Jharkhand High Court

Satyendra Tiwary vs The State Of Jharkhand on 7 January, 2021

                                            1               W.P.(S) No. 305 of 2020




            IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 305 of 2020

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Satyendra Tiwary, aged about 63 years, son of Damodar Tiwary, resident of Village Redma, Ranchi Road (Near Cambridge School), P.O.-Daltonganj, P.S.-Daltonganj, District - Palamau (Jharkhand) ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, having its Office at Project Building, PO-Dhurwa, PS-Dhurwa, District-Ranchi

3.The Principal Secretary, Finance Department, Government of Jharkhand, having its office at Project Building, PO-Dhurwa, PS-Dhurwa, District-Ranchi

4.The Accountant General (A&E), Jharkhand, Ranchi, PO-Doranda, PS-Doranda, District-Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Dhananjay Kumar Dubey, Advocate For Resp.-State :- Mr. Ravi Kerketta, AC to AAG-IV For Resp.No.4 :- Dr. Ashok Kumar Singh, Advocate

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8/07.01.2021 Heard Mr. Dhananjay Kumar Dubey, the learned counsel for

the petitioner, Mr. Ravi Kerketta, the learned counsel for the respondent

State and Dr. Ashok Kumar Singh, the learned counsel appearing on

behalf of the respondent No.4.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for direction

upon the respondents to pay the difference of salary as Additional

Secretary w.e.f. 03.12.2013 to 31.01.2017 and further to pay the

difference of salary as Special Secretary w.e.f. 25.11.2016 till 31.01.2017.

4. Pursuant to the advertisement in the year 1980 published

by Bihar Public Service Commission for appointment in Class-II State

service, the petitioner applied for appointment on such post and

appeared in the written examination and interview. The petitioner was

declared successful. Thereafter, the petitioner was appointed to the post

of Deputy Collector- Class-II State service. The petitioner joined in the

department pursuant to the recommendation of Bihar Public Service

Commission on 23.11.1981. The petitioner was kept on probation period

and after confirmation of the service of the petitioner, the petitioner was

posted in several capacities in the State Government. After bifurcation of

the State of Bihar, the cadre of the petitioner was allocated to the State

of Jharkhand. The petitioner was granted ACP in terms of resolution

dated 14.08.2004. While the petitioner was working as Executive

Magistrate, Gumla, a DPC was held in the month of July, 2007. In the

said meeting the case of the petitioner along with other junior persons

was considered. The recommendation was made by the DPC whereby

the petitioner was granted promotion to the rank of Sub-Divisional

Officer. The case of the petitioner was again considered for second ACP

and the petitioner was found to be eligible for the said ACP which was

granted to the petitioner vide notification dated 01.04.2008. In the year

2009, the Departmental Promotion Committee was held again and the

case of the petitioner was again considered. The decision of the

Promotion Committee was published whereas the petitioner was

promoted to the rank of Additional Collector in the pay scale of

Rs.15,200-39,100/-, Grade pay of Rs.7600/- by notification dated

31.08.2009. Another notification dated 19.09.2009 was issued whereby

the petitioner was posted as Additional Collector, Pakur. While the

petitioner was functioning as Deputy Secretary, Animal Husbandry and

Fishery Department, Government of Jharkhand, the case of the petitioner

was considered by the Departmental Promotion Committee for promotion

to the rank of Joint Secretary. The petitioner was granted promotion to

the rank of Joint Secretary by notification dated 12.09.2013. The

petitioner was posted as Project Director, Integral Tribal Development

Authority, Latehar. One vigilance case being Vigilance Case No.9 of 1988

was pending against the petitioner in the court of learned Vigilance

Judge, Dhanbad and the said vigilance case came to an end whereby the

petitioner has been acquitted in the said case. The said order was taken

in the appeal before the High Court as Acquittal Appeal No.29 of 2015

which was heard by the Division Bench and the acquittal appeal was

dismissed by the judgment dated 03.04.2018. Pursuant thereto vide a

notification dated 06.03.2019 the petitioner was granted promotion in

the rank of Additional Secretary w.e.f. 03.12.2013 and further the

petitioner was granted promotion to the rank of Special Secretary w.e.f.

25.11.2016 from the date his juniors were granted promotion. The said

promotion was granted notionally. The petitioner in the meantime has

already retired on 31.01.2017. The petitioner filed application on

01.04.2019 before the Accountant General (A&E) for revision of his

pension and to pay the difference of salary on account of promotion

granted to him. The petitioner further filed application for issuance of pay

slip. A letter has been issued by the office of the Accountant General,

Jharkhand, Ranchi on 16.07.2019 to the office of Personnel,

Administrative Reforms and Rajbhasha Department and a letter being

letter no.3162/A dated 06.12.2019 issued by the Finance Department

whereby it is stated that the petitioner is not entitled for the arrears.

This was the occasion, the petitioner was compelled to move before this

Court.

5. Mr. Dhananjay Kumar Dubey, the learned counsel for the

petitioner assailed the impugned order on the ground that the petitioner

has already been granted promotion vide order dated 06.03.2019. The

promotion to the post of Additional Secretary has been provided w.e.f.

03.12.2013 and the post of Special Secretary w.e.f 25.11.2016. He

submits that there is no impediment when the promotion is already

granted to the petitioner. He further draws the attention of the Court to

Annexure-8 of the writ petition and submits that the Government has

recommended to the Accountant General for payment of arrears. The

said letter also carried the statement regarding arrears. He submits that

the impugned letter dated 13.12.2019 was sent back by the learned

Accountant General to the Government considering letter no.3162/A

dated 06.12.2019 with regard to one another employee namely Sri

Sriram Tiwari. He submits that this letter has been erroneously

considered in the case of the petitioner by the Accountant General office.

He further submits that a counter affidavit has been filed in this case by

the State of Jharkhand wherein it has been averred that in view of Rule

58 of Jharkhand Service Code and Rule 74 of the Financial Rules of the

Government of Jharkhand the petitioner is not entitled for arrears of

salary which is erroneous. He submits that identical matters have been

considered by this Court wherein Rule 58 of Jharkhand Service Code and

Rule 74 of the Financial Rules of the Government of Jharkhand have

been considered. He refers to the judgment rendered by this Court in

'Suryadeo Prasad vs. The State of Jharkhand& Ors.' reported in 2010 3

JCR 238 (Jhar) and submits that considering Rule 58 of Jharkhand

Service Code and Rule 74 of the Financial Rules of the Government of

Jharkhand the order has been passed and the benefit was provided to

the petitioner of that case. He refers to the paragraph nos.7 and 8 of the

said judgment:

7. For ready reference the provision of Rule 58(a) which is relevant is reproduced below, alongwith Rule 58(b) which is not relevant for the present case:-

"58(a) Subject to any exceptions specifically made in these rules and to the provisions of clause(b) of his rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with, effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.

(b) Unless in any individual case State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows:-

(i) in the case of a person who receives a first class passage to India, from the date of his arrival in India, [subject to his proceeding to take up his duties without avoidable delay].

(ii) in the case of a person who receives a second class passage to India from the date of his embarkation for India.

Rule 74 of the, Bihar Financial Rules, which although not cited in the impugned order or in the counter-affidavit has been pointed out by the petitioner's side. That Rule is reproduced below for ready reference:-

"74. AII authorities which are competent to sanction revision of pay or the grant of concessions to Government servants should bear in mind that retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government."

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 effect 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.

14. The writ petition is therefore, allowed. The respondents are directed to grant the retrospective promotion and to compute all financial benefits pre and post retirement within four months from the date on which certified copy of this order is presented before the respondent no. 2.The payment will be made within the next six weeks alongwith interest @ 8% p.a. on the amount of all arrears which are found to be due to the petitioner for the period after 22.4.2006, from the date on which the amounts became due till the date of actual payment."

6. He submits that hon'ble Single Judge of this Court passed

the order considering the Division Bench of Patna High Court in the case

of 'Dr.Paras Nath Prasad Versus State Of Bihar' reported in 1990 2 PLJR

248. He submits that the petitioner is fully entitled for the arrears and the

impugned action of the Accountant General is not on the foundational

facts.

7. Dr. Ashok Kumar Singh, the learned counsel for the

respondent No.4 fairly submits that it appears that letter No.3162/A

dated 06.12.2019 inadvertently taken into consideration by the office of

the Accountant General in the case of the petitioner. He submits that he

will take fresh instruction with regard to this letter and he may kindly be

allowed sometime. The submission of Dr. Ashok Kumar Singh, the

learned counsel is being appreciated by this Court.

8. Mr. Ravi Kerketta, the learned counsel appearing on behalf

of the respondent State of Jharkhand submits that the DPC was held in

the year 2019. The petitioner was provided notional promotion. He

submits that the petitioner was already retired in the year 2017

thereafter the promotion was provided. He submits that in view of Rule

58 of Jharkhand Service Code and Rule 74 of the Financial Rules of the

Government of Jharkhand the petitioner is not entitled for arrears of

salary or revision.

9. In the light of the above facts and submission of the

learned counsel for the parties, the Court has gone through the materials

on record and finds that the letter dated 13.12.2019 whereby the case of

the petitioner has been returned back by the Accountant General office is

based on a letter No.3162/A dated 06.12.2019 which is a letter with

regard to another employee namely, Sri Sriram Tiwari. The said letter is

brought on the record as Annexure-12 in the writ petition. Thus, it

appears that in the case of the petitioner that letter has been wrongly

applied by the office of the Accountant General. The case of the

petitioner has already been recommended vide Annexure-8 for payment

of arrears. The said letter also carried statement of arrears. So far as

Rule 58(a) is concerned, it is clear that this has application to the cases

where the employee failed to assume the charge because of his own act

or omission, then he shall not be entitled to the pay and allowances

attached to the post. It has no application to the cases where the

employee was not even promoted because of no fault of the employee.

The petitioner has already been promoted and in the case in hand there

is no act or omission of the petitioner for not to be promoted to the

higher post. Reference in this regard may be taken to the case of

'Alappat Narana Menon V/s. State of Kerala' reported in 1997 (ii) SLR

656, wherein the Hon'ble Supreme Court has observed as follows:

"The foregoing discussion with reference to pronouncement of the Supreme Court and Gujrat, Allahabad and Mysore High Courts clearly establish that a Government servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his. The Governments plea the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as notional in the context of the peculiar facts and circumstances of this case. The concept of notional

promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as a right. Here, the petitioner is entitled as of right to get the promotion from 01.04.1955 and, therefore, his claim for arrears cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioners claim. I, therefore, hold that the petitioner is entitled to succeed."

10. Moreover, Rule 58 of Jharkhand Service Code and Rule 74

of the Financial Rules of the Government of Jharkhand have been

considered by the Division Bench of Patna High Court in the case of

'Dr. Paras Nath' (supra) and the co-ordinate Bench of this Court in the

case of 'Suryadeo Prasad' (supra). The petitioner has already been

acquitted in criminal case and thereafter promotion order was passed.

11. As a cumulative effect of the above discussions, the writ

petition succeeds.

12. The Court issue a writ in the nature of mandamus to the

respondents to fix and pay to the petitioner the salary and allowances,

his pension, gratuity, etc. payable to the petitioner on the basis of such

determination as prayed in the writ petition.