Baneshwar Rabidas vs State Of Jharkhand And Ors

Heard learned counsel for the parties.

Petitioner confines his prayer in view of averments made in paragraph-14 of the writ petition and prays for payment of difference of salary for the period during which he has discharged his duties and also for difference of salary by way of post retiral benefits.

From the facts narrated in the writ petition, it appears that petitioner was appointed to the post of Junior Engineer on 04.11.1976 vide Government of Bihar Irrigation Department Notification No. 18076 and was promoted to the post of Assistant Engineer on 04.11.1984 vide Government of Bihar Irrigation Department Notification No. 4304. Thereafter petitioner was promoted to the post of Executive Engineer with effect from 04.11.1992 and continued to work as such even after bifurcation of State. It is specific case of the petitioner that since regular promotion of Executive Engineers to the post of Superintending Engineers could not be done and as such the Water Resources Department posted them on working arrangements basis in their own pay scale to the post of Superintending Engineer. The case of the petitioner was also considered by the Establishment Committee and he was also posted to the post of Superintending Engineer (current charge) on working arrangement basis in his own pay scale of Executive Engineer, which is apparent from the Notification No. 2834, dated 19.07.2007. Though petitioner discharged his duties and rendered his services to the post of Superintending Engineer but no monetary benefits was given to him though working to the post of Superintending Engineer in the same pay scale. Even the principles of seniority and other mandates like vigilance clearance were duly followed in such posting. The Department Establishment Committee recommended names of Superintending Engineers (current charge) to be posted as Chief Engineers (current charge) on working arrangement basis in their own pay scale of Superintending Engineer and accordingly Notification No. 3430, dated 09.07.2011 was issued by the Water Resources Department. In the said Notification, due seniority and vigilance clearance was taken into consideration and right to post senior colleague was reserved in case the fitness of such person was found favourable on a later date, if the same was pending for consideration. Admittedly petitioner was posted as Superintending Engineer (current charge) and Chief Engineer (current charge) respectively, discharge the functions and duties that of a Superintending Engineer and of a Chief Engineer with satisfaction of all concerned and he superannuated on 30.04.2013 from the post of Chief Engineer but in the pay scale of Executive Engineer.

It is further case of the petitioner that from 04.11.1992 to 25.07.2007, he discharged his duties as a Regular Executive Engineer (total 14 years 08 months 22 days) and from 26.07.2007 to 25.07.2011 (total 4 years) as Superintending Engineer (current charge) and lastly from 26.07.2011 till his superannuation on 30.04.2013 (1 year 09 months 06 days) as Chief Engineer (current charge). Thus a service of total 04 years and 9 months was rendered by the petitioner while working on the higher post of Superintending Engineer and Chief Engineer respectively but was getting the pay scale of a regular Executive Engineer only. Subsequently on superannuation, his pension was fixed in the pay scale of Rs.15,600 - 39,100 i.e. the pay scale of Executive Engineer only and treating Rs.39,750 as last pay drawn, the pension @Rs/19,875/- was fixed, as can be seen from the Pension Intimation Memo dated 16.06.2015 though he retired from the post of Chief Engineer. Petitioner was granted benefits of Modified Assured Career Progression (MACP) Scheme of the State Government.

Petitioner is aggrieved by non-payment of salary for the officiating post which he was holding and also continuously working to the said post till the age of his superannuation. After superannuation when pension of the petitioner was fixed in the pay scale of Executive Engineer, though he discharged his duties as Chief Engineer and retired as such, the pay scale was not given to him. Being aggrieved he filed representation before the respondent authorities for consideration of his case but the same has not been considered and he has been constraint to knock door of this Court.

Ms. Ritu Kumar, learned counsel appearing for the petitioner assisted by Mr. Siddharth Ranjan, strenuously urges that petitioner is entitled for the pay scale of Superintending Engineer as well as Chief Engineer as he has rendered his services and worked as a Superintending Engineer for four year and that of Chief Engineer for a period of 1 year 9 months and 6 days respectively till the age of his superannuation. Learned counsel further argues that though he was not entitled for regular promotion but benefits of financial upgradation by way of 3rd MACP was extended to him He is entitled for the benefits of pay scale which is given to a person who holds the post of Superintending Engineer as well as Chief Engineer. Learned counsel further argues that as petitioner has retired, he is entitled for the difference of pay scale for the period he has rendered his duties to the post of Superintending Engineer as well as Chief Engineer and also for the benefits in the pension and pension be fixed in the last pay scale by a Chief Engineer and not as an Executive Engineer. Learned counsel places reliance on the Judgment of this Court rendered in the case of Dr. Sukumar Das Gupta Vs. State of Jharkhand and another reported in 2009(4) JCR 565 (Jhr.); Bijay Kumar Vs. State of Jharkhand and others reported in 2018(3) JCR 262 (Jhr.); and in the case of Naresh Prasad Keshri Vs. State of Jharkhand and others reported in 2018(1) JBCJ 412.

Per contra counter affidavit has been filed.

Mr. Navin Kumar Singh, learned SC-VII appearing on behalf of the respondents vehemently opposes contention of learned counsel for the petitioner and argues that since case of the petitioner was not considered for regular promotion, he has been considered for financial upgradation and as such, no loss has been occurred to him regarding salary or difference of salary. Learned counsel draws attention of this Court towards several paragraphs of the counter affidavit and submits that petitioner has been considered for financial upgradation as his case was not considered for regular promotion. Learned counsel further argues that in view of Rule 103 of the Jharkhand Service Code, if the matter is remitted back to the respondents, the same shall be considered.

Having gone through the averments made in the writ petition, arguments advanced by counsel for the parties, various rules and regulations as well as the Judgments cited by counsel for the parties, I find that admittedly petitioner discharged his duties as a regular Executive Engineer for 14 years 8 months 22 days, as a Superintending Engineer (current charge) for 4 years and as a Chief Engineer (current charge) for a period of 1 year 09 months and 6 days, which is not in dispute. The issue to be considered and decided by this Court in this case is "Whether petitioner is entitled for the salary of the higher posts when he has discharged the duties of said posts?"

The issue fell for consideration before the Hon'ble Apex Court in the case of Arindam Chattopadhyay v. State of W.B., (2013) 4 SCC 152 : (2013) 2 SCC (L&S) 178 : 2013 SCC OnLine SC 227 at page 160, wherein the Hon'ble Apex Court in similar facts, at para-13 held as under:

"13. Reverting to the facts of this case, we find that although the appellants were recruited as ACDPOs, the State Government transferred and posted them to work as CDPOs in ICDS Projects. If this would have been a stopgap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post i.e. CDPO. However, the fact of the matter is that as on the date of filing of the original application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor has any material been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs since July 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the Rules. The convening of the Promotion Committee or taking other steps for filling up the post of CDPO by promotion is not in the control of the appellants. Therefore, they cannot be penalised for the Government's failure to undertake the exercise of making regular promotion"

In the case of Secretary-cum-Chief Engineer Vs. Hari om Sharma reported in (1998) 5 SCC 87, the Hon'ble Apex Court considering continuous discharge of duties on higher post, directed to pay salary for the post on which incumbent had performed his duties. This Court, in the case of Dr. Sukumar Das Gupta Vs. State of Jharkhand and others reported in 2009(4) JCR 565 has reiterated the same view. Further, in the case of Sachits Kumar Sinha vs. State of Bihar reported in 1995(1) PLJR 362, the Judgment of the Hon'ble Supreme Court was taken into consideration and same view was reiterated.

Rules 58 and 74 of the Jharkhand Service Code is not accepted to this Court as it is not applicable in the instant case. The said Rules talks of the benefits given to an employee in case of notional promotion and thus the arguments advanced by learned counsel for the respondents is not accepted by this Court. Admittedly, petitioner has discharged his duties to the said post which is not disputed by the respondent authorities at any point of time. In the instant case also, petitioner discharged his services till the age of superannuation. It is not a case that the posting was for a particular period and it was a term posting and as such petitioner was not entitled for any salary of the posting. Petitioner continued to serve to the post till the age of his retirement and as such he is entitled for promotional benefits i.e. the pay scale for the post he was holding till date of his retirement.

As a sequel of aforesaid Rules, Guidelines and judicial pronouncements, I hereby direct the respondent no. 1 - Principal Secretary, Department of Water Resources, Government of Jharkhand to consider case of the petitioner as there is no dispute that petitioner has discharged his duties holding the aforesaid posts till the date of his superannuation. Respondents are further directed to assess the difference of salary and also to fix pension by way of last pay drawn holding the post of Chief Engineer and not the post of Executive Engineer. The entire calculation shall be made within a period of eight weeks from the date of receipt/ production of a copy of this order.

With the aforesaid observations and directions, this writ petition stands allowed.