Jharkhand High Court
The State Of Jharkhand Through The ... vs Parmeshwar Munda Son Of Sri Nandu ... on 31 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.124 of 2021
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1. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Dhurwa, Ranchi.
2. The Principal Secretary, Department of Personnel Administrative
Reforms and Rajbhasha Department, Government of Jharkhand,
Dhurwa, Ranchi.
3. The Principal Secretary, Revenue Registration and Land Reforms
Department, Government of Jharkhand, Dhurwa, Ranchi.
4. The Joint Secretary, Department of Personnel, Administrative
Reforms and Rajbhasha Department, Government of Jharkhand,
Dhurwa, Ranchi.
5. The Deputy Secretary, Department of Personnel Administrative
Reforms and Rajbhasha Department, Government of Jharkhand,
Dhurwa, Ranchi.
... Appellants
-versus-
Parmeshwar Munda son of Sri Nandu Munda, at present Executive
Magistrate, Deoghar Collectorate, Deoghar.
... Respondent
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CORAM : SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Appellants : Mr. Indranil Bhaduri, SC IV
Mr. Suman Marandi, AC to SC IV
For the Respondents : Mrs. Ritu Kumar, Advocate
Mr. Sumit Prakash, Advocate
Mr. Samavesh Bhanj Deo, Advocate
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06/ 31.03.2023 Upon hearing the learned counsel for the parties, this Court
passed the following, (Per Sanjaya Kumar Mishra, C.J.)
ORDER
1. By filing this Letters Patent Appeal, the appellants-respondents,
the State of Jharkhand through the Chief Secretary and others, have assailed
the correctness of the order dated 19.10.2020 passed by learned Single Judge
in W.P.(S) No.458 of 2020, whereby the petitioner-respondent's writ petition
was allowed and a direction was given to give promotion to the petitioner-
respondent from the date his juniors were promoted with all consequential
benefits.
2. It is not disputed at this stage that the petitioner-respondent's
case for promotion was not considered because the ACRs were not sent
before the Departmental Promotion Committee. That is the fault of the
department, petitioner was not at fault, thus, the order passed by learned
Single Judge has correctly been passed.
3. Learned counsel for the State-appellants submits that the
petitioner-respondent is not entitled to consequential benefits like salary for the
period from the date of notional promotion and is entitled from the actual date
of appointment, in view of Rule 58(a) of Jharkhand Service Code, 2001, which
reads as follows: -
58(a) Subject to any exceptions specifically made in
these rules and to the provisions of clause (b) of this
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.
4. He relies upon the judgment of the Supreme Court in the case of
Union of India and Another versus Tarsem Lal and Others reported in
(2006) 10 SCC 145, wherein the Supreme Court took into consideration para
228 of the Indian Railway Establishment Manual, which reads as under: -
"228. Erroneous promotions.-(1) Sometimes due to
administrative errors, staff are overlooked for
promotion to higher grades which could either be on
account of or wrong assignment of relative seniority
of the eligible candidate at the time of ordering
promotion or some other reasons. Broadly, loss of
seniority due to the administrative errors can be of
two types:
(i) where a person has not been promoted at
all because of administrative error, and
(ii) where a person has been promoted but not
on the date from which he would have been
promoted but for the administrative error.
Each such case should be dealt with on its
merits. The staff who have lost promotion on account
of administrative error should on promotion be
assigned correct seniority vis-à-vis their juniors
already promoted, irrespective of the date of
promotion. Pay in the higher grade on promotion may
be fixed pro forma at the proper time. The enhanced
pay may be allowed from the date of actual
promotion. No arrears on this account shall be
payable as he did not actually shoulder the duties
and responsibilities of the higher posts."
5. Thus, on the basis of such Rule, the Supreme Court has held that
as there is specific Rule that persons given promotion from an earlier date
than his actual assuming of charge is not entitled to financial benefit. Further
there is no Rule in the Jharkhand Service Code and the aforesaid judgment
cannot be relied to set aside that portion of the impugned order passed by
learned Single Judge, whereby consequential benefits have been granted to
the respondent-petitioner. Moreover, a person is not granted the back wages
or salary when he is not inclined to discharge the duty. It is not the case of the
State-appellants that the respondent-petitioner was not willing to work for the
period. It is for the laches on the part of the authorities, his case for promotion
was not granted and only on intervention of the Court, his promotion has been
given from the date from which his juniors were promoted.
6. In that view of the matter, we find no merit in this Letters Patent
Appeal. This Letters Patent Appeal is, accordingly, dismissed. There shall be
no order as to costs. Urgent certified copy of this order shall be issued as per
the Rules.
(Sanjaya Kumar Mishra, C.J.)
(Ananda Sen, J.)
Kumar/Cp-02
