KAMTA PRASAD SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Bihar Service Code has been framed under proviso to Article 309 of the Constitution of India. Rule 58 thereof is as follows :

(3.) A look at the above provision would show that there is no concept of notional promotion contained therein. It simple says that the 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.......It, therefore, suggests that only after a person assumes duties of the promoted post, he shall be entitled to draw pay and allowances attached to his post. This is, however, subject to any exception specifically made in the rules contained in the said Code. In the instant case the promotion was accorded to the petitioner on 7th August, 1998 with effect from 5th October, 1993. The petitioner retired on 31st January, 1998 i.e. much before the promotion order was issued. In such view of the matter, it goes without saying that the petitioner could not assume duties of his promoted post. However in the promotion order itself it was mentioned that although the petitioner shall not be entitled to any monetary benefit from the date of his promotion until such time he is retired but his pension will be fixed on the basis of his pay applicable to his promotional post, but by which provision of Bihar Service Code this could be done has not been drawn to my attention. It is being contended that in view of Rule 58 of the said Code, it is open to the State to grant notional promotion with a date anterior to the date of actual promotion but the person who is so promoted will not be entitled to have monetary benefit during the period of notional promotion. The concept of notional promotion has not been spelt out in Rule 58 and as aforesaid no other provision contained in the said Code has been, drawn to my attention which speaks about notional promotion. The Hon'ble Supreme Court in the case of Alappat Narayan Menon v. State of Kerala, reported in 1977 (2) SLR 656 has held that notional promotion is one which a Government servant gets under particular exigency of situation which he cannot claim as of right. In the instant case, it is not the contention of the State either in the order of promotion or in the counter affidavit that the promotion which was accorded to the petitioner by the special order of promotion, the petitioner was not entitled to the same as of right but that was granted to him. Under any particular exigency of situation. It is to be kept in mind that the order of promotion was issued on 17th August, 1998 but the promotion accorded to the petitioner in terms of the said order was to take effect from 5th October, 1993. That itself suggests that the petitioner as of right became entitled to be promoted to his promoted post on 5th October, 1993 but by reason of the laches on the part of the respondents, the said promotion was brought into effect on 17th August, 1998. The petitioner cannot be blamed for that. Rule 58 does not prohibit the petitioner to obtain the benefits of his promotion which he earned by way of his right for the laches on the part of his superiors in not considering and granting promotion to him in time. If it is construed that the petitioner can be deprived of the benefit of his promotion obtained by way of his right for the delay caused by others in promoting him and in relation whereof the petitioner had no role to play, that would tantamount to permiting the persons who had delayed the matter of promotion of the petitioner to take advantage of their own wrong in denying the petitioner of his rightful claim.