Tarkeshwar Prasad Vs. Bihar State Electricity Board and ors. - Court Judgment

Excerpt:
subordiante account service, recruitment, promotion and cadre rules, 1976 - rule 13(iv) & 13(v)--petitioner appointed as account assistant from bill collectors--by virtue of pay fixation on the re-designated post he was denied of three advance increments--held, electricity board was not justified--benefit of increment also granted as petitioner has completed mandatory 55 yrs. of age during service--direction for fresh sanction order. - radha mohan prasad, j.1. in this writ application, the petitioner is aggrieved by the order contained in annexure-9 whereby he has been granted three advance increments from 1.4.1976 instead of 25.2.1973 and also by denial of three advance increments by virtue of fixation of his pay on the re-designated post of accounts assistant and the consequential wrong fixation of his pensionary benefits.2. in short, the relevant facts are that initially the petitioner was temporarily appointed as bill collector on 31.1.1970 and later on substantive basis against permanent post on 29.11.1975 and confirmed in that capacity with effect from 31.12.1972. he passed the departmental examination held on 25.2.1973. in the year 1976, the board framed rules named as subordiante accounts service recruitment, promotion and cadre rules, 1976 and by virtue of rule 13(iv) all the bill collectors were redesignated as accounts assistants and under rule 13(v) their salary was fixed. accordingly, the petitioner became accounts assistant with effect from 15th april, 1976 and later he retired from the said post on 30th september, 1997.3. while the petitioner was in service some amount was sought to be recovered on the basis of audit objection vide letter no. 1733 dated 30.8.1995 contained in annexure-2. the petitioner challenged the validity of the said order in c.w. j.c. no. 12697 of 1996 before this court and this court disposed of the said writ petition by judgment and order dared 29.7.1997 (annexure-3). this court by the said judgment quashed the order contained in letter no. 1733 dated 30.8.1995 and remitted the matter back to the board for fresh decision in accordance with law after giving opportunity of hearing to the petitioner. thereafter, the impugned order contained in annexure-9 was passed. during the pendency of this writ application on the representation filed by the petitioner, the board passed another order contained in annexure-13 filed with the reply affidavit granting the' benefit of three advance increments from 25.2.1973, but the grievance of the petitioner with respect to grant of three increments by virtue of his fixation of pay on the re-designated post of accounts assistant and consequential fixation of his pensionary benefits have not been redressed.4. learned counsel for the petitioner has submitted that the denial of the said benefits are illegal and in complete violation of the decision of this court passed in the aforementioned writ petition filed by the petitioner.5. mr. shivendra kishore, learned counsel appearing for the board, on the other hand, submitted that there is no denial of any legitimate benefits/dues admissible to the petitioner and the board pursuant to the said judgment has rightly re-fixed his pay and pensionary benefits by annexure-13. it has further been submitted by mr. kishore that the petitioner is not entitled for three advance increments as against the redesignated post of accounts assistant in addition to three advance increments which have been granted to him in terms of sanction order dated 17th february, 1999 (annexure 13) with effect from 25.2.1973. this court is unable to accept the submission of the learned counsel for the board. a bare perusal of decision of this court contained in annexure-3 shows that there was no dispute that the petitioner became entitled to three advance increments from the date of his passing of departmental examination while working as bill collector.6. as regards the questio as to whether the petitioner is entitled to get three advance increments at the time of his pay fixation on the redesignated post of accounts assistant, this court in the earlier writ petition while considering the question as to whether the redesignation would amount to grant of promotion and as to whether by virtue of such promotion one would become entitle for addition of 12% to the officiating pay in the post of bill collector, held that the redesignation does not amount to promotion and further while substantiating the said view in the judgment and order contained in annexure-3 said that 'any other view would amount to giving double benefits one benefit of inclusion of three advance increments for pay fixation as accounts assistant treating the redesignation as not amounting to promotion and the other benefit of allowing 12% addition treating the re designations as promotion.' it was held that the petitioner was not entitled to addition of 12% of officiating pay in the post of bill collector but, further, was clarified in the earlier case that while fixing his salary under rule 13(v) the three advance increments allowed under s.o. no. 385 dated 22.3.1973 could be taken into account. it is thus clear that the three advance increments granted earlier with effect from 25.2.1973 on account of passing of the departmental examination will have to be taken into account while granting three advance increments at the time of fixation of pay of the petitioner on the redesignation of post as accounts assistant with effect from 1.4.1976 and that earlier increments granted by virtue of passing of departmental examination cannot be adjusted as against three advance increments while fixation of his pay on the redesignated post of accounts assistant. thus, in my opinion, the respondent-board is not justified in denying the benefit of three advance increments by virtue of re-fixation of pay of the petitioner on the redesignated post, of accounts assistant.7. learned counsel for the petitioner also argued that the petitioner has also been denied of monetary benefit of annual increment on account of non-passing of hindi noting and drafting examination prior to 15.5.1994 the date on which the petitioner admittedly passed the said examination. this question was also considered in the earlier decision of this court and since the matter was being remitted back, this court directed that all the claims of the petitioner for actual monetary benefits of annual increments on his passing the hindi noting and drafting examination be also considered in the light of the board's resolution dated 15.3.1996. according to the learned counsel for the petitioner, the board has not considered this aspect and kept the petitioner illegally deprived of actual monetary benefits pursuant to the said resolution. learned counsel for the petitioner has produced a copy of the board's resolution dated 15.3.1996. mr. shivendra kishore, learned counsel for the board, has submitted that while implementing the order of this court, the board has granted the monetary benefits and has fixed his pay accordingly at rs. 2,740/- on the date of his retirement.8. from annexure-13, it is not clear as to whether the petitioner has been given monetary benefits of annual increments on his passing of hindi noting and drafting examination or by virtue of exemption clause provided therein on account of completion of 30 years of service or 55 years of age which ever is earlier from the due date. from the plaint reading of board's resolution no. 119 dated 15.3.1996, it is evident that on completion of 30 years of service or 55 years of age whichever is earlier the passing of hindi noting and drafting examination was exempted. it was, however, made clear that a person will not be entitled to get benefit of increment on account, of that but will be entitled for grant of increment on fulfilment of the said condition notionally and will get the actual financial benefit on account of it from the date of fulfilling the said condition. according to the learned counsel for the petitioner, the petitioner's date of birth as per service record is 4.3.1938 and thus he completed 55 years of age on 4.3.1993, i.e. much before his retirement on 30th september, 1997. the said resolution was also issued before his retirement. as such, it has rightly been submitted on behalf of the petitioner that he will get the monetary benefit under the said resolution with effect from the date on which he fulfilled the said condition.9. in the result, this writ petition is allowed and the board is accordingly directed to issue fresh sanction order within three weeks of the receipt/production of a copy of this judgment and order.

Judgment:

Radha Mohan Prasad, J.

1. In this writ application, the petitioner is aggrieved by the order contained in Annexure-9 whereby he has been granted three advance increments from 1.4.1976 instead of 25.2.1973 and also by denial of three advance increments by virtue of fixation of his pay on the re-designated post of Accounts Assistant and the consequential wrong fixation of his pensionary benefits.

2. In short, the relevant facts are that initially the petitioner was temporarily appointed as Bill Collector on 31.1.1970 and later on substantive basis against permanent post on 29.11.1975 and confirmed in that capacity with effect from 31.12.1972. He passed the departmental examination held on 25.2.1973. In the year 1976, the Board framed Rules named as Subordiante Accounts Service Recruitment, Promotion and Cadre Rules, 1976 and by virtue of Rule 13(iv) all the Bill Collectors were redesignated as Accounts Assistants and under Rule 13(v) their salary was fixed. Accordingly, the petitioner became Accounts Assistant with effect from 15th April, 1976 and later he retired from the said post on 30th September, 1997.

3. While the petitioner was in service some amount was sought to be recovered on the basis of audit objection vide letter No. 1733 dated 30.8.1995 contained in Annexure-2. The petitioner challenged the validity of the said order in C.W. J.C. No. 12697 of 1996 before this Court and this Court disposed of the said writ petition by judgment and order dared 29.7.1997 (Annexure-3). This Court by the said judgment quashed the order contained in letter No. 1733 dated 30.8.1995 and remitted the matter back to the Board for fresh decision in accordance with law after giving opportunity of hearing to the petitioner. Thereafter, the impugned order contained in Annexure-9 was passed. During the pendency of this writ application on the representation filed by the petitioner, the Board passed another order contained in Annexure-13 filed with the reply affidavit granting the' benefit of three advance increments from 25.2.1973, but the grievance of the petitioner with respect to grant of three increments by virtue of his fixation of pay on the re-designated post of Accounts Assistant and consequential fixation of his pensionary benefits have not been redressed.

4. Learned Counsel for the petitioner has submitted that the denial of the said benefits are illegal and in complete violation of the decision of this Court passed in the aforementioned writ petition filed by the petitioner.

5. Mr. Shivendra Kishore, learned Counsel appearing for the Board, on the other hand, submitted that there is no denial of any legitimate benefits/dues admissible to the petitioner and the Board pursuant to the said judgment has rightly re-fixed his pay and pensionary benefits by Annexure-13. It has further been submitted by Mr. Kishore that the petitioner is not entitled for three advance increments as against the redesignated post of Accounts Assistant in addition to three advance increments which have been granted to him in terms of sanction order dated 17th February, 1999 (Annexure 13) with effect from 25.2.1973. This Court is unable to accept the submission of the learned Counsel for the Board. A bare perusal of decision of this Court contained in Annexure-3 shows that there was no dispute that the petitioner became entitled to three Advance increments from the date of his passing of departmental examination while working as Bill Collector.

6. As regards the questio as to whether the petitioner is entitled to get three advance increments at the time of his pay fixation on the redesignated post of Accounts Assistant, this Court in the earlier writ petition while considering the question as to whether the redesignation would amount to grant of promotion and as to whether by virtue of such promotion one would become entitle for addition of 12% to the officiating pay in the post of Bill Collector, held that the redesignation does not amount to promotion and further while substantiating the said view in the judgment and order contained in Annexure-3 said that 'any other view would amount to giving double benefits one benefit of inclusion of three advance increments for pay fixation as Accounts Assistant treating the redesignation as not amounting to promotion and the other benefit of allowing 12% addition treating the re designations as promotion.' It was held that the petitioner was not entitled to addition of 12% of officiating pay in the post of Bill Collector but, further, was clarified in the earlier case that while fixing his salary under Rule 13(v) the three advance increments allowed under S.O. No. 385 dated 22.3.1973 could be taken into account. It is thus clear that the three advance increments granted earlier with effect from 25.2.1973 on account of passing of the departmental examination will have to be taken into account while granting three advance increments at the time of fixation of pay of the petitioner on the redesignation of post as Accounts Assistant with effect from 1.4.1976 and that earlier increments granted by virtue of passing of departmental examination cannot be adjusted as against three advance increments while fixation of his pay on the redesignated post of Accounts Assistant. Thus, in my opinion, the respondent-Board is not justified in denying the benefit of three advance increments by virtue of re-fixation of pay of the petitioner on the redesignated post, of Accounts Assistant.

7. Learned Counsel for the petitioner also argued that the petitioner has also been denied of monetary benefit of annual increment on account of non-passing of Hindi Noting and Drafting examination prior to 15.5.1994 the date on which the petitioner admittedly passed the said examination. This question was also considered in the earlier decision of this Court and since the matter was being remitted back, this Court directed that all the claims of the petitioner for actual monetary benefits of annual increments on his passing the Hindi Noting and Drafting examination be also considered in the light of the Board's resolution dated 15.3.1996. According to the learned Counsel for the petitioner, the Board has not considered this aspect and kept the petitioner illegally deprived of actual monetary benefits pursuant to the said resolution. Learned Counsel for the petitioner has produced a copy of the Board's resolution dated 15.3.1996. Mr. Shivendra Kishore, learned Counsel for the Board, has submitted that while implementing the order of this Court, the Board has granted the monetary benefits and has fixed his pay accordingly at Rs. 2,740/- on the date of his retirement.

8. From Annexure-13, it is not clear as to whether the petitioner has been given monetary benefits of annual increments on his passing of Hindi Noting and Drafting examination or by virtue of exemption clause provided therein on account of completion of 30 years of service or 55 years of age which ever is earlier from the due date. From the plaint reading of Board's resolution No. 119 dated 15.3.1996, it is evident that on completion of 30 years of service or 55 years of age whichever is earlier the passing of Hindi Noting and Drafting examination was exempted. It was, however, made clear that a person will not be entitled to get benefit of increment on account, of that but will be entitled for grant of increment on fulfilment of the said condition notionally and will get the Actual financial benefit on account of it from the date of fulfilling the said condition. According to the learned Counsel for the petitioner, the petitioner's date of birth as per service record is 4.3.1938 and thus he completed 55 years of age on 4.3.1993, i.e. much before his retirement on 30th September, 1997. The said resolution was also issued before his retirement. As such, it has rightly been submitted on behalf of the petitioner that he will get the monetary benefit under the said resolution with effect from the date on which he fulfilled the said condition.

9. In the result, this writ petition is allowed and the Board is accordingly directed to issue fresh sanction order within three weeks of the receipt/production of a copy of this judgment and order.