Radha Krishna Prasad vs State Of Jharkhand & Ors

The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities are good 8/25.09.2020 Heard learned counsel for the petitioner and learned counsel for the State.

This application has been filed alleging willful noncompliance of the order dated 18.05.2018 passed by the Writ Court in WP(S) No.4013 of 2011. As is apparent from the opening paragraph of the order passed by the Writ Court, the petitioner had approached this Court for the relief as follows:-

"In the accompanied writ application, the petitioner has inter alia prayed for issuance of writ commanding upon the respondents to grant notional promotion to the petitioner with effect from 25.08.2010 on the post of Joint Secretary or on equivalent post i.e. the Deputy Secretary in the pay scale of Rs.37,400/- to Rs.67,000/- with grade pay of Rs.8700/- and further prayer has been made for commanding upon the respondents to refix the pension of the petitioner and pay all the retiral benefits on the scale which is payable to the petitioner on account of his promotion to the post of Joint Secretary."

Upon adjudication of the matter, the Court passed the following directions:-

"8. After hearing learned counsel for the respective parties and on perusal of the records the case of the petitioner merits consideration in view of the following facts and reasons:-

(I) Admittedly the petitioner alongwith others were recommended from promotion to the rank of Joint Secretary vide decision of the departmental promotion committee held on 24.08.2010 and the said decision of the DPC was approved by His Excellency, The Hon'ble Governor of Jharkhand on 25.08.2010 thereafter, only formal notification was to be published but on some pretext or other, the notification was not published which compelled the similarly placed colleagues of the petitioner to file a writ application in W.P.(S) No. 5545 of 2010 which was disposed of on 15.06.2011 directing the respondents to expedite the publication of notification and thereafter, the notification was published on 18.06.2011, by then the petitioner attained the age of superannuation on 31.05.2011. The petitioner has been made to suffer because of such fortuitous and avoidable circumstances. Similar matter came up for consideration before the Division Bench of Hon'ble Patna High Court and learned Single Judge of this Court in case of Suryadeo Prasad Vs. State of Jharkhand & Ors. as reported in 2010 (3) JCR 238 (Jhr) has observed as under paragraph nos. 8 and 9:-

"8. Both the aforesaid Rules were considered by the Division Bench of the Patna High Court in the case of Dr. Paras Nath Prasad Vs. State of Bihar, reported in 1990 (2) PLJR 248.

The Division Bench in that case held that where an employee deserved promotion but was not granted the same for no fault of the employee, but because of wrong decision on the part of the State the employee would be entitled to not only to be granted promotion with retrospective but also financial benefits as a consequence of such promotion as also the interest on delayed payment of the financial benefits. The Division Bench expressly overruled the applicability of the Rule 58 to such situations.

Following the aforesaid Division Bench decision a learned Single Judge of this Court in the case of Shri Mahavir Pandey Vs. State of Bihar & Ors. reported in 2000 (1) PLJR 768 held that not only Rule 58 but also Rule 74 would have no application in such situation.

(II) In view of the settled position of law as observed by the learned Single Judge of this Court in the case of Suryadeo Prasad (supra), if an employee is denied promotion for no fault of him, he shall be paid salary on the promotional post with effect from the date promotion was granted. Therefore, the Rule 58 and Rule 74 would have no application to deny the notional promotion.

In view of the facts stated in the foregoing paragraphs the writ petition deserves to be allowed with a direction to respondents to consider the case of the petitioner and take decision for grant of notional promotion as expeditiously as possible preferably within a period of 3 months from the date of communication/receipt of copy of this order.

Admittedly the said order was not complied with by the State Government, which compelled the petitioner to file the instant contempt application. Initially, it was pointed out that LPA No.507 of 2018 had been filed against the order passed by the Writ Court, but subsequently this Court was informed that the said LPA had been dismissed, but still the order was not complied with.

The matter had been taken up on 18.09.2020 and a serious view of the matter was taken by this Court. This Court was informed that the order shall be complied with within a short time and accordingly, this case was adjourned for today and it was made clear that if there is no compliance of the order, any punitive order may be passed against the officer responsible for the noncompliance of the order.

Today, when this matter was taken up, learned counsel for the State made the opening submission that the order has been fully complied with. This was objected by learned counsel for the petitioner and it was submitted that only order of the notional promotion has been issued, but no order for the payment of the monetary benefits have been made. Learned counsel for the State replied to that that there was no order for the grant of any monetary benefits and accordingly, there was no occasion for passing such order.

The submission of the learned counsel for the State on the very face of it, cannot be accepted. In paragraph 8 of the order quoted above, the Court had held, relying upon the precedents, that in case where an employee deserved promotion but was not granted the same for no fault of his, he shall not only be granted promotion with retrospective effect, but shall also be paid salary on the promotional post with effect from the date promotion was granted, and in the operative portion, it was directed to take the decision for grant of notional promotion as expeditiously as possible preferably within a period of 3 months.

By no stretch of imagination, reading the aforesaid order it can be said that there was no direction for granting the financial benefits to the petitioner, who was promoted to the promotional post. Admittedly the notification has been issued granting the promotion to the petitioner with retrospective effect, but without any financial benefit. If in spite of such clear order it is submitted that the order has been complied in full, and since there was no direction in the operative portion to pay the monetary benefits, there was no occasion for passing the order for payment of monetary benefits, it speaks a lot about the unnecessary harassing attitude of the authority concerned, by willfully misreading the order, for not obeying the order in its true spirit. This attitude of the State authority cannot be allowed to be continued and requires a befitting punitive action against the officer concerned.

At this stage, learned counsel for the State interrupted and stated that the notional promotion has been granted to the petitioner and the notification granting the financial benefits shall be followed. If this is the stand of State, then there is no full compliance of the order, but as an opening remark it was submitted by the learned counsel for the State that the order has been fully complied with, and he also tried to justify the stand. Learned counsel for the State now prays for time for compliance of the order granting financial benefits to the petitioner.

This is a clear case in which the order of the Court has not been complied with in its entirety. As prayed by learned counsel for the State, two weeks' time is granted for compliance of the order in its true spirit, but at the same time, in view of the order dated 18.09.2020, wherein it was specifically mentioned that if the order is not complied with, any punitive order may be passed against the officer responsible for noncompliance of the order, I impose the cost of Rs.50,000/-, to be paid to the petitioner within the said period of two weeks, by the State Government. The said amount of Rs.50,000/- as cost shall be paid to the petitioner while making the full compliance of the order passed by the Writ Court. It shall be open to the State to realize this amount from the officer responsible for making such mis-interpretation of the order of the Court.

Put up this matter on 16th October 2020, by which date, it is expected that the order passed by the Writ Court shall be fully complied with, without any attempt to mislead the Court again, along with the payment of cost to the petitioner as aforesaid.

Let a copy of this order be made available to the learned counsel for the State for the needful.