the date of notification is bad in law, inasmuch as, the petitioners were not at fault; rather annexure-1, 2, and 3 clearly indicates that they were promoted from the respective date to the higher post as such the notification which envisage payment of monetary benefit from the date of notification is bad in law accordingly the instant writ application deserves to be allowed. 15. 15. Accordingly, part of the notification as contained in memo No. 122 dated 21.01.2015, issued by the respondent no. 2; whereby the monetary benefit for the promotional post and scale has been given with effect from the date of notification i.e. 21.01.2015, is quashed and set aside. The concerned respondents are directed to pay the scale of promotional post w.e.f. the date of their actual date of promotion at the revised scale and to pay the difference of arrears of salary to the petitioners from the date of actual promotion. 16. It goes without saying that the respondents are directed to calculate the monetary benefits and pay the same within a period of four months from the date of receipt/production of a copy of this order. 17. As a result, the instant writ application stands allowed. Pending I.A.s, if any, also closed.