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1995 DIGILAW 45 (PAT)

Vir Bhajan Singh v. State of Bihar

1995-01-20

R.M.PRASAD

body1995
ORDER The grievance of the petitioners in all the there writ application is common namely, the petitioners claim to be entitled of the salary of the post of Executive Engineer over which the petitioners of the first two writ applications have, admittedly, been continuously officiating under the order of the Bihar State Housing Board (hereinafter referred to as ‘the Board’) with effect from 3.10.1978 and the petitioner of the 3rd case has been continuously officiating as Executive Engineer in the Board under the orders of the Board with effect from 18.11.1981 and the petitioners of the first two case are going to retire with effect from 31st January. 1995. Mr. Karn, learned counsel appearing for the Board has submitted that the appointment of the petitioners to officiate Executive Engineer under the Board was purely a stopgap arrangement with the clear condition that they would draw their salary of the post of Assistant Engineer which they were holding in substantive capacity. Thus, it has been contended that the petitioners are not entitled to claim salary of the post of Executive Engineer with effect from the date they have been officiating. In support of learned counsel has placed reliance on a division Bench judgment of this Court in C.W.J.C. No. 13148 of 1992 decided on 16thFebruary, 1994 wherein it has been held that in view of the fact that the petitioner has been held that in view of the fact that the petitioner has accepted the condition of service, it is not possible to pay his salary on substantive basis so as to enable him to obtain the consequential pensionary benefits as if he has had been regularly promoted to that post Further, this Court directed that the state of Bihar should Immediately pass an order in regard to sanction of post of the Superintending Engineer and that no sooner the order of sanction is received, the respondent Board shall take immediate steps for promoting the eligible candidates on consideration of their cases, including the petitioner. With due respect, I find it difficult to agree with the view taken by the division Bench in the said case, in view of the law-laid down by the Supreme Court in the case of Smt. P. Grover V. State of Haryana and another reported in AIR 1983 Supreme Court 1060. With due respect, I find it difficult to agree with the view taken by the division Bench in the said case, in view of the law-laid down by the Supreme Court in the case of Smt. P. Grover V. State of Haryana and another reported in AIR 1983 Supreme Court 1060. In the said case, Smt. Grover, two years before attained the age of superannuation, was promoted as Acting District Education Officer with effect from July, 19, 1976. Later, her service was contended first by one year and then by another year. During the period of extension of service, she worked as principal. Higher Secondary School, Mahendergarh. She finally retired from service on August 31.1980. The initial order intending her services recited that she as was Action District Education officer but contained a superadded condition that her pay would not be more then that the maximum of the principal’s grade. Smt. Grover claimed that having been promoted as District Education Officer she was entitled to the pay of a District Education Officer and there was no justification for denying the same to her Smt. Grover filed a writ petition in the High Court of Punjab and Haryana which was dismissed and against that she preferred special leave to appeal in the Supreme court. A counter affidavit was filed on behalf of the Government of Haryana in which it was stated that there was no Class-I post available and, therefore, she was not entitled to be paid the salary of the District Education Officer. This plea was rejected by the Supreme Court and it was held that Smt. Grover was entitled to be paid the salary of a District Education Officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service. The Supreme Court also expressed doubt regarding the validity of such a rule providing that promotion on an active post would not entitle the officer promoted to the pay of the post, if it existed. In the present case also, counter affidavits have been filed on behalf of the Board as well as on behalf of the officials of the State of Bihar (respondents), From the said counter affidavits Mr. Karn, learned counsel appearing on behalf of the Board and Mr. In the present case also, counter affidavits have been filed on behalf of the Board as well as on behalf of the officials of the State of Bihar (respondents), From the said counter affidavits Mr. Karn, learned counsel appearing on behalf of the Board and Mr. Standing Counsel No. V appearing on behalf of the State could not point our any valid justification to deny the salary of the post of Executive Engineer which have been held by the petitioners since 3.10.1997 and 18.11.981. However, it has been contended by Mr. Karn that the petitioners had been appointed to officiate in the said post with superadded conditions that they would continue to draw the salary of the post of Assistant Engineer which post they were holding substantively. In view of the law laid down by the Supreme Court this plea is wholly unsustainable. I am unable to appreciated as to why a Government servant should be deprived of the salary of the post over which he has been allowed to function for such a long period and has discharged all the duties and responsibilities of the post. It is true that there may be cases where a government servant is required to officiate in a higher post purely as a stop gap arrangement for a short tenure to meet the exigency of the situation for which they may be entitled to claim officiating allowance only, If any, admissible under the rules and not the salary of that post. But to deprive a person of the salary of the post over which he has been allowed to function for more than ten years, as in the instant case, in my opining, the same will be violative of articles 14 and 16 read which Article & 39(d) of the constitution of India which, according to the Supreme Court, has acquired status of a fundamental right. All the writ applications are allowed to the extent indicated above and the respondents are directed to pay the salary of the post of the Executive Engineer held by the petitioners with effect from the date since the petitioners have been holding the said post. It is made Cesar that the petitioners have confined their relief only with respect to the above and have not pressed for any other relief. Application allowed.