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2002 DIGILAW 759 (JHR)

Jugal Kishore Sharan v. State of Bihar

2002-07-17

HARI SHANKAR PRASAD, M.Y.EQBAL

body2002
JUDGMENT M. Y. Eqbal, J.-This appeal under Clause 10 of the Letters Patent Appeal is directed against the judgment dated 6.1.1998 passed in CWJC No. 324 of 1996(R), whereby the learned single Judge dismissed the writ petition and refused to grant relief for payment of additional pay/additional allowances for officiating on the post of District Malaria Officer during the service period. 2. It appears that the petitioner retired from service as Assistant Malaria Officer in the year 1992. After retirement he made representation for payment of additional pay/allowances for officiating on the post of District Malaria Officer. When representation was not disposed of he approached this Court by filing CWJC No. 3234 of 1994(R), which was disposed of with direction to the respondents to consider the case of the petitioner under the provision of Rule 103 of the Bihar Service Code and pass necessary order. In pursuance of the said direction the Secretary and Health Commissioner disposed of the representation holding that petitioner was not entitled to additional pay/allowances on the ground that the petitioner had not officiated in the substantive post of District Malaria Officer and he was simply asked by the authorities to take charge from the District Malaria Officer drawing and disbursing as the District Malaria Officer. 3. The petitioners case was that when• he had worked and officiated as District Malaria Officer then he was entitled to get benefit under Rule 58 or Rule 103 of the Bihar Service Code either for additional payor for officiating allowances i.e. 20% of the pay as extra allowance. The stand of the respondents in their counter-affidavit was that the petitioner was non-medical person and the District Malaria Officer is a different cadre where an officer having medical degree can officiate in the substantive post of District Malaria Officer and this is why the petitioner was only authorized to officiate in the said post for the post of drawing and disbursing. 4. Learned single Judge in the impugned judgment has come to the conclusion that the appellant was only asked to take charge of District Malaria Officer for the purpose of drawing and disbursing and he was not given full responsibility of the post of District Malaria Officer. Learned single Judge is also of the view that the appellant being non-medical person i.e. Assistant Malaria Officer had no scope to take full responsibility of District Malaria Officer. Learned single Judge is also of the view that the appellant being non-medical person i.e. Assistant Malaria Officer had no scope to take full responsibility of District Malaria Officer. Learned single Judge further observed: "Mr. Banerjee, for and on behalf of the petitioner has referred to a policy decision of the Central Government taken in the year 1982 wherein it was held that those Assistant Malaria Officers who are not qualified as Doctor may be considered for the purpose of appointment as the District Malaria Officer if other conditions are suitably being filled and, as such, avenue of promotions have been made available to the Assistant Malaria Officer also. But in the present case, the question of promotion does not arise. Assistant Malaria Officer had never been considered for appointment as the District Malaria Officer in view of the policy decision of the Central Government. The petitioner as the Assistant Malaria Officer during his service period was asked to take charge of the District Malaria Officer on the contingency of the absence of the District Malaria Officer in the station for the purpose of drawing and disbursing alone. When the petitioner has got no scope to take full responsibility of the District Malaria Officer being a non-medical person, the question of applicability of Rule 103 of the Bihar Service Code does not arise. 5. Mr. Kalyan Roy, learned counsel appearing for the appellant assailed the impugned judgment as being contrary to law and the facts and evidence available on record. Learned counsel submitted that in course of service appellant was called upon to undertake and inform to perform additional/officiating duties of the post of District Malaria Officer from time to time under the orders of the competent authority through regular notification which are evident from the documents annexed to the writ petition. According to the learned counsel the appellant have been performed additional duties of District Malaria Officer is entitled to officiating pay according to Rule 103 read with Rule 58 of the Bihar Service Code. 6. According to the learned counsel the appellant have been performed additional duties of District Malaria Officer is entitled to officiating pay according to Rule 103 read with Rule 58 of the Bihar Service Code. 6. Considering the facts of the case and the submissions made by the learned counsel the only question that falls for consideration is as to whether learned single Judge was justified in accepting the case of the respondents that the appellant was only asked to take charge of District Malaria Officer on the contingency in the absence of District Malaria Officer for the purpose of drawing and disbursing alone. 7. The admitted facts are that in 1981 the petitioner-appellant while working as Assistant Malaria Officer was given charge of the post of District Malaria Officer in addition to his own post. While, the petitioner was in additional officiating charge of District Malaria Officer the State Government in pursuance of National Programme for eradication of malaria from the country announced its decision to appoint Assistant Malaria Officer in 31 districts including Ranchi, Santhal Paraganas and Gaya holding additional/officiating charge of District Malaria Officers. In support of that the appellant annexed copies of the Government Memo Nos. 125(19) and 126(19) dated 24.2.1989 which are annexed as Annexures3 and 3A to the writ application. The relevant portion of Annuexure-3 is reproduced herein below: "fi~"1TT-111(Q)6-41 /79-725(79) ~ "fRq)R ~~ %1~~lcjJ,<, ~R GTo ft-;J xT ~ 24.2.1982 qtT"1T: - ~ ~ftm ~ mW1f q; 3Rf1fa "ij6'T"1Tq; l1~ft"1TT qGTRrq;rt) q;T ~'I'rrt1 ~ ~ fcrtmq; ~ fcmrfi ~. ~. X1m1T, ~. ~, -. ~, fWJR. ~. "TN. ~ ~. ~, CJ'Mr ~ ~ q; ~ m 1j(@rr ~ cp) ~ ~ ~ ~ . ~ 1J 2. "fRq)R ~ WI ~ f.ruP:I ~ t ~ $ 11AAm~~CP)~~iI~ ~~~~~~~~U] ~. ~, 1J 'ffim1T, ~, ~, _, ~, ~, ~, "TN ~ ~, ~, CJ'Mr om 1jjUIm 3.~~~~~Cf)T ~ m.ur ~, ~, 1J 4. ~ cmrrn _ ~-2 cf ~-7 cf ~ ~-2 ~ 51 3!Cf: ~ 5 fcp ~ cmrrn cp'r ~ f{m \ifm fcp ~ !iffi l!Tfur fcmT Cj)[ 31TG1 cR I ~ 1TI\iR, ~o-tTo cfo ~~ 8. It is also not in dispute that the appellant in addition to his post of Assistant Malaria Officer continuously performed the additional duty of the District Malaria Officer without any break from 31.5.1981 to 31.5.1992. It is also not in dispute that the appellant in addition to his post of Assistant Malaria Officer continuously performed the additional duty of the District Malaria Officer without any break from 31.5.1981 to 31.5.1992. The very fact is that no regular appointment of District Malaria Officer was made during the entire period of 11 years during which appellant was in additional charge and naturally appellant could not avoid performing a single duty that a District Malaria Officer is posted to perform. It cannot be believed that for a long period of 11 (eleven) years there was no requirement of full fledged District Malaria Officer for discharging a particular duty which was to be discharged only by him. I am unable to accept the contention of the respondents that the appellant as the Assistant Malaria Officer during the service period was asked to take charge of the District Malaria Officer on the contingency' in absence of District Malaria Officer in the station for the purpose of drawing and disbursing alone. The relevant orders whereby the appellant was given additional charge of the post of District Malaria Officer was issued after the approval of the Finance Department. I am therefore, of the definite view that the very fact that no District Malaria Officer was appointed or posted a long period of 11 (eleven) years and during that period the petitioner/appellant continuously without any break discharged the additional duty of the District Malaria Officer, he cannot be deprived off his legitimate officiating allowance in terms of Rule 103 read with rule 58 of the Bihar Service Code. 9. 9. Rule 103 of the Bihar Service Code 'rads as under: "The pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time shall be regulated as follows: (a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post; (b) for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and (c) if a compensatory allowance is attached to one or more of the posts, he may draw such compensatory allowances as the State Government may fix, provided that such allowance shall not exceed the total of the compensatory allowances attached to all the posts." 10. From bare perusal of the aforesaid provision, it is clear that if a government servant holding a substantive post is directed to officiate in two or more independent posts at one time he will not be entitled to compensatory allowances. The expression "independent posts" used in this rule means post which are independent of one another i.e. posts the incumbent of one of which is not expected to do the duties of any other.. Holding charge of another independent post does not mean merely doing the routine duties but implies taking up full responsibilities of that post. 11. As noticed above, appellant was asked to officiate to the aforesaid two posts which the petitioner did without any complain from any corner for a long period of 11 (eleven) years during that period no rull fedged District Malaria Officer was appointed. Therefore, objection of the respondents that as the petitioner has been directed to discharge duties for the purpose of drawing and disbursing, he is not entitled to the benefits of Rule 103 of the Code does not hold good. 12. Learned counsel drawn our attention to the fact that similarly situated officer namely, Syed Saiful in CWJC No. 12177 of 1995 was allowed 20% additional pay. 12. Learned counsel drawn our attention to the fact that similarly situated officer namely, Syed Saiful in CWJC No. 12177 of 1995 was allowed 20% additional pay. The said officer was also directed to discharge duties of District Malaria Officer and this Court allowed his writ petition holding that the said officer was entitled to 20% of the basic pay of the post of which he was officiating from the date of his of ficiation till the date of his retirement. Learned single Judge is not correct in law in not following the said order by which benefit was given to another similarly benefit officer. 13. Taking into consideration the entire facts of the case and the law discussed herein above, I am of the view that rejection of the claim of the petitioner is wholly illegal and unjustified. 14. This appeal is therefore allowed and the impugned judgment dated 6.1 .1988 passed in CWJC No. 324/1996(R) is set aside. Consequently the order of the Deputy Secretary rejecting the claim of the petitioner for additional pay is quashed. Respondents are directed to make payment of allowances to the petitioner, admissible under Rule 103 of the Code from the date of officiating the post of District Malaria Officer till the date of retirement. Hari Shankar Prasad, J.-I agree.