JUDGMENT
S.B. Sinha, J.
1. This application raises a short question as to whether the petitioners are entitled to the monetary benefits owing to issue of an order of promotion granted in their favour with retrospective effect.
2. The fact of the matter lies in a very narrow compass.
3. The petitioners being qualified for appointment of teachers were appointment in Balak Middle School, Jugalari as Assistant Teachers. During the course of their employment they obtained training by passing the Teachers Training Examination on different dates. The petitioners have contended that upon acquisition of the aforementioned qualification, they became entitled to I.A. trained scale of pay with effect from 1-1-1978. By a notification dated 31-7-1978 the State directed the local authorities to prepare a combined gradation list. The said notification is contained in Annexure-1 to the writ application.
4. The said gradation list upon consideration of the objections raised by various persons was made finally in the year 1989. The petitioners thereafter were given the I.A. trained scale with effect from 1-1-1983, by an order dated 30-12-1989 as contained in Annexure-2 to the writ application.
5. The petitioners thereafter filed representations stating therein that the vacancies in the aforementioned posts existed with effect from 1-1-1978 and as such they should have been granted the same scale of pay with effect from the said date.
6. By reason of a letter dated 24-10-1989 as contained in Annexure-4 to the writ application, it appears that two persons who were similarly situated have been granted B. A. trained scale of pay with effect from 1-1-1978. The petitioners’ contention is that they are also entitled to I. A. trained scale of pay with effect from 1-1-1978.
7. In this case a counter affidavit has been filed wherein in paragraph 14 of the counter affidavit has been stated:
That in respect of paragraph 13 it is stated and submitted that the claim of the petitioners they are entitled for I, A. trained scale from retrospective dated 1-1-1978 was not fulfilled on the basis of column (5) of the Finance Department [Bihar Notification No. 2047, dated 4-4-1985 (Annexure-A)].
8. It is, therefore, not disputed that there existed vacancies in the scale of pay I. A. trained teachers with effect from 1-1-1978. It is also not disputed that the petitioners became entitled to that scale of pay in terms of the combined gradation list. It is further not in dispute that the cases of the petitioners were recommended by the appropriate authority. In. this situation, it must be held that the petitioners were entitled to all monetary benefits as they were not given the I. A. trained scale of pay with effect from 1-10-1978 for no fault on this part.
9. Reference in this connection may be made to in 1977 (2) Service Law Reporter page 626 as also a decision of the Punjab and Harayana High Court in Charan Dass Chandha v. The State of Punjab and Haryana reported in 1980 (3) Service Law reporter page 702. The aforementioned view has also been reiterated by a Division Bench of this Court in Dr. Paras Nath Prasad v. State of Bihar reported in 1990 (2) PLJR 248.
10. In that case the Division Bench after taking into consideration various decisions held:
Courts in India have regulated their discretion by rules of prudence always remaining themselves that their power has to be exercised in the ends of justice. This Court, in Akshay Kumar Sinha v. District Superintendent of Education, Purnea 1986 PLJR 632 rejected the contention that no direction can be given to the respondent State to appoint the petitioner who had become average as, according to the Court, that alone could meet the ends of justice. Again a Division Bench of this Court in Lalji Saran v. State of Bihar 1986 PLJR 631 has held that the petitioner Who has been denied due seniority in accordance with law even after his superannuation was entitled to a notional seniority and consequential benefits. In the State of Mysore v. C.R. Seshadri , the Supreme Court has given its verdict to the effect that when a person is found to have been denied his due promotion, the Court may hold that he had been entitled to such promotion with retrospective effect and, accordingly issue direction to the Government to make the payment of arrears of pay etc. In the words of the Supreme Court “there is no dearth of authority to hold that once an order of the Government is found to be void or unsustainable in law and is quashed, the relief which may be a monetary relief and which flows from such setting aside of the order, has to be allowed to the order, successful petitioner.” In Surya Narain Yadav v. Bihar State Electricity Board once again the Supreme Court has reiterated the law stated in Union of India v. Indo Afghan Agencies that” under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the premise solemnly made by it, nor claim to be the Judge of its own obligation to the citizen on an ex parte appraisement arisen” and extended the rule of promissory estoppel in favour of the employees stating that the Board by permanently absorbing ex-cadre doctors cannot deny them the consequence thereof which is complete violation of Articles 14 and 16 of the Constitution of India and accordingly granted relief of absorption with effect from the due date but declined to make any direction which would prejudice such person who had been recruited and absorbed in service of the Board behind heir back without affording the Board an opportunity of hearing them.
11. Further recently the Supreme Court in Union of India v. K.V. Janirama in while considering the matter relating to adoption of sealed cover procedure while withholding promotion of any person on the ground that a disciplinary and/or criminal proceeding had been pending against him, held-
When an employee is completely exonerated in criminal disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not balmeworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of ‘no work no pay’ is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his.
12. The aforementioned decisions as referred to hereinbefore, apply in a 1 fours in the present case.
13. The petitioners had no right of promotion, but in terms of the Articles 14 and 16 of the Constitution of India, they had a right to be considered for promotion along with others eligible candidates. Denial of consideration of promotion at a point of time when they are so entitled would also be violative of Articles 14 and 16 of the Constitution of India,
14. In this view of the matter, this application is allowed and the respondents are hereby directed to pass an appropriate order directing grant of I, A. trained scale of pay to the petitioners with effect from 1-1-1978. The respondents are also hereby directed to grant all monetary benefits to the petitioners with utmost expedition and preferably within a period of two months from the date of the receipt of a copy of this order.
15. In the facts and circumstances of the case, however, there will be no order as to costs.
