Dismissed

Nishi Kant Jha v. the State of Jharkhand through the Secretary School Education and Literacy Deptt

Jharkhand HC22 Apr 2024WPC/393/2023

Case brief

AI extract

What is this about?

Retired and serving headmasters sought arrears on notional retrospective promotions to Grades 4 and 7 under the Bihar Elementary Teachers Promotion Rules 1993. The court held that absent hostile discrimination or State arbitrariness, Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules bar retrospective monetary benefits; writ petitions dismissed.

What the court decided

AI extract

Nishi Kant Jha Vs the State of Jharkhand through… — Service and Employment | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 393 of 2023

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Nishi Kant Jha, Aged about 62 years, son of Shyam Sunder Jha, Resident of Village: Dharampur, Near Durga Rest House, P.O., P.S. & District: Latehar, now retired as Headmaster, Govt. Girls' Middle School, Rampur, P.O. & P.S.: Mahuadanr, District: Latehar.

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… … Petitioner

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Versus

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The State of Jharkhand, through the Secretary, School, Education & Literacy Department, Govt. of Jharkhand, Ranchi, At: Project Building, Dhurwa, P.O. & P.S.: Dhurwa, District: Ranchi. 2. The Deputy Commissioner, Latehar, P.O. + P.S.: Latehar, District: Latehar.

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The District Superintendent of Education, Latehar, P.Ο. + P.S.: Latehar, District: Latehar. … … Respondents

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With

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W.P. (S) No. 6028 of 2022

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Anjani Kumar Sinha, Aged about 52 years, Son of Late Nagendra Prasad, Resident of Vivekanand Nagar, Paneri Bandh Road, P.O. Shapur, P.S. Chainpur, District: Palamau, presently working & posted as Headmaster, Govt. Middle School, Herhanj, P.O. & P.S.. Herhanj, District: Latehar.

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Arwind Kumar, Aged about 58 years, Son of Late Sarju Prasad, Resident of 2 No. town, Kumhartoli, Near SVM Public School, Medininagar, P.O: Chiyanki, P.S. Medininagar, District: Palamau, presently working & posted as Headmaster, Govt. Girls' Middle School, Barwadih, P.O.: Saridih, P.S.: Barwadih, District: Latchar 3. Vijay Kumar, Aged about 55 years, Son of Hira Singh, Resident of Jagat Awas, Gayatri Mandir Road, Sudna, Daltonganj, P.O: Sudna, P.S.: Daltonganj, District: Palamau, presently working & posted as Headmaster, Govt. Middle School, Baresanr, P.O. & P.S. Garu, District: Latehar.

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Kedar Nath Mahto, Aged about 56 years, Son of Sri Deoki Mahto, Resident of Sarojnagar, P.O. & P.S.: Chandwa, District: Latehar, presently working & posted as Headmaster, Govt. Girls' Middle School, Chandwa, P.O. & P.S.: Chandwa, District: Latehar.

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Baidyanath Ram, Aged about 54 years, Son of Shree Sudarshan Ram, Resident of At + P.O.: Sudna, Byepass Road, P.S.: Daltonganj, District: Palamau, presently working & posted as Headmaster, Govt. Boys' Middle School, Manika, P.O. & P.S.: Manika, District: Latehar.

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Mahendra Mahto, Aged about 58 years, Son of Ram Bhajan Mahto, Resident 2 No. Town, Redma, Near Railway Line, Kumhar Toli, P.O. Chianki, P.S. Medininagar, District: Palamau, presently working & posted as Headmaster, Govt. Middle School, Kechki, P.O.: Saridih, P.S.: Barwadih, District: Latehar.

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… … Petitioners

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Versus

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The State of Jharkhand through the Principal Secretary, School Education & Literacy Department, Govt. of Jharkhand, At: Project Building, Dhurwa, P.O. & P.S.: Dhurwa, District: Ranchi.

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The Director, Directorate of Primary Education, School Education & Literacy Department, Govt. of Jharkhand, Ranchi, At: Project Building, Dhurwa, P.O. & P.S. Dhurwa, District: Ranchi

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The Deputy Commissioner, Latehar, P.O. + P.S. + District: Latehar.

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The District Superintendent of Education, Latehar, P.O. + P.S. District: Latehar.. … … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Amit Kumar Tiwari, Advocate : Ms. Deepmala, Advocate ( In both the cases) For the State : Mrs. Vandana Singh, (Sr. S.C. III) : Ms. Apoorva Singh, A.C. to Sr. S.C. III ---

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09 /22.04.2024 Learned counsel for the parties are present.

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2. W.P.(S) No. 393 of 2023 has been filed for the following

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reliefs: -

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“That by way of this writ petition, the petitioner seeks indulgence of this Hon'ble Court for issuance of an appropriate writ / writs, rule / rules, order / orders, direction/directions, or a writ in the nature of Mandamus, commanding & directing upon the respondents to pay the monetary benefits of the promotion, as granted to him, retrospectively, in Grade 7, as the same has been granted since the date of vacancy but the monetary benefits has not been extended to the petitioner, which is wholly arbitrary, unjust & unsustainable in the eye of law and the same is contrary to the judgment rendered by this Hon'ble Court.”

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3. W.P. (S) No. 6028 of 2022 has been filed for the following

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reliefs: -

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“That by way of this writ petition, the petitioners seek indulgence of this Hon'ble Court for issuance of an appropriate writ writs, rule/rules, order/ orders, direction/directions, or a writ in the nature of Mandamus, commanding & directing upon the respondents to pay the monetary benefits of the promotion, as granted to them, retrospectively, in Grade 4 & Grade 7, as the same has been granted on various dates since the date of vacancy but the monetary benefits has not been extended to the petitioners, which is wholly arbitrary, unjust & unsustainable in the eye of law and the same is contrary to the judgment rendered by this Hon'ble Court.

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AND/OR

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For any other relief/reliefs, for which the petitioners are legally entitled to, for doing conscionable justice to the petitioners.”

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4. Arguments of the petitioners.

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a. In W.P. (S) No. 393 of 2023 there is only one writ petitioner and in W.P. (S) No. 6028 of 2022 there are altogether six writ petitioners.

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b. It has been submitted that as per the Notification No. 2055 dated 30.09.1991 read with the Rules of 1993 advertisement was issued for appointment of trained and untrained Assistant Teachers against sanctioned post of Matric trained. The recruitment process was undertaken by Bihar Public Service Commission, Patna and after selection, trained candidates were to be appointed in the pay scale of Matric Trained of Rs. 12002040 and untrained candidates in the pay scale of Rs. 975-1560.

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c. A reference has been made to the judgement passed by this court in the case of Arun Sinha and others versus State of Jharkhand [ WP(S) no. 638 of 2006 ] to submit that it has been held that there was delay and latches on the part of the respondents in providing training to the teachers and therefore the teachers were entitled to matric trained scale of grade -1 as well as seniority from the date of their appointment itself. The said judgement has been upheld by the Hon'ble Supreme Court in the year 2013 and it was followed by a decision of the state vide resolution bearing no. 3027 dated 14.12.2015.

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W.P. (S) No. 393 of 2023.

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a. The petitioner of W.P. (S) No. 393 of 2023 was appointed in Matric Trained Scale and he was pursuing teachers training and after completion he was granted the pay scale of Grade-1 from the date of passing of teachers' training examination. The petitioner was appointed as Assistant Teacher on 29.10.1994. Admittedly the petitioner is governed by the provisions of Rule namely Bihar Elementary Teachers Promotion Rules 1993

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(hereinafter referred to as the Rules of 1993) framed under Article 309 of the Constitution of India.

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b. The petitioner was appointed in Grade-1 and as per the 1993 Rules; granted promotion to Grade-4 vide memo dated 09.10.2009 with retrospective effect from 01.04.2003 along with other persons upon satisfying the eligibility criteria and the consequential benefits in terms of money were also given to the petitioner.

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c. The petitioner was granted promotion to grade -7 vide memo dated 22.02.2019 w.e.f. 01.04.2009. However, the respondents have denied the monetary benefit to the petitioner for retrospective promotion during the intervening period from 01.04.2009 to 22.02.2019 which is the cause of action to file the present writ petition.

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d. It is further case of the petitioner that once retrospective promotion has been granted, the consequential benefit arising out of such promotion cannot be denied to the petitioner. Further the petitioner has relied upon the following judgments and has prayed for consequential monetary benefits.

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“(i) 1990 (1) BLJR 648 Dr. Paras Nath Prasad Vs. the State of Bihar para no.18,19,20,22 and 23 (ii) 2020 (3) JBCJ State of Jharkhand & Ors. Vs. Dinesh Chand Mahto para nos.12, 20, 21, 27 and 28 (iii) 2010 (3) JLJR 185 Suryadeo Prasad Vs. The State of Jharkhand Para no.13 to 15

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(iv) 2003 (3) BBCJ 564 Md. Hafiz Vs. the State of Bihar

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(v) W.P.(S) No. 1932/2015 Rajeshwar Prasad Vs. The State of Jharkhand”

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W.P. (S) No. 6028 of 2022

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e. The petitioner nos. 1,2 and 4 were appointed way back in the year 1994. Petitioner no. 5 was appointed on 16.07.1998 and the date of initial appointment of petitioner nos. 3 and 6 is not clear. However, as per the records of this case, all the petitioners were

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granted promotion to Grade-4 in the year 2003-2004 and they were also granted promotion to Grade-7 on different dates. The fact regarding each of the petitioners as argued by the learned counsel for the petitioners has been presented in the tabular form later part of this judgement.

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f. The petitioners were given the scale of matric untrained and were sent for in service training and after completion of teachers' training examination they were granted the pay scale of Grade-1 from the date of their passing of teachers training examination.

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g. For these petitioners also, promotion to Grade-4 with retrospective effect was duly granted vide memo dated 19.10.2009 (annexure-2). These petitioners were granted promotion to Grade-7 vide memo no. 157 dated 22.02.2019 (Annexure-3) with different retrospective dates and their grievance in the present case is that they are entitled for monetary benefit out of the retrospective promotion for the intervening period till 22.02.2019.

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h. Learned counsel submits that petitioner of W.P. (S) No. 393 of 2023 has attained the age of superannuation on 31.01.2021 on the post of Headmaster after the grant of retrospective promotion to Grade-7 and so far as petitioners of W.P. (S) No. 6028 of 2022 are concerned, they are still working.

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Arguments of the Respondents.

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i. The learned counsels for the respondents have referred to the counter affidavit to oppose the prayer of the petitioners. It has been submitted that notional promotion having been granted, the petitioners are not entitled to any monetary benefits out of notional promotion. Reliance has been placed upon the decision of the state government as contained in order dated 26.08.2021 (Annexure-D) to the counter affidavit. The respondents have filed counter affidavit in both the cases taking similar plea.

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j. The petitioner in W.P. (S) No. 393 of 2023 was granted promotion in Grade-4 scale with retrospective effect from

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01.04.2003 vide memo dated 19.10.2009 and was granted Grade-7 scale with retrospective effect from 01.04.2009 vide memo dated 22.02.2019 but monetary benefit of retrospective promotion was not granted. So far as petitioners in WP(S) No. 6028 of 2022 are concerned they were also granted retrospective promotion in grade 4 and retrospective promotion in grade -7 on different dates.

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k. A reference has been made to order passed by this Court in W.P. (S) No. 7392 of 2017 dated 26.09.2018 whereby a direction amending earlier resolution dated 14.12.2015. 18.07.2019 and 26.08.2021 was issued wherein it was earlier mentioned that promotion granted earlier shall not be changed but promotion on vacant post can be given with retrospective effect notionally. A reference has been made to an order passed by the Hon’ble Supreme Court in Civil Appeal No. 5573 of 2006 dated 04.12.2006 to submit that the promotional benefit can be granted only from the date of issuance of promotion letter. Reference of judgment dated 08.03.2022 passed in Civil Appeal No. 517-518 of 2017 has been made to submit that promotional benefits cannot be granted with retrospective effect.

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Findings of this Court.

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5. The petitioners in both the cases are governed by the Rules of 1993 and were appointed as assistant teachers after undergoing a selection process. All the petitioners are appointees of 1994, except petitioner no 5 in WP(S) No. 6028 of 2022 (appointee of 1988) and petitioner no. 6 (whose exact date of appointment has not been mentioned). The petitioner of W.P. (S) No. 393 of 2023 was appointed as Assistant Teacher on 19.10.1994 and joined on 22.10.1994 and at that point of time, the petitioner was pursuing teachers training and he completed such training upon publication of his result on 22.02.1995. So far as the petitioners of W.P. (S) No. 6028 of 2022 is concerned, they had also participated in the selection process and were untrained at the time of joining and sent for teachers training and after

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completion of training, they undertook examination of teachers training by Jharkhand Academic Council and the result was published on 03.05.2002. The details with respect to the petitioners of WP(S) No. 6028 of 2022 and grant of retrospective promotion to them to grade 4 and 7 are as follows: -

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S.	Name	Date Of Appointment	Retrospective	Retrospective
No.		(untrained) /date of completion of training.	date of promotion in Grade-4	date of promotion in Grade-7
			Vide memo dated 19.10.2009	Vide memo dated 22.02.2019
1.	Anjani Kumar Sinha	19.10.1994/03.05.2002	01.04.2004	01.04.2012
2.	Arwind Kumar	25.10.1994/03.05.2002	01.04.2004	01.04.2010
3.	Vijay Kumar	1994/03.05.2002	01.04.2003	01.04.2009
4.	Kedar Nath Sahu	25.10.1994/03.05.2002	01.04.2004	01.04.2010
5.	Baidyanath Ram	09.07.88/03.05.2002	01.04.2004	01.04.2013
6.	Mahendra Mahto	Not mentioned/03.05.2002	01.04.2003	01.04.2009

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The aforesaid details with regard to the sole petitioner of WPS No. 393 of 2023 are as under: -

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Date	Of	Dt. Of	Dt. Of pro	motion
Appointment//date	of	promotion in	in Grade-7	Vide
completion of training.		Grade-4	memo	dated
		Vide memo	22.02.2019
		dated 19.10.2009

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Nishi Kant Jha	29.10.1994/22.02.1995	01.04.2003	01.04.2009

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6. There is no dispute with respect to any other grade except monetary benefits arising out of promotion to grade 4 and 7; none of the petitioners are aggrieved by the notional date of promotion granted to them in grade 4 /grade 7; the claim of petitioners of WP(S) No. 6028 of 2022 is that they are entitled to monetary benefits arising out of retrospective promotion in grade 4 and 7 and the claim of sole petitioner in WP(S) No. 393 of 2023 is that he is entitled to monetary benefits arising out of retrospective promotion in grade 7.

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7. The records of the case reveal that the petitioners in both the cases and other similarly situated persons were initially placed in Grade-I from the date they had passed the teachers training examination. A dispute arose as to whether the petitioners and such similarly situated persons would be entitled for Grade-I scale right from the date of joining or from the date they completed the teachers training. This issue fell for consideration before this Court in W.P. (S) No. 638 of 2006(supra) and this Court held that the matric trained/untrained teachers are also entitled for Grade-I scale from the date of their initial appointment provided they had passed the teachers training examination within the stipulated period. The reason for such decision was that the inducted untrained teachers were sent for training in 1998, and the result was published only in 2002 on the intervention of the Court therefore it could not be said that such untrained teachers were at fault in not getting training and therefore it was held that the seniority should be fixed from the date of their initial appointment and they should also be considered for giving benefit of Grade-IV scales after completion of 8/12 years of their service. It is important to note that so far as the petitioner of WP(S) No. 393 of 2023 is concerned the facts are slightly different inasmuch as he was already undergoing teachers training when he was inducted in service on 29.10.1994 and completed his training soon thereafter on 22.02.1995. So far as the petitioners in WP(S) No. 6028 of 2022 their

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case is identically placed as that of W.P. (S) No. 638 of 2006(supra) as these petitioners had also completed the training provided by the state in the year 2002. The operative portion of the judgment passed on 04.04.2008 by this Court in W.P. (S) No. 638 of 2006 is as follows:

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“4. It is not disputed that petitioners were appointed in September/October 1994 in the matric trained scale and were subsequently given replacement scale of Grade-I as per the current Circulars. It is also not disputed that only after the intervention of the Court, petitioners were sent for training in 1998, and the result was published only in 2002 on the intervention of the Court. Therefore, it cannot be said that petitioners were at fault in not getting training. In these circumstances, the said judgment of Jharkhand Police Association (supra) supports the case of the petitioner. It is also not disputed that as per the Circular dated 25.06.99, which is subsequent to the Circular dated 09.07.93, petitioner's seniority is to be counted from their dates of appointment.

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5. In the facts and circumstances of this case, as noticed above, petitioners' case should be considered for fixing their seniority from the date of their appointment. They should also be considered for giving benefit of Grade-IV scales after completion of 8/12 years of their service.

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6. Accordingly, the petitioners will be at liberty to file individual representations, on which, the Director, Human Resources Development Department (Primary Education), Government of Jharkhand, Ranchi (respondent No. 2) will pass necessary orders in terms of this order within four weeks from the date of receipt/production of the representations. With these observations and directions this writ petition is disposed of. No costs.”

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8. The aforesaid observation clearly reflects that the placement of one or the other person in Grade-I right from the date of appointment irrespective of the date on which one or the other person had passed the teachers training examination had a direct bearing on the seniority as the seniority was to be counted from the date of their initial appointment and there was also an observation that they should also be considered for giving benefit of Grade-IV scales after completion of 8/12 years of their service. The said judgement was subject matter of consideration in appeal filed by the State in L.P.A. No. 214 of 2008 which was decided only on 06.11.2008. The operative portion is quoted as under: -

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“Learned Single Judge has carefully considered all the issues involved in the petition and found that the petitioners were though appointed in the year 1993-94 but they were not provided training by the fault of the State only and even the training was provided only after passing of the order by Hon'ble Supreme Court on 05.9.1997. Even when the

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petitioners completed training in the year 1999, their result was not published and after intervention of the Court, that result was published in the year 2002. Therefore, in that fact situation the petitioners are not at fault in obtaining training. Not only this, but in our considered opinion also, once seniority is required to be determined in view of the Circular dated 25.6.1999 and that stands determined because of that Circular and the same could not be made ineffective by the subsequent withdrawal of the said Circular by the State Cabinet with retrospective effect. However, that was not the issue decided by the learned Single Judge as it has been raised by the petitioners but effect of that Circular, which has already been given, cannot be taken away and in the facts and circumstances of the case, we are of the considered opinion that there is no merit in these L.P.As. which are, accordingly, dismissed.”

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9. This Court finds that the judgement of the writ court was sustained in view of the fact that though the petitioners were appointed in the year 1993-94 but were not provided training by virtue of fault of the State and even the training was given only after passing of the order passed by the Hon’ble Supreme Court on 05.09.1997 and even when they completed the training in the year 1999, their result was published only after the intervention of the Court in the year 2002.

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10. The said judgement in L.P.A. No. 214 of 2008 was subject matter of challenge in the Hon'ble Supreme Court in S.L.P. (C) Nos. 5520 -5522 of 2013 which was dismissed on 08.03.2013 .

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11. In the mean-time the petitioners of WP(S) No. 6028 of 2022 were granted promotion to grade 4 vide order dated 19.10.2009 with effect from the date of completion of 8 years in grade-1 by taking the initial date of appointment as appointment to grade 1 which was apparently in terms of the judgement passed in the case of W.P. (S) No. 638 of 2006(supra). So far as petitioner of WP(S) No. 393 of 2023 is concerned he had already completed the training on his own on 22.02.1995 and was granted grade 4 vide order dated 19.10.2009 and by this time he had already completed 8 years in grade 1 even if 8 years from the date of completion of training i.e 22.02.1995 is taken into consideration.

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12. However, after the dismissal of the S.L.P. (C) Nos. 5520 -5522 of 2013 on 08.03.2013 The state government came up with a decision contained in memo no. 3027 dated 14.12.2015 that the untrained teachers appointed in matric untrained scale in the year 1987-88, 1994 and 1999-2000 will be granted the benefit of Grade-1 from their initial

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date of joining. It was also decided that after determining the inter-se seniority amongst the appointees of 1987-88 and 1994 and 1999-2000 and preparation of seniority list further promotion will be granted as per the terms and conditions laid down in the promotion rules of 1993. The said decision was based on the opinion of learned advocate general in which it was clearly recorded that it did not transpire from the records that what decision was taken after the decision of this court dated 04.04.2008 passed in the case of W.P. (S) No. 638 of 2006(supra) in the matter of grant of grade-4 scale to those who were covered by the said judgement. Subsequently, it came to light that some of the teachers were already granted promotion to grade -4 after the decision of this court dated 04.04.2008 passed in the case of W.P. (S) No. 638 of 2006(supra) and consequently, further decision was taken vide memo no. 1145 dated 18.07.2019 that grant of promotion to grade 3,4 and 7 would be notional ; the promotions already granted were not to be disturbed; however, in case of availability of vacancy from a prior date, the date of promotion will be shifted notional to the prior date. the petitioners were granted retrospective promotion from grade-4 to grade -7 on 22.02.2019 from different date but they have no grievance with the date of notional promotion.

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13. In another case filed by Nand Kishore Nayak & Others Vs. State of Jharkhand & Others in W.P. (S) No. 7392 of 2017 a grievance was raised that the teachers of Bokaro, Jamshedpur, Dumka and Chaibasa were not granted the benefit of the decision of the state government contained in memo no. 3027 dated 14.12.2015 and the petitioners of the said case sought a direction upon the respondents to pay monetary benefit upon grant of Grade-I from the date of appointment and further Grade-II in terms of the judgment passed by this Court in the case of W.P. (S) No. 638 of 2006(supra) which was affirmed up till Hon’ble Supreme Court. The petitioners claimed monetary benefit and also notional benefit by referring to resolution of the State Government in memo no. 3027 dated 14.12.2015. This Court observed as follows: -

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“5. Be that as it may, having gone through the submissions of the parties and after perusing the relevant records, this Court is of the

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view that issue regarding giving benefits of Grade-I pay scale fell for consideration before this Hon'ble Court and the Hon'ble Court had observed that teachers are entitled for benefits from the date of their initial appointment and the same was affirmed upto the Hon'ble Apex Court and hence, the issue is no more res-integra. The State Govt. has also come-out with a resolution No.3027 dated 14.12.2015 for implementing the same regarding grant of benefits from the date of initial appointment but unfortunately, the same is not implemented so far. The teachers are suffering as they are not getting their benefits though the issue has been set at rest by the Hon'ble Apex Court. Thereafter, several writ petitions have been filed for the same relief and several orders have been passed by the Hon'ble Court for granting the benefits of Grade-I from the date of initial appointment.

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A very fair submission has been made by the learned Counsel that if the petitioners are not entitled for monetary benefits from the date of their initial appointment, they are at least entitled for notional benefits from the date of their initial appointment and monetary benefits from 15.11.2000, as contained in para-15(iv) of the resolution dated 14.12.2015 and also in view of settled principles of law. This submission of learned Counsel is appreciated by this Court.

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As such, respondent No.4 is directed to take a uniform decision in case of teachers for granting the benefits of Grade-I Scale keeping into account the decision of this Hon'ble Court in case of “Arun Sinha & Ors. vs. the State of Jharkhand & Ors. , passed in W.P.(S)No.638 of 2006 which was affirmed upto the Hon'ble Apex Court and in view of the fact that State has already come-out with a resolution No.3027 dated 14.12.2015. Needless to say that if the petitioners are granted promotion and thus entitled for monetary benefits also and accordingly are entitled for the benefits as prayed for, in view of decision of the Hon'ble Apex Court and in view of resolution dated 14.12.2015.”

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14. In the meantime another decision passed in the case of Dinesh Chandra Mahto (supra) in W.P. (S) No. 7179 of 2011 attained finality. The said judgement was initially upheld in L.P.A. No. 211 of 2019 against which S.L.P. No. 10742 of 2021 was also dismissed. The judgement of Dinesh Chandra Mahto (supra) was also with regards to an assistant teacher governed by the rules of 1993 who was fighting for monetary benefits arising out of notional promotion but his claim was opposed by the state by referring to rule 58 of Jharkhand Service Code and rule 74 of the Jharkhand Financial Rules. It was held that so far as rider about applicability of Rule 58 of the Jharkhand Service Code is concerned, said issue has already been decided in the case of Dr. Paras Nath Prasad Vs. State of Bihar & Ors (supra) as such putting the said rider is nothing but an arbitrary exercise for denying the legitimate claim of the writ petitioner-respondent. It has also been held that applicability of Rule 74 of the Jharkhand Financial Rules is

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to be decided in the facts and circumstances of the case and since the Hon’ble Apex Court has come to a conclusive finding by laying down the law about the applicability of the principle of ‘no work no pay’ which will not be applicable if fault does not lie on the part of the employee, in such circumstances, making the provisions of Rule 74 of the Jharkhand Financial Rules applicable is nothing but an arbitrary exercise as because if the wrong has been committed by the State authorities they cannot be allowed to take aid of their own wrong by denying claim.

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The facts also reveal that numerous orders were passed by this Court granting promotion to those persons who have approached this Court and the State ultimately took a decision vide memo no. 619 dated 26.08.2021 pursuant to order passed by this Court in Nand Kishore Nayak & Others Vs. State of Jharkhand & Others in W.P. (S) No. 7392 of 2017 and also the judgment passed in the case of Dinesh Chandra Mahto (supra) .

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15. It has been observed in decision contained in order dated 26.08.2021 that with respect to inter-se-seniority amongst the teachers a number of litigations were pending before the High Court and therefore there was hindrance in granting promotion to the Assistant Teachers and the High Court has granted promotion of many teachers from retrospective date. One such order has been referred i.e . W.P. (S) No. 7179 of 2011 (Dinesh Chandra Mahto versus State of Jharkhand and others) and corresponding LPA being L.P.A. No. 211 of 2019 and further SLP No. 10742 of 2021 . Direction given in WP(S) No. 7179 of 2011 to give monetary benefit on account of retrospective promotion has been retained till the Hon'ble Supreme Court. In the aforesaid back ground decision was taken vide memo no. 619 dated 26.08.2021 also taking into consideration the earlier decisions contained in memo no. 3027 of 2015, memo no. 1145 dated 18.07.2019 to the following effect: -

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(i) In terms of decision contained in memo no. 3027 dated 14.12.2015 and memo no. 1145 dated 18.07.2019 the assistant teachers would be granted seniority right from the date of their

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appointment and they would also be granted pay scale for Grade-1 right from the date of appointment.

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(ii) As per the provision of the Rules of 1993, the promotion to Grade-2 will be granted after completion of 12 years of service provided the incumbent has completed the training within 12 years of service. Since the promotion to Grade-2 need not follow reservation roster etc. therefore the said promotion is as good as time bound promotion and consequently the arrears of salary for time bound promotion to Grade-2 will also be payable.

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(iii) As per the provisions of Rule 6 (1) (2) (3) of the Rules of 1993, the promotion to Grade-3, Grade-4 and Grade-7 has to follow the availability of posts as well as reservation roster etc. Accordingly, promotion to Grade-3, Grade-4 and Grade-7 will be granted as per the amended seniority list subject to availability of vacancy and in terms of the earlier decision contained in memo no. 1145 dated 18.07.2019, the promotion so granted will be notional in nature.

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(iv) In terms of earlier decision contained in memo No. 1145 dated 18.07.2019 promotion granted earlier will not to be cancelled but in case of availability of post from an anterior date, the date of notional promotion will be accordingly shifted to an anterior date and the effective date of promotion will be modified notionally.

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(v) In case the assistant teacher is not in a position to join after grant of regular promotion, he will not be entitled to notional promotion.

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(vi) After grant of notional promotion, promotion to higher grade will be granted in terms of the rule 7 and 8 of the rules of 1993.

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16. Thus, a clear decision was taken vide memo no. 3027 dated 14.12.2015 read with memo no. 1145 dated 18.07.2019 read with memo no. 619 dated 26.08.2021 that appointment in grade 1 to be granted from the date of joining with monetary benefits; promotion to grade 2 upon completion of 12 years of service in grade 1 to be

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granted with monetary benefits as it amounted to financial upgradation in view of the fact that reservation roster etc. was not to be followed. With respect to promotion of grade 3,4 and 7 it has been decided that the same will be granted in terms of the rules of 1993, that is, upon preparation of seniority list, grant of reservation and roster clearance and such promotion is to be granted notionally. The reasons for such a decision have been mentioned in memo no. 619 dated 26.08.2021 itself as explained above.

¶107

17. None of the decisions contained in memo no. 3027 dated 14.12.2015, memo no. 1145 dated 18.07.2019 and memo no. 619 dated 26.08.2021 are under challenge in these writ petitions and the specific case of the writ petitioners are they are entitled to monetary benefits of retrospective notional promotions in view of the judgements relied upon by them. It is their specific case that the provisions of rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules have no applicability in support of which in particular reliance has been made on the judgement passed in the case of Dr. Paras Nath Prasad (supra ) followed in the case of Dinesh Chandra Mahato (supra) . Dinesh Chandra Mahato(supra) is also a teacher governed by the rules of 1993 like the petitioners.

¶108

18. Before dealing with the arguments of the parties with respect to the claim of monetary benefits out of notional promotion with retrospective effect in grade 4 and 7, it would be relevant to quote the provisions of rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules and also analyze the salient features of the rules of 1993.

¶109

Salient features of rules of 1993 which are relevant for the purposes of this case relating to promotion to grade 4 from grade1 and grade 7 from grade -4.

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I. As per Rule 2 to 11 there are 8 grades of teachers-

¶111

Grade-1-	Matric Trained (Rs. 1200-2040)
Grade-2-	Matric Trained Senior Pay Scale
	(Rs. 1400 to 2600)
Grade-3	Matric Trained Higher Pay Scale (1640-2900)
Grade-4	Graduate Trained (Art) (Rs. 1640-2900)
	Graduate Trained (science) (Rs. 1640-2900)

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Grade-5 Graduate Trained Senior Pay Scale (Rs. 2000 to 3500) Grade-6 Graduate Trained Higher Pay Scale (Rs. 2200 to 4000) Grade-7 Middle School Principal (2000-3500) Grade-8 Middle School Principal Senior Pay Scale (2200-4000)

¶114

II. Rule 3 provides for constitution of Establishment Committee for consideration of promotion of teachers.

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III. As per Rule 4- the eligibility criteria of consideration for promotion are-

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a. required minimum period of service,

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b. minimum educational and training qualification,

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c. availability of posts, reservation roster to be followed,

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d. vacancy position in seniority lists,

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e. satisfactory service.

¶121

IV. Rule 5 deals with eligibility criteria in terms of minimum educational qualification/training /period of service-

¶122

Promotion to Grade-3Graduate trained + 12 years of service in Grade 2 or Matric Trained + 18 years of service in Grade 2

¶123

Promotion to Grade-4 - in case of non-availability of teacher

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(graduate trained) in grade 2 and 3- Graduate trained and minimum 8 years of service in Grade-1

¶125

Promotion to Grade-6 - Post Graduate trained + 12 years of service in Grade-5 OR Graduate Trained + 18 years of service in Grade-5

¶126

Promotion to Grade-7- in case of non-availability of sufficient teachers in grade 5 and 6- Post Graduate trained and minimum 5 years of service in Grade-4

¶127

Petitioners are concerned with promotion from grade 1 to grade 4 and grade 4 to grade 7 for which minimum requirement is 8 years’ service in grade 1 and 5 years of service in grade-4 respectively subject to nonavailability of teachers in grade 2 and 3 and non-availability of teachers in grade 5 and 6 respectively.

¶128

V. Rule 6 deals with availability of posts and calculation of available posts and reservation roster has also been made applicable except to the limited extent for promotion of grade 1 to grade 2; grade 4 to grade 5 and grade 7 to grade 8 and the eligibility criteria is satisfactory service of 12 years in grade 1, grade 4 and grade 7 respectively .

¶129

For promotion from grade 2 to 3 and grade 5 to 6 ---------

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For promotion to grade 4 and 7 sanctioned posts should be available for promotion.

¶132

VI. Rule 7 deals with gradation/seniority list which is to be prepared by 31^st December every year in terms of Rule 8 and altogether 4 different seniority lists are to be prepared.

¶133

For promotion to grade 4 separate seniority list is to be prepared for Arts and Science teachers and the seriatim of placement for eligible candidates from 3^rd , 2^nd , and then 1^st grade has been provided.

¶134

For promotion to grade 7- a common seniority list of science and arts teachers is to be prepared and the seriatim of placement for eligible candidates from 6^th , 5^th , and then 4^th grade has been provided.

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VII. Rule 8 -provides for inter se seniority in the same grade.

¶136

VIII. Rule-9 provides for the manner of preparation/approval/finalization of seniority after completion of the required formalities including consideration of objection/ suggestion.

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IX. Rule 10 provides for issuance of promotion orders after placing before the District Establishment Committee.

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X. Rule 11 provides that is a teacher works in higher grade as a working arrangement he will not be entitled to any benefit of the higher grade.

¶139

Rule 58 of the Jharkhand Service Rules, reads hereunder:

¶140

Rule 58: (a) Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceased to discharge those duties.

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(b) Unless in any individual case the State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows: -

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(i) in the case of a person who receives a first-class passage to India, from the date of his arrival in India, subject to his proceeding to take up his duties without avoidable delay.

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(ii) in the case of a person who receives a second-class passage to India from the date of his embarkation for India.

¶144

Rule 74 of the Jharkhand Financial Rules is quoted hereunder as:

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Rule 74. All authorities which are competent to sanction revision of pay or the grant of concession to Government servants should bear in mind that retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government.

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19. Upon going through the Rules of 1993, it is apparent that inter alia promotion to grade 4 and then to grade 7 is preceded by preparation of gradation/seniority in terms of the rules of 1993 which also provides that reservation roster etc. are to be followed and posts are to be filled from different lower grades upon satisfaction of the required conditions. It is also important to note that for grant of promotion to grade 4 the seniority list for Arts and Science candidate are different but for promotion to grade 7, a combined seniority list of Arts and Science teachers is to prepared. The High Court in W.P. (S) No. 638 of 2006(supra) has also recorded that upon grant of grade -1 right from the date of appointment the seniority of the petitioners was to be counted from their dates of their appointment and keeping this in mind, the following direction was also issued: -

¶148

"In the facts and circumstances of this case, as noticed above, petitioners' case should be considered for fixing their seniority from the date of their appointment. They should also be considered for giving benefit of Grade-IV scales after completion of 8/12 years of their service."

¶149

20. This court finds that the judgment was rendered by the High Court in W.P. (S) No. 638 of 2006 (supra) in the year 2008 and immediately thereafter the petitioners of W.P. (S) No. 6028 of 2022 were granted Grade-4 promotion with retrospective dates , that is, 2003-2004 upon completion of at least 8 years from the date of initial appointment which was the minimum eligibility criteria for promotion to Grade-4 in terms of the rules of 1993 by taking into account the initial date of appointment of 1994/1988 ignoring the date of completion of training in the year 2002 in terms of judgement passed in W.P. (S) No. 638 of 2006 (supra) .

¶150

So far as petitioner of W.P. (S) No. 393 of 2023 is concerned, he had completed the training in 1995 and he was entitled for promotion to Grade-4 on his own rights in view of the fact that he had already

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completed 8 years of service in Grade-1 in the year 2004 but certainly the gradation list/seniority list was still required to be prepared in view of the judgement passed in W.P. (S) No. 638 of 2006 (supra) .

¶153

21. The law is well settled that the employee has a right to be considered for promotion at appropriate time when be becomes eligible for promotion. However, there is no such right of promotion immediately upon acquiring the eligibility criteria for promotion. It has also been held by the Hon’ble Supreme Court in the case of Ajit Singh and others versus State of Punjab and others reported in (1997) 7 SCC 209 that if a person is eligible for promotion but still has not been considered, it amounts to violation of his fundamental rights. In the judgment passed by the Hon’ble Supreme Court in the case of Ajay Kumar Shukla and Others versus Arvind Rai and Others reported in 2021 SCC Online SC 1195 it has been held that the employee has a right to be considered for promotion at appropriate time. In the judgment passed in the case of Dr. Paras Nath Prasad(supra) it has been held that a person who is entitled to promotion and is not promoted can always invoke the jurisdiction of this Court under Article 226 of the Constitution of India for a mandamus to the Employer State to consider his case for such promotion and such due promotion is not a claim of anything notional but it is something that is really attached to the status and the service contract of the employee concerned.

¶154

22. In the present cases, none of the petitioners ever moved this Court asserting their right to be considered for promotion at any point of time, rather the respondents after passing of the judgment in W.P. (S) No. 638 of 2006 (supra) in the year 2008 suo moto granted the petitioners notional promotion to Grade-4 after calculating 8 years from the date of their initial appointment by treating it to be appointment in Grade-1 considering the rules of 1993 and also the observations made by this Court in W.P. (S) No. 638 of 2006 (supra) . The gradation list/seniority list was to be prepared after placing various persons covered by the ratio of judgement passed in W.P. (S) No. 638 of 2006 (supra) in Grade-I right at the time of their

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appointment. Certainly, on account of the reason that grant of Grade - 1 right from initial date of appointment was subject matter of consideration in W.P. (S) No. 638 of 2006 (supra) and therefore neither the gradation list/seniority list of the assistant teachers in Grade-1 could be finalized by the State nor promotion could be granted in terms of the rules of 1993. Since the position of the petitioners in the gradation list did not attend finality till the judgment was passed in W.P. (S) No. 638 of 2006 (supra) , there was no occasion to grant them promotion in absence of finalization of gradation list in terms of the Rules of 1993 as there was a serious dispute as to whether they would be entitled for Grade-1 from the date of completion of training or from the date of initial appointment. It has also come on record that the judgement passed in W.P. (S) No. 638 of 2006 (supra) was not immediately implemented in many of the districts and the judgement passed in W.P. (S) No. 638 of 2006 (supra) was under litigation till 2013 when the case was ultimately dismissed by the Hon'ble Supreme Court . It is not the case of the petitioners that their juniors, who were placed similarly, were granted promotion to Grade-4 and the petitioners were left out and consequently they suffered hostile discrimination at the hands of the respondents.

¶157

So far as promotion from Grade-4 to Grade-7 is concerned, it, interalia, required preparation of combined gradation list / seniority list at the level of Grade-4 and was totally dependent upon the gradation list/ seniority list at the level of Grade-1. The gradation list at Grade -4 was to be prepared as combined gradation list for Arts and Science teachers in terms of the Rules of 1993. The fact remains that the judgement passed in W.P. (S) No. 638 of 2006 (supra) was under litigation which ended before the Hon'ble Supreme Court only in the year 2013 which was then followed by decision of the State government vide memo no. 3027 of 2015, memo no. 1145 dated 18.07.2019 and then memo no. 619 dated 26.08.2021 as mentioned above. It has come to light that there were numerous cases pending with regard to gradation list / seniority list and certain orders granting

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retrospective promotions with consequential benefits were also passed where juniors were promoted and the seniors were left out.

¶160

23. This Court finds that on the one hand the petitioners never approached this Court earlier asserting their fundamental right for consideration of promotion and on the other hand the State had sufficient reasons for not considering their cases for promotion as the entire matter was highly litigated as explained above. The promotion to Grade-4 and then to Grade-7 was granted notionally and this Court finds that such promotions were not mere financial upgradations but were post promotions and was depending upon vacancy, the roster clearance, reservation policy, finalization of gradation list / seniority list, the initial date of grade -1 status etc. in the light of the provisions of Rules of 1993. This Court finds that notional promotions were granted so that various orders passed by this Court with regard to one or the other teacher concerning promotion could be taken care of and the further promotions are streamlined.

¶161

In the decision of the State Government dated 26.08.2021 the initial appointment in Grade-1 and promotion to Grade-2 has been given with retrospective effect with all monetary benefits by observing that promotion to Grade-2 in terms of 1993 Rules is essentially a time bound promotion. So far as other promotions are concerned, it was, interalia, stipulated that Rules of 1993 were to be followed and promotions were then to be granted only notionally from the date of eligibility but will not extend to those who could not join the promotional post.

¶162

24. As promotion, interalia, to grade 4 and to grade 7 are not time bound promotion or promotion by way of financial upgradation but they are post promotions requiring preparation of gradation list, roster clearance, availability of vacancy etc. , in connection with such post promotions , the provision of Rule 58 of Jharkhand Service Code and Rule 74 of Jharkhand Financial Rules shall come into play which clearly provides that the benefit of promotion can be granted only from the date the incumbent joins the promotional post and financial sanctions are not to be granted with retrospective effect . Upon perusal

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of Rule 58 of Jharkhand Service Code, the normal rule is that a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceased to discharge those duties. Further as per rule 74 of the Jharkhand Financial Rules retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government. There are certain exceptions to the said general rules with regard to restrictions in giving monetary benefits from a date anterior to actual date of joining the promotional post , those are where there have been cases of hostile discrimination , such as grant of promotion to junior and denial to others for no justifiable reason or where an order of grant of promotion has already been granted by the court but the same is belatedly complied and while complying the order monetary benefit is denied by referring to the aforesaid provisions or where the state is trying to take advantage of its own wrong .

¶165

25. The exception to Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules has been taken in the judgments which has been relied upon by the petitioners and therefore each of the judgment are to be examined to find out as to whether any such exceptional situation or situation of hostile discrimination or arbitrary action of the state exists in the present case in order to grant monetary benefits from the notional date of promotion inspite of Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules . For this, the judgements relied upon by the respondents are also required to be considered.

¶166

26. In the judgment reported in (1996) 7 SCC 533 (supra) , the only controversy was whether the respondents were entitled to arrears of salary for the period during which admittedly they had not worked but were given notional promotion from the deemed date. In the said case, it was recorded that the court had decided that the seniority list was to be prepared in terms of the rules and it was observed that the entitlement to work arises only when promotion is granted in

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¶168

accordance with the rules and preparation of seniority list was a conditional precedent for consideration of promotion and the order of promotion and posting was to follow the preparation of seniority list. Paragraphs 6, 7 and 9 of the aforesaid judgement reveal that in the said case also preparation of seniority list was a condition precedent for grant of promotion and the rival parties had agitated their rights and ultimately the court directed for preparation of seniority list followed by orders / preparation of seniority list and promotions were granted on 01.12.1992;in the interregnum some had retired; though the deemed date of promotion was given as 1-1-1983, it was held that the respondents could not legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis .

¶169

In the said judgement two earlier judgments of the Hon'ble Supreme Court reported in (1989) 2 SCC 541 and (1990)3 SCC 472 have been relied upon in paragraph 7 to hold that in cases of retrospective promotions there has to be applicability of the principles of “no pay for no work”, i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. It has been held that such person will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. In the said judgement the order of the concerned high court granting arrears of salary for the petitioner the incumbent did not work on the promotional post was quashed by observing in paragraph 9 that that unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the seniority list, the question of entitlement to work in the promotional posts does not arise and consequently it was held that the payment of arrears of salary did not arise since, admittedly the respondents had not worked in the promotional post during that period

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and the order of the High Court directing payment of arrears of salary was quashed and set-aside.

¶172

While deciding the aforesaid case, the Hon'ble Supreme Court also considered the earlier judgement passed in the case reported in (1991) 4 SCC 109 wherein the Hon'ble Supreme Court held that where incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to payment of arrears of salary and was of the view that the said judgement has no applicability as it was a case of suspension during department enquiry and sealed cover procedure was followed due to pendency of criminal case .

¶173

Paragraph 6 to 8 of the aforesaid judgement is quoted as under: -

¶174

" 6. Having regard to the above contentions, the question arises whether the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. The rival parties had agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammelled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were made accordingly on 1-12-1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1-1-1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.

¶175

7. This Court in Paluru Ramkrishnaiah v. Union of India(SCR at p. 109 : SCC p. 556, para 19) considered the direction issued by the High Court and upheld that there has to be “no pay for no work”, i.e., a person will not be entitled

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to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha(SCC p. 482, para 16).

¶178

8. It is true, as pointed out by Shri Hooda, that in Union of India v. K.V. Jankiraman⁴ this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto.

¶179

9. In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the Rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed."

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27. The Hon’ble Supreme Court has followed the aforesaid judgment in the judgment reported in (2007) 15 SCC 777 .

¶181

Thus, in all the cases which has been relied upon by the petitioners the writ petitioners were left out and juniors were promoted or in spite of judicial order passed earlier to grant promotion for one or the other reason the order was not complied by the State which reflected arbitrary action on the part of the State.

¶182

28. In the judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 517-518 of 2017[union of India versus Manpreet Singh Poonam etc] , the Hon’ble Supreme Court has held in paragraph 18 of

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the judgement that a mere existence of vacancy per se does not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically provided under the Rules which also mandate the clearance through a selection process. It has also been held that it has to be born in mind that when we deal with a case of promotion there can never be a parity between two separate sets of rules. It has been further held that a right to promotion and subsequent benefits and seniority would arise only with respect to the Rules governing the said promotion. In the said judgement, a reference has been made to the earlier judgment passed by the Hon’ble Supreme Court in the case of Union of India versus K.K. Vadhera and Others reported in 1989 Supp. (2) SCC 625 wherein it has been clearly laid down that the promotion to a post should be granted from the date of promotion and not from the date on which the vacancy arises. A reference has been made to the judgment passed by the Hon’ble Supreme Court in the case of Ganga Vishan Gujrati and others versus State of Rajasthan reported in (2019) 16 SCC 28 wherein it has been held that ordinarily notional seniority may not be granted from the back date and if it is done it must be based on objective consideration and on a valid classification and must be traceable to statutory rules. It has also been held that seniority cannot be reckoned from the date of occurrence of vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules and it is so because seniority cannot be given on retrospective basis when an employee has not even been born in cadre and by doing so it may adversely affect the employees who have been validly appointed in the meantime.

¶185

This court finds that the respondents under the circumstances as clearly narrated in the aforesaid three policy decisions contained in memo no. 3027 of 2015, memo no. 1145 dated 18.07.2019 and memo no. 619 dated 26.08.2021 took a decision to give retrospective promotion primarily to streamline the various issues arising out of different judgments of this court in the matter of promotion and grant of consequential relief including retrospective promotion and grant of

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retrospective monetary benefits arising out of such retrospective promotion. Thus, in the present case the circumstances under which retrospective promotion were given has been well explained. In the present case it is nobody's case that any junior has been promoted and the petitioner(s) has been left out from consideration .

¶188

29. This court is of the considered view that the present case is squarely covered by the aforesaid judgment passed by the Hon'ble Supreme Court reported in (1996) 7 SCC 533 (supra) so far as the claim of monetary benefits with retrospective effect from the date of notional promotion(s) are concerned but it has to be considered as to whether the facts of this case fall under any circumstance in order to refuse the respondents to rely upon rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules to deny monetary benefits with retrospective effect from the date of notional promotion(s). This has to be examined in the in the light of the judgements relied upon by the petitioners.

¶189

30. In the case of Dr. Paras Nath Prasad (supra) applicability of Rule 58 of the Bihar Service Code was specifically rejected by holding that when a person who is entitled to promotion and is not promoted can always invoke jurisdiction of this Court under Article 226 of the Constitution of India for a mandamus to consider his case for promotion and such due promotion is not a claim of anything notional but it is something that is really attached to status and service contract of the employee concerned. It was clearly observed that the petitioner of the said case was entitled as a right to give promotion from the day on which he was placed below his junior and it was held that his claim for arrears of salary and other material benefits could not be denied on the ground that he was given only notional promotion. The Hon’ble Court also recorded that while the juniors of the petitioner were considered and promoted, the petitioner every time was superseded without there being disqualification ever found. In the said case the petitioner challenged the action of the state to place him junior to his juniors and filed a title suit which was decreed by the munsif in his favour. It was contested by the State till the Hon’ble

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Supreme Court and the decree passed by the Munsif was upheld. Then the petitioner was appropriately placed in the combined gradation list but the consequential benefits upon restoration of the position of the petitioner in service and the appropriate placement in the gradation list was not granted.

¶192

31. In the judgment passed in the case of Suryadeo Prasad (supra) the petitioner's name was approved by two Departmental Promotion Committees for promotion to the post of Chief Engineer w.e.f. 01.04.2005 and inspite of available vacancy the recommendations were not implemented on account of subsequently initiated departmental enquiries and the incorrect decisions of the respondents not to give effect to the recommendations of the two DPCs and it was observed that the petitioner would have been promoted and would have joined on the promotional post, and would have got all the financial benefits but for the wrong decision of the respondents . It was argued that the petitioner cannot be given financial benefit of retrospective promotion in view Rule 58 of Jharkhand Service Code but the said argument was rejected on the ground that the failure of the petitioner to join the promotional post was not due to any fault on his part but was on account of wrong decision of the respondents. Accordingly, he was held entitled to all promotional benefits.

¶193

32. In the case of Ranjit Sahay Jamuar(supra) also there was a dispute regarding inter se seniority and pursuant to the order passed by the writ Court the seniority was to be re-determined and consequently promotion orders were to be issued to the original petitioners and when the promotional orders were issued it was directed that the benefit of promotion would be available only in connection with the retiral benefits and no material benefits would be provided to them as they had already retired. For this reliance was placed by the state on Rule 58 of Bihar Service Code for denying the benefit flowing from promotion given with retrospective effect. In the case of Ranjit Sahay Jamuar (supra) also the Hon'ble Patna High Court clearly held that the 58 of Bihar Service Code and Rule 74 of Bihar Financial Rules did not apply by any stretch of imagination where the promotion was not

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given at due time but with retrospective effect not for the fault on the part of the concerned employees but due to the laches and mistake committed by the department. In the case of Ranjit Sahay Jamuar(supra) inspite of order passed by the writ Court the order was not complied and in the meantime the writ petitioners had retired. 33. In the judgment passed by this Court in W.P. (S) No. 1932 of 2005 (Rajeshwar Prasad versus State of Jharkhand) the petitioner was senior to the private respondent but the private respondent was promoted on regular basis w.e.f. 01.07.1999 on vacant post and the petitioner was given promotion w.e.f. 01.07.1999 vide order dated 04.01.2003 but without financial benefits with retrospective effect. The said denial of financial benefit with retrospective effect was not accepted by the Court as the post was vacant w.e.f. 01.07.1999 when the junior to the writ petitioner was promoted and consequently the State of Jharkhand was directed to give effect of promotion with regard to monetary benefit from the date the junior was promoted. While doing so this Court followed the aforesaid judgment passed in the case of Dr. Paras Nath Prasad (supra) and also the judgment passed in the case of Ranjit Sahay Jamuar(supra) . which in turn had followed the judgment passed in the case of Dr. Paras Nath Prasad (supra).

¶196

34. In the judgment passed by this Court in the case of State of Jharkhand versus Dinesh Chandra Mahto reported in 2020 (3) JBCJ 604 the matter was relating to the Assistant Teachers as involved in the present case also. In the said case this Court has referred to the provisions of Rule 58 of Bihar Service Code and Rule 74 of Jharkhand Financial Rules and was of the view that the learned Single Judge cannot be said to have committed any error in not accepting the reasons for denying claim of the writ petitioners by applying Rule 58 of the Service Code and Rule 74 of the Financial Rules.

¶197

In the said case the writ petitioners were having the requisite qualification of matric trained and were appointed to the post of assistant teacher in the matric trained scale in the year 1975 and they

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subsequently passed the Intermediate examination in the year 1978 and subsequently the B.A. and Master's Degree in 1983 and 1992. The writ petitioners having passed the requisite examination were claiming promotion to the various posts as per the Rules and their claim was that they should be granted promotion from the date juniors to the writ petitioners were granted the scale and from the date the juniors were promoted. In such circumstances an appropriate order was passed by the writ Court in CWJC No. 3986 of 1999 (R) on 23.07.2001 wherein appropriate direction was given with regard to grant of promotion to the writ petitioners from the date the juniors were granted the benefit. The order was not complied and contempt application was filed and they were given the promotion with retrospective effect on the day their juniors were granted such benefit but arrears of monetary benefit were denied to them. This Court while considering the facts of the case has recorded in para 19 that if there was not fault on the part of the writ petitioner and his case for promotion was not considered, rather junior to him were promoted and if such employees approach the court of law and is granted promotion, can such employees be denied monetary benefit of retrospective promotion. This court observed that it was not in dispute that the promotion is not a fundamental right, rather consideration of promotion is a fundamental right and was of the view that the petitioner could not be denied monetary benefit of such post as because if the case of the petitioner would have been considered at the time when the cases of juniors to him were considered, he would have been granted the promotion with all consequential benefits and it was not the case of the State that the writ petitioner was not eligible for promotion and there was no fault on the part of the writ petitioner. It was also observed that if the monetary benefit under such circumstances is denied, same would amount to hostile discrimination by treating the writ petitioner differently as compared to that of his junior who was already granted promotion. It was also observed that under such circumstances the principle of 'no work no pay' is not universally applicable particularly when there has been no fault on the part of the employee. Ultimately

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the Hon’ble Division Bench with regard to applicability of Rule 58 of Jharkhand Service Code and Rule 74 of Jharkhand Financial Rules held in Paragraph 24 and 25 as under: -

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“ 24. Further question is regarding applicability of provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules. So far as rider about applicability of Rule 58 of the Jharkhand Service Code is concerned, said issue has already been decided in the case of Dr. Paras Nath Prasad Vs. State of Bihar & Ors (supra) as such putting the said rider is nothing but an arbitrary exercise for denying the legitimate claim of the writ petitioner-respondent.

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25. So far as applicability of Rule 74 of the Jharkhand Financial Rules is concerned as would be evident from the content of the provisions of Rule 74 as referred above, it would be evident that the same pertains to the power of the competent authority in financial sanctioning in the case of monetary benefit with retrospective effect. But the question herein is about applicability of Rule 74 of the Jharkhand Financial Rules, which is to be decided in the facts and circumstances of the case and since the Hon’ble Apex Court has come to a conclusive finding by laying down the law about the applicability of the principle of ‘no work no pay’ and that will not be applicable if fault not lies on the part of the employee, in such circumstances, making the provisions of Rule 74 of the Jharkhand Financial Rules applicable is nothing but an arbitrary exercise as because if the wrong has been committed by the State authorities they cannot be allowed to take aid of their own wrong by denying claim. “

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35. This court finds that the judgments which have been relied upon by the petitioners in order to claim monetary benefit of notional promotion are the judgment in which juniors to the incumbent were granted promotion and the petitioner was left out without any reason. In such cases where the juniors are promoted and the senior was left out without any cogent explanation such act on the part of the state has been held to be suffering from hostile discrimination and hence violative of Article 14 of the Constitution of India and therefore it has been held that Rule 58 of the Jharkhand Service Code and Rule 74 of

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Jharkhand Financial Rules will not come in the way to grant monetary benefit to those whose juniors were granted such promotion earlier in point of time and also enjoyed monetary benefits out of such promotion. The crux of those judgements is that the state cannot be permitted to act in an arbitrary manner while granting promotion and under such circumstances, the aggrieved person, that is, the senior who has been discriminated by virtue of such arbitrary act of the state, would be entitled to all consequential benefits including monitory benefits arising out of retrospective promotion irrespective of Rule 58 of the Jharkhand Service Code and Rule 74 of Jharkhand Financial Rules.

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36. The present cases are not the cases of any hostile discrimination by the state against one or the other petitioner is as much as it is not the case of the petitioners that any of their juniors have been promoted and they have been left out from grant of promotion. It is not their case that one or the other person junior to them has been granted promotion by the state or by virtue of order passed by any Court and they have been left out from consideration. There is no such circumstance that the gradation list has been wrongly prepared which has deprived the petitioners of any benefit or inspite of a judicial order or any other order to grant the promotion or seniority position the relief was denied to the petitioners showing arbitrary action of the state.

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Rather, the circumstances of not granting promotion to the petitioners at the relevant time was on account of litigations and there was a compelling need to give retrospective promotions to streamline the status of the teachers and their seniority position even for those who had not approached the High Court as explained above. It cannot be said that delay in grant of promotion suffered from any laches or malice or illwill or hostile discrimination against one or the other petitioners or was otherwise arbitrary. Rather the respondents had given promotion to the petitioners although they never approached this Court and the reasons for grant of notional promotion with retrospective effect has been duly mentioned in the memo no. 3027 of

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2015, memo no. 1145 dated 18.07.2019 and then memo no. 619 dated 26.08.2021 as mentioned and explained above.

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37. Under the aforesaid circumstances, the judgement passed in the case of Dr. Paras Nath Prasad(supra) and also the judgement passed in the case of Dinesh Chandra Mahto (supra ) and all other judgement as cited by the petitioners which have been passed by relying upon the judgements passed in Paras Nath Prasad(supra) do not apply to the facts and circumstances of this case. Rather the case of the petitioners is fully covered by the ratio of the judgements passed by the Hon'ble Supreme Court as relied upon by the respondents.

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38. As a cumulative effect of the aforesaid findings and discussions , this court is of the considered view that merely because retrospective promotions were given , that by itself does not entitle the petitioners to also claim monetary benefits with retrospective effect on the face of Rule 58 of Jharkhand Service Code and Rule 74 of Jharkhand Financial Rules and the petitioners have failed to satisfy this Court that under the facts and circumstances of this case, they are entitled to retrospective monetary benefits inspite of the said Rules rule 58 of Jharkhand Service Code and Rule 74 of Jharkhand Financial Rules . The case of the petitioners is clearly distinguishable from the judgements relied upon by the petitioners as discussed above.

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39. On account of aforesaid facts and circumstances, this Court finds no merit in these writ petitions which are accordingly dismissed. 40. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Binit/AFR

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Nishi Kant Jha v. the State of Jharkhand through the Secretary School Education and Literacy Deptt

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Nishi Kant Jha v. the State of Jharkhand through the Secretary School Education and Literacy Deptt

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