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2004 DIGILAW 518 (JHR)

Amresh Chandra Jha v. State Of Jharkhand

2004-05-12

M.Y.EQBAL

body2004
JUDGMENT M.Y. Eqbal, J. 1. Petitioner is aggrieved by the decision of the respondents whereby his claim for payment of 20 per cent additional pay for discharging the additional duty of Director, Agriculture for a period from 1.2.1999 to 31.12.2000 has been rejected. 2. The facts of the case lie in a narrow compass : Petitioner, at the relevant time, was appointed as Joint Director, Agriculture Centre, in Divisional Agriculture Office, Ranchi on 11.12.1998 and remained on the said post till his retirement i.e. 31.12.2000. Petitioners case in that while he was posted as Joint Director, Agriculture he was given additional charge of Director, Agriculture from 1.2.1999 to 31.12.2000. During that period petitioner said to have discharged full duty of Director, Agriculture and became entitled to 20 per cent extra emoluments for discharging the additional work of Director. Agriculture. It is contended by the petitioner that he filed several representations for payment of additional allowance but the same was not paid till the date of his retirement. After retirement petitioner filed writ petition being WPS No. 3444/2001 for payment of all the retiral dues including 20 per cent emoluments which was disposed of with a direction to the respondents to finalise the claim of the petitioner for payment of retiral dues and other benefits. The claim of the petitioner was rejected by the Agriculture Production Commissioner vide letter dated 30.03.2002. The petitioner thereafter represented to the Government against the order of the Agriculture Production Commissioner. The Government ultimately accepted the claim of 20 per cent additional allowance to the petitioner and decision was communicated by the Deputy Secretary to the Government of Jharkhand vide letter dated 1.1.2003, a copy of which has been annexed as Annexure-5 to the writ petition. Petitioners further case is that on the basis of the aforesaid order of the Government, the Accountant General, Bihar and Jharkhand has issued pay slip in anticipation of the approval of the concerned authorities. Surprisingly, the petitioner again received a letter whereby the claim of the petitioner was rejected by the Government which was communicated vide letter dated 12.5.2003 issued by the Deputy Secretary, Government of Jharkhand, Ranchi. 3. A counter affidavit has been filed by the Deputy Secretary, Agriculture, Government of Jharkhand. It is stated that the petitioner while posted as Joint Director, Agriculture has discharged only routine work as Director and not as full fledged Director. 3. A counter affidavit has been filed by the Deputy Secretary, Agriculture, Government of Jharkhand. It is stated that the petitioner while posted as Joint Director, Agriculture has discharged only routine work as Director and not as full fledged Director. It is also stated that petitioner retired as Joint Director of Agriculture, Ranchi. The petitioner is, therefore, not entitled to get additional allowance. The petitioners claim for 20 per cent pay has been rejected by Cadre Controlling State i.e. Bihar Government by Memo No. 976, dated 30.3.2002. After getting aforesaid letter, a letter dated 12.05.2003 was sent to A.G. Bihar for canceling earlier order. 4. A separate counter-affidavit has been filed by the State of Bihar taking the stand that petitioner was assigned to perform the additional duties of Director of Agriculture under Stop gap arrangement. Since the petitioner was not holding the independent charge of Director, Agriculture he is not entitled to get additional emoluments. 5. Before appreciating the case of the parties, I would first like to quote Rule 103 of the Bihar Service Code which reads as under :-- "103. 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 post 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 allowance as the State Government may fix provided that such allowance shall not exceed the total of the compensatory allowance attached to all the posts." 6. The notes given in this section by way of explanation are also worth to be quoted hereinbelow :-- "Note 1.--The expression "independent" post used in this rule means posts 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. The notes given in this section by way of explanation are also worth to be quoted hereinbelow :-- "Note 1.--The expression "independent" post used in this rule means posts 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. Note 2.--(a) Holding charge of another independent post does not mean merely doing the routine duties but implies taking up full responsibilities of that post. (b) When a gazetted Government servant holds charge only of the current duties of an officer of higher rank for not less than one month, he may be granted such additional pay for the period as the State Government may in each case direct. (c) An order appointing an officer to hold the current charge of the duties of a post should in the absence of any specific direction to the contrary, be deemed to clothe the officer with all the powers vested in the full fledged incumbent of that post, even though he may not get full pay of the post. Such officer should not, however, modify or overrule the orders of the regular incumbent of that post, except in emergency, without obtaining the orders of the next higher authority. Where the appointment to hold current duties of a post involves the exercise of statutory or such other powers conferred on the holder of the post, the appointment shall also be notified in the Gazette. Note 3.--Arrangements contemplated in this rule are not permissible in any case where there is a leave reserve. Note 4.--The extra remuneration admissible under Clause (b) of this rule should not ordinarily exceed 20 per cent of the presumptive pay of the post whose duties the Government servant is performing." 7. In the light of the aforesaid provision it would be useful to look into the office order by which the petitioner was directed to discharge the duty of Director. In the light of the aforesaid provision it would be useful to look into the office order by which the petitioner was directed to discharge the duty of Director. A copy of the said office order as contained in the letter dated 31.01.1999 has been annexed as Annexure-1 to this writ petition which reads as under :-- Karyalay Adesh "Krishi Nirdeshak Ranchi Ko Bihar Pathari Vikash Pariyozna Ke nodal Padadhikari Ka Dayitva Diya gaya hai Kintu gat do varsho se pad rikt ratine ke karan karya nahi ho raha hai awam BPDP ke antargat krishi nirdeshalaya ko abantit rashi ka upyog nahi ho pa raha hai. Krishi Vibhag, Bihar ke adesh No. 4186 dated 23.10.1998 dwara Shri Luca Singh Babu, sanyuki krishi Nirdeshak, Ranchi ko Bihar Pathari Vikash Pariyojana ke antargat routine karya nispadan ke saath saath nikashi awam vyayan padadhikari ke kartavya awam dayitva nispadan ke liye padadhikari ke kartavya awan dayitva nispadan ke liye pradhukarit kiya gaya hai kintu Shri Singh ke sthanantharan ke karan yah aadesh nisprabhawi ho gaya hai. BPDP ke karyahit mein vartman sanyukt krishi nirdeshak, Ranchi ko BPDP ke liye krishi nirdeshak, Ranchi ki shaktiyan pradat karna awashyak pratil hota hai. Krishi Nirdeshak, Ranchi ke pad par sarkar dwara niyamit padadhikari ke padstaphan hone tak Shri Amaresh Chandra, Jha, Sanyukt Krishi Nirdeshak, Ranchi ko Bihar Pathari Vikash Pariyojna ke karyo ke sampadan hetu krishi nirdeshak, Ranchi ke dayitva ewam kartavya nispadan hetu pradhikrit kiya jata hai. Shri Jha BPDP ke liye krishi nirdeshak, Ranchi ke nikashi ewam vyayan padadhikari ke shaktiyon ke prayog ke liye bhi pradhikrit honge." 8. Mr. S. Shrivastava, learned counsel appearing for the Accountant General, Jharkhand has very fairly submitted that the Government of Jharkhand, vide office order as contained in the letter dated 31.01.2003 rightly accepted the claim of the petitioner for 20 per cent additional allowance as the petitioner was not only discharging the routine duty but he was also discharging all the powers of a Director besides being Drawing and Disbursing authority. 9. As noticed above, the petitioner was given the additional change of Director, Agriculture on 1.2.1999 and since then he continuously discharged the duty of Director till the date of his retirement i.e. 31.12.2000. 9. As noticed above, the petitioner was given the additional change of Director, Agriculture on 1.2.1999 and since then he continuously discharged the duty of Director till the date of his retirement i.e. 31.12.2000. It is, therefore, not a case where additional duty was given for a few days or for a few months in exigency, rather the petitioner was holding the vacant post of the Director. In my considered opinion, therefore, the petitioner became entitled to additional pay not exceeding 20 per cent of the substantive pay which was rightly allowed by the Government of Jharkhand. The impugned order cancelling the earlier decision for payment of 20 per cent allowance cannot be sustained in law. 10. For the aforesaid reasons, this writ petition is allowed and it is held that the petitioner is entitled to additional pay not exceeding 20 per cent of the substantive pay for the period he discharged full fledged duty of the Director, Agriculture.