IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No 7725 of 2003
Akhaury Dadan Prasad, son of late Akhaury Govind Prasad, Incharge
Assistant Mechanical Engineer (Sub Divisional Officer) Public Health
Engineering Department, present on deputation, Patna Jal Parishad
- Petitioner
Versus
1 The State of Bihar
2 The Commissioner -cum- Secretary, Public Health Engineering Department,
Government of Bihar, Patna
3 The Engineer-in-Chief -cum- Special Secretary, Public Health Engineering
Department, Government of Bihar, Patna
4 The Chief Engineer (Mechanical), Public Health Engineering Department,
Government of Bihar, Patna
5 Bihar Public Service Commission through its Chairman, Bailey Road, Patna
- Respondents
***
For the petitioner : Mr Bipin Kumar Sinha, Advocate
For B P S C : M/s K B Nath & S C Jha, Advocates
For the S t a t e : M/s Mahesh Prasad, SC 8 & R K Sinha,
AC to SC 8
***
5 13.12.2010 It appears that during pendency of the writ petition, an
amendment petition was filed. Opportunity was granted to the
respondents to file further counter affidavit. The same has been filed.
Heard. Amendment petition is allowed.
As the pleadings are complete, the case has been heard for
final disposal at this stage itself with consent of parties.
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Petitioner was selected as Junior Engineer (Mechanical) and
upon confirmation of his service in regular establishment, on 26.02.1980,
he was made Incharge, Assistant Engineer (Mechanical), Nawada. While
so, State published the final gradation list of Junior Engineers
(Mechanical) in the Department of Public Health and Engineering
(PHED). The petitioner found that his junior was shown as his senior in
the gradation list which was wrongly prepared by the State. This led to
litigation as between the petitioner, the said junior and the State and the
matter ultimately travelled to the Apex Court. The Apex Court, by the
judgment and order dated 04.12.2001 passed in Civil Appeal No 8425 of
1997, set aside the judgment of learned Single Judge and Division Bench
of this Court and allowed the appeal in favour of the petitioner holding
that the petitioner was senior to the said Vishwanath Jha. Upon
petitioner’s filing representation, a revised gradation list was published in
which now the petitioner was shown at serial No 2. This gradation list
was ultimately published on 03.12.2002. Petitioner, in the meantime, has
been seeking his regular promotion which was due over 20 years back. At
the cost of repetition, it may be stated that the petitioner had already been
made Incharge, Assistant Engineer (Mechanical) in 1980 itself. After
having won the long battle against the State, one expected that petitioner
would be given his due credit but again that was not to be. For some
reason, even though petitioner was upgraded in the final gradation list as
per directive of the Apex Court, the matter of recommending petitioner’s
name for promotion was kept pending on one pretext or the other and on
one pretence or the other till petitioner ultimately superannuated on
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31.07.2003 and, thereafter the matter of promotion was sent to Bihar
Public Service Commission (BPSC) excluding the name of petitioner on
the lame plea that he had since retired.
Petitioner’s grievance is two folds. Firstly, for the period he
worked on the post of Assistant Engineer (Mechanical) which post carries
additional and higher responsibility than Junior Engineer, he must be paid
accordingly for the higher post. It was not a stop gap arrangement for a
short time but for over 23 years, without granting him due promotion, he
was made to work on a lower pay scale on a higher post involving higher
responsibilities. His second grievance is that even though he had retired,
he was still entitled to promotion from due date as he cannot suffer
because the State slept over the matter for over two decades. For this,
reliance has been placed in the case of All India Groundnut Syndicate
Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954
Bombay 232.
Learned counsel for the BPSC submits that BPSC is not at
fault. BPSC, on its own, does not call for empanelled candidates for
granting promotion. It considers the cases as are sent to it by the
Department and as and when they are sent. In my view, learned counsel
is correct in submitting that the name of the petitioner, not having been
sent to the BPSC, BPSC committed no wrong in not considering the case
of the petitioner.
Now we come to the State. State has not denied the basic
facts. It has not denied that petitioner, being found fit otherwise for
promotion, was made Incharge, Assistant Engineer (Mechanical) in the
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PHED in the year, 1980 itself. There being dispute created by the State
with regard to inter se seniority which was ultimately settled by the
judgment of the Apex Court in the year 2001, stand of the State is that
promotions could not be considered and by the time when promotions
were to be considered, the petitioner had superannuated. Thus, State
exploited the situation for its advantage by first making the petitioner,
who was a Junior Engineer work for 23 years as an Assistant Engineer
denying petitioner the due remuneration for the post of Assistant Engineer
and then when the controversy was set at rest by the Supreme Court, State
did everything to deny the regular promotion to the petitioner which
ordinarily should have been given two decades back. State’s
misconceived plea is also that once the petitioner had superannuated, his
case for promotion was not to be considered even though it ought to have
been considered two decades back.
Having considered the matter, in my view, the writ petition
must succeed on both counts. Firstly, one must keep in mind the
provisions of Rule 89 which is subject to Rule 103 of the Bihar Service
Code. These are Rules made pursuant to proviso to Article 308 of the
Constitution of India and, thus, statutory in nature. These Rules provide
that where because of, inter alia, exigency of service a person holding an
inferior post is made to work/officiate on a higher post, he would not be
entitled to remuneration of the higher post unless the higher post involves
greater and higher responsibility. This Rule, in my view, safeguards the
right of an employee against exploitation by the State. A junior person,
thus, cannot be made to work at a higher post involving greater
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responsibility unless State is made to pay for it otherwise as has happened
in the present case, a Junior Engineer is made to work as an Assistant
Engineer for over two decades without being paid for the higher
responsibility and the post he held. Thus, I find that from the day
petitioner was made to work as an Assistant Engineer (Mechanical), the
post being a higher post with a higher responsibility, he became entitled to
the full remuneration of the higher post of Assistant Engineer
(Mechanical). State would give the same to the petitioner. It must be
kept in mind that for over two decades, this incharge or ad hoc position
continued. Petitioner was not to be blamed. States raises a lame excuse
of pending litigation. It meanwhile exploited the situation to the full to its
advantage and disadvantage of the petitioner. That cannot be permitted.
Now coming to the second relief. The State has nowhere
pointed out in the counter affidavit or the supplementary counter affidavit
that petitioner was not entitled to be considered for promotion on any date
earlier than his superannuation. To the contrary, the conduct of the State
is to treat the petitioner as qualified and competent to be promoted to the
post of Assistant Engineer over two decades back but, on the lame excuse
of pending litigation, failed to finalise the gradation list and sent the cases
to the BPSC for consideration for grant of promotion. It did so after two
decades and then even it omitted the name of petitioner on the pretext that
petitioner has since superannuated. In nutshell, what the State has done is
because the State failed to act within the time, it has now denied the right
of promotion to the petitioner. In other words, State wants to benefit from
its own fault. This can never be permitted. Learned counsel for the
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petitioner has rightly relied on what Chief Justice Chagla said more than
five decades back in the case of All India Groundnut Syndicate Limited –
Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay
232 :
“But the most surprising contention is
put forward by the Department that because their
own officer failed to discharge his statutory duty,
the assessee is deprived of his right which the law
has given to him under sub-section (2) of S 24.
In other words, the Department wants to benefit
from and wants to take advantage of its own
default. It is an elementary principle of law that
no person – we take it that the Income-tax
Department is included in that definition – can
put forward his own default in defence to a right
asserted by the other party. A person cannot say
that the party claiming the right is deprived of
that right because “I have committed a default
and the right is lost because of that default.”
Thus, even though petitioner superannuated, his right to be
considered for promotion was very much alive from the date it was
originally due. It was for BPSC then to consider whether petitioner was
qualified for grant of promotion or not. In normal course, promotion
should have been given almost two decades back but was wrongly
withheld by the State. State does not save the situation by saying that in
the twenty years, no one was granted promotion because it goes ill with
the State to deny promotion where promotions were due except upon very
compelling reasons. There were none in the present.
Thus, I hold and direct that the State would send the name
of petitioner and his like for consideration of grant of promotion from the
date it was originally due with all consequential benefits and BPSC would
give its recommendation including the due date from which promotions
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ought to be granted within three months thereafter. It shall be the
responsibility of the respondent-Engineer-in-Chief -cum- Special
Secretary, PHED, Government of Bihar, Patna to see the due compliance
of orders of this Court.
The writ petition, thus, stands disposed of.
M.E.H./ (Navaniti Prasad Singh)