IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.6334 of 2015 Rama Shankar Prasad ..... Petitioner Versus 1. The State of Jharkhand.
2. The Principal Secretary, Department of Agriculture Animal Husbandry & Cooperation, Govt. of Jharkhand, Ranchi.
3. The Director, Dairy Development, Govt. of Jharkhand, Ranchi. …. Respondents CORAM: HON’BLE MR. JUSTICE H.C. MISHRA For the Petitioner : Mr. Saurav Arun, Advocate For the Respondent : J.C. to G.A. III ----- 7/22.09.2016 Heard learned counsel for the petitioner and learned counsel for the respondent State.
2. Petitioner was working as District Dairy Development Officer at Ranchi, when he was posted as Deputy Director, Dairy Development at Dumka, by the order vide Notification No.1393 dated 8.12.1998, issued by the unified State of Bihar, in the department of Agriculture, Animal Husbandry and Fisheries (Dairy Development), as contained in Annexure–1 to the writ application. It was, however, stated in the order that the posting of the petitioner on the higher post had been made in his own original pay scale and no claim for promotion to the said post shall be entertained on the basis of that order. Subsequently, by Notification No.245 dated 20.3.2002, the petitioner was posted on officiating basis as Regional Joint Director, Dairy Development at Ranchi. It was again stated in the notification that the posting of the petitioner was in his own pay scale. The said Notification has been brought on record as Annexure–2 to the writ application. The petitioner superannuated on 30.6.2003, while officiating as Regional Joint Director, Dairy Development at Ranchi. Petitioner is now aggrieved by the letter No.894 dated 4.9.2015, issued by the Director, Dairy Development, Government of Jharkhand, communicating the petitioner under the Right to Information Act, that his claim for pay scale of Rs.8,000-13,500/- for the post of Deputy Director w.e.f. December 1998 to February 2002 and further claim of the pay scale of Rs.10,000-15,200/- for the post of Regional Joint Director w.e.f. April 2002 to June 2003, shall not be admissible in view of Rule 58 of Jharkhand Service Code and Rule 74 of the Jharkhand Finance Rules. -2- 3. Petitioner has brought on record the fact that the case of promotion of petitioner to the post of Deputy Director, Dairy Development, was considered in the meeting of Departmental Promotion Committee held on 22.2.1999 in the Chairmanship of the Commissioner, in which, the petitioner was held to be eligible to the promotion to the said post w.e.f. 1.11.1997 along with other officers, including one Devendra Prasad, who was held to be eligible to the promotion to the said post w.e.f. 1.4.1994. Again another meeting of Departmental Promotion Committee was held for consideration of the promotion of the petitioner and the other officers to the post of Regional Joint Director on 19.7.2003, in which also, the petitioner as well as said Devendra Prasad and other officers were found eligible to the promotion to the said post.
4. Learned counsel for the petitioner has submitted that the aforesaid Devendra Prasad was also denied the monetary benefits of his promotions and accordingly, he moved before the Patna High Court in CWJC No.3724 of 2007, which was disposed of by order dated 23.9.2011, in which it was directed that the said petitioner be paid the arrears of difference of salary for the promoted posts of Deputy Director and Joint Director for the period, during which, he held those posts until his retirement. The said order was challenged by the State of Bihar in LPA No.76 of 2012 in the High Court of Patna, which was dismissed by order dated 25.9.2012. The State of Bihar again moved the Supreme Court in SLA(Civil) No.12019 of 2013, which again was dismissed by order dated 8.4.2013 by the Hon'ble Apex Court. All these orders have been brought on record as Annexure–5 series to the writ application. In support of his contention, learned counsel has also placed reliance upon the decision of this Court in Dr. Sukumar Das Gupta Vs. The State of Jharkhand & Anr., Reported in 2010(1) JLJR55 wherein where the petitioner, holding the post of Geologist in the Department of Mines and Geology, was made in-charge Deputy Director, Geology, which post, he worked for more than 4 years and thereafter, he was also made Director In-charge Geology and Mines, but he was denied his salary for these higher posts, this Court, taking into consideration Rules 58 and 103 of the Bihar Service Code, directed the -3- respondents concerned to pay the salary to the said petitioner with other allowances for the work taken from him on the higher posts of Deputy Director and Director of Mines and Geology till his superannuation. Placing reliance on these decisions, learned counsel submitted that the petitioner shall also be entitled to all the monetary benefits during the period, the petitioner had worked on the higher posts of Deputy Director, Dairy Development, as well as Regional Joint Director, Dairy Development.
5. Per contra, learned counsel for the State has opposed the prayer and has pointed out from Annexure–1 as well as Annexure–2 to the writ application that the petitioner was posted on the higher posts in his own pay scale. Learned counsel has drawn attention of this Court towards paragraph 4 in Annexure–1, wherein, it is stated that no claim by the petitioner for promotion to the higher post shall be entertained on the basis of that order. Learned counsel submitted that in view of these clear conditions in both the notifications, by which, the petitioner was posted on the higher posts of Deputy Director and Regional Joint Director, Dairy Development, which the petitioner joined, being aware of these conditions in the respective notifications, the petitioner shall not be entitled to the pay scales of the said higher posts. Learned counsel accordingly, submitted that there is no merit in this application.
6. Having heard learned counsels for both the sides and upon going through the record, I find that this is not a case, in which, the petitioner was given the additional charge of the higher posts while continuing the petitioner on his parent post, but this is the case, in which, the petitioner had been posted exclusively on the higher posts of Deputy Director, Dairy Development as well as Regional Joint Director, Dairy Development by the respondent authorities. In that view of the matter, I am of the considered view that the case of the petitioner is squarely covered by the decision of this Court in Dr. Sukumar Das Gupta's case (supra). Indeed, the aforesaid Devendra Prasad, who was also posted on the higher posts on officiating basis, as was done in the case of the petitioner, has also been granted the same relief by the Patna High Court and the decisions of the Patna High Court have been upheld up to the Supreme Court of India as well. -4- 7. In that view of the matter, the petitioner cannot be denied the benefits of pay scales of the higher posts, on which, he has already worked. The submission of learned counsel for the respondent State that in view of the conditions in the notifications posting him on the higher posts, that he shall continue on his original pay scale, and no claim by the petitioner for promotion to the higher post shall be entertained, and since the petitioner joined being aware of these conditions in the respective notifications, the petitioner shall not be entitled to the pay scales of the said higher posts, is absolutely misconceived and cannot be entertained. It is well settled principle of law that the right to salary amounts to right to livelihood, which is embedded in the right to life under Article 21 of the Constitution of India, which is a fundamental right guaranteed to the citizens of India, and there can be no estoppel against it. [Authority: Olga Tellis Vs. Bombay Municipal Corporation & Ors., (1985) 3 SCC545.
8. Accordingly, the respondent authorities, particularly the respondent No.2, Principal Secretary, Department of Agriculture, Animal Husbandry & Cooperation, Govt. of Jharkhand, is hereby, directed to forthwith make the payment of salary of the petitioner in the applicable pay scales of the posts of Deputy Director and Regional Joint Director, Dairy Development, for the period the petitioner has worked on those posts until his superannuation on 30.6.2003. it goes without saying that since the petitioner has retired from the service, the pensionery benefits of the petitioner shall also be fixed according to those higher pay scales. It is made clear that the letter No.894 dated 4.9.2015 as contained in Annexure–7 to the writ application, given to the petitioner under the Right to Information Act, shall not come in the way of issuing the fresh orders as above. The respondent No.2, is directed to comply this order positively within the period of two months from the date of communication / production of this order.
9. This writ application is accordingly, allowed with the directions as above. (H. C. Mishra, J) R.Kumar