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2000 DIGILAW 793 (PAT)

Shambhunath Prasad v. State Of Bihar

2000-06-27

R.M.PRASAD

body2000
Judgment 1. In this writ petition the grievance of the petitioner is that though at the time of retirement of his service on 31.12.1997 he had already been promoted as Superintending Engineer and joined the post, vide Annexure 3 and 4, his pensionary benefits have been arbitrarily fixed in the rank of Executive Engineer. 2. It appears that the petitioner was promoted as Superintending Engineer, vide Road Construction Department Notification No. 6733 (S), Patna, dated 22.11.1997 (Annexure 3). After his promotion, his service was placed under the Rural Development Department, vide same notification. Thereafter the petitioner submitted his joining on 26.11.1997 to the Engineer-in-Chief-cum-Additional-Commi ssioner-cum-Special Secretary, Rural Development Department, Government of Bihar, Patna, vide Annexure 4 and ultimately retired from service on 31.12.1997. Though he was paid his pensionary benefits, but as against the post of Executive Engineer and not as against the promoted post of Superintending Engineer. 3. In the counter affidavit filed on behalf of the State and its officials it is stated that the service of the petitioner was placed under the Rural Development Department for his posting, but as per the statement of the petitioner, Hural Development Department did not post him and he could not join the promoted post. Therefore, it is contended that his claim is not tenable under rule 58 of the Bihar Service Code. 4. It is submitted on behalf of the petitioner that it has wrongly been stated in the counter affidavit that the petitioner made statement that he could not join the promoted post. 5. Learned counsel for the State has failed to show that the petitioner ever stated that he did not join the post of Superintending Engineer. In paragraph 9 of the writ petition the petition has specifically stated that he joined the Rural Development Department in pursuance of the notification of the Road Construction Department on 26.11.1997 and in support of the same has annexed a photo copy of his joining report as Annexure 4. It is true that the petitioner has admitted that he retired on 31.12.1997 without getting posting as Superintending Engineer, but it was due to negligence of the Rural Development Department. The State has not denied about his joining on the post of Superintending Engineer on 26.11.1997, vide Annexure 4. 6. It is true that the petitioner has admitted that he retired on 31.12.1997 without getting posting as Superintending Engineer, but it was due to negligence of the Rural Development Department. The State has not denied about his joining on the post of Superintending Engineer on 26.11.1997, vide Annexure 4. 6. Learned Standing Counsel appearing for the Accountant General has, however, submitted that since sanction order has not been received from the concerned department for fixation of pensionary benefits of the petitioner as against the post of Superintending Engineer, the revised authority slip in that regard could not be issued by the Accountant General. 7. Rule 58 of the Bihar Service Code provides that subject to any exception specifically made in these rules and to the provisions of clause (b) of the rule, a 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 of that post, and shall cease to draw them as soon as he ceases to discharge those duties. 8. In my opinion, in the facts and circumstances aforementioned, the provisions contained in rule 58 of the Bihar Service Code will not be attracted and on submission of joining by the petitioner, vide Annexure 4, he will be deemed to have assumed the duty as he cannot be made to suffer on account of negligence on the part of the Rural Development Department in assigning him for discharging duty of a particular post. It has rightly been submitted by the learned counsel for the petitioner that the petitioner cannot be denied of the post retiral benefits as against the post of Superintending Engineer on account of any fault on the part of the concerned authority in the Rural Development Department. It is not alleged in the counter affidavit that the petitioner ever declined to accept any posting or that any order of his posting was issued by the Rural Development Department, but he did not join. Under such circumstances, this Court finds that the petitioner cannot be denied of the retirement benefits as against the post of Superintending Engineer. 9. The writ application is, thus, allowed. The Secretary, Road Construction Department, Government of Bihar, Patna (respondent no. Under such circumstances, this Court finds that the petitioner cannot be denied of the retirement benefits as against the post of Superintending Engineer. 9. The writ application is, thus, allowed. The Secretary, Road Construction Department, Government of Bihar, Patna (respondent no. 2) is, accordingly, directed to issue necessary revised sanction order for payment of the pensionary benefits to the petitioner as against the post of Superintending Engineer within two weeks of the receipt/production of a copy of this order, failing which he (respondent no.2) shall not draw his salary and other allowances till the order is fully complied.