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2007 DIGILAW 1072 (PAT)

Parmanand Sinha v. State Of Bihar

2007-07-04

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The petitioner was holding the substantive post of Associate Professor of Mining Surveying in the Mining Institute, Koderma. The petitioner, who was purely a teacher was asked to perform the duties of the Principal for the period 13.1.1986 to 31.1.1998. The present writ petition relates to the grievance of the petitioner that he having worked at the higher pay scale independent posting involving additional duty not in line with his normal duty and having greater responsibility to be discharged, he was entitled to the higher remuneration for the said period. 3. Petitioner had come to this court earlier. He was asked to make a representation in this regard to the department. He made such a representation. When the representation was not disposed of he filed an application for initiating contempt proceeding. In those proceedings it was disclosed that his representation had since been disposed of by the impugned order as contained in Annexure 8, dated 5.3.2005 on the ground that he was working in the same department and in view of the Government Circular dated 30.12.68 issued with reference to Rule 103 of the Bihar Service Code he would be entitled to higher remuneration. 4. A counter affidavit has been filed in which it has been categorically been stated in para 4 that the post of Principal of Mining Institute, Koderma has to be filled up on recommendation of the Bihar Public Service Commission on direct recruitment base. It is not a promotional post. It is, therefore, submitted on behalf of the State that salary of Principal could only be paid to a person who was recruited by the Bihar Public Service Commission to be appointed as Principal and not to any person officiating as Principal for whatever he did work. 5. The question is whether a Government servant who is asked to officiate act on higher post involving additional duty and higher responsibility, he is entitled to any extra remuneration apart from the pay entitlement of his substantive post. 6. Learned counsel for the State Government refers to the circular of the year 1968 issued with reference to Rule 103 of the Bihar Service Code. In his submission even a clerk in the department is asked to officiate as the head clerk or for that matter at any other senior post he would not be entitled to any extra remuneration. Learned counsel for the State Government refers to the circular of the year 1968 issued with reference to Rule 103 of the Bihar Service Code. In his submission even a clerk in the department is asked to officiate as the head clerk or for that matter at any other senior post he would not be entitled to any extra remuneration. In other words, if an Assistant Engineer is made to work and discharge the duty and function of Chief Engineer he would still be paid the remuneration of an Assistant Engineer. The argument on the face of it is absolutely absurd and is not to be accepted. If this is permitted then instead of making substantive appointment the State could use the services of any junior officer in the post of a senior officer and save the money for itself and arbitrarily deprive the said officer of the remuneration payable with respect to the post on which he is made officer. The argument is too specious to be accepted. I may refer to Rule 89 of the Bihar Service Code: "89(1). Subject to the provisions of Rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post other than a tenure post, unless the officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. (2) For the purpose of this rule the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith." 7. A reference to the aforesaid rule would show that a person who is made to officiate at a higher post involving additional duty or responsibility of greater importance, than those attached to his substantive post then he is entitled to officiating pay in that regard. This rule is subject to Rule 103 of the Rules. 8. A reference to the aforesaid rule would show that a person who is made to officiate at a higher post involving additional duty or responsibility of greater importance, than those attached to his substantive post then he is entitled to officiating pay in that regard. This rule is subject to Rule 103 of the Rules. 8. A reference to Rule 103 read with note appended to the Bihar Service Code would show that if a person is temporarily required to officiate in two or some independent posts then he would be entitled to the higher pay than the pay on account of his substantive post. Independent posts have been clarified in the notes. 9. In the counter affidavit the stand clearly shows that the post of Principal is to be filled up by Bihar Public Service Commission directly. The stand of the State itself is that it is not a promotional post for an Assistant Professor. In other words, the posts of Principal and Assistant Professor are two independent posts within the meaning of Rule 103. There cannot be any dispute that Assistant Professor is a purely teaching post whereas Principal is a post with much higher administrative responsibility and duty and thus the requirements of rule are also satisfied. Thus it would be seen that the petitioners case fits to Rule 89 and Rule 103. There is nothing in those rules to prevent him from getting his claim for additional remuneration for the period in which he was asked to discharge the function of the Principal. 10. In that view of the matter, I have no option but to quash the impugned order, as contained in Annexure 8, refusing to grant additional remuneration to the petitioner and direct that within a period of three months from today additional remuneration in accordance with law be paid to the petitioner for the period 13.1.1986 to 31.1.1998 (almost 12 years) for which the petitioner was made to work as Principal. 11. This writ petition is accordingly allowed.