Jharkhand High Court
Radha Krishna Prasad Son Of Late Ram ... vs The State Of Jharkhand Through The Chief ... on 18 May, 2018
Equivalent citations: AIRONLINE 2018 JHA 94
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4013 of 2011
Radha Krishna Prasad son of late Ram Sewak Sahu, resident of Chutia, Main
Road, Ranchi P.O. and P.S. Chutia, District Ranchi. .... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Bhawan, H.E.C. Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi.
2. The Principal Secretary, Department of Personnel, Administrative Reforms
and Rajbhasa, Government of Jharkhand, Project Bhawan, H.E.C. Dhurwa,
P.O. Dhurwa, P.S. Jagannathpur, District Ranchi. ... Respondents
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Saurav Arun, Advocate
For the Respondents : Mr. Anuj Berman, A.C to S.C.V
.......
11/ Judgement On 18.05.2018
Per Pramath Patnaik, J.
In the accompanied writ application, the petitioner has inter alia prayed for issuance of writ commanding upon the respondents to grant notional promotion to the petitioner with effect from 25.08.2010 on the post of Joint Secretary or on equivalent post i.e. the Deputy Secretary in the pay scale of Rs.37,400/- to Rs.67,000/- with grade pay of Rs.8700/- and further prayer has been made for commanding upon the respondents to refix the pension of the petitioner and pay all the retiral benefits on the scale which is payable to the petitioner on account of his promotion to the post of Joint Secretary.
2. The facts in brief is that the petitioner was initially appointed as Deputy Collector being recommended by Bihar Public Service Commission and joined on the said post in the year, 1981. In course of time, the petitioner was granted due promotion and in the year, 2005 the petitioner was promoted to the rank of Additional District Magistrate/Deputy Secretary. The Departmental Promotion Committee under the Chairmanship of the Chief Secretary, Government of Jharkhand, Ranchi considered the case of all 2 eligible officers including the petitioner for being promoted to next higher post of Joint Secretary or equivalent post in its meeting held on 24.08.2010 and the said departmental promotion committee, after considering the cases for promotion including A.C.R. status of allegation, vigilance clearance etc. recommended the names of 33 persons including the petitioner for promotion and the name of the petitioner finds place at serial no.22 and in the remark column, it is mentioned that the petitioner is fit for being promoted as evident from Annexure-1 to the writ application. As per the rules of Government and procedure, the matter was processed by the Department of Personnel, Administrative Reforms and Rajbhasa and thereafter, it has been approved by the Advisor (Personnel) to his Excellency, the Hon'ble Governor of Jharkhand on 25.08.2010 since during the relevant time, the State was under
President's rules and the proceeding was approved on 25.08.2010 by His Excellency, the Hon'ble Governor of Jharkhand. Thereafter, only a notification was to be issued but since no action was taken in issuing notification for granting promotion to the petitioner, joint representation was submitted by petitioner and others. Due to inaction some of the colleagues of the petitioner filed W.P(S) No.5545 of 2010 and this Court vide order dated 15.06.2011 has been pleased to dispose of the writ application directing the respondents to expedite the publication of the notification and unfortunately, during the pendency of the writ application, the petitioner retired from the services on 31.05.2011 from the post of Deputy Development Commissioner, D.R.D.A., Simdega. Thereafter, a notification has been issued vide memo dated 18.06.2011 but the name of petitioner was not included in the said notification. Since, the name of petitioner was not included in the notification dated 18.06.2011 the petitioner submitted representation before the Principal Secretary, Personnel, Administrative Reforms and Rajbhasa Department for notional promotion but no action was taken. In the aforesaid facts, the instant writ application has been filed under Article 226 of the Constitution of India for redressal of petitioner's grievances.
3. Learned counsel for the petitioner has vehemently submitted that the action of the respondents in not notifying the promotion of the petitioner in due time has deprived the petitioner to hold the post and to get the benefits of 3 promotion of Joint Secretary which is violative of Article 14 and 16 of the Constitution of India and the legitimate expectation of the petitioner has not been belied. Learned counsel for the petitioner further submits that the delay and latches on part of the respondents has resulted in denying the petitioner an opportunity to discharge the duties on the post of Joint Secretary and also the petitioner has been subjected to suffer from financial loss. In order to buttress his submissions, learned counsel for the petitioner has referred to the decision in C.W.J.C No.136 of 2000(R) in the case of Ramadhar Singh Vs. The State of Bihar & Others, 2012 (3) JLJR 544 (Kamta Singh Vs. State of Jharkhand & Ors.), 2010 (3) JCR 238 (Jhr.), 2012 (2) JCR 296 (Jhr.).
4. Repudiating the contentions made in the writ application, a counter- affidavit has been filed. In the counter-affidavit, it has been submitted that the recommendation made by the Departmental Promotion Committee for promotion on the post of Joint Secretary was approved by His Excellency, the Governor in President's Rule on 25.08.2010. The DPC in anticipation of the approval of committee's recommendation by the State Cabinet has considered the reservation in promotion as per the recommendation made by the Committee constituted in the Chairmanship of Sri R.S. Sharma, I.A.S.
5. Supplementary counter-affidavit dated 09.01.2018 on behalf of respondents has been filed wherein it has been submitted that the matter of issuance of notification was kept in abeyance for that period in the meantime elected Government came into existence then after seeking the approval of the government that in order to provide consequential seniority the criteria as laid down by Hon'ble Apex Court decision in M. Nagraj case till then the provisions and percentage of reservation in promotion as in Jharkhand Reservation Act, 2001 should be applied and thereafter the notification for promotion was issued on 18.06.2011. Since in the meantime, the petitioner superannuated from services so the notional benefits with effect from 25.08.2010 is not admissible as no junior to the petitioner was given such benefits from the date of issuance of notification.
6. Another supplementary counter-affidavit dated 02.05.2018 has been filed wherein it has been submitted that when the decision was taken for notification of promotion in the Joint Secretary rank the petitioner alongwith 4 other three officers superannuated hence notification of his promotion was not considered.
7. Learned counsel for the State apart from reiterating the submissions made in the counter-affidavit and supplementary counter-affidavit has assiduously submitted that the petitioner is not entitled to notional promotion in view of Rule 58 of the Service Code and Rule 74 of the Finance Rules.
8. After hearing learned counsel for the respective parties and on perusal of the records the case of the petitioner merits consideration in view of the following facts and reasons:-
(I) Admittedly the petitioner alongwith others were recommended from promotion to the rank of Joint Secretary vide decision of the departmental promotion committee held on 24.08.2010 and the said decision of the DPC was approved by His Excellency, The Hon'ble Governor of Jharkhand on 25.08.2010 thereafter, only formal notification was to be published but on some pretext or other, the notification was not published which compelled the similarly placed colleagues of the petitioner to file a writ application in W.P.(S) No. 5545 of 2010 which was disposed of on 15.06.2011 directing the respondents to expedite the publication of notification and thereafter, the notification was published on 18.06.2011, by then the petitioner attained the age of superannuation on 31.05.2011. The petitioner has been made to suffer because of such fortuitous and avoidable circumstances. Similar matter came up for consideration before the Division Bench of Hon'ble Patna High Court and learned Single Judge of this Court in case of Suryadeo Prasad Vs. State of Jharkhand & Ors. as reported in 2010 (3) JCR 238 (Jhr) has observed as under paragraph nos. 8 and 9:-
"8. Both the aforesaid Rules were considered by the Division Bench of the Patna High Court in the case of Dr. Paras Nath Prasad Vs. State of Bihar, reported in 1990 (2) PLJR 248. The Division Bench in that case held that where an employee deserved promotion but was not granted the same for no fault of the employee, but because of wrong decision on the part of the State the employee would be entitled to not only to be granted promotion with retrospective but also financial benefits as a consequence of such promotion as also the interest on delayed payment of the financial benefits. The Division Bench expressly overruled the applicability of the Rule 58 to such situations.5
9. Following the aforesaid Division Bench decision a learned Single Judge of this Court in the case of Shri Mahavir Pandey Vs. State of Bihar & Ors. reported in 2000 (1) PLJR 768 held that not only Rule 58 but also Rule 74 would have no application in such situation.
(II) In view of the settled position of law as observed by the learned Single Judge of this Court in the case of Suryadeo Prasad (supra), if an employee is denied promotion for no fault of him, he shall be paid salary on the promotional post with effect from the date promotion was granted. Therefore, the Rule 58 and Rule 74 would have no application to deny the notional promotion.
9. In view of the facts stated in the foregoing paragraphs the writ petition deserves to be allowed with a direction to respondents to consider the case of the petitioner and take decision for grant of notional promotion as expeditiously as possible preferably within a period of 3 months from the date of communication/receipt of copy of this order.
10. With the aforesaid observations and directions, the writ petition stands disposed of.
(Pramath Patnaik, J.) RKM