Panchanan Sahay Vs. State of Bihar and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. orderamareshwar sahay, j.1. heard mr. v. shivnath, learned counsel appearing for the petitioner and learned j.c. to g.p. ii appearing for the state.2. the petitioner retired on 31.10.1995 as super time selection grade head assistant from the office of the deputy commissioner, dhanbad.3. it is said that the petitioner was compulsorily retired on 09.11.1983 by the order of the deputy commissioner, dhanbad, which was challenged by him in cwjc no. 1368 of 1983 (r) and was quashed by the high court by order dated 16.04.1990 vide annexure-2, consequently, the petitioner joined the post of assistant in the selection grade on 23.07.1990.4. after joining, the petitioner represented, to give him due senior selection grade scale with effect from 01.04.1981, as was given to the persons junior to him but it is alleged that his case was not considered and then the petitioner retired from service on 31.10.1995 on completion of the age of 58 years. however, he continued to represent, asking him to give due senior selection grade and super time senior selection grade as was given to others.5. thereafter by issue of order dated 14.02.1996 as contained in annexure-7, provisional promotion was given to the petitioner on the post of senior selection grade and super time senior selection grade with effect from 01.04.1981 and 01.03.1989 respectively but it was directed that the provisional promotion shall be effective from 31.10.1995 i.e. the date of retirement of the petitioner without any monetary benefit.6. the petitioner has challenged the second part of the order i.e.annexure-7 whereby he has not been given the monetary benefit.7. mr. v. shivnath, learned counsel for the petitioner has argued that the order depriving the benefit of promotion to senior selection grade and super time senior selection grade is absolutely illegal, arbitrary and against the government orders and circulars as contained in annexures-5 and 6 to the writ application and, therefore, prayer has been made to give direction to the respondents to give the monetary benefits consequent to his promotion to senior selection grade and super time senior selection grade with effect from 01.04.1981 and 01.03.1989 respectively and to pay all the dues with interest.8. on the other hand learned counsel for the state, after referring to various paragraphs of the counter affidavit, has submitted that the respondents have neither withheld nor denied the due promotional benefits rather the same shall be paid to the petitioner, no sooner the approval from the finance department of the government is received, which has been sought for vide office memo. no. 206 dated 14.12.1996 and 770 dated 09.09.1997.9. in view of the stand taken by the respondents and submission made by the learned state counsel, this application is disposed of with a direction to the deputy commissioner, dhanbad to take all possible steps to get the required approval from the competent authority of the state government so that the petitioner is paid his due monetary benefit consequent to his promotion aforesaid within a period of eight weeks from the date of receipt/production of the copy of this order, failing which, the petitioner shall be entitled to get the monetary benefits with an interest @ 6% per annum over the amount so calculated.10. this writ application stands disposed of.

Judgment:
ORDER

Amareshwar Sahay, J.

1. Heard Mr. V. Shivnath, learned counsel appearing for the petitioner and learned J.C. to G.P. II appearing for the State.

2. The petitioner retired on 31.10.1995 as Super Time Selection Grade Head Assistant from the Office of the Deputy Commissioner, Dhanbad.

3. It is said that the petitioner was compulsorily retired on 09.11.1983 by the order of the Deputy Commissioner, Dhanbad, which was challenged by him in CWJC No. 1368 of 1983 (R) and was quashed by the High Court by order dated 16.04.1990 vide Annexure-2, consequently, the petitioner joined the post of Assistant in the Selection Grade on 23.07.1990.

4. After joining, the petitioner represented, to give him due Senior Selection Grade Scale with effect from 01.04.1981, as was given to the persons junior to him but It is alleged that his case was not considered and then the petitioner retired from service on 31.10.1995 on completion of the age of 58 years. However, he continued to represent, asking him to give due Senior Selection Grade and Super Time Senior Selection Grade as was given to others.

5. Thereafter by issue of order dated 14.02.1996 as contained in Annexure-7, provisional promotion was given to the petitioner on the post of Senior Selection Grade and Super Time Senior Selection Grade with effect from 01.04.1981 and 01.03.1989 respectively but it was directed that the provisional promotion shall be effective from 31.10.1995 i.e. the date of retirement of the petitioner without any monetary benefit.

6. The petitioner has challenged the second part of the order i.e.Annexure-7 whereby he has not been given the monetary benefit.

7. Mr. V. Shivnath, learned counsel for the petitioner has argued that the order depriving the benefit of promotion to Senior Selection Grade and Super Time Senior Selection Grade is absolutely illegal, arbitrary and against the Government orders and Circulars as contained in Annexures-5 and 6 to the writ application and, therefore, prayer has been made to give direction to the respondents to give the monetary benefits consequent to his promotion to Senior Selection Grade and Super Time Senior Selection Grade with effect from 01.04.1981 and 01.03.1989 respectively and to pay all the dues with interest.

8. On the other hand learned counsel for the State, after referring to various paragraphs of the counter affidavit, has submitted that the respondents have neither withheld nor denied the due promotional benefits rather the same shall be paid to the petitioner, no sooner the approval from the Finance department of the Government is received, which has been sought for vide Office Memo. No. 206 dated 14.12.1996 and 770 dated 09.09.1997.

9. In view of the stand taken by the Respondents and submission made by the learned State counsel, this application is disposed of with a direction to the Deputy Commissioner, Dhanbad to take all possible steps to get the required approval from the competent authority of the State Government so that the petitioner is paid his due monetary benefit consequent to his promotion aforesaid within a period of eight weeks from the date of receipt/production of the copy of this order, failing which, the petitioner shall be entitled to get the monetary benefits with an interest @ 6% per annum over the amount so calculated.

10. This writ application stands disposed of.