Jharkhand High Court

Srichand Prasad vs The State Of Jharkhand on 27 August, 2021

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.6055 of 2010
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        Srichand Prasad                          ...      ...   Petitioner
                                      Versus
        1. The State of Jharkhand

2. The Director, Education Human Resource Development Department, HEC, Dhurwa, Ranchi.

3. The Deputy Commissioner, Dhanbad.

4. The District Superintendent of Education, Dhanbad.

                                                 ...      ... Respondents
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        CORAM      : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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        For the Petitioner            :Mr. Rahul Kumar, Adv.

        For the Res.State             :Mr. Sreenu Garapati, S.C.III
                                      -------
                   Through:- Video Conferencing
                                      -------
06/27.08.2021      Heard learned counsel for the parties through

        V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing part of the

Office order as contained in Memo No.2616 dated

29.08.2008 issued by the respondent No.4; whereby the

concerned respondent while allowing promotion to the

petitioner on the rank of Graduate Trained Teacher with

retrospective effect from 01.01.1987, has denied him the

salary and monetary benefits of the promoted post. The

petitioner has further prayed for a direction upon the

respondent authority to consider his case for promotion on

the post of Headmaster at least notionally with effect from

retrospective date along with other consequential benefits.

3. The brief facts of the case are that the petitioner

was appointed on 24.03.1973 as Assistant Teacher at

Moondih Middle School, Dhanbad. The petitioner had

earlier preferred a writ application being CWJC No.3400 of

1998(R) and pursuant to the order passed by this Court;

upon considering the representation of the petitioner vide

office order dated 29.08.2008; he was granted promotion in

Grade-IV scale with retrospective effect from 1.1.1987 itself;

but while giving retrospective promotion, the monetary

benefit was denied to the petitioner from the due date and

hence the petitioner again moved before this Court by filing

the instant writ application.

4. Mr. Rahul Kumar, learned counsel for the

petitioner draws attention of this Court towards the office

order wherein it has been clearly stated that the promotion

has been given from 01.01.1987, however in view of Rule

74 of Jharkhand Finance Rule petitioner will not be entitled

for the arrear of salary for the past period. In this regard he

relied upon the judgment passed by the Hon'ble Patna High

Court in the case of Sri Mahavir Pandey Vs. The State of

Bihar & Ors. reported in (2000) 1 PLJR 768 and submits

that the Hon'ble Court after discussing several decisions

has held that "the principle of no work no pay on

retrospective promotion to selection grade in the same cadre

cannot be made applicable, as the person continued to

function against the cadre post, even on such promotion to

selection grade scale. In such case, on such retrospective

promotion, arrear is payable". He further submits that the

facts of the case of Mahavir Pandey (supra) is same and

similar as in the referred case; Rule 74 of Bihar Finance

Rule and Rule 58 of the Bihar Service Code has been

discussed in detail and in the impugned order, same

ground has been taken by the Respondents for denying the

monetary benefits. As such, the decision of the Government

is against the settled law that the petitioner is not entitled

for monetary benefit for retrospective promotion.

On the question of promotion to the post of

Headmaster, he fairly submits that the petitioner may be

given liberty to approach the concerned respondent for

consideration of promotion since in the meantime the

petitioner has acquired requisite qualification and eligibility

to be promoted as Headmaster of the school. He further

draws attention of this Court towards gradation list

(Annexure-4); wherein petitioner has been shown at serial

No.1, as such the respondent may be directed to consider

the case of the petitioner in accordance with the gradation

list.

5. Mr. Sreenu Garapati, learned counsel for the

respondent-State submits that the impugned order is very

clear that as per Rule 74 of Jharkhand Finance Rule, the

petitioner is not entitled for monetary benefit. He further

relied upon Rule 58 of Bihar Service Code and submits that

no error has been committed by the respondent and the

petitioner is not entitled for the monetary benefit. However,

he fairly submits that if the petitioner will file

representation for the promotion to the post for

Headmaster; that will be considered in accordance with

law.

6. Having heard learned counsel for the parties and

after going through the averments made in the respective

affidavits and the documents annexed therein, it appears

that the issue of monetary benefit on retrospective

promotion has been dealt with in LPA No.211 of 2019 in the

case of State of Jharkhand Vs. Dinesh Chandra Mahto

reported in 2020 (3) JCR 593 (Jhr) wherein the Hon'ble

Division Bench of this Court after dealing several

judgments on the issue has held as under:-

"24. Further question is regarding applicability of provisions of Rule 58 of the Jharkhand Service code and Rule 74 of the Jharkhand Financial Rule. So far as rider about applicability of Rule 58 of the Jharkhand service Code is concerned, said issue has already been decided in the case of Dr. Paras Nath Prasad Vs. State of Bihar and others (supra) as such putting the said rider is nothing but an arbitrary exercise for denying the legitimate claim of the writ petitioner-respondent.

25. So far as applicability of Rule 74 of the Jharkhand Financial Rules is concerned as would be evident from the content of the provision of Rule 74 as referred above, it would be evident that the same pertains to the power of the competent authority in financial sanctioning in the case of monetary benefit with retrospective effect. But the question herein is about applicability of Rule 74 of the Jharkhand Financial Rules, which is to be decided in the facts and circumstances of the case and since the Hon'ble Apex Court has come to a conclusive finding by laying down the law about the applicability of the principle of 'no work no pay' and that will not be applicable if fault not lies on the part of the employee, in such circumstances, making the provision of Rule 74 of the Jharkhand Financial Rules applicable is nothing but an arbitrary exercise as because if the wrong has been committed by the State authorities they cannot be allowed to take aid of their own wrong by denying claim."

By going through the aforesaid judgment it is

clear that this Court has held that if wrong has been

committed by the State authority then the State cannot be

allowed to take aid of their own wrong by denying the

monetary claim.

7. Respectfully relying upon the aforesaid judgment

this Court holds that the petitioner is entitled for all

monetary benefit which has been denied to him pursuant

to order dated 29.08.2008 whereby he has been given

retrospective promotion from 01.01.1987. Thus, since the

petitioner is entitled for all monetary benefits of

retrospective promotion; the concerned respondent is