ARVIND KUMAR SRIVASTAVA vs STATE OF JHARKHAND
- Court
- Jharkhand High Court
2026:JHHC:26301
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6505 of 2024
……
Arvind Kumar Srivastava, aged about 70 years, son of Surendra
Prasad Srivastava, resident of Flat No.02-E, Subh Gauri Enclave,
Budha Vihar, St. Nirankari Satsang Bhawan, Opposite Ashok
Nagar, Road No.4, P.O.-Argora, P.S.-Doranda, District-Ranchi
(Jharkhand). …. Petitioner(s)
-VERSUS-
1. State of Jharkhand
2. The Principal Secretary, Department of Road Construction
Department, having its office at Project Building, Dhurwa, P.O. &
P.S. Dhurwa, District-Ranchi, Jharkhand.
…..Respondent (s)
……
CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner(s) : Mr. Saurabh Shekhar, Adv
For the Respondent (s) : Mr. Ashutosh Anand, AAG-III
Mr. Binin Chandra, A.C. to AAG-III
……
C.A.V. ON 04/08/2026 PRONOUNCED ON: 31/08/2026
1. Heard learned counsel for the parties.
2. In the instant writ petition, the petitioner prays for
the following relief(s): -
(i) For issuance of appropriate writ(s), order(s), direction(s),
specifically a writ in the nature of Certiorari for quashing and
setting aside of the order as contained in Memo No.
प० Ǔ न०
01- 03-20224111(S), dated 25.08.2023 (Annexure-10),
ͪ व०- नु-
passed by respondent no.2, whereby, the claim of the
petitioner to grant notional promotion from Assistant
Engineer to Executive Engineer has been denied and rejected
on the mis-conceived grounds;
(ii) For issuance of appropriate writ(s), order(s), direction(s),
specifically a writ in the nature of Mandamus commanding
upon the respondents to grant him notional promotion from
the post of Assistant Engineer to the post of Executive
Engineer in the department of Road Construction, on notional
basis, w.e.f. 23.11.2009, without any monetary benefit.
3. The brief facts of the case are that the petitioner was
appointed on the post of Junior Engineer on 09.12.1982, in
the Road Construction Department. Thereafter, he was
promoted to the post of Assistant Engineer on 11.12.1987.
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The petitioner is claiming promotion to the post of Executive
Engineer, w.e.f. 23.11.2009, since when the juniors have
been granted promotion. The petitioner has superannuated
from services on 31.08.2014, as Assistant Engineer. The
petitioner had approached this Court in the earlier round of
litigation, being W.P.(S) No.4708 of 2022 , with the same
prayer, and the matter was remanded to the respondents for
taking decision, vide Court’s order dated 09.11.2022.
Pursuant thereto, the respondents have taken decision, by
passing the departmental order, dated 25.08.2023, and have
denied the claim made by the petitioner, and therefore, that
order has been put to challenge in this writ application by the
petitioner.
4. The claim of the petitioner, for grant of promotion
w.e.f. 23.11.2009, is based on the fact that juniors to him
have been granted promotion on that date to the post of
Executive Engineer, and hence, the petitioner is also entitled
for the same. These junior candidates, namely Suresh Kumar,
Ramashish Rai, Nishikant Prasad and Narendra Prasad
Sharma , were direct recruit Assistant Engineers, and were
granted promotion to the post of Executive Engineer on
23.11.2009.
5. The above-named persons, appeared at seniority
position no.64, 65, 66 and 67, respectively in the seniority list
of Assistant Engineer (2009), along with the petitioner
appearing at seniority position no.193.
6. The seniority list, however was amended on
11.01.2016 (Annexure-05) , whereby the petitioner’s seniority
position was improved and placed at Seniority Position No. 63-
Kha , over and above, the aforementioned candidates.
Accordingly, in the basic grade-Assistant Engineer, the
seniority position of the petitioner was improved and he was
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now placed at higher place, compared to the above-named
Suresh Kumar (64), Ramashish Rai (65), Nishikant Prasad (66)
and Narendra Prasad Sharma (67) , respectively.
7. The petitioner on the basis of the above amendment
in the seniority position, to the original seniority list of the
year 2009, is praying that he should have been granted
promotion to the post of Executive Engineer, w.e.f. the same
date from when the above-mentioned persons have been
granted promotion, i.e. 23.11.2009 (Annexure-03) . The above-
mentioned persons are juniors, as per the amendment in the
seniority list that relates back to the original seniority of the
year 2009.
8. The petitioner does not demand for any financial
benefits, as he has already received the benefit of ACP/
MACP, of the grade-pay of Executive Engineer. He only prays
for notional promotion to Executive Engineer, to the effect of
grant of nomenclature of the post.
9. The impugned order dated 25.08.2023 (Annexure-09)
says that yes, the promotion should be granted w.e.f. the date
when the juniors have been granted promotion. However, in
the same breadth, it has also been said in the next paragraph
of that order that the posting is to be granted from the date of
joining, which is not possible in the present case, as the
petitioner has superannuated.
The retrospective posting has been argued against,
on showing the relevance of Rule-74 of the Jharkhand
Finance Rules and Rule-58-ka of the Jharkhand Service Code .
Therefore, the claim has been denied.
10. The point of delay has been separately argued by the
Ld. State Counsel, though not mentioned in the impugned
order. However, the record reveals that the matter was
remanded in the earlier round of litigation on a specific point
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to consider the case of the Petitioner for promotion if his
juniors have been promoted and to pass a reasoned order on
that issue. Now, while passing the reasoned order dated
25.08.2023, no such ground was indicated by the
Respondent Authorities, however, the Respondent Counsel
has chosen to argue beyond the reasons referred to in
Impugned Order.
11. Following the principles laid down in the case of
M.S.Gill vs. The Chief Election Commissioner , reported in 1978
(1) SCC 405 , this Court is not inclined to go beyond the
reasons, as not stated in the Impugned Order.
12. This Court can also not shut its eyes with the fact
that in the earlier round of litigation, the matter was
remanded by this Court vide its order dated 09.11.2022 and
the Impugned Order is passed on specific remand by this
Court.
13. Moreover, the facts suggest that even if the petitioner
is granted notional promotion w.e.f. the date of juniors, to the
post of Executive Engineer, no one will be adversely affected.
This status and factual position could not be disputed by the
Respondents. Under such circumstances, it is now relevant to
make reference of the judgment of Hon’ble Apex Court (Five
Juges bench), passed in the case of Ramchandra Shankar,
Deoghar and Ors. Vs. State of Maharashtra and Ors. , reported
in (1974) 1 SCC 317 , wherein, the Hon’ble Court has referred
to the judgment passed in Tilokchand Vs. H. B. Munshi
[(1969) 1 SCC 110] wherein it has been held at para-10, as
under:-
“… We were also told by the learned counsel for the petitioners, and
that was not controverted by the learned counsel appearing on behalf of
the State Government, that even if the petition were allowed and the
reliefs claimed by the petitioners granted to them, that would not result
in the reversion of any Deputy Collector or officiating Deputy Collector to
the post of Mamlatdar/Tehsildar; the only effect would be merely to
disturb their inter-se seniority as officiating Deputy Collectors or as
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Deputy Collectors. Moreover, it may be noticed that the claim for
enforcement of the fundamental right of equal opportunity under Article
16 is itself a fundamental right guaranteed under Article 32 and this
Court which has been assigned the role of a sentinel on the qui vive for
protection of the fundamental rights cannot easily allow itself to be
persuaded to refuse relief solely on the jejune ground of laches, delay or
the like.”
Emphasis Supplied
14. The above-mentioned position was reiterated by the
Hon’ble Apex Court in the case of Royal Orchid Hotel Limited
and Anr. Vs. G. Jaya Rama Reddy and Ors ., reported in
(2011) 10 SCC 608 , (Refer: Para-28).
15. Having regard to the above settled position of law laid
down the Hon’ble Apex Court, it can be safely inferred that in
the present case, the claim of the petitioner is directly
connected with the arbitrary action of the respondents, which
hits directly at the root of Article-14 of the Constitution of
India and at the same time, it violates the guarantee given to
the petitioner under Article-16 of the Constitution of India
that everyone will be treated equally in the matter of public
employment, which essentially includes a fair promotional
process and other service conditions. Even otherwise, no
private person, including the State respondent will be
adversely affected. Viewed thus, it cannot be accepted that
the delay caused is fatal to the case of the petitioner.
16. Now this Court proceeds to the next issue, that is
substantially connected with the Petitioner’s claim and forms
part of reasoning in the Impugned Order.
17. The respondents have contested the grant of relief on
the ground that the retrospective posting is not permissible,
due to Rule-74 of the Jharkhand Finance Rules and Rule-58-
ka of the Jharkhand Service Code .
18. This issue has also been settled in the earlier
judgments, long back in the case of Dr. Paras Nath Prasad Vs.
State of Bihar , reported in 1990 (2) PLJR 248 , wherein it has
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been held at para-21 that any grant of pay and allowance to
the employee on notional promotion granted to him cannot be
objected to. A notional promotion has to be as if, for service
benefits, he had been given due promotion. A person who is
entitled to promotion and is not promoted, can always invoke
the jurisdiction of the Court under Article-226 of the
Constitution for a mandamus to be issued to the State-
Employer to consider his case for such promotion.
19. As far as the provision of Rule-74 is concerned;
again, the petitioner is not claiming any financial benefit out
of the promotion being sought for. Therefore, the rejection of
the case of the petitioner on these grounds is absolutely
untenable, in view of the judgment as has been cited above.
20. Further, in the case of K. V. Jankiramam , reported in
(1991) 4 SCC 109 , one of the issues that was dealt with was
to the same effect, in regards to fundamental rule-17(1) which
is to the above-mentioned rules. It was argued
para-materia
there that the principle of ‘no work no pay’ shall be applicable
and therefore, the retrospective promotion is not applicable.
The Hon’ble Court held that the present is not a case of
retrospective promotion, rather it is a case where the
employee has not been considered for promotion from due
date, and therefore, is directed to consider his case of
promotion from due date. Here, it is due to the Respondent’s
fault that the Petitioner has suffered, of which premium
cannot be sought by the authorities. The delay of 6 years in
amending the seniority list and repositioning the Petitioner at
the place of seniority, compared to juniors is not attributable
to the Petitioner.
21. In view of the above settled position of law, the facts
of the present case are better placed as because the petitioner
is not claiming any financial benefits; rather he is making a
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claim for substantive post, notionally, without any financial
remuneration attached to it. Therefore, the claim of the
petitioner is sustainable and cannot be denied on the ground
of Rule-74 of the Jharkhand Finance Rules and Rule-58-ka of
the Jharkhand Service Code .
22. In addition to the above, the Respondents themselves
have stated in the impugned order that an employee is
entitled to, even a retrospective promotion w.e.f. the date
when the juniors have been promoted.
23. The claim of the petitioner also qualifies the test of
entitlement, w.e.f. the date when juniors have been granted
promotion, as has been held in the case of R. K. Sethi & Anr.
Vs. Oil and Natural Gas Commission , (1997) 10 SCC 616. In
this case, it is held at para-12, as under:-
“12. Once it is held that Telex Operators have been rightly placed en bloc
below regular employees in AG-II cadre as a result of the merger of the
said cadre in the cadre of AG-II on 25-4-1980, regular employees in
AG-II cadre who were senior to the Telex Operators could rightly feel
aggrieved if they were denied promotion while their juniors were
promoted as AG-I. The “next below rule” in service jurisprudence seeks
to ensure that if a junior employee is given promotion without
considering his senior then the senior employee can claim the right to
be considered for such promotion with effect from the date on which
the junior was so promoted……”
Emphasis Supplied.
24. Having regard to the above factual scenario coupled
with the settled position of law, it is evident that the
petitioner is entitled for promotion w.e.f. the date when the
juniors have been granted promotion. At the same time, the
promotion w.e.f. 2009, does not encroach upon the provisions
of Rule-74 of the Jharkhand Finance Rules and Rule-58-ka of
the Jharkhand Service Code .
25. As a result, the impugned order dated 25.08.2023 is
quashed and set aside and the Respondents are directed to
grant promotion to the petitioner from the post of Assistant
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Engineer to the post of Executive Engineer w.e.f. 23.11.2009;
i.e. the date when the juniors to the petitioner have been
promoted, only for notional purposes, without any financial
benefit, or any enhancement in pension, or any other benefit
that may be related to such promotion.
26. It is reiterated that the benefit of promotion shall be
only notional and will be limited to the grant of substantive
allocation of the post of Executive Engineer as promotion for
the sake of nomenclature. Necessary order be issued by the
concerned Respondent within a period of 12 weeks from the
date of receipt of copy of this order.
27. Accordingly, the instant writ application stands
allowed. Pending I.A., if any, also stands closed.
(Deepak Roshan, J)
Dated:31 /08/2026
Amardeep/
A.F.R.
Uploaded on
3.9.2026
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