Alok Kumar vs The State Of Jharkhand;
2024 Latest Caselaw 8693 Jhar

Jharkhand High Court

Alok Kumar vs The State Of Jharkhand; on 2 September, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P. (S) No. 4607 of 2023
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1. Alok Kumar, aged about 57 years, son of Late Ramchandra Prasad, House of Shashibhusan Nayak, Bhaskar Colony, Devi Mandap Road, Ratu Road, P.O. and P.S. Sukhdev Nagar, District Ranchi;

2. Ghanshyam Prasad Sah, aged about 59 years, son of Basudeo Sah, resident of Mohul Pahari, P.O. Mohul Pahari, P.S. Shikaripara, District Dumka.

....Petitioners Versus

1. The State of Jharkhand;

2. The Principal Secretary, Road Construction Department, Govt. of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi;

3. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi;

4. The Engineer-in-chief-cum-Additional Commissioner

-cum-Special Secretary, Road Construction Department, Govt. of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.

....Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioners : Mr. Saurabh Shekhar, Adv.

Ms. Shail Lakra, Adv.

Mr. Anurag Kumar, Adv.

For the Resp.-State : Mr. Chandan Tiwari, A.C. to G.A.-I

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05/Dated:-02.09.2024

Heard learned counsel for the parties.

2. The instant writ application has been preferred by the petitioners praying therein for quashing of the limited portion of notification of promotion dated 22.03.2023 (Annexure-1); whereby the promotion to the post of Assistant Engineer has been granted to the petitioners, but with a condition that it will be applicable from the date when the petitioners gave joining.

Petitioners have further prayed for a direction upon the respondent authorities to promote the petitioners on the post of Assistant Engineer, w.e.f. 10.07.2006; the date when they were granted in-charge posting on the post, vide Annexure-1 to this writ application.

Petitioners have further prayed for a direction upon the respondent authorities to grant subsequent promotion to the post of Executive Engineer w.e.f. 10.07.2007, on grant of promotion to the post of Assistant Engineer, 10.07.2006, on fulfillment of the requisite Kalawadhi of one year on the post of Assistant Engineer.

Petitioners have further prayed for a direction upon the respondent authorities to grant all consequential benefits on being posted as Assistant Engineer w.e.f. 10.07.2006.

3. The brief facts of the case as indicated in the writ application are that on 30.03.1999, the petitioners were appointed in Road Construction Department, as Junior Engineers and they have been appointed as Diploma Holder Junior Engineers, having AMIE degree. On 10.07.2006, they were posted as Assistant Engineer, In-charge and they were granted exclusive posting on the post of Assistant Engineer on In-charge basis, and it was not an additional posting.

4. The case of the petitioners is that they held all eligibility for promotion to the post of Assistant Engineer and the postings on in-charge basis were done on the basis of available vacancies. The Petitioners fulfilled all criteria and eligibilities in accordance with the Rules of 1998 and 2009, for regular promotion to the post of Assistant Engineer in the year 2006, against AMIE 10% quota. Rules of 1998 and 2009, both speaks of calendar year wise vacancy and consequent seniority list of eligible candidates in each calendar year was to be prepared.

5. Further case of the petitioner is that on 30.10.2007, on the basis of year wise vacancy, final seniority list was prepared, of the J.E., against 10% quota, fixed for AMIE degree holder. The list includes name of the Petitioners, at serial no. 5 & 7. Due to the delay, one of the Petitioners (No.1), was forced to move this Court in W.P.(S) No. 2496 of 2009, with a prayer to forthwith grant regular promotion to the post Assistant Engineer, on the basis of

calendar wise vacancy and final seniority list dated 30.10.2007.

During the pendency of W.P.(S) No. 2496 of 2009, another development took place; whereby the seniority position of the petitioners was altered and merged with subsequent eligible candidates of the consequent calendar years. This development took place since regular promotion on calendar year basis had not been done, it was delayed for previous years (2007, 2008, 2009). So, all the calendar year lists were merged together i.e. seniorities dated 27.10.2009 and 20.12.2010, J.E., against 10% AMIE quota, the seniority position got reduced.

This action of the respondent was challenged by one of the similarly situated employees in W.P.(S) No.5102/2009. The prayer was made to restore the original seniority list of the year 2007, of the petitioners, dated 30.10.2007, against the calendar vacancy of the year 2007.

On 16.01.2019, W.P.(S) No.5102 of 2009 and W.P.(S) No.2496 of 2009, were decided. The final seniority list was published on 30.10.2007; however, another seniority list was published on 27.10.2009, which put the employees in disadvantageous position. The seniority list dated 30.10.2007 had already attained finality. In this view of the matter at paragraph No.12, the direction was passed to constitute Departmental Promotion Committee.

6. On 26.11.2019, in pursuance to the judgement, the respondent passed order, whereby the seniority list dated 30.10.2007, for AMIE or equivalent qualified Junior Engineers was restored, and in consequence the name of the petitioners, appearing in the seniority list dated 30.10.2007, will stand deleted in subsequent seniority list dated 27.10.2009 and 20.12.2010.

7. On 25.11.2019, an order was passed whereby it was stated that the D.P.C could not be conducted on the basis of old Rules, since the new Recruitment Rules of 2016, had already come into force, and on this pretext the case of the petitioners had not been considered. The New Rules had no provision for AMIE 10% quota promotion. However, on 07.03.2022, the respondents-

State came up with Govt. Resolution; whereby the Old Rules were restored and the New Rules of 2016, was put in abeyance.

8. Accordingly, on 22.03.2023, regular Promotion was granted to the post A.E. and name of the petitioners appeared at Sr. 3 and 5 of the list; however, it was added that the benefits will be granted from the date of joining. This stipulation has directly affected the petitioners.

9. Learned counsel for the petitioner submits that the issue with regard to shifting of the date of promotion from 22.03.2023 to 10.07.2006 has been decided in the case of Lakshmi Chand Prasad and Niraj Kumar Shrivastava, who were at Serial Nos. 10 and 12 in the same notification, (Annexure-11 to the writ application), in which the petitioners are at Serial Nos.3 and 5; as such, the case of these petitioners will be guided by the order passed by this Court in the case of Lakshmi Chand Prasad and Niraj Kumar Shrivastava in W.P.(S) No.2757 of 2023.

10. Learned counsel further draws attention of this Court towards Annexure-1, which is the date; whereby both the petitioners were given In-Charge posting on the post of Assistant Engineer and there was specific stipulation that they will not claim any monetary benefit pursuant to this In-Charge posting.

He fairly submits that this issue was not with the case of Lakshmi Chand Prasad and Niraj Kumar Shrivastava; however, even this issue has been decided by the Division Bench of this Court in L.P.A. No.735 of 2019.

Learned counsel for the petitioner relying upon the judgment passed by the Division Bench of this Court in L.P.A. No.735 of 2019 and also the judgment passed by this Court in W.P.(S) No.2757 of 2023, submits that the case of these petitioners is squarely covered by the aforesaid decisions rendered by this Court.

11. Learned counsel for the respondents does not have any objection with regard to the aforesaid contention of these petitioners.

12. At this stage itself, it is necessary to indicate that learned counsel for the respondents has drawn attention of this Court towards the order passed by this Court on 04.03.2024, whereby this case was directed to be posted after disposal of W.P.(S) No.3027 of 2016 and few other writ applications; however, neither any affidavit has been filed in view of order dated 04.03.2024, nor there is any detail as to why the instant case is said to be posted after the disposal of the said writ applications.

It further transpires from the order passed in W.P.(S) No.3027 of 2016 that the issue was with regard to challenge in the Promotion Rules of 2016; which is, admittedly, not the subject matter in the instant case; as such, this Court is disposing of the instant writ application in the same line what has been decided by this Court in L.P.A. No.735 of 2019 & W.P.(S) No.2757 of 2023.

13. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it appears that the issue of shifting of date for promotion was considered in detail by this Court in W.P.S. No.2757 of 2023; in the case of Lakshmi Chand Prasad and Niraj Kumar Shrivastava, who were at Serial Nos. 10 and 12 in the same notification, (Annexure-11 to the writ application), in which the petitioners are at Serial Nos.3 and 5; wherein this Court has held in para 7 to 12 which is extracted herein below:

"7. Having heard learned counsel for the parties and after going through the documents available on record the core issue involved in this case has been settled down way back in the year 2017; in the case of State of Punjab and another Versus Dharam Pal, reported in (2017) 9 SCC 395; wherein the Hon'ble Apex Court has held at para 22 as under:-

"22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover. As far as the authority in A. Francis is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma and resultantly we hold that the view expressed by the High Court is absolutely impeccable."

At this stage, it would be profitable to refer to the judgment

passed in the case of Arindam Chattopadhyay and Ors. Versus State of West Bengal and Ors, reported in (2013) 4 SCC 152; wherein the Hon'ble Apex Court at para 4, 10 and 13 has held as under:-

"4. After about 2 years, the appellants filed OA No. 330 of 2003 before the State Administrative Tribunal, West Bengal (for short "the Tribunal") and prayed for issuance of a direction to the respondents to pay them salary and allowances in the scale of Rs 5500-11,200 attached to the post of CDPO from the date they were working as acting CDPO i.e. 7-7-1999. In Para 4 of the application, the appellants averred as under:

"Your applicants state that although your petitioners have been posted as Acting Child Development Project Officer, (CDPO) by virtue of the said office order (Annexure P/1) and have been shouldering the higher responsibilities of the post of CDPO, the impugned order stipulates that your applicants and others covered by the said order, should get pay and allowance in their existing pay scale of Acdpo. Such denial of higher scale of pay and allowances of the post of Child Development Project Officer (CDPO) to your applicants is unjust, improper and illegal under the law of the land, since no employee should get the pay and allowances of the post he holds, even in acting capacity. Your applicants, therefore, pray to the Hon'ble Bench for appropriate direction or directions to Respondents 1 to 3 to pay the pay and allowance of the post of Child Development Project Officer (CDPO), the scale of pay being Rs 470-1160 (ROPA 1981)/1640-3625 (ROPA 1990)/5500-11, 200 (ROPA 1988), from the date applicants have been working as Acting CDPO by dint of office order dated 7-7-1999 (Annexure P/1)."

10. We have considered the respective submissions. The applicability of the doctrine of equality, enshrined in Articles 14 and 16 of the Constitution, in the matter of pay and allowances was explained in Randhir Singh v. Union of India [(1982) 1 SCC 618 :

1982 SCC (L&S) 119] in the following words: (SCC pp. 622-23, para

8) "8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal.

Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women' as a directive principle of State policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to

them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the People of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'socialist' must mean something. Even if it does not mean 'to each according to his need', it must at least mean 'equal pay for equal work'. 'The principle of "equal pay for equal work" is expressly recognised by all socialist systems of law e.g. Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance' (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions 'involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled'. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'equal pay for equal work' is deducible from those articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."

(emphasis supplied)

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

8. Similar view was taken way back by the Hon'ble Apex Court in the case of Secretary-Cum-Chief Engineer, Chandigarh Versus Hari Om Sharma & Ors, reported in (1998) 5 SCC 87 wherein at para 4 and 8 the Hon'ble Court has laid down the law as under:-

"4. The respondent was promoted as Junior Engineer I in 1990 and

has been continuing on that post without being paid salary for that post or without being promoted on regular basis. It was in this situation that the respondent approached the Tribunal and the Tribunal, as pointed out earlier, allowed the claim petition with the direction that the respondent shall be paid salary for the post of Junior Engineer I and shall also be considered for promotion on regular basis on the basis of quota fixed for non-diploma-holders with 10 years of service. Admittedly, the respondent is the seniormost person in the cadre of non-diplomaholders and has also put in 10 years of service. 8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872."

9. Now coming to the facts of this case; admittedly, the petitioners have worked as Junior Engineer from 19.04.1991 and 01.04.1999, respectively. Further, they became eligible for promotion on the post of Assistant Engineer in the year 2008 itself. Petitioners were also granted benefit of ACP/MACP and were granted the financial up-gradation. Even the benefit of MACP was granted in pursuance to the recommendation of Screening Committee.

It further transpires that as per Government memorandum dated 01.09.2008, the candidates would be entitled for grant of MACP, following the same Rule that are applicable for grant of promotion to the higher post. The petitioners were given In-charge posting on 13.04.2011; where the names of the petitioners appear at serial no. 18 & 22. Thus, it is clear that the vacancies were available and the petitioners were also eligible. However, despite of that, the respondents have decided to take services of the petitioners on promotional post only on In-charge basis.

10. As a matter of fact, the petitioners held the post of Assistant Engineer on In-charge basis from 13.04.2011 to the date of regular promotion on 22.03.2023. It is a specific case of the petitioners that they held no other post or additional charge which shows that the petitioners were engaged on In-charge basis for a period more than 10 years and in no case, this can be considered as a stop-gap arrangement.

It also appears from the circular of the State Government dated 18.12.2006 that the employees who are otherwise eligible for promotion and are senior will be adjusted on In-charge basis in the higher post. In the instant case the record shows that the petitioners were eligible and entitled for their promotion in the year 2011 itself as the vacancies were also available; however, the respondents instead of considering the petitioners for regular promotion to the post of Assistant Engineer, granted In-charge posting and continued such arrangement for over a decade. As stated hereinabove, the petitioners were not holding any additional charge during that period and the petitioners were granted the regular promotion only on 22.03.2023 (Annexure-5) where their name appears at serial no. 10 and 12.

11. As aforesaid, the issue has been well settled by the Hon'ble Apex Court in the case of Dharm Pal (Supra) and also by this Court that unless and until there is a stopgap arrangement, the employees who

have worked as Incharge on the promotional post for more than a decade will be entitled for promotion from that very date when they were holding the post of In-charge.

12. In view of the aforesaid findings, this court holds that the petitioners are entitled to be promoted on the post of Assistant Engineer from 13.04.2011 itself when they held the post of Assistant Engineer In- charge instead from the date of promotion i.e. 22.03.2023 as during that intervening period they did not hold any other posts or additional charge and certainly this long period cannot be said to be a stop-gap arrangement."

14. It further transpires from record that one issue which was not dealt in the aforesaid writ application, was with respect to a clause incorporated in the letter dated 10.07.2006 which was with regard to In-Charge posting; wherein it has been said that the petitioner shall not claim any monetary benefits; however, as aforesaid the said issue has also been considered by the Division Bench of this Court in L.P.A. No.735 of 2019; wherein this Court has held in para 13 which is extracted hereinbelow:

"13. ........

We have considered the factual aspect involved in the given case wherein also the writ petitioner has been directed to perform his duty as Superintending Engineer (Current Charge) for the period from 26.07.2007 till 25.07.2011 and thereafter asked to perform his duty as Chief Engineer (Current Charge) for the period from 26.07.2011 till his superannuation on 30.04.2013, however with the condition that he will work in his earlier own pay scale and his promotion will depend upon the final decision to be taken for regular promotion and, therefore, according to our considered view, the factual aspect involved in State of Punjab and Another v. Dharam Pal (Supra) is almost similar to the instant case as also the provision of Rule which is the subject matter of the argument advanced on behalf of the parties is also pari materia, as has been referred hereinabove, therefore, the ground which has been agitated by the appellant-State for reversal of the order passed by the learned Single Judge that as because the writ petitioner has never been granted promotion to the post of Superintending Engineer and Chief Engineer, rather he was holding the post in the substantive capacity of Executive Engineer and as such, he is not entitled to get the pay scale of the post of Superintending Engineer and Chief Engineer, is not acceptable to this Court taking into consideration the fact that the issue has already been dealt with by the Hon'ble Apex Court in the case of State of Punjab and Another v. Dharam Pal (Supra).

Therefore, this Court is of the view that the learned Single Judge since has come to a conclusion holding the writ petitioner entitled to get the pay scale of the post of Superintending Engineer and Chief Engineer as also for fixation of pension on the basis of the last pay drawn i.e., the pay scale attached to the post of Chief Engineer, therefore, the order passed by the learned Single Judge suffers from no infirmity."

15. Having regard to the aforesaid discussions and the orders referred to herein above; the impugned order dated 22.03.2023 deserves to be, and is, hereby, modified to the extent that the petitioners are entitled for promotion from the date they were holding In-Charge post of Assistant Engineer from the post of

Junior Engineer and accordingly, the respondents are directed to shift the date of regular promotion of both these petitioners to the post of Assistant Engineer from 22.03.2023 to 10.07.2006 and accordingly, grant these petitioners all consequential benefits including seniority, financial benefits from 10.07.2006, the date since when they were holding the post of Assistant Engineer in In- Charge capacity.

It goes without saying that a necessary order with regard to shifting of date as observed hereinabove; be issued within a period of 12 weeks from the date of receipt/production of copy of this order.

16. Accordingly, instant writ application stands allowed.

(Deepak Roshan, J.) vikas/-