Judgment:
Barin Ghosh, J.
1. Heard learned counsel for the parties.
2. Bihar Service Code has been framed under proviso to Article 309 of the Constitution of India. Rule 58 thereof is as follows :
'Rule 58(a). Subject to any exception 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;
(b) Unless in any individual case the 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'
3. A look at the above provision would show that there is no concept of notional promotion contained therein. It simple says that the 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.......It, therefore, suggests that only after a person assumes duties of the promoted post, he shall be entitled to draw pay and allowances attached to his post. This is, however, subject to any exception specifically made in the rules contained in the said Code. In the instant case the promotion was accorded to the petitioner on 7th August, 1998 with effect from 5th October, 1993. The petitioner retired on 31st January, 1998 i.e. much before the promotion order was issued. In such view of the matter, it goes without saying that the petitioner could not assume duties of his promoted post. However in the promotion order itself it was mentioned that although the petitioner shall not be entitled to any monetary benefit from the date of his promotion until such time he is retired but his pension will be fixed on the basis of his pay applicable to his promotional post, but by which provision of Bihar Service Code this could be done has not been drawn to my attention. It is being contended that in view of Rule 58 of the said Code, it is open to the State to grant notional promotion with a date anterior to the date of actual promotion but the person who is so promoted will not be entitled to have monetary benefit during the period of notional promotion. The concept of notional promotion has not been spelt out in Rule 58 and as aforesaid no other provision contained in the said Code has been, drawn to my attention which speaks about notional promotion. The Hon'ble Supreme Court in the case of Alappat Narayan Menon v. State of Kerala, reported in 1977 (2) SLR 656 has held that notional promotion is one which a Government servant gets under particular exigency of situation which he cannot claim as of right. In the instant case, it is not the contention of the State either in the order of promotion or in the counter affidavit that the promotion which was accorded to the petitioner by the special order of promotion, the petitioner was not entitled to the same as of right but that was granted to him. Under any particular exigency of situation. It is to be kept in mind that the order of promotion was issued on 17th August, 1998 but the promotion accorded to the petitioner in terms of the said order was to take effect from 5th October, 1993. That itself suggests that the petitioner as of right became entitled to be promoted to his promoted post on 5th October, 1993 but by reason of the laches on the part of the respondents, the said promotion was brought into effect on 17th August, 1998. The petitioner cannot be blamed for that. Rule 58 does not prohibit the petitioner to obtain the benefits of his promotion which he earned by way of his right for the laches on the part of his superiors in not considering and granting promotion to him in time. If it is construed that the petitioner can be deprived of the benefit of his promotion obtained by way of his right for the delay caused by others in promoting him and in relation whereof the petitioner had no role to play, that would tantamount to permiting the persons who had delayed the matter of promotion of the petitioner to take advantage of their own wrong in denying the petitioner of his rightful claim.
4. Furthermore, when Rule 58 is specific that a person will be entitled to obtain pay and allowances from the date he assumes promoted post, how promotion order could grant a part of that in the form of fixing the pay of the promotional post as the basis for calculation of his pension, has not been explained anywhere. The rules as aforesaid do not permit the same for no provision contained in the said Code has been drawn to my attention which authorises doing of that. Being conscious of the fact that the petitioner's rightful promotion was given effect to much after although he rightfully acquired a right to be so promoted, the matter was dealt with in the manner as aforesaid by giving him part of the benefits and by denying the rest without any authority to do so.
5. Learned counsel for the respondents has drawn my attention to Rule 74 of the Bihar Financial Rules which provides as follows :
'Rule 74. All authorities which 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.'
6. This rule has got nothing to do with promotion. The rule deals with revision of pay and grant of concession. The rule has got no application at all to the case at hand.
7. Taking note of the pronouncement of the Supreme Court in the aforesaid judgment, a Division Bench of this Court in the case of Dr. Paras Nath Prasad v. The State of Bihar and Ors., reported in 1990 (2) BLJ 68 held that when a Government servant is entitled as of right to have a promotion, he is entitled to all benefits of such promotion with effect from the date he had been promoted and Rule 58 of the said Code does not bar such a promotee to have the benefit of his promotion with effect from the date of giving effect to that promotion. This judgment has consistently been followed by this Court. Following the aforementioned view of his Court on the subject, as indicated above, two Hon'ble Single Judges of this Court have directed the respondents to pay the petitioner before their Lordships the pay and allowances payable to them who have been promoted by the same self order by which the petitioner has also been promoted, with effect from their date of promotion.
8. In such view of the matter, this writ petition is allowed with a direction upon the respondents to pay to the petitioner the pay and allowances attached to the promoted post to the petitioner with effect from 5th October, 1993 until his retirement within a period of twelve weeks from the date of service of a copy of this order upon the respondents. There shall be no order as to costs.