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Nagendra Prasad v/s State of Bihar


Company & Directors' Information:- PRASAD CORPORATION PRIVATE LIMITED [Active] CIN = U32301TN1994PTC028160

Company & Directors' Information:- PRASAD AND CO. PRIVATE LIMITED [Active] CIN = U67120DL1995PTC068088

Company & Directors' Information:- M. PRASAD AND CO LIMITED [Active] CIN = U67120WB1999PLC090325

Company & Directors' Information:- H PRASAD & CO PVT LTD [Strike Off] CIN = U51109WB1944PTC011797

    C.W.J.C. 11679 Of 2002

    Decided On, 24 March 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE MRIDULA MISHRA

    For the Appearing Parties: Sanjit Kumar, Jainendra Kumar Sinha, Advocates.



Judgment Text

MRIDULA MISHRA, J.

(1.) Heard learned counsel for the petitioner and the counsel appearing for the respondents.

(2.) This application has been filed by the petitioner for revision of his pension for the post of Assistant Engineer (Mechanical) with effect from 1.5.1997 and also for payment of gratuity, leave encashment in revised pay scale of Assistant Engineer according to the Central Pay Revision Committee report.

(3.) The brief facts of this case are that the petitioner retired on 30.4.1997 as Junior Engineer (Mechanical) from Irrigation Mechanical Circle, Mithapur, Patna. Initially the petitioner was appointed as Overseer in the River Valley Project on 8.7.1961. He was reverted to the post of Sub Overseer as he failed to produce his diploma certificate. In the year 1969 he was again promoted to the post of Overseer. The Government merged the cadre of all Junior Engineer of River Valley Project, Irrigation Department and Minor Irrigation Department and thereby constituted combined cadre of Junior Engineer. In different years the department of Water Resources published combined gradation list, the petitioner's seniority was fixed taking into account his date of promotion as Junior Engineer on 22.7.1969. On 10.3.1991 a gradation list was issued by the department wherein petitioner's seniority was fixed from 1.1.1976 instead of 1969 which changed the place of petitioner in the gradation list. The gradation list was challenged by the petitioner in CWJC No. 4232 of 1994 which was allowed with a direction that the petitioner shall be entitled to the seniority with effect from 1969 and the same will be treated his entry in the cadre of Junior Engineer. In the meantime cases of the Engineers Junior to the petitioner were considered by the Departmental Promotion Committee and on being recommended by B.P.S.C. they were promoted to the post of Assistant Engineer with effect from 13.12.1991. Petitioner filed C.W.J.C. No. 4232 of 1994 for restoration of his seniority and placing him at Sl. No. 139 (K) in the gradation list. The writ application was allowed and it was challenged by the respondents in L.P.A. No. 927 of 1995 which was dismissed and the petitioner's position in the seniority list was fixed at Sl. No. 139 (K). The petitioner also represented his case before the respondent for giving him promotion to the post of Assistant Engineer with effect from 13.12.1991. No action was taken by the respondents. Ultimately petitioner filed C.W.J.C. No. 3647 of 1996 for consideration of his case for promotion to the post of Assistant Engineer with effect from the date his juniors were promoted and for consequential benefits. In this case the respondents in their counter affidavit admitted petitioner's claim for promotion to the post of Assistant Engineer according to his revised seniority and also that it is being considered. The case was disposed of with a direction to the respondents to take final decision regarding the promotion of the petitioner within two months from the date of production of certified copy of the order. It was also directed that petitioner should be paid all consequential benefits expeditiously. After disposal of the writ application, no action was taken for promoting the petitioner to the post of Assistant Engineer as such M.J.C. No. 3276 of 1997 was filed. During the pendency of M.J.C. No. 3276 of 1997 the respondents complied the order and direction of this Court passed in C.W.J.C. No. 3647 of 1998. Petitioner was promoted to the post of Assistant Engineer with effect from 13.12.1991. The said order of promotion was issued on 27.12.1997. Thereafter subsequent to that the respondents granted senior selection grade to one Sidhnath Singh with effect from 20.8.1986 who was junior to the petitioner. The petitioner represented before the respondents to grant similar benefit to the petitioner, but no action was taken as such the petitioner filed C.W.J.C. No. 11314 of 1998. During the pendency of this writ application the respondents issued order dated 7.3.2000 granting scale of senior selection grade to persons who were junior to the petitioner in the gradation list of Junior Engineer with effect from 25.1.1992. When the petitioner came to know that the juniors to the petitioner have been granted senior selection grade and Super Time Scale with retrospective effect, the petitioner filed an amendment petition in the writ application bearing I.A. No. 42 of 2001. The writ application was taken for admission on 17.10.2001 and this Hon'ble Court taking into consideration the averments made in the writ application as well as in the counter affidavit directed the respondents to take final decision in the matter within a period of threes months from the date of receipt of order in accordance with law. The respondent Water Resources Department on 22.2.2002 passed two orders contained in Memo No; 799 and 800 whereby the department granted/revised the date of grant of senior selection grade and suppertime scale with effect from 25.1.1982 and 1.3.1989 respectively after the respondent granted senior selection grade and Super time scale, petitioner requested for fixation in the revised scale as provided in Central Pay Revision and to grant consequential benefits including arrears of salary as well as to revise his pension and other consequential benefits. Promotion order was issued on 27.12.1997, thereafter by the Superintending Engineer vide his office order dated 19.1.1998 granted scale of Assistant Engineer (Mech) with effect from 13.12.1991, in view of order dated 29.12.1997 passed by Water Resources Department. In the meantime on 30.4.1997 petitioner retired and even after fixation of his salary in the scale of Assistant Engineer, pension was not revised in this scale and arrears of pension in revised scale was not fixed. The Superintending Engineer vide his office order dated 2.8.2001 fixed petitioner's pay in new scale according to Central Pay Revision Committee report subject to verification by the Finance Department. It was directed that the payment shall be made after verification of the fixation of pay scale to the petitioner. The matter was sent to the office of the District Accounts Officer, Patna for verification. The District Accounts Officer, Patna referred it to the Deputy Secretary (Finance) (Personal Claim Coll). The respondent No. 2 vide his letter dated 2.11.2001 wrote a letter to the Deputy Secretary, Water Resources Department making certain objection that the grant of increment to the petitioner for the post of Assistant Engineer (Mechanical) without passing the Departmental/ Professional examination as provided under Part-II of "Appendix-4 Vol. II of Bihar P.W.D. Code is not according to law. Since the petitioner has not passed the departmental/professional examination of Assistant Engineer nor exemption has been granted from passing such examination, the petitioner cannot be granted scale of Assistant Engineer (Mechanical). The respondent No. 2 further asked that if exemption has been granted to the petitioner then order granting such exemption be made available to the office of respondent No. 2 so that the appropriate steps may be taken for issuance of pay slip in favour of the petitioner. The respondent No. 3 informed to respondent No. 2 that the petitioner has not been granted exemption from passing the departmental/professional examination of Assistant Engineer (Mechanical). The Superintending Engineer respondent No. 6 in response to the letter of the under Secretary informed that since the petitioner has been promoted after his retirement, therefore, clearance of departmental examination after the retirement do not appears to be according to law. Even than the respondent No. 1 and 2 are not issuing the pay slip for the post of Assistant Engineer in favour of the petitioner because of the reasons that the petitioner has not passed the departmental/professional examination for the post of Assistant Engineer (Mechanical).

(4.) A counter affidavit has been filed by respondent Nos. 3 to 6 wherein it has been stated that the petitioner was given promotion in view of the order passed by the High Court. Vide order dated 27.12.1997 the Superintending Engineer (Mechanical) Circle, Mithapur, Patna fixed the salary of Assistant Engineer and sanctioned the annual increment with effect from 13.12.1991 and onward. When the Superintending Engineer, Irrigation (Mech) Circle informed the Deputy Secretary (Personal claim and Determination Cell) Finance Department vide his letter No. 1844 dated 18.9.2001, the Finance Department made queries regarding exemption from departmental examination. In the light of Rule 7 of Part II of Appendix-IV of Volume-II of Bihar P.W.D. Code and Personnel and Administrative Reforms Department letter No. 4674 dated 1.5.5.1992. The Water Resources Department replied the queries, and the Finance Department considering this fact that the petitioner has not passed the departmental/professional examination refused to issue pay slip in the revised pay scale. Respondents 3 to 6 have admitted that the petitioner could not pass the departmental examination as he was promoted to the post of Assistant Engineer (Mech) after retirement with retrospective effect. The department could not exempt him from passing the departmental examination, because according to the Personnel and Administrative Reforms Department's letter No. 4674 dated 15.5.1992 exemption will be effective from the date of issuance of the order of exemption. Since the petitioner has already retired, no exemption can be granted to him-and without granting exemption the petitioner is not entitled for grant, of increment. A counter affidavit has also been filed by respondent Nos. 1 and 2 and they have also made statement in similar line.

(5.) Counsel appearing for the petitioner has submitted that petitioner's claim for fixation of salary in the revised scale as well as fixation of pension in the revised promotional scale has illegally been refused by the respondents taking shelter of Rule 1 of Part II, Appendix-4 of Volume-2 of Bihar P.W.D. Code for rejecting the claim of the petitioner though it is not applicable in his case. As per rule-in P.W.D. Code all Assistant Engineers of P.W,D. (B and R) Public Health Engineering Department Irrigation and Electricity Department must pass the professional examination prescribed in Bihar P.W.D. Code (para 55) within 3 years after joining or their appointment in the State. Since the petitioner has been promoted to the post of Assistant Engineer (Mech) with effect from 13.12.1991 vide order dated 29.12.1997 of the department i.e. after the retirement of petitioner from service, this rule is not applicable only in case of those Assistant Engineers who are in service they are required to pass the departmental/professional examination during their service period. Further in cases of those Engineers who have crossed the age of 50 and could not pass departmental examination. The department used to grant exemption while still they are-in Service. In the case of the petitioner the rule of exemption is also/not applicable because at the time respondents granted promotion he has already retired. Promotion was granted to the petitioner with retrospective effect. It is well settled principle of law that if a person is promoted after his retirement for no fault of that person, he is legally entitled for all consequential benefits arising out of such promotion. The petitioner was given promotion in compliance of the order passed by this Court in the writ application. In the order of this Hon'ble Court it was made quite clear that the petitioner's junior were promoted with effect from 13.12.1991, but the petitioner was not granted said promotion as such he should be promoted with effect from the date on which his juniors were granted promotion. If the respondents would have granted the promotion to the petitioner in the year 1991 then he would have appeared and passed the examination as could have been exempted by the Government. Respondents denied him his due promotion in time. This was the reason that after his retirement, on the direction of the High Court he was granted promotion with retrospective effect. Now he can not be denied the consequential relief arising out of such promotion, simply because he could not passed departmental examination. The Superintending Engineer considering this fact has rightly written in response to the letter of the Finance Department that since the petitioner has been promoted after his retirement, clearance of departmental examination by petitioner after retirement do not appear to be a legal necessity.

(6.) Considering the facts of the case and the submission made by the counsel for the State as well as the petitioner, I find that the stand taken by the respondents in not allowing the arrears of salary of promotional scale to the petitioner as well as not fixing his pension, gratuity, leave encashment in the revised pay scale of Assistant Engineer (Mech) according to the Central Pay Revision Committee report is not valid and legal. Facts reveals that from very beginning the petitioner was discriminated by the respondents at each and every stage of promotion, he had to take shelter of the High Court by filing a writ application for the relief which should have been given to him automatically but was denied. Juniors to the petitioner were given similar relief, but so far the case of the petitioner is concerned, he was given after much effort. It was given to him only when a favourable order was passed by the High Court in the writ application. So far the promotion to the petitioner in the post of Assistant Engineer (Mech) is concerned, it was also denied, he filed C.W.J.C. No. 3647 of 1996 and on the direction passed in the writ application a notification was issued wherein it is clearly mentioned that the financial benefit will be admissible to the petitioner from the due date i.e. 13.12.1991 and accordingly the pension and other benefits will be granted. This fact has been admitted in the counter affidavit filed by respondent Nos. 3 to 6 in paragraph 5 of the counter affidavit. It is also an admitted case that the promotion was granted to the petitioner, the fixation of salary in the promotional scale was done by the department subsequent to petitioner's retirement in the year 1997 and after disposal of C.W.J.C. No. 11314 of 1998 by order dated 17.10.2001. It has rightly been pointed out by the petitioner that if he would have been give

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n promotion during his service period in that case Rule 1, Part II of Appendix-4, Volume-II of Bihar P.W.D. Code would have been applicable in his case. At that time he would have been asked to pass the departmental/professional examination or any order of exemption could have been passed by the respondents in his case. Considering the fact that the petitioner was given promotion, as well as direction for fixation of his salary in the revised scale on the basis of the order passed in the writ application the question of passing of the departmental examination or exemption from passing the examination is not relevant in his case. It was the direction of this Court that considering petitioner's promotion to the post of Assistant Engineer (Mech) fixation of salary in the revised scale as well as all other consequential benefits should be given to him. The objection raised by the respondent is arbitrary and illegal. (7.) In the facts and circumstances of the case the respondents are directed to revise the petitioner's pension for the post of Assistant Engineer (Mech) with effect from 1.5.1997 and to pay arrears of the difference of pension, gratuity, leave encashment in revised scale of Assistant Engineer according to Central Government Pay Revision Committee report. So far the interest on account of delayed payment is concerned, the respondents are directed to consider the case of the petitioner as per the Government circular which entitles a retired Government servant for 5% statutory interest on account of delayed payment of the retirement dues. This application is accordingly allowed.
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