Rajendra Prasad vs State Of Jharkhand And Ors

The petitioner has approached this Court for a direction upon the respondents to constitute a special Departmental Promotion Committee and place the case of the petitioner for his promotion to the post of Superintending Engineer from the date on which the similarly situated persons have been promoted in pursuant to the recommendation of the Departmental Promotion Committee held on 05.10.2015 along with all consequential benefits including arrears of difference of salary..

The factual exposition as has been delineated in the writ petition is that the petitioner was appointed to the post of Assistant Engineer on 15.07.1987 under Drinking Water and Sanitation Division, Noiamundi. He was promoted to the post of Executive Engineer on 29.08.2013 under the same Department. It is further the case of the petitioner that he was holding the charge of Superintending Engineer from 21.07.2014 to till the age of his superannuation i.e. 30.04.2018. However, a Departmental Proceeding was initiated against him vide Memo No.1763 dated 21.04.2014 and Enquiry Officer had submitted his Enquiry Report on 19.06.2014 itself exonerating the petitioner from the charges. It is specific case of the petitioner that though Enquiry was concluded, no final order was passed regarding his promotion to the post of Superintending Engineer. Aggrieved by the same, he has been constrained to knock the door of this Court for redressal of his grievances.

Mrs. Ritu Kumar, learned counsel assisted by Mr. Samavesh Bhanj Deo, learned counsel appearing on behalf of the petitioner submits that the petitioner is entitled for regular promotion as he has been exonerated from the Departmental Proceeding and juniors to the petitioner have been considered and granted promotion to the post of Superintending Engineer. She further submits that due to the fault of the respondent-authorities, the case of the petitioner though considered in the year, 2014 itself, no final order was passed and as such, the petitioner could not avail the fruits of promotion. Learned counsel further submits that a direction be given upon the respondents to consider the case of the petitioner for promotion with retrospective effect with all consequential benefits.

Per contra, counter-affidavit has been filed. Mr. Rupesh Singh, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that though the petitioner was exonerated from the departmental proceeding, but final order was not passed as on date of consideration of his case in the year, 2015 and as such, promotion was not granted to him. He further submits that the claim of the petitioner for retrospective promotion to the post of Superintending Engineer is not tenable in the eyes of law as he was holding the said post as In-charge from 21.07.2014 and as such, the claim for regular promotion to the post of Superintending Engineer is not tenable in the eyes of law.

Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that admittedly, the petitioner has been exonerated from the charges by the Enquiry Officer, the same finds strength from Annexure-4 dated 30.08.2017. The fact also remains that the petitioner was considered for regular promotion and his name finds place at Sl. No.10 and due to the Departmental Proceeding pending against him, no final order was issued regarding promotion. Now, the petitioner has retired, it is not in dispute that he was holding the post of Superintending Engineer as Incharge right from 21.07.2014 till his superannuation i.e. on 30.04.2018. Since, the petitioner has superannuated, his case cannot be considered for regular promotion but as he was holding the said post, he is entitled for salary of that period for which he has holding the post of Superintending Engineer. The Hon'ble Apex Court in case of Arindam Chattopadhyay v. State of W.B., reported in (2013) 4 SCC 152 in para 13 has held which reads as under:

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 promotions

As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, I hereby direct the respondents to consider the case of the petitioner and to pay the salary of that period during which the petitioner was holding the post of Superintending Engineer or difference of salary, whichever petitioner is entitled for, within a period of ten weeks from the date of receipt of a copy of this order.

It is open for the petitioner to file a representation for consideration of his case for regular promotion from the date it was pending in sealed cover procedures.

Needless to say that if the petitioner is entitled for the same in view of Judgment of Hon'ble Apex Court in case of Union of India Vs. K.V. Jankiraman (1991) 4 SCC 109 and an order to that effect be passed within a period of twenty days from the date of opening of the sealed cover.

With the aforesaid observations and directions, instant writ petition stands disposed off.