-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 162 of 2014 ------- 1. The State of Jharkhand through the Secretary, Department of Mines and Geology, Government of Jharkhand, Nepal House, Doranda, P.O and P.S. Doranda, District Ranchi.
2. The Secretary, Department of Finance, Government of Jharkhand, Project Bhawan, H.E.C., P.O. Dhurwa, P.S. Dhurwa, District Ranchi 3. The Deputy Secretary, Department of Mines and Geology, Government of Jharkhand, Nepal House, Doranda, P.O and P.S. Doranda, District Ranchi. ... .. ... ... ... Appellants Versus Jai Prakash Singh son of Dr. S.R. Rai, resident of Qr. No. E-21, Sector-III, P.O. and P.S. Dhurwa, District Ranchi. ... .. ... ... . Respondent ------ CORAM: HON’BLE MR. JUSTICE D.N. PATEL HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Appellants : Mr. Sumir Prasad, Standing Counsel I. For the Respondent : Mr. Saurabh Shekhar, Advoate. ------ 09/Dated:
12. h January, 2015 Per Pramath Patnaik, J.:
1. In the instant Letters Patent Appeal, the appellants call in question the legality and propriety of the judgment dated 20.08.2013 passed in W.P.(S) No. 2986 of 2010 by learned Single Judge, whereby and whereunder the writ application filed by the respondent-writ petitioner was allowed with a direction to the appellants-State to release the arrears of difference of salary to the respondent-writ petitioner on post of Deputy Director to which he has been promoted with retrospective effect i.e. from 01.07.2001 as also arrears of difference of salary w.e.f. 02.07.2007 on which post he was promoted as Additional Director retrospectively. -2- 2. The factual matrix as delineated and disclosed in the writ petition is that the respondent-writ petitioner initially joined the Department of Mines and Geology in the year 1984. Subsequently, while continuing as such, vide notification dated 1.11.1999, under Annexure 1 to the writ petition, the respondent-writ petitioner in addition to his substantive post was asked to remain in-charge of Deputy Director, Data Bank and Publication Cell, Patna. Accordingly, the respondent-writ petitioner took over the charge of Deputy Director on 4.11.1999. Thereafter, vide notification dated 28.05.2009, under Annexure-3 to the writ petition, the respondent-writ petitioner has been given regular promotion to the post of Deputy Director, Geology with effect from 01.07.2001. In the said notification, it has been mentioned that the financial benefit shall be payable with retrospective effect i.e. 01.07.2001 after consent of the Finance Department and the financial benefit, at present, shall be payable with effect from the date of taking over the charge. In pursuance of the said notification, the respondent-writ petitioner took over the charge on 28.05.2009, under Annexure 4 to the writ petition. Thereafter, vide notification dated 29.06.2007, under Annexure 5 to the writ petition, the respondent-writ petitioner while continuing as Senior Geologist, was assigned to work on the post of In-charge Additional Director, Geology, Ranchi. Accordingly, the respondent-writ petitioner took over the charge of In-charge, Additional Director, Geology, Ranchi on 02.07.2007. Thereafter, vide notification dated 16.12.2009, -3- the respondent-writ petitioner was given regular promotion to the post of Additional Director with effect from 2.07.2007. In the said notification also, it is stated that the financial benefit to respondent-writ petitioner shall be payable with retrospective effect after consent of the Finance Department and the financial benefit, at present, shall be payable to him with effect from taking over charge and the respondent-writ petitioner took over the charge of Additional Director on 16.12.2009, under Annexure 6/1 to the writ petition. However, with regard to payment with retrospective effect, the respondent-writ petitioner was informed vide letter no. 879 dated 20.05.2010, under Annexure 7 to the writ petition, that he is not entitled to get the monetary benefit with retrospective effect in terms of Memo No. 2074 dated 04.04.1985 of the Finance Department.
3. Being aggrieved by letter no. 879 dated 20.05.2010, the respondent-writ petitioner assailed the same by filing W.P.(S) No. 2986 of 2010, which was allowed vide order dated 20.08.2013. Hence, the present Letters Patent Appeal has been preferred by the appellants-State of Jharkhand impugning the aforesaid judgment/order passed by learned Single Judge.
4. Heard Mr. Sumir Prasad, learned Standing Counsel I, for the appellants-State and Mr. Saurabh Shekhar, learned counsel for the respondent-writ petitioner.
5. Learned Standing counsel for the appellant-State -4- of Jharkhand has assailed the impugned Judgment/order of the learned Single Judge on the following grounds:- (a). That Clause No. (vi) of Memo No. 2074 dated 4.4.1985 of the Finance Department envisages that no employee shall be paid his higher post of scale for working in in-charge capacity and the person who has been promoted on regular basis on that post, in which he is working in in-charge capacity, higher scale of promotion shall be the date of notification of promotion. (b). That the reliance placed by the learned Single Judge on the case of Kedar Nath Vs. Stae of Jharkhand & Ors. in W.P.(S) No. 1100 of 2007 dated 22.06.2012 is not at all applicable to the case at hand since in the said case, the petitioner was working in a full-fledged capacity of Chief Engineer and was promoted on regular basis whereas in the present case, the respondent-writ petitioner assumed the in-charge post of Deputy Director and Additional Director in in-charge capacity in addition to holding his substantive post. (c). That in view of Rule 58 of the Jharkhand Service Code, Rule 74 of the Jharkhand Finance Rule, salary of higher post cannot be given retrospectively rather from the date of assuming charge on regular promotion. (d). During the course of argument, learned counsel for the appellants-State has strenuously urged that Rule 103 of the Jharkhand Service Code coupled with Memo No. -5- 2074 dated 4.4.1985 deals with officiating post of two or more independent posts at one time.
6. In support of his contention, learned counsel for the appellants-State has relied upon the judgment rendered in the case of State of Harayana and others Vs. O.P. Gupta & Others reported in (1996) 7 SCC533and in the case of Telecommunication Engineering Service Association (India) and Another Vs. Union of India & Another reported in 1994 Supp (2) SCC222 7. Learned counsel for the respondent-writ petitioner has repelled the arguments advanced by learned counsel for the appellants-State by canvassing that there is no infirmity or illegality in the impugned order dated 20.08.2013 passed in W.P.(S) No. 2986 of 2010, which has been passed in consonance with the relevant provision of Service Code and on the basis of decision rendered in the case of Kedar Nath (supra), which has been affirmed in L.P.A. No. 471 of 2012 vide order dated 03.05.2013. To buttress his argument, learned counsel for the respondent-writ petitioner has relied upon the judgment rendered in the case of Shiva Narayan Lal Vs. The State of Bihar & Ors reported in 1999 (1) PLJR243and also in the case of Dr. Paras Nath Prasad Vs. The State of Bihar and others reported in 1990 (2) PLJR248 which are not applicable in the present case.
8. After having heard learned counsel for the parties and perusing the relevant provisions of the Jharkhand Service Code, 2001 and also the judicial pronouncements, we are of -6- the considered view that the judgment/order rendered by the learned Single Judge is legally untenable on the following grounds: (I). On careful perusal of the impugned judgment/order rendered by the learned Single Judge, it appears that learned Single Judge has considered the case of the respondent-writ petitioner at par with Kedar Nath (supra). It transpires from the judgment of W.P.(S) No. 1100 of 2007 that in the said case, the petitioner was promoted to the post of Chief Engineer whereas in the instant case, the respondent-writ petitioner in addition to his substantive post has been kept in additional in- charge of Deputy Director and further on his substantive post, he has been kept in additional in-charge of Additional Director. (II). At this juncture, it is profitable to quote relevant provisions of Jharkhand Service Code, 2001 for better appreciation and proper adjudication of the matter. Rule 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 ceased 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]. -7- (ii) in the case of a person who receives a second class passage to India from the date of his embarkation for India. Rule 103: The pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post at one time shall be regulated as follows:- (a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post; (b) for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and (c) if a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provide4d that such allowance shall not exceed the total of the compensatory allowance attached to all the posts. Rule 103 of the Jharkhand Service Code: Memo No. 2074 dated 4.4.1985 5.(x) mPprj in dk dk;Z d kjh iz H kkj xz g .k djus dh frfFk ls lEcfZ U /kr inkf/kdkjh dks fcgkj ls o k la f grk ds fu;e 103 ds v/khu] fuEurj os r ueku es a iz k Ir os r u dk vf/kdre 20 iz f r'kr vfrfjDr os r u vuq e kU; gks x kA rRla c a / kh iz L rko es a foÙk foHkkx dh vkS i pkfjd lgefr iz k Ir dj ys u h gks x hA On close reading of the aforesaid provisions, it appears that when a Government servant holds more than one post, shall be entitled to compensatory allowance i.e. officiating pay. In the instant case, the respondent-writ petitioner has been given the additional charge of Deputy Director and Additional Director apart from discharging his duties on substantive posts. The notification for holding in-charge promoted post does not amount to promotion of the respondent-writ petitioner -8- and there is distinction between a situation where a Government servant is promoted to higher post and the one where he is merely asked to discharge on the higher post. Asking an officer, who substantially holds lower post merely to discharge the duties of higher post cannot be treated as promotion. In such a case he does not get a salary of higher post but gets only what in service parlance i.e as per Jharkhand Service Code, 2001, is called officiating pay/compensatory allowance. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges duties of the higher post essentially as a stop-gap arrangement. In the instant case, the respondent-writ petitioner was asked to hold the higher post of Deputy Director/Additional Director but the regular promotion was affected after convening of the Departmental Promotion Committee. So convening of Departmental Promotion Committee always precedes the regular promotion and in the Departmental Promotion Committee the criteria for promotion is looked into and eligible candidate within the zone of consideration are considered for promotion. In the case at hand, the respondent-writ petitioner was regularly promoted vide notification dated 28.05.2009 and 16.12.2009 under Annexures 3 and 6 respectively. -9- Therefore, the promotion affected in the year 2009 pursuant to Departmental Promotion Committee cannot be antedated to anterior date. Otherwise that would create anomalous position. (III). Assuming that the case of the respondent-writ petitioner is squarely covered by the case of Kedar Nath (supra) but the said judgment has been rendered without referring Rule 103 of the Jharkhand Service Code and relevant circular/memorumdum and it is no more res integra that there cannot be equity or equality in illegality. It is a settled principle of law that guarantee of equality before law enshrined under Article 14 of the Constitution of India is a positive concept and it cannot be enforced by citizen or Court in a negative manner. If any illegality or irregularity has been committed in favour of any individual or group of individuals; others cannot invoke the jurisdiction of higher Court for repeating or multiplying the same irregularity or illegality. In other words, equality or equity has no place in case of any irregularity or illegality. Even if it presumed that the case of the respondent-writ petitioner stands on the same footing as the case of the Kedar Nath (supra), as per the judicial pronouncements and as per the above provisions of Jharkhand Service Code, 2001, circulars etc. the respondent-writ petitioner is only entitled for officiating pay or compensatory allowance. On this ground also, we are unable to persuade -10- ourselves to accept the reasonings given by learned Single Judge in Kedar Nath case. (IV) Even if the respondent-writ petitioner in addition to his substantive post was allowed to officiate in the promoted post, de hors of selection in Departmental Promotion Committee, the same does not confer any right on the respondent-writ petitioner to claim regular scale of pay in the said promoted post during the in- charge period. (V). The Hon'ble Apex Court in the case of Ramakant Shripad Sinai Advalpalkar Vs. Union of India & Ors. reported in 1991 Supp 2 SCC733has been pleased to hold that 'In-charge arrangement' of working on higher post for long period gives no rights, equities or expectations for the higher post. (VI). The Hon'ble Apex Court in the case of Pabitra Mohan Dash Vs. State of Orissa reported in AIR2001Supreme Court 560 has been pleased to hold in paragraph 7 of the judgment that : “............A person who has been appointed contrary to Regn. 17 as Headmaster Incharge cannot claim any right to post of Headmaster on the basis of that appointment/even if the same might have been approved by any Competent Educational Authority. The Incharge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain Incharge and discharge the duties of a Headmaster. In this view of the matter where the appointment itself has been to the post of Headmaster as Incharge, and such appointment had been approved, obviously the said appointee cannot to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster........” -11- On conjoint reading of relevant provisions of Jharkhand Service Code with aforesaid judgment of Hon'ble Apex Court, there cannot be shadow of doubt or debate 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 in 'Departmental Promotion Committee'.
9. After going through the entire records and the judicial pronouncements, we are of the opinion that while delivering the final judgment in W.P.(S) No. 2986 of 2010, it was lost sight of the relevant provisions of the Jharkhand Service Code and direction was given for payment of arrears of difference of salary, which is legally not tenable at law.
10. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we hereby quash and set aside the judgment and order delivered by the learned Single Judge in W.P.(S) No. 2986 of 2010 dated 20th August, 2013 and allow this Letters Patent Appeal. (D.N. Patel, J.) (Pramath Patnaik, J.) Alankar/- A.F.R