S.Sayeedul Haque v. The State of Bihar

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11425 of 1996 S.Sayeedul Haque, Son of Late S.Wahidul Haque, Resident of Mohalla-New Karimganj (Sir Syeed Colony), Road No.6, P.O. Gaya, P.S. Civil Line, District Gaya. ------ Petitioner

1. The State of Bihar. 2. Secretary Cum-Agriculture Production Commissioner, Bihar, Versus Patna.

3. Joint Secretary to the Government of Bihar, Department of Agriculture, Bihar, Patna.

4. Deputy Secretary to the Government of Bihar, Department of Agriculture, Bihar, Patna.

5. Director of Agriculture, Bihar, Patna, Department of Agriculture, Vikash Bhawan, Patna.

6. Secretary to the Government of Bihar, Department of Finance, Bihar, Patna.

7. Accountant General, Bihar, Patna. ----------- --------- Respondents 8

6.7.2009 Heard counsel for the petitioner. The prayer of the petitioner in this writ application reads as follows:- “1. That the petitioner had been, prior to retirement on 31.7.1989 serving in the Agriculture Department of the State Government of Bihar and this application is being filed for issue of a writ of Mandamus to direct the Respondents concerned to allow his salary and allowances according to the Senior Selection Grade in the scale of Rs. 1575/- to Rs. 2300/- revised to Rs. 3700/- to Rs. 5000/- from 1.4.1981 and subsequently allow Super Time Scale of Rs. 1500/- to Rs. 2500/- revised to Rs. 4100/- to Rs. 5300/- from 1.4.1984, at least, if not from 9.5.1980, till the date of Superannuation i.e. 31.7.1989 instead of pay in the scale of Rs. 1350/- 2 to Rs. 2000/- only which is the old scale of Junior Selection Grade, besides concomitant empoluments.” Counsel for the petitioner, however, had given up the aforementioned prayer of his promotion in Senior Selection Grade (S.S.G.) with effect from 1.4.1984 by taking a plea that the petitioner would be entitled for promotion in the S.S.G. with effect from

1.2.1987 in view of the fact that the petitioner was given promotion in Junior Selection Grade (J.S.G.) with effect from

1.2.1982. To that extent, counsel for the petitioner would seek modification in the order of his promotion in the S.S.G. dated

14.7.2003, whereby and whereunder, such promotion in the S.S.G. to the petitioner was notified with effect from 1.2.1989. The only submission in support of the aforementioned amended prayer as noted above on behalf of the petitioner is that the Government rules prescribes automatic promotion in S.S.G. on completion of a period of five years in the J.S.G. and therefore, such promotion of the petitioner should be directed to be given with effect from 1.2.1987. 3 In the opinion of this Court, there seems to be some misconception in the mind of the petitioner as with regard to the concept of regular promotion in J.S.G. and S.S.G. as well as Super Time Pay-scale (S.T.P.) vis-(cid:224)- vis Time Bound Promotion. Under the rules of the State Government, a promotion either in J.S.G. or S.S.G. or S.T.P. is a regular promotion and eventually would depend on several factors including existence vacancies on the aforesaid post of J.S.G., S.S.G. and S.T.P. on the date of consideration of such eligible persons. It has to be into account that the State Government in each cadre had fixed the specified number of 20% posts for promotion in J.S.G., 12 1/2% of post in S.S.G. and 2 1/2 of the post in the S.T.P. and thus merely because a person completes Kalawadhi of eight years, five years and three years as laid down in the Government Circular for earning promotion in J.S.G., S.S.G. and S.T.P. respectively, it would not mean such promotion has to be notified immediately on completion of Kalawadhi. As a matter of fact, Kalawadhi prescribes 4 eligibility condition for promotion namely the minimum period of experience on a post on completion of which one becomes eligible for being considered for promotion on a higher post. If the submissions of the learned counsel for the petitioner that completion of a period of Kalawadhi by itself would be the date of next promotion is accepted, there would be no difference would between a regular promotion in J.S.G., S.S.G. or S.T.P. vis-(cid:224)- vis Time Bound Promotion. As a matter of fact, it is only in case of ‘Time Bound Promotion’ as the expression itself would indicate that the same till 31.12.1995 had to be notified on completion of a prescribed period by a government servant of ten years and twenty- five years. Such concept of Time Bound Promotion cannot be however made applicable in the case of regular promotion. Time Bound Promotion in fact is granted on the same post by way of increase in pay scale in order to remove the stagnation on completion of a period i.e. ten years and twenty-five years whereas regular promotion is granted on various considerations including 5 fulfillment of eligibility as also existence of vacancies on the higher posts. It is this subtle distinction which has been totally sought to be dismembered by the petitioner by making the concept of Time Bound Promotion also applicable in the case of regular promotion. In the present case, even the seniors to the petitioner including one Ram Pravesh Singh at serial no.14 and junior Ramnath Govind Rao at serial no.18 of the same gradation list dated 22.4.1987 (Annexure-16) were given promotion along with the petitioner in S.S.G. with effect from 1.2.1989 whereas others including Kameshwar Prasad Yadav at serial no.30 and Gangadhar Lal Das at serial no.33 of the gradation list were given promotion in S.S.G. with effect from 1.1.1990 and 1.3.1991 respectively. The notification, therefore, by itself is a proof of the fact that such date of promotion was given to the petitioner junior senior counterpart by the same notification dated

14.7.2003 from different dates only on the ground of availability of the vacancy. As a 6 matter of fact, it is not even the case of the petitioner that any person, junior to him had been given promotion in S.S.G. with effect from any other earlier date than 1.2.1989. It is also a settled concept under service jurisprudence that whereafter a person would claim promotion from retrospective effect, the same at best can be dated back the date on which his juniors were given such promotion. This Court, therefore, would find no anomaly in the promotion of the petitioner in the S.S.G. with effect from 1.2.1989. Once the date of promotion of the petitioner in the S.S.G. as 1.2.1989 is found to be correct, there would be no scope for the petitioner to claim his promotion in S.T.P., inasmuch as, the petitioner had retired from service with effect from 31.7.1989 and therefore, the petitioner did not even qualify for being considered for such promotion in S.T.P. on the ground of having not completed kalawadhi of minimum three years service on a post of S.S.G. The grievance of the petitioner as with regard to the financial benefit on account of 7 the order of promotion dated 14th July, 2003 giving the petitioner benefit of pay-scale of S.S.G. with effect from 1.2.1989, seems to be however legitimate as the State Government in the said notification itself has clarified benefit promotion consequential pay-scale in S.S.G. of Rs. 1575-2300/- (revised 3700-5000/-) would be given from the date of superannuation or

31.12.1995 whichever earlier. The petitioner in terms of the aforesaid provision made in the notification of promotion is thus entitled for payment of his salary on the promoted post of S.S.G. for the period

1.2.1989 to 31.7.1989 as also fixation of his pensionary benefit on the basis of last pay drawn in the S.S.G. in terms of Bihar Pension Rule. In the event, such pay fixation of the petitioner in terms of promotion notification dated 14.7.2003 in S.S.G. with effect from

1.2.1989 has not been made, the same must be made forthwith keeping in view that the petitioner had retired from service way-back in the month of July, 1989. Any difference of salary on account of pay fixation on the 8 promoted post of S.S.G. to the petitioner if not already made must be made to the petitioner in a period of three months from the date of receipt/production of a copy of this order. Similarly, if there be any further entitlement of the petitioner for enhancement of his retirement benefit by way of re- fixation of his amount of pension, gratuity and leave encashment due to the pay-fixation in the higher scale of pay of S.S.G. as per notification dated 14.7.2003, that also must be made by the office of Accountant General and its payment be made to the petitioner within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations/ direction, this application is dismissed. Rsh (Mihir Kumar Jha, J.)