Jharkhand High Court
Chanda Hembrom vs The State Of Jharkhand on 3 September, 2021
Equivalent citations: AIRONLINE 2021 JHA 1457
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6618 of 2013
Chanda Hembrom ..... Petitioner
Versus
1. The State of Jharkhand
2. The Principal Secretary, Water Resources
Department, Government of Jharkhand, Nepal House,
P.O. & P.S. Doranda, District- Ranchi
3. The Secretary, Personnel & Administrative
Reforms, Government of Jharkhand, Project Building,
Dhurwa, P.O. & P.S.- Dhurwa, District- Ranchi
4. The Joint Secretary (Management), Water Resources
Department, Government of Jharkhand, Nepal
House, Doranda, P.O. & P.S.- Doranda, District- Ranchi
5. The Deputy Secretary (Management), Water Resources
Department, Government of Jharkhand, Nepal House,
Doranda, P.O. & P.S.- Doranda, District- Ranchi
6. Principal Secretary, Finance Department,
Government of Jharkhand ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Ashim Kr. Sahani, Advocate For the Respondents : Mr. Raunak Sahay, AC to G.P.-V
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15/ 03.09.2021 Heard through V.C.
2. The petitioner has approached this Court with multiple prayers; however, learned counsel for the petitioner confines his argument only on the point that this petitioner should get the difference of salary from 27.12.2003 to 29.07.2008 when he was working as in-charge Executive Engineer and further the difference of salary from 29.07.2008 till date since he has been made in-charge Superintending Engineer.
3. Mr. Ashim Kumar Sahani, learned counsel for the 2 petitioner submits that the petitioner was appointed as Junior Engineer on 19.01.1987. Thereafter, in the year 1995 he was promoted to the post of Assistant Engineer. Subsequently, pursuant to the notification as contained in Memo No.10295 dated 27.12.2003; the petitioner has been given the charge of Executive Engineer from the date of notification; however, his substantive post was of Assistant Engineer.
Subsequently, pursuant to the notification dated 29.07.2008; the petitioner was given in-charge posting of Superintending Engineer. Here also the pay scale of the petitioner remains the same that of Assistant Engineer. Finally, the petitioner was promoted to the post of Executive Engineer in the year 2013 (Annexure-4).
Mr. Sahani further submits that this petitioner along with others earlier moved before this Court with the grievance that they were not given promotion to the post of Executive Engineer. He further submits that in the instant case the petitioner confines his argument only on the point that this petitioner should get the difference of salary from 27.12.2003 to 29.07.2008 when he was working as in-charge Executive Engineer and likewise the petitioner is also entitled for the difference of salary from 29.07.2008 till date since he has been 3 made in-charge Superintending Engineer.
He contended that now the law is well settled; if any employee is working on any post, may not be on substantive posting, but he is entitled for the difference of salary if the in- charge post is not an ad hoc arrangement and the petitioner worked from 2003 to 2008 as Executive Engineer and thereafter; he is working as an in-charge Superintending Engineer till date; so it cannot be said to be an stop gap arrangement.
He relied upon the following judgments:
1. 2013 4 SCC 152
2. 2013 vol.4 JLJR 306
3. 2013 vol.4 JLJR 308
4. W.P.(S) No.1661 of 2010.
He lastly submits that the Hon'ble Apex Court has held that if it is not a stop-gap arrangement then the employee is entitled for difference of salary of the in-charge post.
4. Mr. Raunak Sahay, learned counsel for the respondent State opposed the prayer of the petitioner and draws attention of this Court towards Annexure 2 which is the notification dated 27.12.2003 and submits that in the very first line it has been indicated that the employee will get the salary of his substantive post itself and will not get the salary of in- charge post and if the petitioner was not interested then he 4 should have not joined the post.
He further relied upon the judgment passed in the case of Ramakant Shripad Sinai Advalpalkar v. Union of India and ors. reported in AIR 1991 SC 1145 in which the Hon'ble Apex Court has held at para 6 as under:
"6. The third contention is that appellant's 'in-charge' arrangements in the higher post had continued for so long a period that a determination of equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an 'in-charge' arrangement is not a recognition of or is necessarily based on seniority and that, therefore, no rights, 'equities or expectations could be built upon it.' The third contention is also unmeritorious."
Relying upon the aforesaid ruling, learned counsel submits that there is no error in the action of the respondents since the petitioner was on in-charge post, as such he was not entitled for difference of salary.
5. Having heard learned counsel for the parties it appears that the petitioner along with others earlier moved before this Court praying for a direction upon the respondent authorities to consider their case for promotion. The said writ application being W.P.(S) No.4973 of 2010 was disposed of by giving direction to the respondent authorities to take a decision in the matter of promotion of the petitioners which the department finally took in the year 2013 by promoting the 5 petitioner to the post of Executive Engineer.
6. The dispute in this case arose from 2003 when the petitioner was given in-charge post of Executive Engineer. Admittedly; in the said notification dated 27.12.2003 it was indicated that the petitioner will get the salary of his substantive post i.e. Assistant Engineer. At that very moment, the petitioner was not in a position to refuse that offer for the sole reason that in the said notification; no period was mentioned that as to whether it is an ad hoc or stop-gap arrangement or as to whether it is a type of permanent in- charge post.
7. Even otherwise, appointment or promotion of any employee is a contract in service jurisprudence and unreasonable contract cannot stand in the eye of law. Reference in this regard may be made to the decision rendered in the case of Central Inland Water Corpn. & anr v. Brojo Nath Ganguly & anr. reported in AIR 1986 SC 1471 wherein the Hon'ble Apex Court has held in paragraph 90 as under:
"90. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should 6 the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article
14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be 7 enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances".
Emphasis supplied
8. It further transpires that the issue involved in this case came for consideration before the Hon'ble Apex Court in the case of Arindam Chattopadhyay & Ors. v. State of W.B & Ors. reported in (2013) 4 SCC 152 wherein the Hon'ble Apex Court has held at para 13 as under:
"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 penalised for the Government's failure to undertake the exercise of making regular promotions."
Emphasis supplied 8 By going through the aforesaid judgment it appears that the Hon'ble Apex Court has taken note of the fact that if the in-charge posting is a stop-gap arrangement or for a fixed period then the matter would have been otherwise but certainly if a person has worked on in-charge post for years together; he would be entitled for difference of salary.
9. It has been argued by learned counsel for the respondent State that it was an ad-hoc arrangement and tries to impress this Court by drawing attention to the Annexure-6, whereby the petitioner was given ad hoc in-charge to operate the work of Superintending Engineer.
This Court is of the view that the Respondents have misunderstood the very meaning of "ad hoc arrangement"
inasmuch as; this petitioner is working as in-charge Superintending Engineer since 2008 till date. Even otherwise, this Court has taken a similar view in W.P.(S) No.6799 of 2018 and W.P.(S) No. 1661/2010.
10. In view of the aforesaid discussions and the judicial pronouncements; this Court holds that the petitioner is entitled for difference of salary from 2003 to 2008 for the post of Executive Engineer and from 2008 till the date of working as 9 Superintending Engineer because interestingly, the notification which was issued in the year 2008 that it was an ad hoc arrangement and in such ad hoc arrangement, the petitioner is still working. This is a typical case where ad hoc arrangement is continuing for years together.
11. Consequently, the instant writ application is allowed. The concerned respondent is directed to calculate the difference of salary from the year 2003 to 2008 when the petitioner worked as in-charge Executive Engineer and from 2008 till date or till the date the petitioner worked as in-charge Superintending Engineer and pass an order of payment.
12. It is made clear that since the matter is very old as such, the entire payment of difference of salary from Assistant Engineer to Executive Engineer and then to Superintending Engineer, as the case may be, shall be paid to the petitioner within a period of 16 weeks from the date of receipt / production of copy of this order; failing which, the petitioner shall also be entitled for interest @ 6% simple interest per annum from the date of entitlement till the date of payment.
(Deepak Roshan, J.) Pramanik/ AFR