IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.943 of 2011 In Civil Writ Jurisdiction Case No. 1480 of 2004 With Interlocutory Application No. 4272 of 2011 And Interlocutory Application No. 4509 of 2011 ====================================================== 1. The Bihar State Electricity Board through its Chairman, Vidyut Bhawan, Baily Road, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 4. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 5. The Under Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 6. The Law Advisor-cum- Deputy Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 7. The Senior Law Advisor-cum- Addl. Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 8. The Departmental Promotion Committee, through its Chairman, Bihar State Electricity Board, Bihar, Patna. 9. The Financial Controller, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. .... .... Appellant/s Versus 1. Ram Lakhan Paswan , son of Late Kharo Paswan, residing at Mitra Mandal Colony, Phase No.2, Nearby Anishabad, P.S. Phulwari Sharif, District- Patna. 2. The State of Bihar, through its Chief Secretary, Bihar, Patna. .... .... Respondent/s ====================================================== Appearance : For the Appellants : Mr. Vinay Kirti Singh with Mr. Vijay Kumar Verma and Mr. Akhileshwar Singh. For the Respondent/s : Mr. Ratan Prasad Singh and Mr. Raja Ram Mishra. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 2 3 13-07-2011 Reg.: I. A. No. 4272 of 2011: This application under Section 5 of the Limitation Act is filed by the appellant- Bihar State Electricity Board and others for condonation of delay of 130 days occurred in filing the Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory application stands disposed of. Re: L.P.A. No. 943 of 2011: With the consent of the learned advocates, this appeal is heard and decided today. This Appeal preferred under Clause 10 of the Letters Patent arises from the judgment and order dated 16th November 2010 passed by the learned single Judge in above C.W.J.C. No. 1480 of 2004. The respondent, Ram Lakhan Paswan, is a retired officer of the Bihar State Electricity Board (hereinafter referred to as “the Board”). The respondent was appointed in the Board as Assistant Law Officer. In the year 1989 he was promoted to the post of Law Officer. Next promotional post was that of the Deputy Law Advisor. For promotion to the post of Deputy Law Advisor, the respondent was required to have seven years’ experience in the lower post. However, before qualifying for promotion as Deputy Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 3 Law Advisor, in view of the vacancy available, the Departmental Promotion Committee considered his case for giving current charge on the post of Deputy Law Advisor. Pursuant to the recommendation of the Departmental Promotion Committee, on 3rd April 1991 the respondent was allowed to hold current charge of the post of Deputy Law Advisor in the pay scale of Rs. 3200- 4700/-. It is an admitted fact that since 3rd April 1991 till the respondent retired from service on reaching the age of superannuation on 31st January 2000, he continued to hold current charge as Deputy Law Advisor. His case for promotion as Deputy Law Advisor was considered by the Departmental Promotion Committee in 1998. Having regard to his service record of the preceding three years, he was not recommended for promotion as Deputy Law Advisor. After his retirement on 31st January 2000, the respondent approached this Court under Article 226 of the Constitution in C.W.J.C. No. 8744 of 2003. The said writ petition was decided on 27th August 2003 (Coram: Chandramauli Kumar Prasad, J as he then was). This Court disposed of the said writ petition with a direction to the Board to consider and decide the representation of the respondent. Pursuant to the said direction, the case of the respondent was considered by the Departmental Promotion Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 4 Committee. Under communication dated 7th January 2004 the respondent was informed that in view of his service record and adverse remark in the confidential records of the year 1996-97 and 1997-98, he was found unfit for promotion to the post of Deputy Law Advisor. Feeling aggrieved, the respondent filed above C.W.J.C. No. 1480 of 2004. In the writ petition the respondent made prayers to set aside the above communication dated 7th January 2004 and to declare that the Board had adopted unreasonable and illegal method and had resorted to the policy of pick and choose in the matter of promotion to the post of Deputy Law Advisor and to grant consequential relief. The respondent did not make specific prayer for promotion as Deputy Law Advisor. On perusal of the averments made in the writ petition also we do not find that the respondent had claimed relief specifically for promotion as Deputy Law Advisor or for specific consequential relief. On perusal of the pleadings we find that the respondent admitted that for promotion to the post of Deputy Law Advisor, a person had to render eight years’ service; seven years’ in case of Scheduled Castes and Scheduled tribes candidates. The respondent, being a scheduled caste candidate, was required to render seven years’ service as Law Officer for being promoted as Deputy Law Advisor. Considering his promotion as Law Officer Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 5 in the year 1989, he did not qualify for promotion as Deputy Law Advisor till 1996. His grievance was in respect of supersession in the matter of promotion to the post of Deputy Law Advisor in 1998 when one another Shri B.N.Verma was promoted as Deputy Law Advisor. The learned single Judge has made a note that case of the respondent for promotion as Deputy Law Advisor was considered on 18th July 1998. The Departmental Promotion Committee did not find him fit for promotion but reserved a post for him. Since then nothing was done till he retired on 31st January 2000. In the opinion of the learned single Judge, as the respondent had discharged duty as Deputy Law Advisor continuously from 3rd April 1991 till he retired from service, he was entitled to salary of Deputy Law Advisor. The respondent was not paid the salary of a Deputy Law Advisor. He was, therefore, entitled to such salary from 3rd April 1991. Consequently the learned single Judge has directed the Board to pay the difference in salary, to re-fix the pension and to pay difference of amount of pension and retiral benefits. Feeling aggrieved, the Board has preferred the present appeal. Learned advocate Mr. Vinay Kirti Singh has appeared on behalf of the appellant- Board. He has submitted that until the year Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 6 1996 the respondent was not qualified for promotion as Deputy Law Advisor. After he became eligible for promotion to the post of Deputy Law Advisor, he was not found fit for promotion by the Departmental Promotion Committee. The respondent, therefore, was not promoted. He has further submitted that the learned single has erred in granting the relief not prayed for on presumption of facts not pleaded. The appeal is contested by the learned advocate Mr. Ratan Prasad Sinha. Mr. Sinha has submitted that though the respondent was allowed to hold current charge of Deputy Law Advisor in the pay scale of Rs. 3200- 4700/-, he was never paid that salary. The learned single Judge has rightly granted the relief referred to hereinabove. In support of his contention he has relied upon a judgment of this Court in the matter of Dr. Sachita Kumar Sinha Vs. The State of Bihar & Ors, [ 1995(1) PLJR 362] . In the above matter the learned single Judge of this Court has held that the petitioner, Deputy Director of Secondary Education was entitled to the salary in the higher pay scale while he discharged the duties of Additional Director (Secondary Education) in addition to his own work and also discharged the duties of Director of Secondary Education. There was no valid reason for denying the salary of the higher post. In our opinion, the facts of the above referred case were Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 7 quite different from the facts in the present case. It may be noted that the respondent was allowed to hold current charge of the post of Deputy Law Advisor in the pay scale of 3200- 4700/- as far back as on 3rd April 1991. Since 3rd April 1991 till the year 1998 when the aforesaid Mr. Verma was promoted as Deputy Law Advisor, the respondent never raised any objection. Besides, in the writ petition also the respondent did not complain that he was not paid the salary in the pay scale of Rs. 3200-4700/-. In absence of any material on record there was no reason for the learned single Judge to presume that the respondent was not paid the salary in the pay scale of Rs. 3200- 4700/-. No materials have been brought on record with respect to the pay scales applicable at the relevant time to the post of Law officer and to the post of Deputy Law Advisor. The learned single judge has indeed erred in presuming the facts not pleaded and in granting the relief not prayed for. We, however, believe that since the respondent had held current charge of the post of Deputy Law Advisor for around nine years and even after he was found unfit for promotion, he was allowed to hold current charge as Deputy Law Advisor, he should have been granted promotion as Deputy Law Advisor from the date he qualified for the same. For the aforesaid reason, We allow this appeal. The impugned judgment and order dated 16th November, 2010 passed Patna High Court LPA No.943 of 2011 (3) dt.13-07-2011 8 by the learned single Judge in C.W.J.C. No. 1480 of 2004 is set aside. C.W.J.C. No. 1480 of 2004 is allowed to the extent that the respondent- writ petitioner will be deemed to have been promoted to the post of Deputy Law Advisor from the date he became eligible for promotion to the said post. Consequently, the respondent will be entitled to the amount of difference in salary, and revision of pension and other retrial benefits on the basis of the last pay. The appellant Bihar State Electricity Board will work out the amount of difference in salary within one month from today. The amount of difference in salary will be paid within fifteen days thereafter. The re-fixation of pension and other retrial benefits will be done within three months from today. The amount of difference of pension and other retiral benefits will be paid to the respondents within fifteen days thereafter. The parties will bear their own cost. B Tiwary/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)