1 L.P.A. No. 447 of 2019

IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No. 447 of 2019

With

I.A. No. 8899 of 2019

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1. State of Jharkhand.

2. The Principal Secretary to the Government, Energy Department, Government

of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, Dist.-Ranchi.

3. The Principal Secretary to the Government, Finance Department,

Government of Jharkhand, Project Bhawan, Dhurwa, P.O.-Dhurwa, P.S.

Jagarnathpur, Dist.-Ranchi.

4. The Deputy Secretary to the Government, Energy, Department Government

of Jharkhand, Nepal House, Doranda, P.O. + P.S. Doranda, Dist.-Ranchi.

5. The Under Secretary of the Government Energy, Department Government of

Jharkhand, Nepal House, Doranda, P.O. + P.S. Doranda, Dist.-Ranchi.

… … Appellants/Respondents

Versus

Pramod Kumar, son of Late G.S. Mahtha, resident of 2A, Yash Apartment,

Magistrate Colony, P.O. Doranda, P.S. Doranda, Dist.-Ranchi (Jharkhand).

… … Respondent/Petitioner

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE NAVNEET KUMAR

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For the Appellants : Mr. Ashok Kumar Yadav, Sr. SC-I

Mr. Aditya Kumar, AC to Sr. SC-I

For the Respondent : Mr. Prashant Pallav, Advocate

Mr. Parth Jalan, Advocate

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ORAL JUDGMENT

07/Dated: 22

nd

August, 2023

Per Sujit Narayan Prasad, J.

I.A. No. 8899 of 2019:

1. This interlocutory application has been filed for condoning the delay of 70

days, which has occurred in preferring this appeal.

2. No counter to the delay condonation application has been filed.

3. Having heard the learned counsel for the parties and considering the

statements made in this application, we are of the view that the appellants

were prevented from sufficient cause in preferring this appeal within time.

2 L.P.A. No. 447 of 2019

4. Accordingly, this interlocutory application is allowed and the delay of 70

days in preferring this appeal, is hereby condoned.

5. With the consent of the parties, the matter has been heard at this stage for

final disposal.

L.P.A. No. 447 of 2019:

6. The instant appeal under Clause 10 of the Letters Patent is directed against

the order/judgment dated 27.03.2019 passed by the learned Single Judge of

this Court in W.P.(S) No. 3144 of 2014, whereby and whereunder, the order

dated 30.12.2015 has been modified to the extent that the writ petitioner will

be entitled for the salary for the post of Electrical Executive Engineer from

the date of his promotion, i.e., 27.06.2008.

7. The brief facts of the case as per the pleading made in the writ petition

which require to be enumerated herein, read as under:

The writ-petitioner was initially appointed on 18.09.1997 on the post of

Assistant Electrical Engineer vide office order issued under the signature of

the Additional Secretary to the Government, Energy Department. After

creation of Jharkhand, cadre division was made in the Department of Energy

and promotion has been given to the rank of Electrical Executive Engineer

from the Assistant Electrical Engineer without taking into consideration the

advices of the Department of Personnel, Administrative Reforms & Raj

Bhasa, Ranchi. Even the Departmental noting shows that one post extra has

been given to the unreserved category for promotion to the rank of Electrical

Executive Engineer.

Departmental Promotional meeting was held under the Chairmanship

of Sri Dilip Kumar Prasad, the Chairman of Jharkhand Public Service

Commission on 09.06.2009 (under challenge) along with three members,

who were Assistant Electrical Engineers, were recommended to be

promoted to the post of Electrical Executive Engineer with effect from the

date of their joining, depriving the petitioner of his legitimate right of

promotion.

Notification to this effect has also been issued vide Notification No.

1468 dated 25.06.2008, Notification No. 1469 dated 25.06.2008 and

3 L.P.A. No. 447 of 2019

Notification No. 1470 dated 25.06.2008 respectively issued by order of the

Governor, signed by the Deputy Secretary to the Government, Department

of Energy, Ranchi vide Notification No. 1471 dated 25.06.2008 issued under

the signature of Deputy Secretary to the Government, Energy Department,

Jharkhand, Ranchi, the writ-petitioner was given additional charge of

Electrical Inspector, Electrical Investigation Wing whereas Vijay Kumar

Sinha was given promotion as Electrical Executive Engineer in the pay scale

of Rs. 10,000-15,200/- in illegal and arbitrary manner.

In pursuance of Notification No. 1471 dated 25.06.2008, the writ-

petitioner took additional charge of Electrical Inspector, Electrical

Investigation Wing besides discharging the work of Assistant Electrical

Engineer.

The writ-petitioner has filed a writ petition which being W.P. (C) No.

3716 of 2012 before this Hon'ble Court and vide order dated 02.05.2013 the

writ-petitioner was given liberty to file fresh representation regarding his

claim before the Principal Secretary, Department of Energy, Government of

Jharkhand, who is said to be competent authority and on receipt of

representation, the said respondent shall consider the same and pass

appropriate order in accordance with law, within six weeks from the date of

receipt of representation.

The writ-petitioner filed detailed representation before the Principal

Secretary, Government of Jharkhand enclosing the order passed in W.P.(C)

No. 3716 of 2012. Consequently, the Under Secretary to the Government,

Energy Department, Jharkhand, Ranchi vide letter No. 1573 dated

11.06.2013 has asked the writ-petitioner to provide information to the query

raised by him.

Accordingly, the writ-petitioner submitted his detailed reply to the

Under Secretary to the Government, Energy Department, Jharkhand, Ranchi

Principle Secretary to the Government, Energy Department, Jharkhand,

Ranchi has stated that the promotion of the writ-petitioner with effect from

2008 will be presented before the Departmental Promotion Committee and

action in this regard will be taken only after decision of promotion

committee and after consultation with Finance Department and rest two

grievances of the petitioner has not been redressed.

4 L.P.A. No. 447 of 2019

On 22.08.2013 meeting of Departmental Promotion Committee was

held under the chairmanship of Member, Revenue Council, Jharkhand,

Ranchi wherein it was decided by all the committee members to recommend

the promotion of the writ-petitioner with effect from 27.08.2008 that is the

date on which he took additional charge of Electrical Inspector and also held

that on the subject of financial gain, opinion of Finance Department will be

obtained.

It is the case of the writ-petitioner that the point of financial benefits to

be given with retrospective effects, the same has already been decided by

this Hon'ble Court in W.P. (S) No. 1100 of 2007 vide order dated

22.06.2012 and affirmed in L.P.A. No. 471 of 2012 vide order dated

03.05.2013.

Cont. Case (C) No. 601 of 2013 arising out of order dated 02.05.2013

was filed by the writ-petitioner whereby contempt case was disposed of

considering that a reasoned order has been passed in compliance of order

dated 02.05.2013 and further it is held that if the writ-petitioner is aggrieved

by the order passed by the respondent concerned, petitioner is at liberty to

challenge the same before the appropriate forum.

The writ-petitioner approached this Court by filing writ petition being

W.P.(S) No. 3144 of 2014 and during pendency of the writ petition, the

respondent authorities by order dated 30.12.2015 has given promotyion to

the writ petitioner w.e.f. 27.06.2008 but the financial benefit has been given

from the actual date of promotion, i.e., 24.01.2011. The writ court vide order

dated 27.03.2019 has modified the order dated 30.12.2015 holding the writ

petitioner entitled for the salary for the post of Electrical Executive Engineer

from the date of promotion, i.e., 27.06.2008, against which the instant

appeal has been filed by the respondent-State.

8. It appears from the factual aspect as pleaded in the writ petition as referred

hereinabove that the writ petitioner was appointed as Assistant Electrical

Engineer under the respondent on 18.09.1997. The service of the writ

petitioner on bifurcation of the State has been allotted to the State of

Jharkhand. The writ petitioner was given officiating charge on the next

higher post, i.e., Electrical Inspector (Electrical Executive Engineer) vide

office order dated 25.06.2008. The said officiating posting continues till the

5 L.P.A. No. 447 of 2019

date of regular promotion given to the writ petitioner vide impugned order

dated 24.01.2011. Thereafter, the case of the writ petitioner was considered

by the duly constituted Departmental Promotion Committee and found to be

fit for promotion to the post of Electrical Executive Engineer, w.e.f.

2706.2008. The order was modified by notification dated 30.12.2015 to the

effect that the writ petitioner has been given regular promotion to the post of

Electrical Executive Engineer w.e.f. 27.06.2008 and the financial benefit

w.e.f. 24.01.2011, i.e., the date on which the writ petitioner joined on the

post of Electrical Executive Engineer in pursuance of the earlier notification

dated 24.01.2011.

The writ petitioner has challenged the part of the order by which the

financial benefit was denied from the date of promotion, i.e., from

27.06.2008 by filing amendment writ petition being W.P.(S) No. 3144 of

2014. The learned Single Judge has considered the fact that the writ

petitioner was granted promotion to the higher post w.e.f. 27.06.2008 and

hence having no fault on the part of the writ petitioner has modified the

order dated 30.12.2015 holding the writ petitioner entitled for the salary for

the post of Electrical Executive Engineer from the date of promotion, i.e.,

27.06.2008, which is the subject matter of the instant appeal.

9. Mr. Ashok Kumar Yadav, learned counsel appearing for the appellant-State

of Jharkhand has submitted that the writ petitioner is not entitled for the

monetary benefit in view of the provision as contained under Rule 58 and

103 as also in view of the judgment dated 12.01.2015 passed in L.P.A. No.

162 of 2014.

It has been contended that Rule 58 and Rule 103 do not permit that in a

case of retrospective promotion the financial benefit is to be extended.

10. Per contra, Mr. Prasant Pallav, learned counsel for the writ petitioner-

respondent has submitted that it is not a case where the provision of Rule

103 or Rule 58 will be applicable since the fact of the instant case is

otherwise different.

According to him, here is the fact where the promotion was denied to

the writ petitioner to the post of Electrical Executive Engineer due to the

laches on the part of the State since the day when the case of the writ

6 L.P.A. No. 447 of 2019

petitioner was considered for promotion to the post of Electrical Executive

Engineer along with other three, cases of all the co-employees were

considered. But, the case of the writ petitioner was not considered since the

4

th

post was not having with the roster clearance.

The case of the writ petitioner was again put before the Departmental

Promotion Committee after the roster clearance of the 4

th

post and taking

note thereof, the Departmental Promotion Committee has granted promotion

to the post of Electrical Executive Engineer w.e.f. 24.01.2011. But,

subsequent thereto, the State Government vide notification dated 30.12.2015

has modified the said order of promotion to be given w.e.f. 27.06.2008 along

with monetary benefit w.e.f. 24.01.2011.

It has been contended that once the State has accepted the fault on its

part by accepting the recommendation of the Departmental Promotion

Committee meeting of which was conducted on 22.08.2013 along with other

three co-employees then there is no reason to deny the monetary benefit

w.e.f. 27.06.2008 instead of the benefit from 24.01.2011.

Learned counsel, of the aforesaid premise, has submitted that the

learned Single Judge on taking into consideration the said aspect of the

matter, if has modified the order dated 30.12.2015 by holding the writ

petitioner entitled for the salary to the post of Electrical Executive Engineer

from the date of promotion, i.e., on 27.06.2008, the same cannot be said to

suffer from error.

11. We have heard the learned counsel for the appellants at this stage, perused

the documents available on record as also the finding recorded by the

learned Single Judge.

12. (i) The fact which is not in dispute in this case is that the writ petitioner

while working as Assistant Engineer under the respondent became eligible

for promotion but even though he became eligible but his case for promotion

to the post of Electrical Executive Engineer was not taken into consideration

hence, the writ petition being W.P.(S) No. 3716 of 2012 was filed seeking

therein the prayer to consider the case of the writ petitioner for promotion to

the higher post of Electrical Executive Engineer. The co-ordinate learned

Single Judge has considered the same and has directed that even though the

7 L.P.A. No. 447 of 2019

case of the writ petitioner is pending before the Principal Secretary for

promotion but not being considered, therefore, the Principal Secretary of the

Department was directed to consider the case of the writ petitioner within

the period of six weeks.

(ii) The writ petitioner has made due representation for the same but the

decision was not taken. Thereafter, contempt case was filed. The authority

has decided to convene a meeting of Departmental Promotion Committee

after consideration of the roster clearance vide order dated 29.07.2013

appended as Annexure-6 to the paperbook. The roster clearance was given

and the meeting of Departmental Promotion Committee was held under the

chairmanship of the Member Board of Revenue on 28.02.2013.

It would be evident from the minutes of meeting that apart from the

case of the writ petitioner under the General Category, the case of other

three, namely, Shri Agam Prasad, Shri Arbind Kumar Baldev Prasad, Shri

Vijay Kumar Sinha were considered while in the year 2008 four posts were

vacant against which the writ petitioner had completed the tenure

(kalawadhi) but due to non-availability of the update roster, the writ

petitioner was decided to be posted in in-charge capacity in stead of granting

regular promotion vide notification no. 1471 dated 25.06.2008 which had

been given w.e.f. 27.06.2008. For ready reference, the extract of the minutes

of meeting is beign referred as under:

“ऊर्जा विभजग के प्रस्तजि पर विनजांक 9.6.2008 को सम्पन्न विभजगीय प्रोन्नवि में मजत्र िीन सजमजन्य

कोवि, श्री अगम प्रसजि, श्री अरविन्द कु मजर िलिेि प्रसजि एिां विर्य कु मजर वसन्हज को प्रोन्नवि प्रिजन की

गयी, र्िवक 2008 में चजर पि ररक्त थे िथज प्रमोि कु मजर की कजलजिवि पूर्ा थी। मजत्र रोस्टर अद्यिन न

होने की कजरर् प्रोन्नवि के िर्जय ऊर्जा विभजग के अविसूचनज सांख्यज-1471, विनजांक 25.06.2008 से

विि् युि वनरीक्षक कज प्रभजर वियज गयज । वर्सपर श्री प्रमोि कु मजर द्वजरज विनजांक 27.06.2008 से प्रभजर

ग्रहर् वकयज गयज।

श्री प्रमोि कु मजर विनजांक 27.06.2008 से विि् युि वनरीक्षक के प्रभजर में रहे हैं िथज इन्हें िर्ा 2011

में विि् युि वनरीक्षक पि पर प्रोन्नवि प्रिजन की गयी।

उक्त िवर्ाि पररस्थथवि में यह स्पष्ट है वक श्री प्रमोि कु मजर कज भूिलक्षी प्रभजि से प्रोन्नवि प्रिजन

करनज श्री रघुिीर रजम कज मजननीय उच्च न्यजयजलय द्वजरज यजवचि पर CWJC 5773 / 91 के आलोक में

भूिलक्षी प्रभजि से प्रित्त प्रोन्नवि के सदृश है ।

वनर्ाय :- वित्त विभजग के पररपत्र सां0-2074 (वि०), विनजांक-04/04/1985 एिां पररपत्र सां0-3251/वि0,

विनजांक-20 / 1 / 2006 में िवर्ाि प्रजििजन के आलोक में सवमवि श्री प्रमोि कु मजर को विि् युि

वनरीक्षक के प्रभजर ग्रहर् विवथ-27/6/2008 से वनयवमि प्रोन्नवि की अनुशांसज करिी है। वित्तीय

लजभ के विर्य पर वित्त विभजग कज परजमशा प्रजप्त वकयज र्जयेगज ।“

8 L.P.A. No. 447 of 2019

The committee has also recommended simultaneously in view of the

Finance Department Circular No. 2074 dated 04.04.21985 and Circular No.

3251 dated 20.01.2006 for regular promotion to the post of Electrical

Inspector from the date when he took charge, i.e., w.e.f. 27.06.2008.

So far as the financial benefit is concerned, the decision was decided to

be taken after getting advice from the finance department.

(iii) The respondent, thereafter, has granted regular promotion w.e.f.

27.06.2008 granting promotion w.e.f. 25.06.2008 from the date when the

writ petitioner was directed to discharge his duty in additional capacity.

Subsequent thereto and based upon the recommendation of the promotion

committee, fresh notification was issued on 30.12.2015 by which the writ

petitioner was granted promotion w.e.f. 27.06.2008 and has been held

entitled for the monetary benefit from 24.01.2011.

The monetary benefit since was granted only w.e.f. 24.01.2011,

therefore, the writ petition has been filed for quashing the said part of the

order by holding the writ petitioner entitled for arrears of salary w.e.f.

27.06.2008. The writ petition was allowed against which the present appeal

has been preferred.

13. This Court, before entering into the legality and propriety of the impugned

order, deems it fit and proper to refer few judgments of the Hon'ble Apex

Court in the matter of monetary benefit in a case of promotion said to be

retrospective in nature.

(i) In A. Francis v. Management of Metropolitan Transport Corporation

Limited, Tamil Nadu, (2014) 13 SCC 283 primarily at paragraph 6.

We have gone through the aforesaid judgment quoted herein and

found from the factual aspect that the appellant in the said case was

appointed as a Clerk in the Tamil Nadu State Transport Department,

subsequently promoted to the post of Section Officer in the year 1991.

Thereafter, he was posted as Assistant Manager In-charge (Public

Relations) with specific condition that the same will not confer any

preferential right for regular promotion and that the appellant will

continue to draw his grade pay in his present cadre i.e. Assistant Labour

9 L.P.A. No. 447 of 2019

Welfare Officer and superannuated from service on 31.05.2005 as

Assistant Labour Welfare Officer and as such he sought for the salary

attached to the higher post and in that pretext the Hon'ble Apex Court has

been pleased to hold at paragraph 6 that since the appellant in the said

case vide order dated 28.02.2001, was allowed to discharge duties in the

post of Assistant Manager making it clear that the appellant would not be

entitled to claim any benefit therefrom including higher salary and further

that he would continue to draw his salary in the post of Assistant Labour

Welfare Officer. If the above was an express term of the order allowing

him to discharge duties in the higher post, it is difficult to see as to how

the said condition can be overlooked or ignored. Further, the Hon'ble

Apex Court observed that the decision of this Court in Secretary-cum-

Chief Engineer, Chandigarh v. Hari Om Sharma and Others, (1998) 5

SCC 87 was rendered in a situation where the incumbent was promoted

on ad hoc basis to the higher post. The aforesaid decision is also

distinguishable inasmuch as there was no specific condition in the

promotion order which debarred the incumbent from the salary of the

higher post. Such a condition was incorporated in an undertaking taken

from the employee which was held by this Court to be contrary to policy

decision.

(ii) Thereafter almost similar issue has again been decided by the Hon'ble

Apex Court in State of Punjab v. B. K. Dhir, (2017) 9 SCC 337 wherein

the judgment rendered by the Division Bench of Punjab and Haryana

High Court rendered in LPA No. 198 of 2003 [B.K. Dhir v. State of

Punjab] has passed an order as has been quoted in the aforesaid judgment

which reads as hereunder:-

“2. … …. …

“Having thoughtfully considered the rival contentions, we find merit in the

prayer of the appellant and are of the view that his case is squarely covered

by the ratio of the judgment in Pritam Singh Dhaliwal case [Pritam Singh

Dhaliwal v. State of Punjab, 2004 SCC OnLine P&H 1428] . It was not a

case where the appellant had laid a claim to promotion on the basis of the

officiating status conferred on him, but had prayed only for the pay which

was admissible to incumbents working on the said posts and performing

similar duties. Resultantly, therefore, if the respondents had extracted work

from him as Joint Director and Additional Director, he would certainly be

entitled to pay as is admissible to the regular incumbents working on the said

posts, regardless of any condition that may have been sought to be imposed

upon him.”

10 L.P.A. No. 447 of 2019

The Hon'ble Apex Court, in the said judgment, however, has

considered the fact about adjudication of the issue by the Punjab and

Haryana High Court wherein the concerned employee has been held

entitled to salary of the post of Joint Director and Additional Director,

Panchayats for the period he worked as such.

The aforesaid order has been challenged before the Division

Bench of the Punjab and Haryana High Court. The stand of the State

before the Division Bench of the Punjab and Haryana High Court was that

the view of the learned Single Judge was correct inasmuch as the orders

passed posting the appellant on officiating posts incorporated a condition

that he would continue to draw his pay in the pay scale of Deputy

Director, Panchayat and no extra financial benefit would be given to him

for the officiating charge. Additionally, it was asserted that the officer

concerned had submitted to the said terms and conditions and not raised

any protest.

The matter fell for consideration before the Hon'ble Apex Court

and while considering the issue, reference has been made to the judgment

rendered in State of Punjab and Another v. Dharam Pal, 2017 9 SCC

395, in which, at paragraph 22 it has been held as under:-

“22. In the instant case, the Rules do not prohibit grant of pay scale. The

decision of the High Court granting the benefit gets support from the

principles laid down in P. Grover [(1983) 4 SCC 291] and Hari Om Sharma

[(1998) 5 SCC 87] . As far as the authority in A. Francis [(2014) 13 SCC

283] is concerned, we would like to observe that the said case has to rest on

its own facts. We may clearly state that by an incorporation in the order or

merely by giving an undertaking in all circumstances would not debar an

employee to claim the benefits of the officiating position. We are disposed to

think that the controversy is covered by the ratio laid down in Hari Om

Sharma [(1998) 5 SCC 87] and resultantly we hold that the view expressed

by the High Court is absolutely impeccable.”

The Hon'ble Apex Court, in view of the decision rendered in

P.Grover (Smt) v. State of Haryana and Another [(1983) 4 SCC 291],

Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and

Others (Supra) and A. Francis v. Management of Metropolitan

Transport Corporation Limited, Tamil Nadu (Supra) has been pleased to

hold that the issue of eligibility to hold the post was not taken before the

High Court and the appeal was disposed of taking into consideration the

fact that when the respondent had worked in the officiating post and has

11 L.P.A. No. 447 of 2019

been granted the benefits by the High Court, he should be extended the

said benefit by making an observation that had there been a contest on the

eligibility of the respondent, possibly the matter would have been

different and taking note of the situation, the order passed by the Punjab

and Haryana High Court has been declined to be interfered with.

(iii) It is evident from the judgment rendered by the Hon'ble Apex Court in the

case of Secretary-cum-Chief Engineer v. Hari Om Sharma, [(1998) 5

SCC 87] wherein the case was of promotion as Superintendent Grade-II

(in officiating capacity) with a condition stipulated in the order that the

official work in the own pay scale and above promotion shall be subject

to the recommendation of the Departmental Promotion Committee as

would appear from paragraph – 7 and 8 of the aforesaid judgment, which

read as hereunder :-

“7. In the beginning, it is seemly to state that there is no factual dispute with

regard to the appointments or the posts. That being the position, we think it

appropriate to refer to the orders of appointment as Ms Babbar, learned

counsel for the appellant State of Punjab, would harp on the same. The

order dated 9-12-2004 reads as follows:

“ORDER

On the retirement of Smt Chand Prabha, Superintendent Grade

I on 31-7-2004 the post of Superintendent Grade I had become vacant.

On that vacant post Shri Kewal Singh, Superintendent Grade II is

promoted as Superintendent Grade I in his own scale.

On account of promotion of Shri Kewal Singh, Superintendent

Grade II as Superintendent Grade I and on account of proceeding on

earned leave of Shri Bhinder Singh, Superintendent Grade II w.e.f. 7- 9-

2004 Shri Ashwani Kumar Senior Assistant (Officiating Superintendent

Grade II) and Shri Dharam Pal (Officiating Superintendent Grade II)

are promoted as Superintendent Grade II.

The officials will work in their own pay scale and above

promotions will be subject to the recommendations of the Departmental

Promotion Committee. On the approval of the above committee they

will be given financial benefits. On the basis of these orders the officials

will not claim any seniority, etc.”

On the basis of the aforesaid order, the respondent functioned

as the officiating Superintendent Grade II.

8. As stated earlier, while he was officiating on the said post, he was

promoted on officiating basis to function in the post of Superintendent

Grade I. The relevant portion of the said order reads as follows:

“The officials will work in their earlier own pay scale and

above promotions will be subject to the recommendations of the

Departmental Promotion Committee. On the approval of the above

committee they will be given financial benefits. On the basis of these

orders the officials will not claim any seniority, etc.”

12 L.P.A. No. 447 of 2019

14. In the light of the aforesaid judgments as referred above, we are now

proceeding to examine the applicability of Rule 58 and 103 of the Service

Code.

15. Rule 58 of the Jharkhand Service Code is also required to be referred herein,

which reads as under:

“58. (a) Subject to any exceptions 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 allowance attached to his tenure of a post with effect from the date

on which he assumed 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 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.”

16. Rule 103 of the Jharkhand Service Code is also required to be referred

herein, which reads as under:

“103. The pay of a Government servant appointed by the State Government to

hold substantively, as a temporary measure, or to officiate in, two or more

independent post at one time shall be regulated as follows:-

(a) the highest pay to which he would be entitled if his appointment to one of

the posts stood alone, may be drawn on account of his tenure of that post;

(b) for each other post he may draw such reasonable pay, in no case

exceeding half the presumptive pay (excluding overseas pay) of the post, as

the State Government may fix; and

(c) if a compensatory allowance is attached to one or more of the posts he

may draw such compensatory allowance as the State Government may fix

provided that such allowance shall not exceed the total of the compensatory

allowance attached to all the posts.”

17. It is evident from the provision as contained under Rule 103 wherein it has

been stipulated that the pay of a Government servant appointed by the State

Government to hold substantively, as a temporary measure, or to officiate in,

two or more independent post at one time shall be regulated as follows:-

(a) the highest pay to which he would be entitled if his appointment to one

of the posts stood alone, may be drawn on account of his tenure of that

post;

13 L.P.A. No. 447 of 2019

(b) for each other post he may draw such reasonable pay, in no case

exceeding half the presumptive pay (excluding overseas pay) of the post,

as the State Government may fix; and

(c) if a compensatory allowance is attached to one or more of the posts he

may draw such compensatory allowance as the State Government may

fix provided that such allowance shall not exceed the total of the

compensatory allowance attached to all the posts.

Thus, it is evident that the provision of Rule 103 stipulates about a

condition when a Government servant appointed by the State Government to

hold substantively, as a temporary measure, or to officiate in, two or more

independent post then the condition stipulated under the provision of Rule

103 would be applicable.

18. This Court is now proceeding to examine the admitted factual aspect of the

given case, as follows:

(i) The writ petitioner was working as Assistant Engineer and became

eligible for promotion but not considered for promotion to the higher post of

Electrical Executive Engineer. He approached to this Court by filing writ

petition being W.P.(S) No. 3716 of 2012 along with one interlocutory

application stating therein that the case of the appellant is pending for

consideration before the Principal Secretary of the concerned department.

The High Court passed order with a direction upon the Principal Secretary

of the Department of Energy to consider the case based upon the

representation to be filed by the writ petitioner. For ready reference, the

operative part of the said order is being referred as under:

“ …

Considering the said submissions, I.A. No. 2255 of 2013 as well as the

writ petition are disposed of giving liberty to the petitioner to file fresh

representation regarding his claim before the Principal Secretary, Department

of Energy, Government of Jharkhand-respondent no.2, who is said to be the

competent authority. On receipt of representation, the said respondent shall

consider the same and pass appropriate order in accordance with law, within

six weeks from the date of receipt of representation.”

(ii) The writ petitioner had represented before the authority concerned. His

representation was considered by the Principal Secretary to the Government

on 29.07.2013 as contained in Memo No. 2075 wherein it has been

stipulated that in the cadre of the Executive Engineer, in terms of seniority

14 L.P.A. No. 447 of 2019

list, one Shri Agam Prasad, Shri Arbind Kumar Baldev Prasad, Shri Vijay

Kumar Sinha and Shri Pramod Kumar are at serial no.1, 2, 3 and 4

respectively. The Principal Secretary has recommended the case of the writ

petitioner for grant of promotion based upon the consideration made by the

Department Promotion Committee from the year 2008 and has also

concurred. However, so far as the request made by the writ petitioner that till

the clearance of roster of the 4

th

post, the other three persons may also not be

granted promotion has not been accepted on the ground that since the writ

petitioner was at serial no.4 in the seniority list and the three from the top

even if will be granted promotion, the writ petitioner will not be adversely

affected. For ready reference, the extract of the order passed by the Principal

Secretary of the Department is being referred as under:

“ऊर्जा विभजग में अिीक्षर् अवभयांिज एिां समकक्ष कोवि के 2 पि स्वीकृ ि है। ििामजन में उक्त िोनोां पि

ररक्त है। ऊर्जा विभजग में उपलब्ध कजयापजलक अवभयांिजओां के िरीयिज सूची में क्रमजांक 1 पर श्री अगम

प्रसजि, क्रमजांक-2 पर श्री अरविन्द कु मजर िलिेि प्रसजि, क्रमजांक-3 पर श्री विर्य कु मजर वसन्हज एिां

क्रमजांक-4 पर श्री प्रमोि कु मजर हैं। अिएि ऐसी स्थथवि में यवि श्री प्रमोि कु मजर द्वजरज उठजये गये विन्िु

सांख्यज 1 के अनुरोि के आलोक में यवि विभजगीय प्रोन्नवि सवमवि िर्ा 2008 की विवथ से श्री प्रमोि कु मजर

को प्रोन्नवि िेने पर स्वीकृ वि करिी भी है िि भी उपर अांवकि कजयापजलक अवभयांिजओां की िरीयिज सूची में

कोई पररििान नहीां होगज एिां श्री प्रमोि कु मजर िरीयिज सूची में चौथे थथजन पर ही िने रहेंगे। अिएि इस

आलोक में िरीयिज सूची में िरीय पिजविकजररयोां को कजलजिवि पूर्ा करने पर िेय पिोन्नवि को थथवगि

रखने कज श्री कु मजर कज अनुरोि स्वीकजया योग्य नहीां है। इससे श्री प्रमोि कु मजर के िजिे पर कोई प्रविकु ल

असर नहीां पड़िज है।”

(iii) Subsequent thereto, the 4

th

post was cleared and accordingly, the case

of the appellant was referred before the Member Board of Revenue for its

consideration.

The Member Board of Revenue proceeding over the promotion

committee has found the writ petitioner fit to be promoted against the 4

th

post but the 4

th

post since was not available, as such, recommendation was

made, so far as the writ petitioner was concerned, to post him as Electrical

Inspector by giving chare of the said post.

So far as the monetary benefit is concerned, decision was

recommendation to be taken with the advice of the Finance Department.

For ready reference, the extract of the minutes of the promotion

committee is being referred as under:

15 L.P.A. No. 447 of 2019

“ऊर्जा विभजग के प्रस्तजि पर विनजांक 9.6.2008 को सम्पन्न विभजगीय प्रोन्नवि में मजत्र िीन सजमजन्य कोवि, श्री

अगम प्रसजि, श्री अरविन्द कु मजर िलिेि प्रसजि एिां विर्य कु मजर वसन्हज को प्रोन्नवि प्रिजन की गयी,

र्िवक 2008 में चजर पि ररक्त थे िथज प्रमोि कु मजर की कजलजिवि पूर्ा थी। मजत्र रोस्टर अद्यिन न होने की

कजरर् प्रोन्नवि के िर्जय ऊर्जा विभजग के अविसूचनज सांख्यज-1471, विनजांक 25.06.2008 से विि् युि

वनरीक्षक कज प्रभजर वियज गयज । वर्सपर श्री प्रमोि कु मजर द्वजरज विनजांक 27.06.2008 से प्रभजर ग्रहर् वकयज

गयज।

श्री प्रमोि कु मजर विनजांक 27.06.2008 से विि् युि वनरीक्षक के प्रभजर में रहे हैं िथज इन्हें िर्ा 2011

में विि् युि वनरीक्षक पि पर प्रोन्नवि प्रिजन की गयी।

उक्त िवर्ाि पररस्थथवि में यह स्पष्ट है वक श्री प्रमोि कु मजर कज भूिलक्षी प्रभजि से प्रोन्नवि प्रिजन

करनज श्री रघुिीर रजम कज मजननीय उच्च न्यजयजलय द्वजरज यजवचि पर CWJC 5773 / 91 के आलोक में

भूिलक्षी प्रभजि से प्रित्त प्रोन्नवि के सदृश है ।

वनर्ाय :- वित्त विभजग के पररपत्र सां0-2074 (वि०), विनजांक-04/04/1985 एिां पररपत्र सां0-3251/वि0,

विनजांक-20 / 1 / 2006 में िवर्ाि प्रजििजन के आलोक में सवमवि श्री प्रमोि कु मजर को विि् युि

वनरीक्षक के प्रभजर ग्रहर् विवथ-27/6/2008 से वनयवमि प्रोन्नवि की अनुशांसज करिी है। वित्तीय

लजभ के विर्य पर वित्त विभजग कज परजमशा प्रजप्त वकयज र्जयेगज ।“

The writ petitioner joined and started discharging his duties.

(iv) The Energy Department of the State of Jharkhand then came out with

the notification dated 24.01.2011 granting regular promotion to the post of

Executive Engineer w.e.f. 27.06.2008, the day when the writ petitioner took

charge of the post of Electrical Executive Engineer in in-charge capacity.

The concerned department again came out with the notification in the name

of the Governor of the State on 30.12.2015 by modifying the order dated

24.01.2011 of granting promotion on substantive capacity to the post of

Executive Engineer w.e.f. 27.06.2008 with a further modification that the

writ petitioner will be entitled for the actual benefit w.e.f. 24.01.2011.

The question of denial of monetary benefit from 27.06.2008 to

24.01.2011 has been raised on the ground of its arbitrariness and

irrationality.

Objection has been raised on behalf of the State regarding applicability

of the provision of Rule 58 and 103 of the Jharkhand Service Code.

Rule 103 although speaks that in a case of pay of a Government servant

appointed by the State Government to hold substantively, as a temporary

measure, or to officiate in, two or more independent post at one time shall be

regulated as per the condition stipulated therein from (a) to (c).

16 L.P.A. No. 447 of 2019

Likewise, Rule 58 speaks that subject to any exceptions specifically

made in these rules and to the provisions of clause (a) of this rule, a

Government servant shall begin to draw the pay and allowance attached to

his tenure of a post with effect from the date on which he assumed the duties

of that post, and shall cease to draw them as soon as he ceases to discharge

those duties.

19. Herein, it is not in dispute that the writ petitioner was posted on substantive

post as Assistant Engineer in addition to the aforesaid charge he was also

directed to discharging duty as Electrical Inspector equivalent to Electrical

Executive Engineer.

20. The State on the aforesaid ground is taking the reason for denial of the

monetary benefit that when the writ petitioner is holding the substantive post

of Assistant Engineer and in addition thereto, he was directed to discharge

the duty of the higher post of Electrical Inspector (Electrical Executive

Engineer) and hence, in view of the provision of Rule 103 of the Service, he

will not be entitled for the monetary benefit for the aforesaid period.

21. Likewise, Rule 58 has also been taken aid of thereof by raising the issue that

the implication of Rule 58 will be that the pay scale attached to the

substantive post will only be admissible.

22. We are not in dispute about the statutory provision but herein, it is to be

considered by this Court that:

Whether the provision of Rule 58 or Rule 103 will be applicable in the

facts and circumstances of the case if the laches lies on the part of the State

authority in denying the promotion in favour of the writ petitioner. Further,

it is the State authority who have not cleared the roster which is exclusively

the domain of the State Government.

23. The law is well settled that the wrong doer cannot be allowed to take

advantage of its own wrong. Reference in this regard be made to the

judgment rendered by the Hon'ble Apex Court in Kusheshwar Prasad Singh

Vrs. State of Bihar and Ors., (2007) 11 SCC 447, wherein at para-14, it has

been laid down by making reference of the judgment rendered by the

Hon’ble Apex Court in Mrutunjay Pani Vrs. Narmada Bala Sasmal,

17 L.P.A. No. 447 of 2019

reported in AIR 1961 SC 1353, wherein an obligation is cast on a party and

if he commits a breach of such obligation, he cannot be permitted to take

advantage of such situation. This is based on the Latin maxim commodum ex

injuria sua nemo habere debet (no party can take undue advantage of his

own wrong).

The said proposition has also been discussed in detail by the Hon’ble

Apex Court in the judgment rendered in Indore Development Authority

Vrs. Shailendra and Ors., (2018) 2 SCC 412 as would be evident from

para-143 and 167 by quoting the judgment rendered in the case of

Mrutunjay Pani Vrs. Narmada Bala Sasmal (supra), that no litigant can

take the benefit of his own wrong. The doctrine commodum ex injuria sua

nemo habere debet means convenience cannot accrue to a party from his

own wrong.

24. Here, in the instant case, it is the admitted case of the State as per the

pleading made in the writ petition that the writ petitioner was found to be

eligible for promotion to the post of Electrical Inspector on completion of 10

years along with other three, namely, Shri Agam Prasad, Shri Arbind Kumar

Baldev Prasad, Shri Vijay Kumar Sinha.

25. The case of the writ petitioner fell for consideration before the Principal

Secretary of the Department but decision was not taken which compelled the

writ petitioner to file writ petition being W.P.(S) No. 3716 of 2012 and

based upon the said direction, the Principal Secretary of the Department has

taken decision considering the writ petitioner to be eligible to hold the post

of Electrical Inspector (Electrical Executive Engineer) but the Principal

Secretary came out with the decision that the 4

th

post for which the writ

petitioner was eligible cannot be filled up due to want of roster clearance.

The Secretary has also recommended that since the writ petitioner is at serial

no.4, hence, the three senior most Assistant Engineers in the seniority list if

would be granted promotion, no prejudice will be caused to the writ

petitioner.

26. The said opinion was finally accepted by the promotion committee headed

by the Member Board of Revenue, in its meeting dated 22.08.2013 along

with other three, namely, Shri Agam Prasad, Shri Arbind Kumar Baldev

18 L.P.A. No. 447 of 2019

Prasad, Shri Vijay Kumar Sinha, the three co-employees had been granted

promotion, but had not granted promotion to the 4

th

post since was not

having roster clearance, therefore, the writ petitioner was not granted

promotion on substantive capacity, as such, the committee has

recommended on the basis of the eligibility of the writ petitioner as also due

to the laches on the part of the State authority in not clearing the roster has

recommended for posting in in-charge capacity to the post of Electrical

Inspector (Electrical Executive Engineer).

27. The State again came out with an order on 30.12.2015 modifying the

notification dated 24.01.2011 granting promotion to the writ petitioner w.e.f.

27.06.2008, i.e., the day from which the writ petitioner was recommended

by the duly constituted Promotion Committee as would appear from the

extract thereof as referred above.

28. This Court, on the basis of the aforesaid admitted fact, is of the view that

once the Departmental Promotion Committee has found the writ petitioner

eligible and accordingly, recommendation has also been made by it, But,

due to want of roster clearance, the writ petitioner was recommended to be

given the higher post in in-charge capacity.

29. It is, thus, clear that due to want of roster clearance, the writ petitioner was

denied from his rightful claim for being promoted to the higher post of

Electrical Inspector (Electrical Executive Engineer) even then, the writ

petitioner was eligible as per the recommendation which was the reason for

his posting in in-charge capacity.

The roster clearance is the exclusive domain of the State Government.

The State ought to have placed the case of all the four aspirants by clearing

roster of all the four posts, but, the same has not been done and hence, it is

the State due to whose fault the rightful claim of the writ petitioner was

denied.

30. The State when cleared the roster and if the promotion was granted on

substantive post from 27.06.2008 basis upon the recommendation of the

Departmental Promotion Committee then why the salary from 27.06.2008

will be denied.

19 L.P.A. No. 447 of 2019

31. If the salary from 27.06.2008 will be denied of the pay scale attached to the

higher post then it will be clear cut discrimination of the case of the writ

petitioner with the case of the other three co-employees who have been

granted promotion on the basis of the recommendation of the Departmental

Promotion Committee without any fault lying on the part of the writ

petitioner.

32. The State has committed wrong and now the State wants to take the

advantage of its own wrong which is not permissible as per the law settled

by the Hon'ble Apex Court in the cases referred hereinabove.

33. This Court, after having discussed the factual aspect as above, is of the view

that in the facts and circumstances of the case, the provision as contained

either under Rule 58 or Rule 103 of the Jharkhand Service Code are not

applicable since it is not a case where the arears of difference of salary is

being claimed by virtue of additional charge rather such claim is based upon

the laches committed on the part of the State in not clearing the roster due to

which the rightful claim of the writ petitioner was denied during the relevant

period when other co-engineers similarly situated were granted promotion.

34. Article 14 is very much clear that there cannot be any classification said to

be unreasonable. If the salary for the aforesaid period from 27.06.2008 will

not be granted then the same according to our considered view, will be

subjecting the writ petitioner to hostile discrimination that too for no fault of

his own.

35. So far as the ground taken by the learned counsel for the appellant-State

about the order passed by the Division Bench of this Court in L.P.A. No.

162 of 2014 is concerned, the same, according to our considered view is not

applicable since the factual aspect as was involved in the said case is quite

different to that of the present one.

36. This Court, after having discussed the factual aspect along with the legal

position as above and coming to the order impugned, is of the view that the

finding of the learned Single Judge holding the writ petitioner entitled for

the salary for the post of Electrical Executive Engineer from 27.06.2008,

cannot be said to suffer from any error as per the detailed discussion made

hereinabove.

20 L.P.A. No. 447 of 2019

37. Accordingly, the instant appeal fails and stands dismissed.

38. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Saurabh/-

A.F.R.