Patna High Court
Rajendra Paswan vs The State Of Bihar And Ors. on 17 October, 2006
JUDGMENT Ramesh Kumar Dutta, J.
1. Heard Mr. Bishnu Kant Dubey, learned Counsel for the petitioner and learned Standing Counsel No. 18 for the State.
2. The petitioner is aggrieved by part of the order contained in memo No. 2509 dated 3.5.2000 by which it has been directed that the financial benefits on the promoted post of Sub-Inspector of Police shall be given to him only from the date of joining, whereas the promotion has been granted with effect from 20.8.1994.
3. The petitioner was appointed as constable in 1971 and subsequently promoted as ASI with effect from 1.4.1981 and confirmed on the said post in March, 1983. Certain juniors to the petitioner including one Nageshwar Paswan were granted promotion on the post of Sub-Inspector of Police with effect from 20.8.1994 by memo No. 3448 dated 20.8.1994 issued by the Director General and Inspector General of Police, Bihar. The petitioner's representations having failed, he filed CWJC No. 9713/1996 which was disposed of by order dated 2.9.1997 with a direction to the Director General and Inspector General of Police to get the petitioner's claim examined and in case his juniors have been promoted from the said date, his case should also be considered for promotion from that date.
4. Thereupon, the matter relating to the petitioner's promotion was taken up by the Special Central Selection Board at its meeting held on 21.1.1998 which declared the petitioner unfit for the promotion to the post of S.I. of Police on the ground that he had been awarded lessor award than the punishment and further that he was punished in the departmental proceeding No. 29/1991. Against the said decision of the authorities, not granting promotion, the petitioner again filed CWJC No. 3684/1998 which was disposed of by order dated 27.11.1999 and the matter was remanded to the respondents to consider the case of the petitioner for promotion to the post of SI of Police with effect from the date his juniors were so promoted i.e. 20th August, 1994 taking into consideration the finding given by the Court and the observations as made therein. In the said order dated 27.11.1999 this Court had come to the finding that the departmental proceeding No. 29/1991 related to the allegations of the year 1990 and the punishment inflicted upon the petitioner was of one black-mark. It was accordingly, held that in terms of the Bihar Police Manual and Bihar Police Order No. 99 the punishment shall date back to the date of occurrence, i.e., 1990 and the effect of such punishment in terms of Rule 726(3) of the Bihar Police Manual would be for three years as past records of three years alone are to be taken into consideration in the matter of promotion. It was accordingly, held that on 20th August, 1994, the date when the petitioner's juniors had been promoted, there was no effect remaining of the departmental proceeding No. 29/1991 and thus, the petitioner's case was fit for consideration for promotion as Sub-Inspector of Police on that date.
5. On a re-consideration of the matter after it was remanded by this Court by order dated 27.11.1999 the Director General of Police vide his memo No. 2509/P2 dated 1.6.2000 (Annexure-4), the order impugned, has granted promotion to the petitioner with effect from 20.8.1994 but has directed that the financial benefits of the promotion shall be payable from the date of joining. The petitioner is aggrieved with the later part of the order.
6. Learned Counsel for the petitioner submitted that it has been established by a series of decisions of this Court following the Supreme Court decision in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. , that in a situation where promotion is denied to an employee for no fault of his, the financial benefit of the said promotion should be granted to the employee with retrospective date from which he was entitled to promotion as of right and in such matters mere notional promotion cannot be granted nor the principles of "no work no pay" be invoked. The said principles have been applied and laid down in several decisions of this Court, reported in 2005(1) PLJR 297, 2005(3) PLJR 164 and 2003(2) PLJR 44.
7. Learned Counsel for the State, on the other hand, has tried to justify the order of the authorities on the basis of Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Finance Rules, according to which, an employee shall be entitled to the salary and other allowances pertaining to his post from the date he joins the same and not from any retrospective effect. He has also relied upon the principle of "no work no pay" in support of the stand of the respondents.
8. So far as the application of the said rules and the principles of "No work No Pay" is concerned that issue is no longer res integra and has rightly been referred to by the learned Counsel for the petitioner that it has been settled in the case of Union of India and Ors. v. K.V. Jankiraman and Ors.(supra). In the said case the Supreme Court was considering Rule No. 17(1) of the Fundamental Rules and Supplementary Rules which is in pari materia with Rule 58 of the Bihar Service Code. There also the principle of no work no pay had been raised in similar circumstances. In the said decision the Supreme Court has laid down in para 22 as follows.
We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
9. It is thus clear that the principle of "no work no pay" cannot be applied to the present case also since it is not one where the petitioner was unwilling to work on the post of S.I. of Police with effect from 20.8.1994 rather on account of the wrong interpretation of the Rules he had been unjustifiably deprived by the authorities from working on the said post with effect from 20.8.1994 when his juniors were given promotion on the said post. Under the circumstances, it is not open to the authorities to deprive the petitioner of the financial and other benefits flowing from his promotion with effect from that date.
10. Learned Counsel for the State also relies upon a circular of the State Government issued by the Finance Department dated 24.12.2005 (Annexure-A to the counter affidavit) by which it has been directed that in such cases as that of the petitioner the financial benefits of promotion shall be admissible from retrospective date but it is further stated in para 6 thereof that the effect of the said circular shall be prospective and will not apply to any matter which has already been finalised before the issuance of the circular. So far as the reliance on the said circular is concerned, it goes against the contention of the State-respondents since the circular in its own term is prospective in nature and as held also Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules have no application to a case like that of the petitioner as laid down in the case of Union of India and Ors. v. K.V. Jankiraman and Ors. (supra).
11. In the result, the writ application is allowed and that part of the impugned order contained in memo No. 2509 dated 1.6.2000 which directs payment of financial benefits on the promoted post of Sub Inspector of Police to the petitioner with effect from the date of joining is quashed and it is directed that the petitioner shall be entitled to all monetary and consequential benefits with effect from 20.8.1994. i.e. the date from which he has been promoted on the post of S.I. of Police. The authorities are directed to calculate and make the entire payment of financial benefits within a period of three months from the date of receipt/production of a copy of this order. In the facts and circumstances of the case, however, there shall be no order as to costs.