IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4471 of 2005 1. MADHUSUDAN PRASAD VERMA, son of Late Sheojush Prasad, resident of Ashiana Nagar, Police Station Shastri Nagar Town and District- Patna. ………….. Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Bihar, Patna 2. The Secretary, Public Health Engineering Department, Technical Secretariat, Patna 3. The Special Secretary, Public Health Engineering Department, Technical Secretariat, Patna 4. The Deputy Secretary, Public Health Engineering Department, Patna 5. The Chairman, Bihar Public Service Commission, Patna 6. The Accountant General, Bihar, Patna ………………. Respondents ----------- For the Petitioner: Mr. Birendra Kumar Sinha, Sr. Advocate Mr. Manish Kumar, Advocate For the State: Mr. Sanjay Prakash Verma, AC to GA-3 For the B.P.S.C.: Mr. Rakesh Kumar Tiwary, Advocate ***** 03. 05.04.2011 Heard learned counsel for the petitioner and the counsel appearing for the State as well as for the B.P.S.C. Earlier this petitioner has moved before this Court in C.W.J.C. No. 7434 of 1995, M.J.C. No. 2000 of 1997 and also in C.W.J.C. No. 951 of 2001. Writ Applications were filed since the petitioner was not being promoted to the post of Superintending Engineer as well as Chief Engineer, 2 despite their being recommendation of the Departmental Promotion Committee in his favour since 1987. Contempt application had been filed for the reason that the C.W.J.C. No. 7434 of 1995 had been disposed of directing the Respondents to give retrospective promotion to the petitioner on the post of Superintending Engineer with effect from 21.08.1987, but the petitioner was not being promoted by the Respondents. During the pendency of the contempt application, petitioner was given promotion for the post of Superintending Engineer. Again he has to move before this Court for promotion on the post of Chief Engineer, which was allowed vide Order dated 29.06.2004. However, the issue relating to consequential monitory benefits attached to the promotional posts with effect from the date of promotions was left open. The petitioner was directed to represent his case before the Respondent Authorities and the representation was directed to be disposed of with a speaking order within three months from the date of filing of representation. Detailed representation filed by the petitioner for payment of consequential monitory benefits on account of promotion to the post of 3 Superintending Engineer and Chief Engineer with effect from the date of promotion was rejected vide Order, dated 13.08.2004 on the ground that since petitioner retired from his service prior to issuance of promotion orders and he has not worked even for a single day on the promotional post, the monitory benefits can not be allowed to him for such promotions. To substantiate this stand, Respondents have taken shelter of Rule 58 of Bihar Service Code. Rule 58 of Bihar Service Code provides as follows: “58 (a) Subject to any exception specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. (b) Unless in any individual case the State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows: - (i) In the case of a person who 4 receives a first class passage to India, from the date of his arrival in India [Subject to his proceeding to take up his duties without avoidable delay] (ii) In the case of a person who receives a second class passage to India, from the date of his embarkation for India. In the Counter Affidavit, filed on behalf of the State, it has been stated in paragraph 12 that on consideration of petitioner’s representation, it was found that there were serious charges against the petitioner till his retirement dated 30.06.1997. After retirement of the petitioner, the notional promotions was given to him to the post of Superintending Engineer (Civil) with effect from 21.08.1987 and to the post of Chief Engineer (Civil) with effect from 21.08.1995, vide Notification No. 1662/1663, dated 13.10.2000. The petitioner did not work on the post of Superintending Engineer and on the post of Chief Engineer, as such his claim for payment of monitory benefits for the post of Superintending Engineer from 21.08.1987 and for the post of Chief Engineer from 21.08.1995, is neither justified nor in accordance with Rule 58 of Bihar Service Code. On 5 perusal of the facts, disclosed in the Writ Application, it transpires that the Departmental Promotion Committee had recommended for petitioner’s promotion to the post of Superintending Engineer with effect from 21.08.1987, but the promotion was not given to the petitioner as Vigilance Case No. 57 of 1987 was still under investigation, in which petitioner’s name was also involved. One post of Superintending Engineer as per recommendation of D.P.C. has been kept reserved for the petitioner. On 14.05.1991, final report was submitted in Vigilance Case and the petitioner was not sent up for trial. Despite this fact that a post has been kept reserved for him and now in Vigilance Case also he was given clean chit, no order of promotion was passed in favour of the petitioner. Subsequently, a Departmental Proceeding was initiated against the petitioner on 05.02.1993 relating to charge of wrong payment. He was put under suspension, but charges could not be proved. Suspension order was revoked and petitioner was exonerated from all charges and order was also passed for payment of full salary to the petitioner for the period of suspension. Despite his exoneration 6 from the charges in the Departmental Proceeding, and a recommendation made in favour of the petitioner for promotion on the post of Superintending Engineer, he was not promoted. In the meantime petitioner also became eligible for promotion to the post of Chief Engineer. This was the reason that petitioner filed C.W.J.C. No. 7434 of 1995 and order was passed for his promotion to the post of Superintending Engineer with effect from the date he was recommended by the Departmental Promotion Committee, i.e., 21.08.1987. In a similar manner, petitioner was given promotion to the post of Chief Engineer. For every promotion he had to fight a legal battle and then only he could get his promotion, though he was eligible for the same. Counsel appearing for the petitioner submits that the reason shown for rejecting petitioner’s claim for consequential monitory benefits is not sustainable for the reason that in case of ad-hoc promotion there can not be any application of rule 58 of Bihar Service Code. The issue relating to applicability of Rule 58 of Bihar Service Code in such matter, where promotion has been kept withheld by the Respondent themselves without there being any 7 latches or lacunae on the part of the employee, has been decided by this Court in the decisions reported in 1992 (1) PLJR 27 (SC) and 1993 (1) PLJR 519. In 1993 (1) PLJR 519, reliance has been placed on the Supreme Court decision reported in 1992(1) PLJR 27(SC). In paragraph 19 of this decision it has been held as follows: “Rule 58 of Bihar Service Code is a general rule. The said rule is applicable in a case where a Government Servant does not join the post of his own. Ordinarily the said rule will have no application in a case where an employee although is ready and willing to work on the post is prevented from doing so. This aspect of the matter has been considered by the Supreme Court recently in Union of India Vrs. K. V. Janki Raman reported in 1992(1) PLJR 27 (SC).” The Supreme Court had observed in this decision as follows: “We are not much impressed by the contention advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to 8 cases such as the present one where the employee although he is willing 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.” The case of present petitioner is fully covered by the decisions on which the counsel for the petitioner has placed reliance. So far the ground taken in the Counter Affidavit regarding pendency of Vigilance Case No. 57 of 1987 is concerned, I find that simply because the enquiry / investigation is going that should not have been sufficient for not allowing any promotion to the petitioner, unless he would have been charge- sheeted. A criminal case is presumed to commence with effect from the date of issuance of charge- sheet. Similarly, a Departmental Proceeding is presumed to be initiated on submission of charge- sheet on a delinquent. In case of petitioner, he was not charge-sheeted and final report was submitted 9 on 14.05.1991. There was no criminal case pending against him even in the year 1987. He could have been easily promoted to the post of Superintending Engineer as till that date he was not charge-sheeted. This view has been propagated in a decision reported in 1998 (2) PLJR 440. For all these reasons, I do not find that the reason shown by the Respondents for not making payment of all consequential monitory benefits to the petitioner on account of his promotion to the post of Superintending Engineer as well as on the post of Chief Engineer with effect from the date of his promotion, is not proper and legal. It was a case in which retrospective promotion was given to the petitioner on account of delay on the part of Respondents. Petitioner could have been given promotion in the year 1991, since on that date final form was submitted in Vigilance Case and no Departmental Proceeding was pending against him. It was not done and subsequently on a frivolous ground relating to initiation of Departmental Proceeding, promotion was delayed till 1995. Finally promotion was given to the petitioner, when the Respondents were compelled to do so, on account of 10 pendency of the Contempt Application. For the reasons stated above, the Respondents are directed to make payment of arrears of salary of the promotional post of Superintending Engineer and Chief Engineer to the petitioner with effect from the date of promotions, with all other monitory benefits, including the admissible allowance. All payments must be made to the petitioner within 12 weeks from the date of communication / production of this Order. With the aforesaid observations / directions, this Writ Application is disposed of. SKM (Mridula Mishra, J.)