IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9653 of 2006 RAMA SHANKAR SAH S/O SUDARSHAN SAH, R/O VILLAGE- KANSDIARA, P.S.- DORIGANJ, DISTRICT- SARAN ………Petitioner Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER- CUM- SECRETARY, DEPARTMENT OF HUMAN RESOURCES, GOVT. OF BIHAR, NEW SECRETARIAT BUILDING, PATNA 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, NEW SECRETARIAT BUILDING, PATNA 4. THE DISTRICT MAGISTRATE, SARAN 5. THE DISTRICT EDUCATION OFFICER, SARAN 6. THE DISTRICT SUPERINTENDENT OF EDUCATION, SARAN ……….Respondents ----------- For the Petitioner : Abhay Kumar Singh No. 1 Adv. : Bharat Bhushan Adv. For the State : A.C. to G.P,-I ******* 6. 10.05.2011 The petitioner is an Assistant Teacher in Government service. He had filed this writ petition for grant of promotion and consequently higher grade of pay. He was, at that time, being given Matric Trained scale and his case was that Matric Trained Scale was given to him w.e.f. 9.5.1987 and subsequently as per rules he being a Graduate after 8 years thereof, he became entitled to be considered for grant of Graduate Trained Scale of a Science Teacher. There being vacancy, denial thereof was arbitrary. State has filed a counter affidavit. State has now stated and brought on record that petitioner was entitled for getting higher grade of pay of Graduate Trained Science Teacher w.e.f. 8.8.1995 as claimed by petitioners. State has also brought on record the order granting him promotion. 2 State does not dispute that the promotion, so granted, in the Graduate Trained Scale would be with effect from the date it was due i.e. 8.8.1995 or thereafter if there were no vacancies but states that because of pendency of several writ petitions in this regard and the decision thereon was taken on 21.4.2009. The matter had got delayed and accordingly promotion though due w.e.f. 8.5.1995 would be given only with prospective effect i.e. 16.4.2011 for all purposes. Petitioner submits that this deprives the petitioner not only of his due promotion but financial benefits thereof. The sole question that arises for determination is as to whether the State can deny financial benefits to an employee by delaying the promotion specially when the employee is not at fault. With the consent of the parties the writ petition has been heard for disposal at this stage itself. In fairness to learned counsel for the State, let it be noted that the matter was specially adjourned for seeking instructions, as the order the court was proposing to pass could have serious financial repercussions. Learned counsel for the State submits that inspite of requests the Director Primary Education has thought it proper not to respond. From the facts as noted above, it is clear that the petitioner’s promotion was due and it was due from 8.5.1995 when he completed 8 years as under the Matric 3 Trained Scale. It appears that there was a dispute raised with regard to the bifurcation of the cadres into two cadres amongst the Assistant Teacher namely Science and Arts. Several writ petitions were filed and ultimately this court in Full Bench judgment in the case of Ram Nath Prasad and others versus The State of Bihar being L.P.A. No. 985 of 1996 decided on 21.4.2009 since reported in 2009 (3) P.L.J.R. 384 held that there is two separate cadres of Teachers. So far as Teachers are concerned, there is to be cadre of Art teacher and cadre of Science teachers but when it comes to the Head Master, it would be a common gradation list and they will accordingly be chosen. The full bench having so decided the issue directed State to finalize the list and thereafter promotion and transfers be made in accordance with law. After this judgment, the gradation list were separately prepared and promotions were granted from the due date but as the promotions were being granted in the year 2011 financial benefits w.e.f. 1995 could not be granted as that would involved substantial amount of money. A part from this, that is the financial constraint there is no other reason for denying giving full effect to promotion from the date it was due. In my view the State cannot do it. It is now established beyond doubt that to be considered for promotion is a constitutional right of an employee. He cannot be denied promotion or benefits arising there from 4 on any ipsi dixit of the executive. It has repercussions on his carrier monetory and otherwise. In the present case as we have seen petitioners had got nothing to do with the delay in grant of promotion. I may note another aspect of the matter that the petitioner remains an Assistant Teacher on promotion to higher grade of pay virtually the same work which he would otherwise do. The only thing is that as a matter of carrier progression he being a graduate would become entitled to a higher grade of pay upon his promotion as a Graduate Trained Teacher. That the promotional benefits is being wrongly denied the first decision in this case, I would like to refer is what was the said by Chief Justice Chagla in All India Groundnut Syndicate Ltd.-v- Commissioner of Income Tax, Bombay City since reported in A.I.R. 1954 Bombay 232: “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section 2 of S. 24. In other words, the Department wants to benefit from the wants to take advantage of its own default. It is an elementary principle of law that no person-we take it that the Income-tax Department is included in that definition can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default” In the present case what is being said is that the State had some difficulty or some confusion because of which promotions got delayed, therefore, promotions will be 5 granted but without any financial benefits in other words promotion would only be prospective. Admittedly petitioner had nothing to do with those confusion. Petitioner was not in any manner responsible in delay in grant of promotion. Petitioner has come to this court for enforcing his right to get promotion, the right is also recognized by the State but what they say is because of some confusion there, which was ultimately settled by this court they could not grant timely promotions. In my view that can be no justification if for such a stand is ever permitted then very conveniently the government would delay the granting promotions and thus deprive employees of monitory benefits. That would clearly be arbitrary. It may be noted that in effect what has been asked for by the petitioner is the higher grade of pay which he was entitled under the Rules on completion of 8 years of service as a Matric Trained Teacher, he being a Graduate. There is no dispute that there were requisite vacancy in the higher grade. The delay was on account of State’s own predilections and not because of the petitioner. Here I may note the case of Nirmal Chandra Bhattacharjee Vs. Union of India and others since reported in 1991 Supp. (2) SCC 363 and what is said by the Apex Court in para 5 of the said reports: “……… If the department would have 6 proceeded with the selection well within time and would have completed it before August 1, 1983 then the appellants would have become Ticket Collectors without difficulty. The mistake or delay on part of the department, therefore, should not be permitted to recoil on the appellants……” In fairness to learned counsel for the State, that the rule of “no work no pay” should be applied, the answer is to be found in the case of Union of India Vs. K.V. Jankiraman since reported in AIR 1991 SC 2010 and in particular para 7 of the reports at page 2017 relevant part whereof is quoted here under:- “……It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, some times with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privatations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is wiling to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17 (1) will also be inapplicable to such cases…..” In that view of the matter that part of the order as contained in memo no. 701 dated 16.4.2011 issued by the Deputy Development Commissioner, Saran and District 7 Superintendent of Education, Saran, whereby the financial benefits have been given only prospectively, pursuant to the order of Director (Primary Education) under his letter dated 4.1.2010 are held to be unsustainable. It is held that the promotion would be effective from the due date with all consequential benefits including financial benefits. State has not been able to give any other valid reason for denial of promotion with all consequential benefits from the due date except financial strain. That is not a valid reason to deprive an employee of his rightful emolument. The writ petition is accordingly allowed. The respondents are accordingly directed to give effect to the promotion of the petitioner from the date it was due i.e. 8.5.1995 with all financial benefits as well within 3 months from today the responsibility of which will be on the Director (Primary Education). With the aforesaid observations and directions, the writ petition is allowed. Fahad. (Navaniti Prasad Singh, J.)