IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 2092 of 2012 --- Rajeshwar Prasad son of Late Bishwanath Prasad residing at C-401 Gokuldham, Morabadi, PO Morabadi, PS Bariatu, Town and Dist Ranchi… … Petitioner Versus 1.The State of Jharkhand through the Secretary/ Principal Secretary, Drinking Water and Sanitation Department, Government of Jharkhand having office at Nepal House, PO & PS Doranda, Town and District Ranchi 2.The Secretary/Principal Secretary, Drinking Water and Sanitation Department, Government of Jharkhand having office at Nepal House, PO & PS Doranda, Town and District Ranchi 3.The Deputy Secretary, Drinking Water and Sanitation Department, Government of Jharkhand having office at Nepal House, PO & PS Doranda, Town and District Ranchi 4.The Secretary, Department of Finance, Government of Jharkhand having office at Project Building, PO & PS Dhurwa, Town and District Ranchi… … Respondents --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Manoj Tandon, Advocate For the Respondents : Mr. Vikash Kumar, J.C. to A.A.G. --- C.A.V. On – 24.06.2015 Pronounced on – 06.07.2015 In this application, the petitioner prays for quashing the order as contained in Memo No. 5740 dated 16.12.2011 passed by the respondent no. 2 whereby and whereunder the representation of the petitioner submitted in the light of the order dated 11.10.2011 passed in W.P.(S) No. 3289 of 2011 has been rejected. A further direction has been sought for to give financial benefits and fix the pay of the petitioner in the scale of Chief Engineer w.e.f. 23.11.2005 in view of the notification contained in Memo No. 296 dated 17.01.2008 by which the petitioner was granted regular promotion in the scale of Chief Engineer w.e.f. 23.11.2005.
2. The petitioner was appointed as an Assistant Engineer in pursuance to the interview conducted by the Bihar Public Service Commission. The petitioner in course of his service was promoted in -2- the rank of Executive Engineer, Bihar Engineering Service Class-I and thereafter to the post of Superintending Engineer (Incharge) and posted at PHED Circle, Hazaribagh. By virtue of the provisions as contained in the Bihar Reorganisation Act, 2000, the services of the petitioner was deemed to be allocated within the State of Jharkhand. After the bifurcation, the petitioner was granted regular promotion to the post of Superintending Engineer w.e.f. 01.07.1999 and thereafter by virtue of notification as contained in Memo No. 1126 dated 10.03.2006, the petitioner was transferred and posted as Incharge, Chief Engineer, Central Design Organisation, Ranchi. By virtue of notification as contained in Memo No. 296 dated 17.01.2008, the petitioner was granted regular promotion as Chief Engineer in the scale of pay of Rs. 16,400-20,000/ which was given with retrospective effect from 23.11.2005 and in the said notification dated 17.01.2008, it was specifically mentioned therein that the financial benefit would be given to the petitioner with effect from the date, the petitioner submits his joining. Subsequently, the petitioner superannuated from service w.e.f. 01.07.2008 from the post of Incharge, Engineer-in-Chief and after his superannuation, the petitioner was granted regular promotion in the scale of Engineer-in-Chief vide notification as contained in Memo No. 4743 dated 30.11.2009. However, since the respondents in spite of representations submitted by the petitioner have not considered the claim of the petitioner for grant of pay-scale of Rs. 16,400-20,000/ w.e.f. 10.03.2006, petitioner preferred a writ application being W.P.(S) No. 3289 of 2009 which was disposed of on 11.10.2011 directing the respondent no. 2 to decide the claim of the petitioner within a period of 12 weeks. In terms of the orders passed in W.P.(S) No. 3289 of 2009, the petitioner preferred a representation before the respondent no. 2 and a final order was passed as contained in Memo No. 5740 dated 16.12.2011 wherein while giving reference to Rule 58 of the Jharkhand Service Code and Rule 74 of the Financial Rules as well as Circular No. 3251 dated 20.11.2006, the claim of the petitioner was rejected.
3. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Vikash Kumar, learned J.C. to A.A.G.
4. Mr. Manoj Tandon, learned counsel for the petitioner has submitted that the vacancy on the post of Junior Engineer occurred on 23.11.2005 and although promotion had been granted to the petitioner -3- w.e.f. 23.11.2005, but the financial benefits were made applicable from the date of joining of the petitioner. It has further been submitted that since the petitioner had assumed his charge as Chief Engineer on Incharge basis on 10.03.2006, there was absolutely no reason for the respondents not to grant financial benefits to the petitioner w.e.f. 23.11.2005 or for that matter from 10.03.2006 i.e. on the date the petitioner assumed the post of Chief Engineer Incharge. Mr. Manoj Tandon, learned counsel for the petitioner has further referred to certain instances in the case of Sazzad Hassan, Sardendu Narayan and Brij Bihari Ojha, who pursuant to the direction of this Court were given the pay-scale with effect from the date of their posting on Incharge basis. Learned counsel has further relied in the case of “Bhimsen Singh Vs. State of Bihar and ors.” in C.W.J.C. No. 6167 of 1992, wherein the respondents were directed to give selection based scale to the petitioner of that case as well as to promote the petitioner as Executive Engineer w.e.f. 27.04.1989 on a regular basis and he shall be paid arrears of salary pursuant to the grant of promotion. Learned counsel for the petitioner has also relied upon the case of this petitioner that is, "Rajeshwar Prasad Vs. State of Jharkhand & Others” (W.P.S. No. 1932 of 2005), wherein it was held that the petitioner is entitled to get the monetary benefit w.e.f. 01.07.1999, the date on which the petitioner was retrospectively given regular promotion as Superintending Engineer. It has further been submitted that the aforesaid order passed in W.P.(S) No. 1932 of 2005 has been affirmed in L.P.A. No. 271 of 2012 preferred by the State of Jharkhand.
5. Learned J.C. to A.A.G., on the other hand, has submitted that initially the petitioner was allowed to join on the post of Chief Engineer for which the mandatory requirements were to be looked into by the DPC. Moreover, the departmental proceeding is also pending against the petitioner which has been concluded by virtue of resolution dated 26.03.2008. It has also been submitted that Rule 58 of the Jharkhand Service Code and Rule 74 of the Financial Rules as well as the notification as contained in Memo No. 5740 dated 16.12.2011 does not permit financial benefit to be granted to a person from retrospective date of promotion. It has further been submitted that the representation of the petitioner was rightly rejected as in terms of the -4- various provisions, the petitioner was entitled to get the benefits from the date of assuming charge on a permanent basis.
6. The dispute in the present case is only with respect to the fact as to whether the petitioner is entitled to the financial benefits w.e.f. 23.11.2005 or w.e.f. 10.03.2006, the date when the petitioner assumed the charge of Chief Engineer on an Incharge basis or for that matter from the date the petitioner was promoted as a Chief Engineer on a permanent basis. Mr. Manoj Tandon, learned counsel for the petitioner has referred to the order passed by this Court in W.P.(S) No. 1932 of 2005 which was subsequently affirmed in appeal. However, Mr. Vikash Kumar, learned J.C. to AAG has controverted by relying upon the judgment passed in the case of “State of Jharkhand through the Secretary, Department of Mines and Geology, Government of Jharkhand and Others Vs. Jai Prakash Singh” reported in 2015 (1) JLJR745 wherein it has been held that “an employee holding a substantive lower post while being kept in dual additional charge of higher post is not entitled to get scale of pay attached to the higher post that too in absence of selection by Departmental Promotion Committee”.
7. Accordingly, the Hon'ble Court held that the writ petitioner was not entitled to the payment of arrears of difference of salary. Rule 58 of the Jharkhand Service Code clearly denotes that a government servant shall begin to draw the pay and allowances attached to his tenure to a post with effect from the date on which he assumes the duties of that post. Rule 74 of the Jharkhand Financial Rules specifies that all authorities who are competent to sanction revision of pay or the grant of concession 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 the Government. The learned counsel for the petitioner has referred to certain similar instances where persons have been given financial benefits from the date of their respective promotions. However in the impugned order dated 16.12.2011, the said contention has been categorically dealt with to the effect to suitably modify the promotion granted with retrospective effect with respect to those persons. Since there is a specific provision which precludes an employee from being given the financial benefits with retrospective effect, the -5- impugned order as contained in Memo No. 5740 dated 16.12.2011 is in accordance with rules, orders and circulars of the State Government and in such circumstances, the impugned order as has been passed does not deserve interference.
8. In view of the discussion made above, I do not find any merit in this application and the same is accordingly, dismissed. (Rongon Mukhopadhyay, J) R.Shekhar/NAFR/Cp.2