Jharkhand High Court
Sanjay Kumar Jha vs The State Of Jharkhand on 15 January, 2020
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No. 2275 of 2019
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Sanjay Kumar Jha ... ... ... ...Petitioner
-Versus-
1.The State of Jharkhand.
2.The Secretary, Drinking Water and Sanitation Department, Ranchi.
3.The Engineer-in-Chief, Drinking Water and Sanitation Department, Ranchi.
4.The Joint Secretary, Drinking Water and Sanitation Department, Ranchi.
5.The Deputy Secretary, Drinking Water and Sanitation Department, Ranchi.
... ... ... ....Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner : Mr. Diwakar Upadhyay, Advocate
For the State : AC to SC (L&C)-III
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05/ 15.01.2020 Heard the parties.
2. Petitioner has approached this Court with a prayer for direction to the respondents to accord regular promotion to the petitioner to the post of Superintending Engineer with effect from the date of notification i.e. 06.07.2012 or from the date juniors to him were given promotion. Petitioner has further prayed for a direction to the respondents to sanction the benefit of 3rd MACP from the due date i.e. 15.07.2017 on completion of 30 years of service and further to pay the amount of arrears accrued consequent to grant of MACP and regular promotion to the post of Superintending Engineer.
3. Bereft of unnecessary details, the petitioner joined the post of Assistant Engineer on 15.07.1987 in the erstwhile State of Bihar, now the State of Jharkhand in Drinking Water and Sanitation Department and rendered his serviced to the full satisfaction of the respondent-authorities. The petitioner was granted 1st ACP w.e.f. 09.08.1999 and thereafter, regular promotion was granted to the petitioner to the post of Executive Engineer w.e.f. 15.11.2000. Thereafter, the petitioner was granted the benefits of 2nd MACP on the due date. The petitioner discharged duties on the said post at different division of Jharkhand and subsequently, elevated to higher grade i.e. to the post of Superintending Engineer Incharge since 10.07.2012. It is the further case of the petitioner that in the year 2015 i.e. on 05.10.2015, a meeting of Departmental Promotion Committee (for short "DPC") was convened, wherein the name of petitioner for promotion to the post of Superintending Engineer was also considered and it was decided to keep it pending with direction to obtain report from Vigilance/ Lokayukta and till then, 2 one post was kept reserved for the petitioner in view of pending allegations pertaining to his posting as Executive Engineer at Jamtara/ Dhanbad Division-1 and Palamau Division. It is the further case of the petitioner that again a meeting of DPC was held on 29.05.2018 to consider and grant the admissible benefit of ACP/ MACP to officers of the Engineering Service Cadre of Drinking Water and Sanitation Department in which name of the petitioner was also considered for 3rd MACP along with many of the Officers in view of different Circular of the State, which have been either over looked or ignored while deciding and making recommendation in favour of the petitioner.
The petitioner submitted his representation dated 24.07.2018 mentioning therein the admissibility of his regular promotion as per the instruction contained in different circulars of the State Govt. The respondents without finalizing the cadre promotion to the post of Superintending Engineer, convened the meeting of DPC for consideration of promotion from the post of Superintending Engineer to the post of Chief Engineer on 24.08.2018 and again, the name of petitioner was left out of jurisdiction as he was not accorded regular promotion to the rank of Superintending Engineer for which the petitioner was not at fault. When no consideration was shown, the petitioner again submitted his representation vide letter dated 28.02.2019 mentioning therein that out of the two charges levelled by the Lokayukta, first pertaining to the year 2008-09 was irrelevant as he was transferred a year back i.e. on 09.07.2007 itself from Palamau division to Head Works division Ranchi and the next charge of making 100% payment against installation of fluoride attachment plant being wrong as only 90% payment was made to the contractor in consonance of the work order instead of 100% mentioned in the so-called charge sheet of the Lokayukta, whereafter, the Lokayukta declared him not guilty in the Court verbally. Petitioner further requested in his representation dated 28.02.2019 (Annexure-6) that his regular promotion is admissible in the light of govt. resolution itself and his career is being affected adversely for want of promotion.
However, when no heed was paid to his said request, petitioner has been constrained to knock the door of this Court.
4. Mr. Diwakar Upadhyay, learned counsel appearing for the petitioner states that the petitioner is entitled to be considered for promotion to the post of Superintending Engineer w.e.f. 10.07.2012, i.e. the date of taking over the charge of Superintending Engineer on Incharge basis as per the rules of government or 3 latest w.e.f. 03.11.2010, the date on which his next junior, Mr. Brahmadeo Prasad has been promoted vide notification issued under memo No. 4736 dated 03.11.2015. Learned counsel further submits that inspite of repeated request made by filing representation for promotion to the post of Superintending Engineer and for grant of benefit of 3rd MACP, respondents have not taken any decision in that regard. The petitioner has been discriminated as many of the officers juniors to the petitioner have been granted the benefits of ACP/MACP even though when different allegations levelled against them were reported to be proved. Learned counsel lastly submits that the relief sought for by the petitioner for grant of regular promotion and benefits of MACP are justified and fit to be granted in the interest of justice.
5. On the other hand, learned counsel appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that the promotion cannot be given with retrospective effect. Learned counsel further submits that respondents have already granted regular promotion to the petitioner. Learned counsel further argues that name of the petitioner has been considered by the DPC held on 09.08.2019 and after due consideration, the DPC has recommended the name of the petitioner fit for the promotion to the post Superintending Engineer. Thereafter, the respondent-Department has granted promotion to the post of Superintending Engineer in the pay-scale of Rs.37400- 67000/-, G.P. 8700 vide notification dated 19.08.2019. Learned counsel lastly submits that in light of the aforesaid facts, this writ petition is not maintainable and hence, fit to be rejected.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, there is no proceeding pending against the petitioner for consideration of his case for promotion to the post of Superintending Engineer. Further, junior to the petitioner namely, Mr. Brahmadeo Prasad has been promoted vide notification issued under memo No. 4736 dated 03.11.2015.
7. In the case of Arindam Chattopadhyay and others Vs. State of West Bengal and others reported in (2013) 4 SCC 152, the Hon'ble Supreme Court while allowing the appeal and setting aside the impugned order directed the respondents to pay salary and allowances to the appellants in the pay scale of the post of CDPO with effect from the date they took charge of those posts. It is relevant to quote para-13 of the said Judgment:
4"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. 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 penalized for the Government's failure to undertake the exercise of making regular promotions."
In the case of A.K. Pradhan Vs. The State of Bihar and others reported in 1998(1) PLJR SC the Hon'ble Supreme Court had disposed of the appeal with an observation that the appellant if not already regularized as Headmaster, shall be considered for regularization w.e.f. the date on which he completed seven years of service reckoned from the date on which the institution was taken over by the Government.
8. In view of facts and circumstances narrated hereinabove, I do not find any substance in the arguments advanced by counsel for the respondents. The grounds taken by the respondents does not find force in the facts and circumstances of the case. The promotion of the petitioner was kept pending for years together without any fault on his part and junior to him has been given promotion vide notification dated 03.11.2015. Petitioner is eligible for getting promotion, pay and other benefits of the higher post from the date junior to him have been promoted to the post of Superintending Engineer.
9. Now the sole question to be answered "Whether petitioner is entitled to get the financial benefits of promotional post from retrospective effect? In a number of decisions, this Court has observed that an employee being given 5 promotion with retrospective effect, cannot be denied the material benefits accruing from the promotion and the position is now well established. In this context the finding of the Hon'ble Apex Court in the case of A.K. Pradhan Vs. The State of Bihar and others (Supra); Dr. Paras Nath Prasad Vs. State of Bihar and others reported in 1990(2) PLJR 248; Md. Hafiz Vs. State of Bihar and others reported in 2003(2) PLJR 44 and the judgment reported in 1999(1) PLJR 272 are relevant. In those Judgments, it has categorically been held that an employee being given promotion with retrospective effect, cannot be denied the material benefits accruing from the promotion and this position is now well established.
10. The respondents - State, in the capacity of a model employer, cannot be permitted to raise an arguments that even if petitioner is granted promotion with retrospective effect, he is not eligible for financial and consequential benefits. The Judgments referred to above clearly speaks in volume that in such cases the concerned employee is entitled for all consequential benefits. Accordingly, it is held that petitioner is also entitled for the benefits retrospectively.
11. In the result this writ petition stands allowed. The matter is remitted to consider the case of the petitioner in accordance with law considering the aforesaid observations. Let a decision be taken within a period of six weeks from today. Needless to say if petitioner is found entitled, the entire consequential benefits shall flow from the date of his promotion.
12. As a sequel to the disposal of the instant writ petition, pending I.As., if any, also stand disposed of.
(Dr. S.N. Pathak, J.) kunal/-