Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.7158 OF 2012 =================================================== RADHA SAH S/O LATE MATHURA SAH R/O VILL-HAZMA TOLA (SANT KABIR ROAD), P.O.-BANU CHAPRA, P.S.-BETTIAH (MUFASSIL), DISTT-WEST CHAMPARAN. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT BIHAR, PATNA. 2.PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT BIHAR, PATNA. 3.CHIEF ENGINEER, WATER RESOURCES DEPARTMENT VALMIKI NAGAR. 4.EXECUTIVE ENGINEER, TIRHUT CANAL DIVISION NO.1 BETTIAH. 5.TREASURY OFFICER WEST CHAMPARAN. 6.ACCOUNTANT GENERAL BIHAR, PATNA. .... .... RESPONDENT/S =================================================== Appearance : For the Petitioner/s:Mr. Harshvardhan Shivsundaram. For the Respondent/s:Smt. Neelu Agrwal GA-6 & Zaki Haider, AC to G.A-6. For Accountant General: Mr. Satish Chandra Jha, & Mrs. Pushpa Rani. =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 3/ 22-04-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- "To issue appropriate direction order or writ in the nature of certiorari quashing the part of the order issued by the Chief Engineer, Water Resources Department, Valimiki Nagar as contained in letter no. 633 and dated whereunder the petitioner has wrongly been bound first promotion and first assured career progression (A.C.P.). 24.03.2011 whereby denied time To issue appropriate direction, Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 2 order or writ in the nature of mandamus commanding the respondents to grant the petitioner first time bound promotion w.e.f 01.04.1981 in the pay scale of Rs. 730-1080/- and the revised pay scale of Rs. 1400- 2300/- from 01.01.1986 to 07.03.1993 similarly as situated employees. granted other to To issue appropriate direction, order or writ in the nature of mandamus commanding the respondents to grant the petitioner 1st A.C.P in the pay scale of Rs. 5000-8000/- and 2nd A.C.P in the pay scale of Rs. 5500-9000/- from 09.08.1999 as granted him earlier vide office order contained in memo no. 347 dated 08.02.2008 like other similarly situated persons." effect with Learned counsel for the petitioner submits that the impugned order passed by the Chief Engineer, Water Resources Department, Valmiki Nagar, in compliance of the direction given by this Court in the order dated 13.09.2010 passed in C.W.J.C No. 12581 of 2005 wrongly deprives the petitioner of the benefit
Facts
of first time bound promotion as also the monetary benefit arising out of first ACP. In this regard, learned counsel for the petitioner has pointed out that the persons similarly situated alike the petitioner were already granted the benefit of first time bound promotion by order dated 22.02.1988 under the orders of the Deputy Collector, Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 3 Revenue Department, Koshi Division, Purnea and even when the petitioner was senior to three of them he was denied such benefit of first time bound promotion. He has also submitted that subsequently the respondents had granted the petitioner the benefit of second time bound promotion alone by an order dated 28.11.2002 after the petitioner had retired on 31.03.2001. Learned counsel for the petitioner is therefore, of the view that the injustice done to the petitioner in course of his service ought to have been redressed specially when this issue was specifically remitted to the Chief Engineer under the order of this Court as referred above. As with regard to the grant of monetary benefit of first ACP learned counsel for the petitioner has relied on an order of the competent authority dated 08.02.2008 to contend that once the name of the petitioner was also included in the decision of the authority as with regard to extending the benefit of first ACP he ought to have been granted the monetary benefit of first ACP. In this regard, he has explained that as the impugned order passed by the Chief Engineer Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 4 depriving the petitioner of the monetary benefits of the first ACP, is not only in violation of the principles of natural justice but even other wise had both on fact and in law. Learned counsel for the State on the other hand has submitted that the petitioner was never entitled for grant of first time bound promotion and in fact he having been given a higher pay scale of the post of Pradhan Moharir(Clerk) in the year 1968, he would be disentitled for grant of first time bound promotion in terms of the Government resolution dated 30.12.1981. He has further submitted that in any event the issue raised by the petitioner as with regard to his alleged juniors being given first time bound promotion in the year 1988 is wholly belated, inasmuch as, the petitioner as per his actual entitlement was given second time bound promotion in the year 2002 and yet the petitioner till the date of retirement did not file any writ petition for grant of first ACP. Counsel for the petitioner in reply submits that earlier the petitioner had not moved this Court for grant of first ACP but he Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 5 has filed a representation in the year 1990 before the competent authority as with regard to first time bound promotion. The issue relating to first time bound promotion cannot be decided in favour of the petitioner by this Court for a simple reason that if the petitioner had found himself entitled for grant of such first time bound promotion in the year 1988 when according to him his three juniors were given such first time bound promotion, he could not have remained silent specially when the time bound promotion scheme itself remained in existence till 31.12.1995. The petitioner was in fact granted the second time bound promotion after his retirement in the year 2002 and on the basis of which his salary and emoluments were also fixed for payment of his retirement benefits. The petitioner even at that point of time did not raise this issue and only later
Legal Reasoning
on came to this Court in the year 2005 raising the issue of both the time bound promotion and ACP as if they were part of same benefit. The issue of time bound promotion having been closed on 31.12.1995, and the scheme of ACP coming in existence only in the year 2003, w.e.f 1999 Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 6 the petitioner had no reason to wait for grant of both the benefits in one package. Delay apart this Court also finds that the reasons given in the reasoned order dated 24.03.2011 for denying the benefit of first time bound promotion to be logical in terms of the Government resolution dated 30.12.1981. The authority in this regard had given the following reasons for denying him the benefit of first time bound promotion:- 1- Jh jk/kk lkg] dh izFke fu;qfDr fnukad 01-03-68 dks eqgfjZj ds in ij gqbZ A fnukad 01-04-81 ls iz/kku eqgfjZj …fyfid‰ ds :Ik esa osrueku 680&965 dk mPprj osrueku izkIr fd, gSa tcfd bUgsa eqgfjZj fyfid dk osru ns; Fkk A ljdkjh izko/kku ds rgr~ tc 10 o"kZ dh lsok iwjh djus ij dksbZ izksUufr ugha feyh gks rks gh izFke dkyc) izksUufr nsuk gS A pwWafd Jh lkg fnukad 01-04-81 ls iz/kku eqgfjZj …fyfid‰ ds :Ik esa 680&965 dk mPprj osrueku izkIr dj pqds gSa tks lEoxhZ; ,d izksUufr ds rqY; gS blfy, fnukad 01-04-81 ls bUgsa izFke dkyc) izksUufr ns; ugha gS A bUgsa fnukad 08-03-93 ls fu;ekuqdwy f}rh; dkyc) izksUufr izkIr gks pqdk gS A The petitioner nowhere denies these facts but now a plea is being developed before this Court that there was only upgradation of the post of Moharir as Pradhan Moharir and in fact that also later on was also discontinued. In
Decision
addition to it in the writ petition, a plea of discrimination has been raised. Unfortunately, these things were never brought to the notice of the authorities i.e. the Chief Engineer before whom the petitioner was given liberty Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 7 to file a representation. Annexure-10 is the representation filed by the petitioner before the Chief Engineer, in terms of the order of this Court dated 13.09.2010 relevant portion whereof reads as follows:- of first A supplementary affidavit has been filed on behalf of the petitioner in which it is stated that though second time-bound promotion has been granted to him but the benefit time-bound promotion has not been given. The other the supplementary affidavit is the which replacement scale petitioner from 1.1.96 is Rs.4500-7000 and not order Rs.4000-6000. therefore of replacement scale is required. correction Necessary entitled aspect raised for was in to Yet issue is another monetary benefit accruing from the grant of ACP to the petitioner. Though respondents have given him the benefit of ACP but the monetary benefit has not flown in favour of the petitioner. Looking at the nature of the prayer this Court does not want to adjudicate the issue at this stage. Let the petitioner file his claim in detail in this regard before the Chief Engineer, Water Resources Department, Motihari at Balmikinagar, who shall get the matter verified with regard to necessary notification on the issue of pay scale, non grant of first time-bound promotion and monetary benefit of ACP within a time frame of six months from the date such filing application. The Chief Engineer will be obliged to pass a speaking order and communicate the same to the petitioner. of of Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 8 As would be noted above, this Court had only opened up the issue by giving a liberty to the petitioner to establish his claim of grant of first time bound promotion and the monetary benefit of the first ACP. The petitioner thereafter had admittedly filed his representation before the Chief Engineer, and in that representation dated 29.04.2010 his case was as follows:- 4- lsokfuo‘fr ds i’pkr~ eq>s i=kad 1721 fnukad 28-11- 2012 ds }kjk fnukad 8-3-1993 ds izHkko ls f}rh; dkyc) izksUufr osreku :Ik;k 1400&2600 esa nh xbZ fdUrq 8-3-1993 ls 31-12-1995 rd eq>s :I;k 1400&2300 ds osrueku esa gh osru fn;k x;k vkSj 1-1-1996 ls 31-3-01 rd osrueku :I;k 4000&6000 esa gh osru xyr <ax ls fn;k x;k vkSj blh vk/kkj ij esjk osru Hkh r; dj fn;k x;k tks fd xyr Fkk A KkrO; gks fd iape osru iqujh{k.k lfefr dh vuq’kalk ds vkyksd esa :I;k 1400&2600 dk iqujhf{kr osrueku :Ik;k 4500&7000 :Ik;k gksrk gS vkSj ;gh osrueku eq>s feyuk pkfg, Fkk A In paragraph no. 7 of his representation when he had cited the case of Yogendra Mishra, Dev Narayan Mishra and Keshav Kumar Giri to whom first time bound promotion was given, the authority, the Chief Engineer ought to have looked into this aspect as to whether they too alike the petitioner were given the benefit of higher pay scale in the year 1968. In fact there is no averment in the representation that they were also given the benefit of pay fixation on the post of Pradhan Moharir which Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 9 could have deprived them of the benefit of first time bound promotion. Unfortunately, this aspect raised in paragraph no. 8 of the writ petition also remains vaguely answered in the counter affidavit and therefore, this Court would direct the Principal Secretary of the Water Resources Department, the higher authority to the Chief Engineer, to look into the aspect as to whether the petitioner was ever entitled for grant of first time bound promotion in terms of the Government resolution dated 30.12.1981. It is however made clear the order of the Deputy Collector granting first time bound promotion to the three other persons will not form the precedent unless he is satisfied that their cases were also similar to the petitioner and they had been recipient of higher pay scale of Head Muharir w.e.f. 1.4.1981 before being first time bound promotion of the post of Muharir. In case he would find that those three persons were wrongly given the benefit of first time bound promotion he must take appropriate action after issuance of notice to them while taking a decision for denying them the benefit of Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 10 first time bound promotion and the recovery/ adjustment of the amount. If he finds that the reason given by the Chief Engineer as with regard to upgradation of the petitioner in the higher pay scale is correct, he would reaffirm the same by giving his supporting reasons. It is also made clear that even if the petitioner is granted the benefit of first time bound promotion he will be paid no arrears for it because the petitioner never moved this Court from 1988 for grant of time bound promotion till the date the scheme was in existence i.e. from 30.12.1981 till 31.12.1995. His filing of the writ petition only in the year 2005 after his retirement in 2002 at best could have given him the benefit of pay fixation even if he was entitled for such first time bound promotion. Therefore if the Principal Secretary of the Water Resources Department would find that the petitioner was entitled for grant of first time bound promotion and was wrongly deprived of the same he would only direct for refixation of the pay scale of the petitioner so that the retirement benefit on account of revised last salary drawn by the petitioner gets refixed and paid Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 11 to him. Coming to the issue of grant of ACP there was no question of the petitioner being given show cause notice, inasmuch as, the order granting ACP to the petitioner has been rescinded in fact the petitioner has nowhere mentioned with regard to issuance of show cause notice and therefore, the violation of the principles of natural justice cannot be assumed. The only reason given by the authority for not giving monetary benefit in the impugned order of the Chief Engineer, reads as follows:- bl izdkj fnukad 01-04-81 ls 680&965 dk lEoxhZ; mPprj in ij mPprj osrueku izkIr gS tks izFke ,0 lh0 ih0 ds lerqY; gS] QyLo:Ik bUgsa fnukad 09-08-99 ls ek= f}rh; ,0 lh0 ih0 osrueku 5000&8000 esa gh vuqekU; gksxk rFkk 01-01-96 ls iqujhf{r osrueku 4500&7000 ns; gksxk A vr% Jh jk/kk lkg] iz/kku eqgfjZj …fyfid‰ dks fnukad 01- 01-96 ls iz/kku fyfid dk iqujhf{kr osrueku 4500&7000 Lohd‘r fd;k tkrk gS rFkk fnukad 09-08-99 ls osrueku~ 5000&8000 esa iwoZ iznRr izFke ,0lh0ih0 rFkk osrueku 5500&9000 esa iwoZ iznRr f}rh; ,0lh0ih0 dks jn~n djrs gq, fnukad 09-08-99 ls osrueku~ 5000&8000 esa f}rh; ,0lh0ih0 Lohd‘r fd;k tkrk gS A The Rule very clearly lays down that if someone has already been given higher pay scale which is equivalent to the first ACP pay scale, he will not be entitled for such financial benefit of ACP. Admittedly, in the case of the petitioner he was already granted higher pay scale of second ACP notified in the Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 12 year 2002 w.e.f 08.03.1993. In view of the above if the petitioner’s next 10 years service is taken into account, he had already the benefit of higher pay scale and therefore, there would be no question of grant of financial benefit to the petitioner. Admittedly, as noted above, the impugned order goes to show that he has got the benefit of pay scale in the Pradhan Moharir w.e.f. 1.4.1981 and also had got still higher pay scale of the second ACP w.e.f 08.03.1993. In that view of the matter, the decision of the authority denying the financial benefit to the petitioner does not suffer from any error. In that view of the matter, while this Court would approve the impugned order in relation to ACP, it would only remit the matter as with regard to grant of first time bound promotion in the light of the observations and directions given hereinabove. In order to shorten this exercise, this Court would give liberty to the petitioner to file his fresh representation enclosing a copy of this order before the Principal Secretary of the Water Resources Department confining his case to the grant of benefit of first time Patna High Court CWJC No.7158 of 2012 (3) dt.22-04-2013 13 bound promotion and an appropriate order will be passed by the Principal Secretary of the Water Resources Department within a period of three months from the date of filing of the representation by the petitioner. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)