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Nathuni Prasad Singh vs The State Of Bihar And Ors. on 10 November, 2007

Patna High Court
Nathuni Prasad Singh vs The State Of Bihar And Ors. on 10 November, 2007
Author: M Mishra
Bench: M Mishra


JUDGMENT

Mridula Mishra, J.

1. Heard the counsels for the petitioner and the State.

2. Petitioner has retired from the post of Registrar on 31.1.2002. His grievance is that inspite of the direction of the High Court his case for promotion to the post of Under Secretary and Deputy Secretary is not being considered by the respondents. Prayer of the petitioner is for quashing of the decision of the Departmental Promotion Committee held on 5.8.2004 whereby the case of the petitioner for promotion had been rejected in terms of Section 7(1) (gha) of Secretariat and Attached Offices Joint Cadre (Amendment) Act, 2004 as the petitioner had superannuated. Further prayer of the petitioner is for direction to the respondents to consider and grant notional promotion to the post of Under Secretary w.e.f. July, 1997, to the post of Deputy Secretary w.e.f. July, 1999, to grant all consequential benefits arising out of grant of such promotion in the nature of revision of pay, increment, refixation of pay scale, refixation of pension and pensionary benefits. Petitioner has also prayed to pay arrears of difference of pay w.e.f. 22.2.1994 on account of his promotion to the post of Registrar.

3. Petitioner was promoted as Section Officer w.e.f. 29.9.1986 and promoted to the post of Registrar w.e.f. 22.2.1994. However, monetary benefit for the period 22.2.1994 to 23.5.1998 has not been paid. The process for promotion to the post of Under Secretary started in the year, 1988 and name of the petitioner figured in the list of Registrar for consideration and grant of promotion to the post of Under Secretary. The meeting of the Departmental Promotion Committee was held for this purpose on 29.6.2000, on 12.4.2002 in terms of then existing law (Promotion Rules and Joint Cadre Act) but no decision was taken inspite of roster clearance, receipt of confidential roll and Vigilance clearance. The next meeting of the D.P.C. was held on 16.12.2002 but instead of deciding the case for granting promotion to the petitioner the meeting decided to amend the Joint Cadre Act. The process for promotion had commenced in the year, 1998 but postponed on several occasions for one or other reasons. The next meeting of D.P.C. was held on 28.7.2003 but no decision was taken for promotion. The Joint Cadre Act was amended vide Joint Cadre (Amendment) Ordinance, 2004 and it was notified on 27.4.2004. Thereafter meeting of Departmental Promotion Committee was held on 5.8.2004 and on 06.8.2004 in which the case of the petitioner was not considered as by that time he had retired on 31.1.2002.

4. Petitioner’s case is that since the vacancy occured in 1998 and process also commenced in 1998 as such the petitioner’s case for promotion should have been considered as per the then existing Act and Rules. The Departmental Promotion Committee continued to adjourn the meeting and finally after petitioner’s retirement decided the case of promotion in terms of Section 7(1) (gha) of the Assistant of Secretariat and its attached Offices Joint Cadre (Amendment) Act, 2004 though it was not retrospective in its effect.

5. Counter affidavit has been filed on behalf of respondent Nos. 3 and 4. In the counter affidavit it is admitted that there was 97 vacancy for the post of Under Secretary in the year, 1998. It is also admitted that the process for promotion to the post of Under Secretary was started and the list of 97 working Registrars (including the petitioner) and a list of 53 retired Registrars were sent to the Department of Cabinet (Vigilance) for issuing clearance certificates and the character rolls of the aforesaid officers were asked for from the concerned departments. To this effect the meeting of D.P.C. was fixed on 29.6.2000 but owing to unavoidable reason the meeting was postponed. Similarly the meeting of the D.P.C. was postponed on 12.4.2002 as in the light of the order dated 29.6.2001 passed in C.W.J.C. No. 7707 of 2001 a representation was filed before the Chairman of the Committee for compliance of the said order. The Department thereafter decided to prepare a gradation list of Section Officers, Registrars, Under Secretaries and Deputy Secretaries. The gradation list was published on 16.12.2002 and on the basis of amended gradation list the proposal for promotion on the post of Under Secretary was placed before the Committee. On the basis of revised gradation list the meeting of the D.P.C. was held on 16.12.2002 under the Chairmanship of the then member, Board of Revenue and it was decided that such Section Officers who were senior to some working Registrar might also be considered for promotion on the post of Under Secretary and for this it was necessary to amend the Assistants of Secretariat and Attached Offices Joint Cadre Act, 1989. As per decision of the D.P.C. necessary action was taken for amending the Section 7(1) (gha) of the Assistants of the Secretariat and Attached Offices Joint Cadre Act, 1989 and the same was amended as the Assistants of the secretariat and its Attached Offices Joint Cadre (Amendment) Act, 2004 which was notified on 27.7.2004. By that time the petitioner has already retired on 31.1.2002 as such under Rule 58 of Bihar Service Code he could not have been considered for promotion. It has also been stated that so far the notional promotion is concerned it was granted to the persons only when juniors were promoted from the date prior to the date of retiring officer. In the instant case when no such officers junior to the petitioner have been promoted on the post of Under Secretary prior to the retirement of the petitioner, the petitioner cannot claim for any notional promotion.

6. On consideration of the pleadings of the parties it transpires that the petitioner had earlier come before this Court for similar relief by filing C.W.J.C. No. 953/02. The prayer of the petitioner was for a direction to the respondents to finalise their promotion to the post of Under Secretary. This writ application was disposed of with a direction to the respondents to finalise the promotion of the petitioner within a period of four months. The process of promotion had commenced in the year, 1998 and on account of seniority the petitioner was entitled for promotion on the post of Under Secretary and also in case the promotion would have been granted timely on the post of Under Secretary he was entitled for promotion to the post of Deputy Secretary on account of seniority in the cadre. The petitioner thereafter filed M.J.C. No. 2145 of 2002 as the respondents did not carry out the direction given in the writ application. In the said M.J.C. the Deputy Secretary, Personnel and Administrative Reforms Department filed show cause admitting that the process for promotion to the post of Under Secretary had commenced in the year, 1998 and also when the case of the petitioner for promotion was in active consideration. Inspite of that promotion was not granted to the petitioner. Thereafter an ordinance was promulgated to amend the Assistant of Secretariat and its Attached Offices Joint Cadre Act, 1969 whereby Clause D of Sub-Section (1) of Section 7 was substituted in order to give promotion to only Section Officers and Registrars ‘Working at present’. Thereafter in view of the amended provision the meeting of the D.P.C. was held and promotion was granted to the juniors who were ‘in service’ in terms of the amended Act. The legal claim of promotion of the petitioner to the post of Under Secretary was ignored although vacancy was of 1997 and the process started in 1998.

7. The counsel for the petitioner submitted that the vested right of the petitioner, accrued prior to the commencement of the amended Act has been taken away on account of the amended Act. This is violative of Articles 14 and 16 of the Constitution of India. The counsel for the petitioner further submitted that in M.J.C. No. 2145/02 the Hon’ble High Court has held that (i) whether the amendment Act has retrospective effect, (ii) whether the Opposite parties are justified in overreaching the order of the court by Amending the Act.” Finding was that the amended Act does not have retrospective effect. This fact has been admitted in the counter affidavit filed on behalf of respondent Nos. 3 and 4 in para 19.

8. Considering the fact that the vacancy for promotion occured in the year, 1997, process started in the year, 1998 and Section 7(1) (gha) of the Assistants of the Secretariat and its Attached Offices Joint Cadre (amendment) Act, 2004 is not retrospective, the non-consideration of the petitioner’s claim for promotion by the Departmental Promotion Committee in its meeting dated 5.8.2004 is nothing but illegal and arbitrary exercise of power. The decision of the Departmental Promotion Committee held on 5.8.2004 whereby the case of petitioner for promotion to the post of Under Secretary was not considered for the reason that he had already retired and in terms of Section 7(1) (gha) of the Amended Act he cannot be granted promotion is liable to be quashed, as such it is quashed. The respondents are directed to consider the case of the petitioner for promotion to the post of Under Secretary with effect from the date when the vacancy occured and further consider to give notional promotion to the post of Deputy Secretary on account of his seniority in the cadre. The respondents are further directed to grant all consequential benefits arising out of grant of such promotion, increment, re-fixation of pay scale, re-fixation of pension and pensionery benefit.

9. Another prayer of the petitioner was for direction to the respondents to grant him monetary benefit from the effective date of promotion as Registrar, i.e. 22.2.1994 and pay arrears of difference of pay. The petitioner had earlier moved this Court by filing C.W.J.C. NO. 9772 of 1994 as the respondents were not considering his case for promotion to the post of Registrar. This writ application was decided by order dated 16.4.96 and a direction was issued to the respondents for consideration of his case. Inspite of that he was not given promotion. Petitioner filed M.J.C. No. 2348 of 1997. Thereafter the petitioner was granted promotion vide Notification dated 23.5.98 w.e.f. 22.2.1994.

10. In the counter affidavit it has been admitted that the petitioner was granted promotion to the post of Registrar w.e.f. 22.2.1994 with the condition that actual monetary benefit was admissible to him from the date of joining on the post of Registrar. Since the petitioner joined on 26.8.1998 and took over charge on the post of Registrar of the department. As such he is not entitled for monetary benefit w.e.f. the date of promotion. It has also been stated that the petitioner had submitted a representation dated 24.6.99 for granting him monetary benefit from the date of promotion on the post of Registrar. That representation was rejected in the light of the provision contained in Rule 58 of Bihar Service Code and Circular No. 2074 dated 4.4.1985 of finance Department.

I find that the petitioner had filed I.A. No. 1382 of 2006 for the additional relief in the nature of quashing the order contained in Letter No. 503 dated 27.5.2000 where by his representation regarding grant of monetary benefit on the post of Registrar from the effective date of promotion has been rejected.

This interlocutory application is allowed.

Counsel for the petitioner has submitted that the grant of promotion to the petitioner has been delayed for the lapses on the part of the respondents, in fact juniors to the petitioner were granted promotion as Registrar but the resp-authorities in the Department of Personnel and Administrative Reforms adopted hostile attitude towards the legitimate dues of the petitioner in the matter of grant of promotion. But only after filing of M.J.C. No. 2348 of 1997 he was granted promotion as Registrar from the date junior to the petitioner was granted promotion. Since the notification for promotion to the post of Registrar was not issued in time on account of lapses of the respondents the petitioner cannot be deprived of monetary benefit to which he is legally entitled. The respondents cannot be allowed to take advantage of their own wrong. It has not been denied by the respondents in the counter affidavit that juniors to the petitioner were not granted monetary benefit prior to the date it was allowed to the petitioner. There is no justification in denying the monetary benefit to the petitioner on the pretext that he was actually promoted subsequently with retrospective effect.

11. In the circumstance the rejecting the representation of the petitioner taking benefit of Rule 58 of the Bihar Service Code cannot be justified. Accordingly, the order dated 27.5.2000 contained in Letter No. 503 rejecting the representation of the petitioner for grant of monetary benefit of the post of Registrar from the effective date of promotion, i.e. 22.2.1994 is quashed. The respondents are directed to make payments of the arrears of salary (monetary benefit) to the petitioner on accounts of his promotion to the post of Registrar w.e.f. 22.2.1994.

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