Dr. Suresh Prasad vs The State of Bihar and Others

Jyoti Saran, J.—Heard learned Counsel for the parties, With the consent of the parties this matter has been taken up for disposal at the stage of admission.

I.A. No. 2505 of 2009 has been filed by the petitioner seeking permission from this Court to assail the order dated 2.4.2009 contained in Annexure-K to the third supplementary counter affidavit filed on behalf of the respondent No. 1 whereby and whereunder the Departmental Promotion Committee has rejected the claim of the petitioner for promotion to the scale of Rs. 12,000/- to 16,500/- and in the scale of Rs. 14,300/- to 18,300/-. As the said order came to be passed by the Departmental Promotion Committee during the pendency of the proceedings, hence the same has been sought to be challenged through the interlocutory application. The interlocutory application and the prayer made therein is allowed. The petitioner is permitted to assail the validity of the order contained in Annexure-K.

The petitioner seeks a direction from this Court for payment of his post retiral benefits viz pension, gratuity, leave encashment, group insurance and other dues as admissible to him after re-fixation of his salary on the basis of the emoluments arising in the scale of Rs. 14,300/- to 18,300/- on the date of his retirement on 31.7.2003.

Brief facts of the matter is that the petitioner was appointed as an Assistant Civil Surgeon in the Bihar health service cadre on 1.5.1971. The petitioner was promoted to the Senior Selection Grade with effect from 1.4.1992 in the scale of Rs. 4100/- to 5300/- (Annexure-1). By resolution bearing memo No. 660 dated 8.2.1999 published in Patna gazette extra ordinary dated 13.2.1999 (Annexure-5), the State Government after taking into consideration the recommendation of the Fitment committee as regarding the confirmation of central scales of pay, took a decision to implement revised scale of pay with effect from 1.1.1996. However, the actual payments consequent upon the revision of the pay scale were to be made with effect from 1.4.1997. Pursuant to the implementation of the revised pay scale, the petitioner was given the basic scale of Rs. 6500/- to 10,500/-.

Learned Counsel appearing on behalf of the petitioner submits that although some persons who were working in the Health and Medical Education Cadre in the unrevised pay scale of Rs. 4,100/- to 5,300/- were given a revised pay scale of Rs. 14,300/- to 18,300/-, the petitioner continued to draw his salary in the scale of Rs. 6500/- to 10,500/-. Learned Counsel in support of his submission refers to an extract of the Bihar Gazette (Extra ordinary) dated 13.2.1990 placed at Annexure-3. The petitioner vide memo bearing No. 271 dated 5.3.2003 (Annexure-M) was put under suspension in contemplation of a departmental proceedings while he was posted as Civil Surgeon-cum-Chief Medical Officer, Munger. The petitioner was charged with negligence resulting in the expiry of a large quantity of medicines causing loss of Government money. Vide memo bearing No. 321 dated 17.5.2003 (Annexure-O), a departmental proceeding was initiated against the petitioner and charge sheet issued (Annexure-P). As the petitioner had superannuated with effect from 31.7.2003 hence the said proceeding were converted into a proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 (hereinafter referred to as the ''rules'') vide memo No. 752 dated 26.9.2003 (Annexure-Q). The suspension of the petitioner was revoked. The departmental proceeding resulted in an imposition of penalty of forfeiture of 10% pension contained in notification bearing memo No. 1521 (9) dated 6.9.2004 (Annexure-8).

Learned Counsel appearing on behalf of the petitioner submits that the said order of penalty is not subject matter of the present proceedings and that the petitioner has challenged its legality and validity in a separate proceedings which is pending before this Court.

The petitioner having retired, his entire post retiral dues were calculated and paid to him on the basis of the salary drawn in the scale of Rs. 6500/- to Rs. 10,500/-. Subsequently vide notification bearing No. 144(3) dated 3.3.2005 (Annexure-6), the pay scale of the post of Deputy Superintendent and equivalent posts in the cadre of the Health Services was revised and placed at Rs. 10,000/-to 15,200/- with effect from 1.1.1996 with financial benefits with effect from 1.4.1997, in the light of the resolution No. 660 dated 8.2.1999 published in the Gazette dated 13.2.1999 (Annexure-5). The name of the petitioner appears at Serial No. 262 of the said notification.

Vide notification bearing No. 139(3) dated 20.2.2007 (Annexure-7) pay scales of Civil Surgeon-cum-Chief Medical Officer/Additional Chief Medical Officer and equivalent posts falling in the non-teaching cadre of the Health Services was earmarked and revised in the light of the Finance Department resolution No. 5.9.1989 dated 16.8.2004 in the scale of 12,000/- to 16,500/- pursuant to the pay revision contained in resolution No. 660 dated 8.2.1999 (Annexure-5). The notification contains four enclosures; enclosure 1 relates to persons who were granted such promotions; enclosure 2 contains the list of such persons whose cases were kept pending by reason of any charges/non availability of confidential reports. Enclosure 3 and 4 contained the names of person who were not found fit for promotion for the reasons assigned therein.

Learned Counsel for the petitioners submits that the petitioner was arbitrarily put under the category of persons forming enclosure-2 and his name appears at serial No. 66 of the said list. The reason assigned against the petitioner were:

(a) M.S.D.

(b) Charge sheeted employee-absconding from Muzaffarpur/Departmental proceeding.

By another notification bearing No. 140 (3) also dated 20.2.2007 (Annexure-7A), the posts of Additional Director/Deputy Director and equivalent posts falling under non teaching cadre of the Health Services were granted revised pay scale of Rs. 14,300/- to 18,300/- in the light of the resolution dated 13.2.1999 (Annexure-5). Once again the case of the petitioner was put under category No. 2 containing the name of such persons who were facing departmental proceeding and the reasons were same i.e. being charged under M.S.D. and pendency of the departmental proceeding and absconding from Muzaffarpur.

Learned Counsel appearing on behalf of the petitioner submits that the reasons assigned in the two notifications dated 20.2.2007 contained in Annexures -7 and 7/A respectively granting promotions to the scale of Rs. 12,000/-to 16,500/- and in the scale of Rs. 14,300/- to 18,300/- respectively are totally incorrect for the reasons that neither the petitioner is an accused in the M.S.D. (Medical Stores Depot) Scam nor he was posted at any stage of his career at Muzaffarpur (Annexure-14) and thus even the charge of being an absconder from Muzaffarpur is absolutely false. Learned Counsel thus submits that the respondents have themselves granted the pay scales of Rs. 10,000/-to 15,200/- with effect from 1.1.1996 by the notification dated 3.3.2005 (Annexure-6) which was issued much after the retirement of the petitioner on 31.7.2003. It is thus submitted that as the reasons assigned for denial of the promotions to the scale of Rs. 12,000/- to 16,500/- vide Annexure-7 and in the scale of Rs. 14,300/- to 18,300/- vide Annexure 7 (A) are palpably false, incorrect and baseless hence the petitioner is fully entitled for grant of promotion to the said pay scales and for the consequential benefits flowing therefrom. Learned Counsel further submits that the petitioner was posted as Civil Surgeon-cum-Chief Medical Officer at Munger in the year, 2001 and it is at this place that the order of suspension dated 5.3.2003 (Annexure-M) and the orders initiating departmental proceedings dated 17.3.2007 (Annexure-O) were issued charging him with act of negligence resulting in expiry of medicines. Learned Counsel thus submits that save and except the said proceedings the validity of which is under challenge in a separate writ proceedings pending before this Court, there was no other departmental proceeding against this petitioner and thus the denial of his promotion(s) is patently illegal and an arbitrary act of the respondents. It is submitted that the petitioner is not only entitled for grant of said promotions but also entitled to the consequential benefits flowing therefrom.

Learned Counsel further submits that from perusal of the order of promotion to the scale of Rs. 12,000/- to 16,500/- (Annexure-7) manifests that his immediate junior being the person at serial No. 133 namely, Dr. Uma Shankar Prasad Verma (serial No. 1395 of the gradation list), has been granted promotion in the said scale with effect from 1.8.2000. Learned Counsel thus submits that he is fully entitled for grant of promotion in the said scale at least with effect from 1.8.2000. With reference to the order of promotion to the scale of Rs. 14,300/- to 18,300/- vide Annexure-7(A) learned Counsel submits that the said Dr. Uma Shankar Pd. Verma whose names appears at Serial No. 75 was granted the said scale with effect from 1.11.2002 and thus the petitioner is also entitled for promotion to the said scale at least with effect from 1.11.2002.

Learned Counsel for the petitioner submits that the decision of the Departmental Promotion Committee taken on 2.4.2009 as contained in Annexure-K is wholly arbitrary, without application of mind and without sanction of law and thus fit to be set aside. Learned Counsel submits that the decision of the Departmental Promotion Committee in rejecting the case of promotion (s) of the petitioner relying upon the order of penalty passed under Rule 43(b) is per se illegal and an arbitrary act. He submits that even otherwise once the petitioner has suffered a penalty, he cannot be saddled with two penalties for the same charges namely one by way of forfeiture of 10% pension and secondly by denial of promotions and the same would be in the teeth of the protection provided under Article 20(2) of the Constitution of India. Learned Counsel for the petitioner relies upon a Bench decision of this Court reported in Shyam Kishore Sinha Vs. The State of Bihar and Others, . It is submitted that the judgment of the Single Judge has been affirmed by judgment and order dated 27.11.2007 passed in L.P.A. No. 752 of 2007. Learned Counsel submits that promotional cases are to be tested on the basis of the conditions prevailing on the date on which an incumbent becomes eligible and not on the basis of the circumstances, existing on the date of joining. Learned Counsel further with reference to a judgment reported in Shambhu Saran Vs. The State of Bihar and Others, submits that an order under Rule 43(b) cannot curtail promotional benefits.

Learned Counsel appearing on behalf of the State supports the impugned action of the respondents authorities and submits that it was in accordance with law. With reference to the order dated 2.4.2009(Annexure-K) it is submitted that the Departmental Promotion Committee under the Chairmanship of the Development Commissioner, Bihar had reconsidered the case of the petitioner for grant of promotion in the pay scale of Rs. 12,000/- to 16,500/- and in the scale of Rs. 14,300/- to 18,300/- and after careful consideration of the matter, the claim of the petitioner was rejected in view of the order of punishment contained in the notification dated 6.9.2004 passed under Rule 43(b) of the Rules. The D.P.C. came to a conclusion that as the punishment of forfeiture of 10% pension is a major penalty and would continue so long the petitioner continues to draw his pension, thus he is not entitled to the benefit of promotion and the same cannot be granted to him.

Learned Counsel for the State submits that although the scope of a proceeding under Rule 43(b) of the Rules may be different but nevertheless unless the service of the employee under consideration for promotion is found to be satisfactory, certainly it would disentitle him from promotion. Learned Counsel for the State admits to the statement made in the counter affidavit filed on behalf of the respondents to the interlocutory application wherein it has been admitted that the charges which formed the basis for denial of promotion to the petitioner to the scales in question and mentioned in the orders of granting promotion placed at Annexure-7 and 7/A respectively were not correct (paragraph 3 of the counter affidavit filed on 30.6.2009).

Having regard to the admission made by the respondents in paragraph 3 to the counter affidavit filed in response to the interlocutory application of the petitioner there remains no impediment in the way of the writ petitioner for the reason that the very grounds on which the petitioner had been denied promotion has been disowned by the respondents and thus ceases to exist. The order dated 2.4.2009 as contained in Annexure-K assigns totally different reason for denial of the said benefits to the petitioner. The reason assigned is that as the impact of punishment of reduction of pension was continuous and hence no promotion could be given to the petitioner. It is in this background that the departmental Promotion Committee found the petitioner unfit for promotion.

The reason assigned by the D.P.C. and which formed the basis of their decision is only taken to be rejected. The consequences of punishment imposed under the classification Control and Appeal Rules are entirely different & distinct to a punishment under the Bihar Pension Rules and cannot be overlapped. The order; of penalty under the Bihar Pension Rules certainly cannot form a basis for rejection of a claim of the petitioner for grant of in-service benefit. Admittedly the reasons on which the said promotions were denied to the petitioner have been admitted by the respondents as not being correct. Once the said reasons are removed from the orders as contained in Annexure-7 and 7/A of the writ petition automatically the petitioner moves into the category of employee whose names are present in enclosure 1 of the promotional orders. The respondents cannot be allowed to supplement the reasons for denial of promotion to the petitioner by taking recourse to the proceedings arising during his posting at Munger because that did not form the reason for the denial of promotion in the year, 2002. Another infirmity in the action of the respondents is that the entitlement of the petitioner for promotion in the scales in question in the year, 2000 and 2002 has been negated on the basis of the order of penalty passed on 8.9.2004 (Annexure-8). The denial also cannot be sustained in the light of the constitutional guarantee provided under Article, 20(2) of the Constitution of India and which has also been taken into note of in the Bench decision of the Court in the case of Shyam Kishore Sinha (supra). The position is well settled by catena of judgments on the issue that no person can be punished twice for the same offence. The decision of the Departmental Promotion Committee dated 2.4.2009 placed at Annexure-K supplementing the reasons for denial of promotion to the petitioner in the scale of Rs. 12,000/- to 16,500/- and in the scale of Rs. 14,300/- to 18,300/-. As found in the promotional orders placed at Annexure-7 and Annexure-7/A, upon review of the matter cannot be permitted.

Thus upon consideration of the respective arguments and the materials available on the record of the proceedings, I come to a irresistible conclusion that the petitioner has been wrongly denied promotions to the scale of Rs. 12,000/- to 16,500/- and to the scale of Rs. 14,300/- to 18,300/- by the respondent authorities and that he is fully entitled for promotions from the date his immediate junior was granted promotion to the said scale of Rs. 12,000/- to 16,500/- i.e. with effect from 1.8.2002 in so far as the promotion to the scale of Rs. 14,300/- to 18,300/- is concerned, w.e.f. 1.11.2002 being the date on which Dr. Uma Shankar Prasad Verma placed at serial No. 1395 of the gradation list and immediate junior was granted promotion.

In the result this writ petition is allowed and the order dated 2.4.2009 as contained in Annexure-K is set aside. The concerned respondent authorities of the State of Bihar are directed to grant promotion to the petitioner in the scale of Rs. 12,000/- to 16,500/- and in the scale of Rs. 14,300/- to 18,300/- with effect from the dates on which his immediate junior Dr. Uma Shankar Prasad Verma was granted such promotions. Needless to say that consequent upon grant of such promotions the petitioner would be entitled to all consequential benefits including refixation and recalculation of his pension and other retiral entitlements. The said exercise including the payments thereof is to be completed expeditiously, without further delay and preferably within a period of three months from the date of receipt/production of a copy of this order.