Jharkhand High Court
Jyotindra Nath Ganju Saki vs State Of Bihar, Through Secretary Water ... on 15 September, 2004
Equivalent citations: [2004(4)JCR680(JHR)], 2004 AIR - JHAR. H. C. R. 3150
Author: Vikramaditya Prasad
Bench: Vikramaditya Prasad
ORDER Vikramaditya Prasad, J.
1. Heard both the sides.
2. This writ has been filed for a number of reliefs for which cause of action arose during different periods right from the year 1981 to 1995 and in respect of different cadre of posts which the petitioner occupied time to time have been clubbed. Thus, it appears that the case is stale, but since the petitioner had been able to show that right from the very beginning he had been making representation after representation for redressal of his grievances and even after his rctireme.it and those were not disposed of also he has filed the writ. As the petitioner was always pursuing the matter, the matter cannot be said to be stale, though the whole matter has become complex.
3. To cut short the matter the petitioner claims his promotion to the post of Executive Engineer with effect from 2.1.1978 instead of 25.2.1981 and in the scale of Superintending Engineer with effect from 17.1.1989 instead of 19.10.1989. These are the two basic reliefs, out of the lour reliefs claimed in the instant writ application.
4. In the counter affidavit it has been admitted by the respondents in paragraph 9 that the regular promotion to the post of Executive Engineer was accorded to the petitioner w.e.f. 10.5.1978 vide Notification No. 6465", dated 19.10.1985 in the pay scale of Executive Engineer and the petitioner was drawing the salary of Executive Engineer with effect from the date of ad hoc promotion i.e. 25.2.1981, prior to this date he was in the current charge of Executive Engineer. Though his, regular promotion was accorded with retrospective effect from 10.5.1978, but for the intervening period from 10.5.1978 to 24.2.1981 the financial benefit against the promoted post is notionally admissible to the petitioner as per the provisions and conditions laid down in the Finance Department Circular No. 2074, dated 4.4.1985. Thus, from this admission on the part of the respondents. It is clear that though the petitioner claims the benefit of promoted post of Executive Engineer with effect from 2.1.1978, but the respondents are giving this benefit to him with effect from 10.5.1978. The learned counsel for the petitioner has not. disputed this, but now he says that petitioner should be given the financial benefit. Thus, in the aforesaid circumstance it is held that on admission the petitioner shall be treated to be promoted to the post of Executive Engineer w.e.f. 10.5.1978 and the firfancial benefit for the period from 10.5.1978 to 24.2.1981 shall also be given to him.
5. Now coming to the second question with regard to promotion to the post of Superintending Engineer. In paragraphs 11 and 13 of the counter affidavit it has been stated that a panal of the eligible officers for the post of Superintending Engineer was notified vide Notification No. 196, dated 17.1.1989, wherein it is clearly envisaged that the said promotion will be effective from the date of taking over charge, after issuance of the notification of posting. Accordingly, the salary etc. for the post of Superintending Engineer was made admissible from the date of taking over charge by the petitioner. The petitioner finally took over the charge of Superintending Engineer with effect from 19.10.1989, accordingly the petitioner became entitled for the pay scale of Superintending Engineer from 19.10.1989.
6. Now an interesting thing occurred in this case that the petitioner was to join on the post of Superintending Engineer in Chhotanagpur Area Development Authority as per the notification dated 4.5.1989, but unforhinalcly no such post was available there. Consequently the petitioner could not join and, therefore, he had to .revert back and was waiting in corridor for his posting and thus his joining was delayed and he joined the new post only on 19.10.1989. Now this difficulty that the joining was delayed was not created by the petitioner but by the respondents themselves. Therefore, if the petitioner did not join the post in Chhotanagpur Area Development Authority for that the petitioner cannot be allowed to sustain the loss. Consequently the petitioner should get his benefit of promotion to the post of Superintending Engineer at least with effect from the date of its notification and that, notification is dated 4.5.1989. In paragraph 15 of the counter affidavit averment has been made by the respondents that keeping the aforesaid facts of posting in Chhotanagpur Area Development Authority, the respondents in all fairness referred this matter to the Finance Department and the Finance Department has accorded the approval for giving notional benefit for the post of Superintending Engineer with effect from 1.5.1989 to 18,10.1989 in favour of the petitioner, which has already been communicated to Accountant General. Bihar as well as to the petitioner vide Annexure-A. So the respondents themselves accept that the promotion to the post of Superintending Engineer has been given to the petitioner with effect from 4.5.1989 whereas the claim of the petitioner to the post of Superintending Engineer is from the date when the panel was prepared Le. on 17.1.1989. In view of the aforesaid admission the claim of the petitioner to the post of Superintending Engineer w.e. J. 17.1.1989 as now accepted and, therefore, that claim is allowed. So this prayer is allowed in part.
7. In the aforesaid circumstance, it is directed that if the petitioner was unable to join to the post of Superintending Engineer on 4.5.1989 because of the fault, on the part of the authority aforesaid, the petitioner is entitled to get financial benefit also on that score. It goes without saying that if the order is given on a particular date, the salary should have also been fixed on that particular date according to the existing rule and it will be fixed accordingly.
8. The third question relates to promotion of the petitioner to the selection grade scale with effect from 1.6.1993 and to the post of Chief Engineer with effect from 1.11.1995 along with consequential benefits including revising pension to. the petitioner, The prayer has been made in para 1 (ii) and (iii) with regard to pensionary benefit to the petitioner.
9. Pensionary benefit is of course given on the last pay drawn and not at the every stage of promotion. This aspect is not required to be considered. Therefore, now the question is whether the petitioner should get selection grade scale. Reply of the petitioner's claim is that there does not exist of any selection gtrade scale in the post of Superintending Engineer and according to the respondents his position in the gradation list is at serial No. 269 and the petitioner retired on 31.1.1996 before reaching the zone of consideration for promotion to the post of Chief Engineer. Even on i different queries made by this Court, the learned counsel for the petitioner was unable' to show that any selection grade scale exists in the post of Superintending Engineer. In the circumstance this benefit cannot be given to the petitioner. This prayer of the petitioner is disallowed.
10. The learned counsel for the petitioner has been able to show that as per departmental promotion Rule 20% out of the total cadre strength of 3270 of general category will be in the rank of Executive Engineer, 12% in the rank of Superintending Engineer and 2-1/2% in the rank of Chief Engineer. Now the question is whether before the date of superannuation the petitioner came within the consideration zone of 2-1/2. If he came within the zone of consideration he will get benefit of that if not .he will be not entitled to that.
The respondents have stated that he has retired before reaching within the consideration zone. According to the petitioner as per his representation (Annexure-20) the post of Chief Engineer fell vacant with effect from 1.6.1995 and he was entitled to be considered for that post. Thus, according to the petitioner he came is consideration ' zone as per his seniority with effect from 1.6.1995 and for that he filed a representation Aimexure 20 but that representation has not been disposed of. Counter affidavit says, as stated above, that the petitioner superannuated and before his superannuation no vacancy was available in the cadre of Chief Engineer. This reply is not a very convincing. If the respondents felt that actually there was no vacancy in the cadre of Chief Engineer prior to his superannuation on 31.1.1996 then they could have said it categorically that there was no vacancy as claimed by the petitioner in his representation with effect from 1.6.1995 in the cadre of Chief Engineer. This reply of respondents on third point is evasive.
11. Thus so far the question of his being considered for the post of Chief Engineer is concerned, the same is directed to be settled by the State of Bihar through Secretary, Water Resources Department who will dispose of the representation of the petitioner by a speaking order within two months from the date of receipt/ production of a copy of this order. It is made clear that the representation (Annexure-20) will be considered and disposed pf only against the post of Chief Engineer with effect from 1.6.1995 and other prayers made in that representation may not be gone into now. If the petitioner's claim found to be valid then he will be given promotion with effect from that date with all consequential monetary benefit including the pensionery . benefit and if it is found that the claim of the petitioner is not well founded then a reasoned order shall be passed with a copy of that order to the petitioner. '
12. In the result, this writ is allowed partly and with the aforesaid direction.