The State Of Jharkhand vs Anup Kumar Mishra
2021 Latest Caselaw 803 Jhar

                              1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No.36 of 2019
                        With
                 I.A.No.618 of 2019
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1. The State of Jharkhand, through Deputy Commissioner-cum- Chairman District Education Establishment Committee, Khunti, P.O. & P.S. Khunti, District: Khunti

2. The Regional Deputy Director of Education, South Chhotanagpur Region at Ranchi, P.O., P.S. & District: Ranchi

3. The District Superintendent of Education, Khunti, P.O. & P.S.:

   Khunti, District: Ranchi                   ....   .... Appellants
                              Versus

1. Anup Kumar Mishra, Son of Shri Rampado Mishra, Resident of Village: Ithe, P.O.: Ithe, P.S. Khunti, District: Khunti, presently working posted as Assistant Teacher, Govt. Middle School, Ghaghra, P.O. P.S. & District: Khunti

2. Swarup Kumar Mishra, Son of Shri Rampado Mishra, Resident of Village: Ithe, P.O. Ithe, P.S: Khunti, District: Khunti, presently working & posted as Assistant Teacher, Govt. Middle School, Haruhappu, P.O. Jaltanda, P.S. Karra, District: Khunti .... .... Respondents With L.P.A. No.197 of 2019 With I.A.No.2290 of 2019

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1. The State of Jharkhand, through Deputy Commissioner-cum- Chairman District Education Establishment Committee, Khunti Having Office At P.O. & P.S. Khunti, District: Khunti

2. The Regional Deputy Director of Education, South Chhotanagpur Region at Ranchi, P.O., P.S. & District: Ranchi

3. The District Superintendent of Education, Khunti, Having its Office At P.O. & P.S.: Khunti, District: Ranchi .... .... Appellants Versus

Shiv Kumar Mishra, Son of Shri Rampado Mishra, Resident of Village: Ithe, P.O.: Ithe, P.S. Murhu, District: Khunti, presently working posted as Assistant Teacher, Govt. Middle School, Siladon, P.O. Siladon P.S. & District: Khunti .... .... Respondent

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CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. PAS Pati, SC-IV (In LPA No.36/2019) : Mr. Manish Mishra, GP-V (In LPA No.197 of 2019) For the Respondents : Mr. Amit Kr. Tiwari, Advocate (In both the cases)

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ORAL JUDGMENT 11/Dated: 19.02.2021

The matter has been heard through video conferencing with the

consent of learned counsel for the parties. There is no complaint about

any audio and visual quality.

I.A.No.618 of 2019 in L.P.A.No.36 of 2019 & I.A. No.2290 in

L.P.A.No.197 of 2019

These Interlocutory Applications have been filed for condoning the

delay of 147 and 189 days respectively, which have occurred in preferring

these appeals.

Notices were issued to the respondents on the point of limitation in

both the appeals and pursuant to that, the respondents have appeared

through their counsel and have filed their respective counter affidavits

wherein at paragraph no.6, they have pointed out that when the direction

issued by the learned Single Judge in the impugned order was not

complied with, the answering respondents filed Contempt Case (C) No.

721 of 2018 and only after receiving the notice in the contempt petition,

the appellants have preferred the present appeals just to save themselves

from the contempt proceedings.

It also appears from the certified copy of the impugned orders in both

the respective appeals that the requisition for supply of the certified copy

was made on 26.10.2018 so far L.P.A. No. 36 of 2019 is concerned,

whereas in L.P.A. No. 197 of 2019 it was made on 28.01.2019.

It has been contended on behalf of the answering respondents in

both the appeals that this shows that no decision for preferring the

appeals could be taken at that point of time.

Be that as it may, it is clear from the counter affidavit that a contempt

case was filed in connection with the impugned order and when the

notices were issued in the contempt case then only the appeals have

been filed because there is no denial to the aforesaid statements made in

the counter affidavit.

Thus, in the facts and circumstances of the case, we are of the

considered view that these appeals require to be heard on merit.

However, we are condoning the delay of 147 days and 189 days

respectively in preferring both the appeals, subject to payment of cost of

Rs.5000/- each in both the appeals which would be paid in favour of the

respondents through their counsel within a period of two weeks.

I.A. No. 618/2019 and I.A. No. 2290/2019 stand allowed.

L.P.A. No.36 of 2019 and L.P.A.No.197 of 2019

We have proceeded for hearing of the appeals on merit with the

consent of the parties.

2. In both these appeals, common order is under question under

Clause-10 of Letters Patent Appeal directed against the order/judgment

dated 24.07.2018 passed by the learned Single Judge of this Court in

W.P.(S) No.5917 of 2017 with W.P.(S) No.5920 of 2017, whereby and

whereunder, relief sought for by the writ petitioners in W.P.(S) No.5917 of

2017 pertaining to payment of consequential monetary benefits of

salary/arrears to them upon grant of promotion in Grade-IV w.e.f.

12.09.2002 and monetary benefits were given after joining to the said post

with a further direction upon the respondents to grant promotion in Grade-

VII(Headmaster) w.e.f. 2007-2008, as per the provisions stipulated in the

Elementary School Teachers Promotion Rules, 1993 (hereinafter referred

as the Rules, 1993), whereas, the prayer made by the writ petitioner in

W.P.(S) No.5920 of 2017 for a direction upon the respondents to pay

consequential benefits of salary/arrears to the writ petitioner upon grant of

promotion in Grade-IV w.e.f. 01.08.2014, as the promotion has been given

to the petitioner w.e.f. 01.08.2014 but it has been stipulated that the said

pay scale of the promotional post shall be given upon the joining to the

said post with a further prayer for quashing the office order dated

08.04.2017, whereby, the promotion in Grade-IV which has been granted

to the writ petitioner vide memo no.1428 dated 02.11.2016 with

retrospective effect i.e. w.e.f. 12.09.2002 has been rectified by the

decision of the Establishment Committee, Khunti was directed to be

granted in favour of the writ petitioner by allowing the writ petition.

3. The brief facts of the cases are required to be referred herein which

reads as hereunder:-

The writ petitioners were appointed as Assistant Teacher in the

Elementary Schools of the State of Jharkhand. The petitioners in W.P.(S)

No.5917 of 2017 were granted promotion to Grade-IV w.e.f. 12.09.2002

and similarly, petitioner in W.P.(S) No.5920 of 2017 was granted promotion

to Grade-IV w.e.f. 01.08.2014.

It is the case of the writ petitioners that despite their requests, the

writ petitioners along with others were not granted promotion in Grade-I

Scale w.e.f. the date of their respective appointment, while similarly

situated persons were moved before this Court for grant of Grade-I Scale

from the date of their appointment and this Court in the case of Arun

Sinha Vs. The State of Jharkhand & Ors. [W.P.(S) No.638 of 2006]

passed an order on 04.04.2008, against the said order, the State had filed

L.P.A.No.214 of 2008 which was dismissed by the Division Bench of this

Court and subsequently, the State had preferred SLP (Civil) Nos.5520-

5522 of 2013 before the Hon'ble Apex Court and in terms thereof, the

benefits have been granted in favour of the writ petitioners of W.P.(S)

No.638 of 2006 but the similar relief has not been granted to the writ

petitioners of the instant case.

It is the further case of the writ petitioners that the respondents,

however, had granted Grade-IV promotion w.e.f. 12.09.2002 so far as it

relates to the writ petitioners of W.P.(S) No.5917 of 2017 and w.e.f.

01.08.2014 so far as it relates to the writ petitioner of W.P.(S) No.5920 of

2017 but the monetary benefits of the said promotion have not been

granted and it is indicated in the said order that the monetary benefits

shall be given from the date of joining to the said promotional post and

joining in the school.

It is the specific case of the writ petitioners that due to the laches on

the part of the respondents, promotions were granted in the year 2016

though it was fallen due w.e.f. 12.09.2002 [W.P.(S) No.5917 of 2017] and

w.e.f. 01.08.2014 [W.P.(S) No.5920 of 2017].

The writ petitioners have made series of representations but

however to that no effect, therefore, they have invoked the jurisdiction

conferred to this Court under Article 226 of the Constitution of India

seeking therein the relief for release of monetary benefit from the date of

promotion on the ground that juniors to the petitioners have already

granted such benefits but the same has been denied.

The respondent State of Jharkhand has contested the case by filing

detailed counter affidavit inter-alia therein it has been stated that the writ

petitioners have been granted promotion w.e.f 12.09.2002 but they are not

entitled to be given any actual monetary benefits in lieu of the promotion

granted with retrospective effect.

The learned Single Judge after taking into consideration the rival

submissions advanced on behalf of the parties and taking into

consideration the various pronouncements of the Court, has allowed the

writ petition by quashing the order dated 08.04.2017 issued by the Deputy

Development Commissioner, Khunti so far as it relates to the petitioners

and further by holding the writ petitioners entitled for the benefits as

prayed for by them in the writ petition to be granted within the period of six

weeks from the date of receipt/production of a copy of this order with a

further direction upon the respondents to consider the cases of the

petitioners of W.P.(S) No.5917 of 2017 for their promotion to Grade-

VII(Headmaster) with effect from the date it fallen due to them, as per the

provisions stipulated in the Elementary School Teachers Promotion Rules,

1993 as the petitioners are having the requisite qualifications for the same

and after promoting them to the said post, to pay all the consequential

benefits to the petitioners, which is the subject matter of the present intra-

court appeals.

4. Mr. P.A.S. Pati, learned SC-IV appearing for the appellant-State of

Jharkhand in L.P.A.No.36 of 2019 while Mr. Manish Mishra, learned GP-V

appearing for the appellant-State of Jharkhand in L.P.A.No.197 of 2019

have vehemently submitted that the order passed by the learned Single

Judge is not proper on the ground that the writ petitioners are not entitled

to be given actual monetary benefit on account of retrospective promotion

and therefore, the respondent State of Jharkhand after taking into

consideration the fact that in case of retrospective promotion, there cannot

be any actual monetary benefit, has passed the impugned decision by

denying the claim which suffers from no infirmity and the learned Single

Judge without taking into consideration these aspects of the matter has

allowed the writ petitions which suffers from infirmity, hence, the same

may be quashed and set aside.

5. Per Contra, Mr. Amit Kr. Tiwari, learned counsel appearing for the

respondents-writ petitioners has submitted that it is the case of

discrimination since the writ petitioners have brought to the notice before

the learned Single Judge by filing the supplementary affidavit referring

therein the name of similarly situated junior employees who have been

granted monetary benefit with retrospective effect but the said claim has

been denied.

Further, submission has been made that the said supplementary

affidavit has not been rebutted by the respondent State of Jharkhand

before the Writ Court and therefore, as per the position of Law that there

cannot be any discrimination in the matter of promotion and once the

junior to the writ petitioners have been granted promotion with

retrospective effect as also the actual monetary benefit from the date of

promotion, the writ petitioners are also entitled to get the said benefits.

He, therefore, submits that the learned Single Judge after taking

into consideration the factual aspect about the laches committed on the

part of the State respondent as also going across the various judicial

pronouncements of the Court, has passed an order which cannot be said

to suffer from infirmity and therefore, the same may not be interfered with.

6. Learned counsel appearing for the State-appellants has submitted

by referring to Memo No.756 dated 20.06.2012, whereby and whereunder,

three co-junior employees, namely, Sri Mahabir Sah, Sri Panchanan

Mahto and Sri Satyaketu Nath Monishi have been granted promotion

w.e.f. 07.06.1996, 25.10.2007 and 11.12.2007 respectively with the

monetary benefit on the basis of pay scale of the promoted posts from the

date of joining in the transferred school but the fixation of pay will be from

the date of promotion and in that view of the matter, even accepting the

plea of the writ petitioners, they cannot be held entitled for the actual

monetary benefit from the date of promotion.

7. This Court, after having heard the learned counsel for the parties,

on perusal of the material available on record as also the finding recorded

by the learned Single Judge and on taking into consideration the rival

submissions made on behalf of the learned counsel for the parties, deem

it fit and proper first to look into the issue of discrimination as has been

agitated by the learned counsel appearing for the writ petitioners by

putting reliance upon the order dated 20.06.2012 as contained in Memo

No.756.

It is evident from the aforesaid order as has been annexed as

annexure-14 to the supplementary affidavit dated 08.06.2018 filed before

the Writ Court that three employees, namely, Sri Mahabir Sah, Sri

Panchanan Mahto and Sri Satyaketu Nath Monishi have been granted

promotion w.e.f. 07.06.1996, 25.10.2007 and 11.12.2007 respectively with

a clear cut stipulation made therein that the monetary benefit of the pay

scale of the promoted post will be payable from the date of giving joining

in the transferred school but the pay fixation on the basis of promotion

would be from the date of promotion.

8. It has not been disputed by the learned counsel appearing for the

State appellant that these three persons, namely, Sri Mahabir Sah, Sri

Panchanan Mahto and Sri Satyaketu Nath Monishi are not junior to the

writ petitioners and taking into consideration the settled position of Law

that while considering the case of promotion of one or the other

employees, the issue of seniority is required to be considered by the

appointing authority. In case of non-consideration of seniority, if any junior

co-employee is being granted promotion, the senior employee is having a

right to claim such promotion from the date from which the juniors have

been granted promotion.

9. The fact in hand is of discrimination and we after considering the

position of Law that there cannot be any unreasonable classification

permitted under Article 14 of the Constitution of India which envisages

about reasonable classification as has been held by the Hon'ble Apex

Court in the judgment rendered in the case of State of Jammu &

Kashmir vs. Triloki Nath Khosa and Ors., (1974) 1 SCC 19 wherein the

Court [Chandrachud, J. (as he then was)] in para 20 succinctly held as

under:

"The challenge, at best, reflects the respondent's opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld."

It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Court (in paras 29 & 30) held thus :

"But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee.

Equality is for equals. That is to say that those who are

similarly circumstanced are entitled to an equal treatment. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class."

Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [(1981) 4 SCC 335], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court (in paragraph39) summarized thus :

"39. Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge :-

(1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can-not be attracted.

(2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way.

(3) Article 14 certainly applies where equals are treated differently without any reasonable basis.

(4) Where equals and unequals are treated differently, Article 14 would have no application.

(5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.

(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:-

(a) the nature, the mode and the manner of

recruitment of a particular category from the very start,

(b) the classifications of the particular category.

(c) the terms and conditions of service of the members of the category,

(d) the nature and character of the posts and promotional avenues,

(e) the special attributes that the particular category possess which are not to be found in other classes, and the like."

Further, in D.S. Nakara & Ors. Vrs. Union of India, 1983 AIR 130,

their Lordships of the Hon'ble Apex Court has been pleased to hold that

Article 14 forbids class legislation but permits reasonable classification for

the purpose of legislation but the classification must satisfy the twin tests

of classification being found on an intelligible differentia which

distinguishes persons or things that are grouped together from those that

are left out of the group and that differentia must have a rational nexus to

the object sought to be achieved by the statute in question. The thrust of

Article is that the citizen is entitled to equality before law and equal

protection of the law.

In the case of Ramana Dayaram Shetty Vrs. International Airport

Authority of India & Ors., AIR 1979 SC 1628, wherein the Hon'ble Apex

Court has been pleased to observe that a discriminatory action of the

Government is liable to be struck down, unless it can be shown by the

Government that the departure was not arbitrary, but was based on some

valid principle which in itself was not irrational, unreasonable or

discriminatory.

10. This Court has examined the issue on the basis of the aforesaid

settled position and found therefrom that the contention of the writ

petitioners regarding the discriminatory attitude of the respondent State of

Jharkhand by granting promotion to three employees, namely, Sri Mahabir

Sah, Sri Panchanan Mahto and Sri Satyaketu Nath Monishi have been

granted promotion w.e.f. 07.06.1996, 25.10.2007 and 11.12.2007

respectively but such benefit has not been granted to the writ petitioners.

However, the writ petitioners have approached to this Court claiming

therein the actual monetary benefit from the date of promotion i.e., w.e.f.

12.09.2002 but such benefit cannot be directed to be granted in favour of

the writ petitioners as because they have been granted promotion w.e.f.

12.09.2002 so far as the writ petitioners of W.P.(S) No.5917 of 2017 is

concerned and so far as the writ petitioner of W.P.(S) No.5920 of 2017,

who has been granted promotion w.e.f. 01.08.2014 by making reference

of the name of any employee that the other promoted employees, have

also been granted the monetary benefit from the date of promotion and

therefore, the claim which has been raised by the writ petitioners holding

them entitled for the actual monetary benefit from the date of promotion

i.e. w.e.f. 12.09.2002 and 01.08.2014 ought not to have been allowed by

the learned Single Judge on the principle that promotion is not a right but

consideration for promotion is only there and therefore, the writ petitioners

admittedly, have been granted promotion w.e.f. 12.09.2002 and

01.08.2014, they cannot be held entitled for actual monetary benefit with

effect from the date of promotion, however, since the respondent State of

Jharkhand has granted promotion in favour of three employees, namely,

Sri Mahabir Sah, Sri Panchanan Mahto and Sri Satyaketu Nath Monishi

have been granted promotion w.e.f. 07.06.1996, 25.10.2007 and

11.12.2007 respectively with a condition that pay scale of the promoted

post will be granted from the date of joining in the transferred school but

the benefit of pay fixation admissible with effect from the date of promotion

is also required to be extended in favour of the writ petitioners on the

principle of parity.

Accordingly, in our considered view, the order passed by the learned

Single Judge requires modification so far as this issue is concerned.

11. In view thereof, the order passed by the learned Single Judge is

modified to the extent that instead of holding the writ petitioners entitled

for actual monetary benefit with effect from the date of promotion, the writ

petitioners are being held entitled for the monetary benefit at least from

the date when the said benefit has been extended in favour of the

employees, namely, Sri Mahabir Sah, Sri Panchanan Mahto and Sri

Satyaketu Nath Monishi i.e. w.e.f. 20.06.2012.

12. So far as the other direction passed by the learned Single Judge for

consideration of the case of the writ petitioners in W.P.(S) No.5917 of 2017

for promotion to the post of Grade-VII(Headmaster) is concerned, the said

part of the order passed by the learned Single Judge is also required to be

modified, in view of the fact that nothing has been brought on record by

the learned counsel appearing for the respondents writ petitioners before

the learned Single Judge as to whether any junior to them has been

granted promotion to Grade-VII(Headmaster).

13. In view thereof and considering the aforesaid proposition of Law, the

instant appeals stand disposed of with the modification/direction as

indicated hereinabove.

14. In consequent to disposal of these appeals, I.A.No.617 of 2019 and

I.A.No.2291 of 2019 also stand disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-.A.F.R.