Ram Kumar Tiwari Vs the State of Jharkhand through the Chief Secretary

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (S) No. 5876 of 2023

Ram Kumar Tiwari, aged about 64 years, son of Late Mukti Nath Tiwari, resident of Qr. No. 182/C, Ashok Nagar, Road No. 4, P.O. & P.S. Argora, Distt. Ranchi, Jharkhand … … Petitioner

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Versus

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The State of Jharkhand through the Chief Secretary having its office at Project Building, P.O. & P.S. Dhurwa, Dist. Ranchi

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The Principal Secretary, Department of Personnel and Training, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurwa, Ranchi

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The Principal Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, P.O. & P.S. Doranda, Dist. Ranchi

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… … Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Yash Harshvardhan, Advocate Mr. Rishi Chandan, Advocate For the Respondents : Mr. Suraj Prakash, Advocate Mr. Zaid Imam, Advocate

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05/19^th March 2024

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1. Heard the learned counsel for the parties.

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2. Mr. Yash Harshvardhan, the learned counsel for the petitioner, has joined through virtual mode.

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3. This writ petition has been filed for the following reliefs: -

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“i. For the issuance of an appropriate writ/writs in the nature of mandamus for modifying the office order no. 3093 dated 25.09.2018 in terms of which the petitioner has been granted promotion to the post of Superintending Engineer from the post of Executive Engineer and not from the date from which the Petitioner became eligible for promotion that is from 30.11.2016.

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And/Or

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ii. For issuance of writ in nature of mandamus directing the respondents to promote the Petitioner to the post of Superintending Engineer from the date the Petitioner became eligible for the said promotion i.e. from 30.11.2016 and to grant all the consequential promotional benefits including monetary benefit with effect from 30.11.2016.

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And/Or

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iii. For issuance of Writ in the nature of Mandamus directing the respondents to revise the pay scale of the Petitioner and grant the level 13 A i.e. 131100-216600 from 22.06.2017, as the Petitioner has completed 30 years of service on this date and under the MACP scheme the petitioner is entitled to the upgraded pay scale from the date.

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And/Or

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iv. Pass such writ(s)/order(s)/Direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of the case and in accordance with law.”

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4. The foundational facts of the case are that the petitioner was appointed as Assistant Engineer on the recommendation of Bihar Public Service Commission vide letter dated 20.06.1987 in Water Resources Department, Government of Bihar and he joined on 22.06.1987 as Assistant Engineer. The promotional avenue of the petitioner is from Assistant Engineer to Executive Engineer, Executive Engineer to Superintending Engineer, Superintending Engineer to Chief Engineer and Chief Engineer to Engineer-in-Chief.

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5. After bifurcation of the State, the petitioner was allocated Jharkhand Cadre in the year 2004 and was promoted as Executive Engineer on 09.06.2014 and thereafter upon expiry of one and a half years, he was notified as regular Executive Engineer vide letter dated 30.11.2015 and his pay-scale was also mentioned therein.

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6. It is the case of the petitioner that there were altogether 52 posts of Superintending Engineers, 12 posts of Chief Engineers and 02 posts of Engineer-in-Chief in the Water Resources Department, Jharkhand and out total 66 posts, 33 posts in the rank of Superintending Engineers, 08 posts in the rank of Chief Engineer and 01 post in the rank of Engineer-in-Chief were for unreserved category.

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7. The final gradation list was published on 02.04.2013 which was followed by notification dated 30.11.2015 and ultimately the provisional gradation list of regular Executive Engineers was notified vide notification dated 09.01.2017. As on 01.06.2016 and the seniority position of the petitioner was at 42. The petitioner was entitled for promotion to the next higher post in terms of letter dated 24.10.2014, but was granted promotion vide notification dated 25.09.2018 though he was entitled for promotion with effect from 30.11.2016.

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8. The grievance of the petitioner is that the petitioner being eligible for promotion as on 30.11.2016 is entitled for notional promotion with effect from the said date and the notification dated 25.09.2018 granting him promotion is required to be modified to give retrospective promotion to the petitioner with all consequential benefits. It is not the case of the petitioner that any person

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junior to him has been granted promotion with effect from 30.11.2016, the date from which the petitioner is seeking retrospective promotion.

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9. The learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court in the case of Ajay Kumar Shukla & Others vs. Arvind Rai & Others reported in 2021 SCC OnLine SC 1195 to submit that the petitioner had a right to be considered for promotion at the appropriate time. He has also relied upon the judgment passed by the Hon’ble Supreme Court in the case of Ajit Singh & Others vs. State of Punjab & Others reported in (1997) 7 SCC 209 to submit that it has been held that if a person is eligible for promotion but still has not been considered, it amounts to violation of his fundamental rights.

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10. The learned counsel has submitted that as per the notification dated 04.04.2014 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, respondents are under an obligation to conduct minimum two Departmental Promotion Committee Meetings every year and the policy decision of the State has been violated by the State themselves and therefore the petitioner having attained the requisite criteria for consideration of promotion as on 30.11.2016, the petitioner is entitled for retrospective promotion with all consequential reliefs. 11. The learned counsel for the petitioner has submitted that the respondents have taken a stand in the counter-affidavit that there was an interim order of stay regarding promotion passed in W.P. (S) No. 3792 of 2016 (Amarendra Kumar Singh vs. State of Jharkhand) vide order dated 27.02.2017 and the order was vacated on 27.06.2018. It is submitted that such a stand is misconceived, inasmuch as, the petitioner had become entitled for promotion with effect from 30.11.2016. i.e., prior to the stay order passed by this Court. 12. The learned counsel for the petitioner has also submitted that vide Notification No. 6752 dated 24.12.2020, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand had passed a blanket order to stay of all the promotions which was subject matter of challenge in W.P. (S) No. 1390 of 2021 with other analogous cases and ultimately the same was quashed and set-aside with appropriate directions contained therein and the respondents have taken a conscious decision to relax

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the provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules in order to give retrospective promotion.

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13. The learned counsel submits that the respondents having not conducted the Departmental Promotion Committee Meeting at the relevant point of time, the provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules will not come in the way of the petitioner to claim promotion with retrospective date. 14. The learned counsel for the petitioner has also relied upon proviso to Section 73(1) of Bihar Reorganization Act, 2000 to submit that it has been provided that the conditions of service applicable immediately prior to the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under Section 72 shall not be varied to his disadvantage except with the previous approval of the Central Government. By referring to the aforesaid provision of Bihar Reorganization Act, 2000, the learned counsel for the petitioner has submitted that the colleagues of the petitioner in the State of Bihar after cadre allocation have received the necessary promotion from the date as claimed by the petitioner but persons like the petitioner who are serving in the State of Jharkhand have been denied such similar benefit and such action is violative of provision to Section 73(1) of the Bihar Reorganization Act, 2000.

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15. The learned counsel appearing on behalf of the respondents, while opposing the prayer of the writ petitioner, has submitted that the petitioner has a right of consideration for promotion but there is no right to promotion. The learned counsel has further submitted that the circumstances in which the Departmental Promotion Committee Meeting was held later has been duly explained in the counter-affidavit and the petitioner having not granted promotion on 30.11.2016 and having not joined the promotional post with effect from 30.11.2016, there is no question of grant of any retrospective promotion to the petitioner. The learned counsel has also submitted that it is not the case of the petitioner that any junior to the petitioner has been promoted and the petitioner has been left out. It has also been submitted that the petitioner was not eligible for promotion as on 30.11.2016, inasmuch as, for promotion to the post of Superintending Engineer one should work as Executive Engineer under the grade pay of 7600 for at least 5 years, or should

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have worked as an Executive Engineer for 20 years and 1 year in the Grade pay of Rs. 7600.

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16. The learned counsel has relied upon the provisions of Rule 58 of the Jharkhand Service Code and Rule 74 of the Jharkhand Financial Rules to submit that the benefit of promotion can be granted only from the date the incumbent joins the promotional post.

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17. The learned counsel has submitted that the petitioner has attained the age of superannuation on 31.10.2019 and after his superannuation, the petitioner is claiming retrospective promotion. It is submitted that in view of the stand taken in the counter-affidavit, the petitioner is not entitled for retrospective promotion. He has also submitted that the petitioner has already availed all the financial upgradations which the petitioner was entitled in lieu of promotion.

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18. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner was initially appointed as Assistant Engineer in Water Resources Department on 22.06.1987 and was promoted to the post of Regular Executive Engineer vide notification dated 30.11.2015. The petitioner was granted financial upgradation in the form of 1^st ACP vide notification dated 04.03.2005 with effect from 09.08.1989 in the pay-scale of 10,000-325-15,200; upon completion of 20 years of service , the petitioner was granted MACP vide notification dated 06.11.2013 in the pay-scale of 15,600-39,100 with grade pay of 7600 with effect from 01.09.2008 and upon completion of 30 years of service, the petitioner was granted 3^rd MACP vide notification dated 07.06.2018 in the pay-scale of 37400-67000 with effect from 22.06.2017.

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19. As per the claim of the petitioner, the petitioner became entitled for promotion to the post of Superintending Engineer with effect from 30.11.2016 though disputed by the respondents. This court is of the considered view that even if the claim of the petitioner is assumed to be correct, the petitioner is not entitled for the relief as prayed for in this writ petition. The reasons are given in the following paragraphs.

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20. This Court finds that immediately after 30.11.2016, an order dated 27.02.2017 was passed by this Court in W.P. (S) No. 3792 of 2016 wherein an order of stay was granted in connection with promotion. The interim order of stay was vacated on 27.06.2018 by the order of this Court and immediately 5

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thereafter the meeting of the Departmental Promotion Committee was held on 30.08.2018 and recommendations for promotion were made. The provisional gradation list was published only on 09.01.2017. The petitioner and other persons were granted promotion vide notification dated 25.09.2018. The writ petition being W.P. (S) No. 3792 of 2016 has been disposed of by this Court ultimately on 06.03.2024. However, the final order passed in W.P. (S) No. 3792 of 2016 has not been placed on record.

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21. This Court finds that it is not the case of the petitioner that any person junior to the petitioner has been promoted and the petitioner has been left out. The petitioner certainly has a right to be considered for promotion but has no right to promotion. Merely because the petitioner was eligible for consideration of promotion that by itself did not crystalize any right upon the petitioner to claim promotion from the date the petitioner had become eligible for promotion. This Court finds that reasons for not convening Departmental Promotion Committee Meeting during the period from 27.02.2017 till 30.08.2018 has been well-explained by the respondents in the counter-affidavit. As per the aforesaid circular of 2014, which has been heavily relied upon by the learned counsel for the petitioner, the Departmental Promotion Committee Meeting is required to be held twice a year and this Court finds that shortly after the petitioner claims to have become entitled for consideration for promotion i.e. on 30.11.2016, interim order was passed by the High Court regarding stay of promotion.

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22. This Court is of the considered view that though the respondents are under an obligation as per their own policy decision to convene Departmental Promotion Committee Meeting twice a year but failure to convene such meeting by itself does not entitle the petitioner to claim promotion from the date the petitioner became eligible for the promotion that too with consequential reliefs. No such provision has been brought to the notice of this Court by the learned counsel for the petitioner that on account of nonconvening of the meeting of Departmental Promotion Committee, the petitioner would be entitled for promotion by default.

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23. Rule 58 of Jharkhand Service Code and Rule 74 of the Finance Rule reads as under: -

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" 58(a) of the Jharkhand Service Code, 2001

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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 ceases 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.

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Rule 74 of the Jharkhand Finance Rule

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"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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24. As per Rule 58 of the Jharkhand Service Code as well as Rule 74 of the Financial Rules, the person is entitled for benefit under the promotion only when incumbents join the promotional post. Moreover, it is not the case of the petitioner that the petitioner was made to work on the promotional post without giving him any promotion.

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25. So far as the resolution dated 10.04.2023, by which there has been relaxation with regard to applicability of Rule 58 of the Jharkhand Service Code and Rule 74 of Financial Rules, are concerned, the same do not apply to the facts and circumstances of the case of the petitioner. This is so in view of the fact that this Court while disposing of the writ petition being W.P. (S) No. 1390 of 2021 and other analogous cases vide judgment dated 13.01.2022 had passed the following direction at para 34 of the judgment: -

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“As a sequitur of the aforesaid rules, guidelines and judicial pronouncements, I find impugned order issued vide Memo No. 6752, dated 24.12.2020, by the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, is not tenable in the eyes of law and the same is hereby quashed and set aside. As a result of quashment of the blanket order of stay, I, hereby, direct the concerned head of the departments to grant promotion to the petitioners whose cases were considered for promotion by the Departmental Promotion Committee, within a period of four weeks from today. State is further directed to come out with Notification regarding promotion to all such petitioners who have knocked door of this Court with all consequential benefits irrespective of the fact that they have retired. Their cases will be considered from retrospective effect i.e. the date on which they have been found fit for promotion. Since blanket order of stay has been quashed, it is further directed to all head of the departments to

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consider case of employees for promotion who are otherwise found fit for promotion and if there is no any other legal impediment.”

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26. The aforesaid direction passed by this Court clearly indicates that the State was directed to come out with notification regarding promotion to all such petitioners who knocked the door of the courts with all consequential benefits irrespective of the fact that they had retired and their cases were to be considered from the retrospective date i.e. the date on which they were found fit for promotion. Since the blanket order of stay was quashed, it was directed that all head of departments to consider the case of the of the employees who are otherwise found fit for promotion and if there is no legal impediment. Thus, the direction for grant of promotion with retrospective date was issued for those whose cases were already considered by the Departmental Promotion Committee but could not be granted promotion due to stay order by this Court and some of them even attained the age of superannuation without promotion even after their names were already recommended for promotion but promotion could not be given effect in view of stay order. The resolution dated 10.04.2023 has been issued giving relaxation to Rule 58 of the Jharkhand Service Code, 2001 and Rule 74 of Jharkhand Financial Rules to give effect to the order passed by this Court in W.P. (S) No. 1390 of 2021.

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27. In the present case, the petitioner was never found fit for promotion at an earlier point of time, inasmuch as, the case of the petitioner for promotion was never placed before the Departmental Promotion Committee prior to interim order passed in W.P. (S) No. 1390 of 2021 and soon after the petitioner became eligible for promotion, interim orders were passed by this Court due to which the matter could not be placed before the Departmental promotion committee and was ultimately placed after the interim order was vacated. This is over and above the fact that the petitioner had retired way back in the year 2019 and had no concern whatsoever with W.P. (S) No. 1390 of 2021 or the order impugned in the said case. Under the aforesaid circumstances the petitioner cannot take any advantage of the aforesaid resolution dated 10.04.2023 to seek relaxation of Rule 58 of Jharkhand Service code and Rule 74 of Jharkhand Financial Rules so as to give retrospective promotion with corresponding financial benefits.

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28. The reliance by the petitioner on the judgment passed by the Hon’ble Supreme Court in the case of State of Gujarat vs. Raman Lal Keshav Lal Soni reported in (1983) 2 SCC 33 is misconceived, inasmuch as, the petitioner neither has any acquired right nor has any vested right for promotion nor has any fundamental right for promotion. The right of the petitioner is confined to consideration of his case for promotion.

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29. So far as the judgment passed by the Hon’ble Supreme Court in the case reported in 1997 Supp. (3) SCR 63 (Chairman, Railway Board vs. C. R. Rangadhamaiah) is concerned, the same also deals with vested right/accrued right and it has been held that retrospective operation cannot be given to decisions so as to have adverse effect in the matter of promotion/seniority/substantive appointment etc. of the employees and such action was held to be arbitrary and violation of the rights granted under the Constitution of India. The said judgment does not apply to the facts and circumstances of the case as there is no retrospective withdrawal of any right already conferred.

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30. So far as the judgments passed by the Hon’ble Supreme Court in the case of Ajay Kumar Shukla (supra) and Ajit Singh (supra) are concerned, though it has been held that the employee has a right to be considered for promotion at appropriate time when he becomes eligible for promotion, but the aforesaid judgments do not apply, inasmuch as, that immediately after the petitioner became eligible for promotion, i.e. within little more than two months and before any Departmental Promotion Committee meeting could be convened interim order was passed by this Court in connection with stay of promotion and upon vacation of the stay, no relief or retrospective promotion was granted to those persons whose cases were fit to be placed before the Departmental Promotion Committee. The case of the petitioner does not fall within the category of those persons whose case for promotion was already considered by the Departmental Promotion Committee, but they were not promoted on account of blanket stay order passed by the High Court and for whom specific directions were issued as mentioned above.

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31. With regard to the submission of the petitioner by referring to proviso to Section 73(1) of the Bihar Reorganization Act, 2000, this Court is of the considered view that such argument of the petitioner is misconceived,

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inasmuch as, the aforesaid provision of Bihar Reorganization Act, 2000 does not contemplate that all the service benefits which are conferred upon the persons who are allocated State of Bihar or State of Jharkhand would be correspondingly granted in the other State also even after bifurcation and the decision taken in the State of Bihar would govern the decision taking in the State of Jharkhand or vice versa. With regards to initial placement and service conditions while allocation of Jharkhand Cadre there is no complaint from the side of the petitioner. The action of the respondents does not amount to any violation of proviso to Section 73(1) of the Bihar Reorganization Act, 2000 as the condition of service has not been varied to the disadvantage of the petitioner. One of the conditions of service was that the petitioner would be entitled for consideration of promotion, but there is no such condition of service conferring any right upon the petitioner for promotion from the date he is entitled for consideration for promotion.

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32. Considering the totality of facts and circumstances of this case, this Court is of the considered view that the petitioner never any vested right or acquired right to seek promotion from the day he became eligible for consideration of the case for promotion. The claim of the petitioner regarding retrospective promotion with effect from the date he became eligible with consequential relief cannot be granted in view of Rule 58 of the Jharkhand Service Code read with Rule 74 of Jharkhand Financial Rules which clearly provides that pays and allowances is to be given only from the date the incumbent assumes duties of the concerned post.

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33. In view of the aforesaid findings, this Court finds no merits in this writ petition, which is hereby dismissed.

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34. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Mukul/Binit

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Ram Kumar Tiwari v. the State of Jharkhand through the Chief Secretary

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What is this about?

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Ram Kumar Tiwari v. the State of Jharkhand through the Chief Secretary

Case brief

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