IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11735 of 2002 RAMJI PRASAD Versus THE STATE OF BIHAR & ORS ----------- 4. 5.3.2009 Heard learned counsel for the petitioner and the State. The petitioner was appointed as an Architect Assistant on 10.11.1967 and after recommendation of the B.P.S.C. came to be confirmed on that post from 11.11.1969. He was promoted as Assistant Government Architect on ad-hoc basis which came to be regularized on 18.11.1974 on recommendation of the B.P.S.C. It is his further case that he is senior most Assistant Government Architect scheduled for retirement on 28.2.2003 before which he approached this Court in the writ application. Considering his seniority and satisfactory discharge of duties and eligibility to be considered for promotion to the post of Senior Architect as the Senior most Assistant Government Architect, the respondents by order dated 17.8.1988, by way of a working arrangement authorized him to discharge the duties of a Senior Architect. He continued to discharge his duties as a Senior Architect satisfactorily. Despite availability of vacancy in the next promotional post of Chief Architect, on retirement of the previous incumbent on 31.10.1997, the petitioner was asked to discharge the duties of a Chief Architect in addition to his duties as the Senior Architect. He superannuated from the post of the Senior Assistant Government Architect while holding officiating charge of Senior Architect and Chief Architect. Learned counsel for the State submits that counter affidavit - 2 - has been filed on 27.2.2009. The same is not available on the record. The Court is not persuaded to hold up the matter for that reason and requested the learned counsel for the State to make available his copy of the counter affidavit for perusal. A counter affidavit affirmed in 2009 states that the case of the petitioner for promotion is pending consideration. Learned counsel for the petitioner submits that the petitioner fulfils the eligibility and condition of promotion to the post of Senior Architect and Chief Architect. Vacancy being available, the respondents in their interest gave him officiating charge without giving the benefit of the higher post. In this manner he superannuated without having the benefit of the promotion, holding the substantive post of Assistant Government Architect. Learned counsel for the State from Annexure-4 and Annexure-8, the orders of promotion to the post of Senior Architect and Chief Architect, submits that the petitioner was promoted in officiating capacity on his representation. The officiating promotion dated 17.8.1988 to Senior Architect did not grant him any monetary benefits which he accepted. Additionally the order dated 31.12.1997 giving him officiating promotion to the post of Chief Architect specifically provided that by reason of this working arrangement, he shall not claim for promotion or special pay. Once the petitioner agreed to these conditions he cannot now turn around and make his claim for the same. The eligibility of the petitioner to the promotional post is - 3 - not denied by the respondents. The availability of sanctioned vacancies against which the petitioner was asked to officiate on both the promotional post is also not in controversy. The argument on behalf of the State that it was only an officiating arrangement and not a promotion and that his case is pending consideration for promotion 7 years after his retirement and that he had accepted in the promotion order not to make any claim for substantive promotion to the superior post or pay of the superior post stands best answered by the judgment of the Supreme Court reported in 1988(5) SCC at page 87. The respondents therein was promoted as a Junior Engineer and was continuing on that post without being paid salary for the post and without being promoted on a regular basis. He approached the tribunal which allowed his petition and gave a direction that the respondents shall be paid his salary for the post of Junior Engineer and shall also be considered for promotion on regular basis. The Supreme Court held that the tribunal was fully justified in ordering payment of salary for the post of Junior Engineer as he was made to work on the post. It was further held that the fact that he may have been asked to discharge duties of the higher post as a stop gap arrangement does not make any difference to his claim to the salary of that post. The Apex Court held “if a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post”. The latter argument stands best answered by Paragraph 8 of the judgment where a similar objection was raised before the Supreme Court which - 4 - was rejected in the following terms. “Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma-holders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.” Applying the proposition from Paragraph 8 of the judgment of the Supreme Court, this Court holds that the eligibility of the petitioner for the post of Senior Architect and Chief Engineer is not in controversy. The availability of the vacancy in the promotional post is not in controversy. The petitioner shall, therefore, be deemed to have been promoted and retired from that post in view of his continuous discharge of duties of the superior posts for which he was fully qualified and found eligible. The respondents are, therefore, directed to pay him the full wages of the post of Senior Architect less what was paid to him from the date that he commenced to discharge his duties in that capacity on officiating basis and also full pay for the post of Chief Architect from - 5 - the date that he next discharged his duty in that officiating capacity. The petitioners shall be deemed to superannuate from the post of Chief Architect and shall be entitled to re-fixation of his pension and other retiral dues on the basis that he was last holding the latter post on the applicable pay scale. The application stands allowed. P. Kumar (Navin Sinha, J.)