JAGDISH JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER has been fighting for his right for grant of regular promotion on the post of Executive Engineer. Petitioner has been working as Incharge Executive Engineer under the respondent Bihar State Housing Board by virtue of a notification dated 23.11.1996. He continued to work on that post for quite a while. For reasons best known to the respondents a decision to grant regular promotion to the petitioner was finally taken in the 200th proceeding of the Housing Board only on 22.9.2003 but this was subject to approval being granted by the State Government in this regard. The 200th meeting and the extracts have been brought on record as Annexure -5/1. Final notification dated 27.9.2003 was issued by virtue of which petitioner had been given regular pay scale of Executive Engineer as well as promotion from 1.10.1994. Petitioners filed the present writ application because monetary benefits was not coming his way despite the notification contained in Annexure -5/2 from the date of promotion.

(2.) COUNTER affidavit therefore was ordered to be filed in the present writ application. Respondent Housing Board has taken a stand that the petitioner is not entitled to grant of salary on the promotional post with retrospective effect. But they are willing to grant benefit to the petitioner from the date he assumed charge even in the officiating capacity which according to them was 26.2.1997. They also state that they have no role to play in such a position and they have brought an order dated 5.6.2007 annexed as Annexure -1 to the counter affidavit. Learned counsel for the petitioner submits that the stand taken by the respondents is neither in conformity with the law laid down in this regard but it is also contrary to the notification dated 5.6.2007 contained in Annexure -1 to the counter affidavit. The communication in the counter affidavit clearly states that the benefit is to accrue to the petitioner either from the date of promotion or from the date of his assuming charge.

(3.) PAYMENT of monetary benefit based on notional promotion or substantive promotion from the date of promotion has troubled this Court in many a cases. In several cases reliance has been placed by the respondent -State that some of the circulars of the Finance Department read with Rule 74 of the Bihar Financial Rules as well as Rule 58 of the Bihar Service Code are good grounds to deny monetary benefit to the employess but the Courts after considering various provisions have categorically held that the monetary benefit arising out of promotion, notional or substantive, cannot be held back from an employee merely because the respondents have taken their own sweet time to grant promotion to the employees. Some of the decisions relied upon by the counsel for the petitioner are Dudh Nath Upadhyay vs. State of Bihar [2001(2) PLJR 420], Md. Hafiz vs. State of Bihar, [2003(2) PLJR 44], Ram Bharosa Das vs. State of Bihar [2004(3) PLJR 405] etc.