David Kujur vs The State Of Jharkhand
2021 Latest Caselaw 1492 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P.(S) No.6799 of 2018
           David Kujur                                                   ... ... PETITIONER
                                              -V e r s u s -
           1.     The State of Jharkhand, through the Chief Secretary, Project Building,
           Dhurwa, Ranchi
           2.     Principal Secretary, Water Resources Department, Government of
           Jharkhand, Nepal House, Doranda, Ranchi
           3.    Under Secretary, Water Resources Department, Government of
           Jharkhand, Nepal House, Doranda, Ranchi                                   ...
           RESPONDENTS
                                           .......

CORAM: - THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner : Mr. A.K. Sahani, Advocate For the Respondents : Mr. Pankaj Choudhary, AC to SC (L &C) .......

04/ 24.03.2021 The petitioner has approached this Court with multiple prayers, however, Mr. A.K. Sahani, Ld. Counsel for petitioner confines his prayer to the extent that a direction upon the respondents may be given for payment of salary/ difference of salary to the petitioner for the post, which he is holding as on date and discharging his duties on the said post with all consequential benefits and, for a direction upon the respondents to consider the case of the petitioner for regular promotion as and when the case of similarly situated persons are considered by the respondents.

2. The case of the petitioner lies in a narrow compass. The petitioner was initially appointed to the post of Junior Engineer on 20.01.1987 in Irrigation Department. In November, 1995, he was promoted to the post of Assistant Engineer and as such, he joined on 18.01.1996 as Assistant Engineer in Western Kosi Canal in Birpur Anchal, Camp at Jai Nagar. In the year, 2003 the petitioner was made Executive Engineer and on 06.01.2004, the petitioner took over charge to the post of Executive Engineer (current charge) in Irrigation Division, Nawa Nagar, Buxer. He was further promoted to the post of Executive Engineer vide Memo dated 19.06.2013. It is further case of the petitioner that upon bifurcation of the State of Bihar, the services of the petitioner was allocated to Dept. of Urban development, Government of Jharkhand. Accordingly, on 30.07.2008, the petitioner took over the charge to the post of Superintending Engineer (current charge) in Advance Planning Circle, Ranchi-I and since then, he has been discharging duties to the said post. It is specific case of the petitioner that he has been discharging the duty of Superintending Engineer, which is higher post since 30.07.2008 itself, but he has not been paid salary for

the said post. On 10.07.2014, the petitioner took charge of Superintending Engineer in Advance Planning Circle, Ranchi as additional charge. Thereafter, on 24.02.2016, the petitioner took charge of the post of Superintending Engineer (Canal Construction Design Circle, Ranchi) as additional charge in terms of Notification No. 607 dated 24.02.2016. Further, in terms of Notification No.1553 dated 19.05.2017, on 22.05.2017, the petitioner took charge of the post of Superintending Engineer, Irrigation, Mechanical Circle, Ranchi as additional charge. It is further case of the petitioner that vide Notification dated 20.11.2018, the petitioner has been sought to have been repatriated to the Urban Development & Housing Department. Though the petitioner is working on a higher post for more than 10 years, but he has not been paid the benefits of higher post and his case was not considered for regular promotion to the post of Superintending Engineer. Further, though the petitioner has already completed qualifying service for promotion to the post of Chief Engineer, but his case was not considered for promotion and as such, he has been constrained to knock the door of this Court.

3. Mr. A.K. Sahani, learned counsel for the petitioner submits that petitioner is entitled for regular promotion with all consequential benefits as the petitioner has completed the qualifying service for regular promotion. He further submits that since the petitioner is discharging the duties of Superintending Engineer from 30.07.2008, which is a higher post, he is entitled for salary/difference of salary from the date of assuming charge of Superintending Engineer. Mr. Sahani further submits that the respondents themselves have admitted in counter- affidavit, para-14 that the petitioner is discharging the duties of the Superintending Engineer in terms of Notification No.2827 dated 29.07.2008 in his own scale. Thereafter, the petitioner was further given additional charge of Superintending Engineer, Canal Construction, Design Circle, Ranchi, Superintending Engineer, Mechanical Circle, Ranchi vide Notification Nos. 607 dated 24.02.2016 and 1553 dated 19.05.2017 respectively issued by the Water Resources Department, Govt. of Jharkhand. Learned counsel places heavy reliance on the judgment of this Court in case of Baneshwar Rabidas Vs. the State of Jharkhand passed in W.P. (S) No.5196 of 2018 and submits that in similar case, considering the celebrated Judgment of Hon'ble Apex Court in case of Arindam Chattopadhyay Vs. State of W.B., (2012) 4 SCC 152, this court directed the respondents to consider the case of that petitioner for payment

of difference of salary for the post which he was holding and working.

4. On the other hand, counter-affidavit has been filed. Mr. Pankaj Choudhary, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner is not entitled for regular promotion in view of the fact that the State has come out with a Resolution for not granting promotion to its employees till finalization of the case, which is pending before the Hon'ble Supreme Court. He further submits that the petitioner is not entitled for any enhanced salary or difference of salary as he was holding the additional charge, working in the same pay-scale and as because no regular promotion to the post of Superintending Engineer was granted to him , the petitioner is not entitled for salary attached with the post of Superintending Engineer. He further submits that regarding regular promotion to the Petitioner admittedly, the same shall be considered as and when the case of similarly situated persons are considered.

5. Be that as it may, having gone through the fair submissions of the parties, this Court is of the considered view that admittedly, the petitioner is entitled for consideration of his case for promotion, though getting promotion is not a right of an employee, but always there is a right of consideration. Since matter of regular promotion to its employees has been kept in abeyance in view of Government Resolution, I hereby direct the respondents to consider the same as and when the case of the other similarly situated persons are considered. However, so far as prayer regarding grant of benefits of difference of salary/pay- scale to the petitioner is concerned, I find force in the submissions of the learned counsel for the petitioner. Admittedly, the petitioner is discharging his duties as Superintending Engineer from 30.07.2008 and the same has not been disputed by the State and till date the petitioner is working as a Superintending Engineer on the same pay-scale of Executive Engineer. The issue fell for consideration before the Hon'ble Apex Court in the case of Arindam Chattopadhyay v. State of W.B., (2013) 4 SCC 152 : (2013) 2 SCC (L&S) 178 : 2013 SCC OnLine SC 227 at page 160, wherein the Hon'ble Apex Court in similar facts, at para-13 held as under:

"13. Reverting to the facts of this case, we find that although the appellants were recruited as CDPOs, 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 promotion"

6. In the case of Secretary-cum-Chief Engineer Vs. Hari Om Sharma reported in (1998) 5 SCC 87, the Hon'ble Apex Court considering continuous discharge of duties on higher post, directed to pay salary for the post on which incumbent had performed his duties. This Court, in the case of Dr. Sukumar Das Gupta Vs. State of Jharkhand and others reported in 2009(4) JCR 565 has reiterated the same view. Further, this Court in the case of Baneshwar Rabidas vs. State of Jharkhand passed in W.P.(S) No.5196 of 2018, reiterated the same view taking into consideration the Judgment of the Hon'ble Supreme Court.

7. As a sequel of aforesaid Rules, Guidelines and judicial pronouncements, I hereby direct the respondent no. 2 - Principal Secretary, Water Resources Department, Government of Jharkhand, to consider case of the petitioner as there is no dispute that petitioner has discharged his duties to the post of Superintending Engineer and as such he is entitled for the salary and other benefits attached with the post. Under the aforesaid circumstances, Respondents are directed to assess the difference of salary and also to other benefits for which the petitioner is entitled, in accordance with law. The entire calculation shall be made within a period of eight weeks from the date of receipt/

production of a copy of this order.

7. With the aforesaid observations and directions, this writ petition stands disposed of.

(Dr. S.N. Pathak, J. ) punit/-