Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1466 (PAT)

Bijay Kumar Verma v. State Of Bihar

2007-09-06

ANWAR AHMAD, BARIN GHOSH

body2007
Judgment Barin Ghosh and Anwar Ahmad JJ. 1. From Annexure-9 to the memorandum of appeal, a letter dated 29th April, 1965, it appears that the State Government by a letter dated 24th October, 1956, treated Nepal allowance as special pay. From one of the annexures forming part of annexure 3 series to the memorandum of appeal, being a letter dated 11th July, 1986, it appears that the State Government agreed to pay Liaison Officer posted by the State of Bihar at Kathmandu, a sum of Rs. 5725/-as and by way of Nepal allowance. Though the decision of the State of Bihar pertaining to increase of Nepal allowance with effect from 1st December, 1988, is not on the record, but there is no dispute that with effect from 1st December, 1988, the existing Nepal allowance stood increased by 25 per cent thereof. As a result, on and from 1st December, 1988 the employees of the State Government posted by the State of Bihar at Kathmandu as Liaison Officer became entitled to Rs. 5725 plus 25% as and by way of Nepal allowance. 2. The appellant, an employee of the State of Bihar, while working as Assistant Engineer in the Water Resources Department, was asked by the State Government by a letter dated 7th January, 1989 to discharge duties of Liaison Officer at Kathmandu. In terms thereof, the appellant started discharging the duties of Liaison Officer of the State of Bihar at Kathmandu on and from 12th January, 1989 and while the appellant was so posted as Liaison Officer at Kathmandu, though he became entitled to Nepal allowance as above, but ceased to be entitled to dearness allowance as was payable to him prior to his posting as Liaison Officer. 3. While the appellant was discharging the duties of Liaison Officer of the State of Bihar at Kathmandu, on 4th November, 1993 a decision was taken by the State of Bihar to pay dearness allowance to the Liaison Officer of the State of Bihar posted at Kathmandu at the same rate as other State Government employees are entitled to such allowance and at the same time it was decided that the Nepal allowance shall stand reduced to Rs. 2000. This decision was made effective from 1st March, 1993. As a result, admittedly, the appellant started, receiving, less from March, 1993 than what he was receiving upto February, 1993. 2000. This decision was made effective from 1st March, 1993. As a result, admittedly, the appellant started, receiving, less from March, 1993 than what he was receiving upto February, 1993. While the Government of Bihar reduced the special allowance, namely, Nepal allowance, and thereby reduced the emolument of the appellant, did not give an option to the appellant to return to the State. The appellant, therefore, remained working as Liaison Officer of the State of Bihar at Kathmandu and continued to receive less emolument until he was posted out of Kathmandu on 22nd June, 1986. 4. There cannot be any dispute that until 1st December, 1988, Nepal allowance paid to a Central Government employee working at Kathmandu was at par with a State Government employee working at Kathmandu and accordingly an officer of the Central Government working at Kathmandu in the rank of Liaison Officer of the State of Bihar at Kathmandu was drawing the same Nepal allowance as the Liaison Officer of the State of Bihar at Kathmandu was drawing. Since thereafter the Central Government went on increasing the Nepal allowance, the Government of Bihar did not follow suit. Ultimately, as aforesaid, it reduced the Nepal allowance. 5. The appellant made representations for giving him Nepal allowance at par with Central Government employees working at Nepal. Those representations were of no avail, which forced the appellant to file a writ petition. A learned Single Judge, who dealt with the matter, dismissed the writ petition principally on the ground that while the appellant represented for payment of Nepal allowance at enhanced rate he did not seek to return to the State. 6. The fact remains that the appellant was made to work at Kathmandu as Liaison Officer by transferring him to Kathmandu as such officer. Admittedly, Nepal allowance was a special pay attached to the post in question. Such special pay became part of the emolument receivable by the incumbent discharging the duties of the post. The appellant, at the time of his transfer to Kathmandu, if was drawing emolument more than the emolument he was to draw as Liaison Officer at Kathmandu, he could not be transferred to such post. Such special pay became part of the emolument receivable by the incumbent discharging the duties of the post. The appellant, at the time of his transfer to Kathmandu, if was drawing emolument more than the emolument he was to draw as Liaison Officer at Kathmandu, he could not be transferred to such post. The question is when he was transferred to that post at a higher emolument for doing duties not akin to the duties to be performed by him in usual course, could such emolument be reduced while he was asked to discharge such duties? 7. Having regard to the constitutional mandate, only in case of financial emergency, emolument payable to a Government employee can be reduced. It goes without saying that while a Government employee has been promised and had been paid emoluments, unless a financial emergency is called, his emolument cannot be reduced for discharging same duties. There was no just reason for denying the appellant payment of the difference of reduced emolument from 1st March, 1993 without giving him an option to return to the State. 8. The other question is whether the appellant has any right to claim Nepal allowance at the rate at which the Central Government had paid the same to its employees working at Kathmandu. After the appellant was transferred to Kathmandu, by a letter dated 4th July, 1989, the State Government authorised the Accountant General, Bihar to pay to the appellant Nepal allowance at the same rate at which the predecessor of the appellant had received the same. There is nothing on record to suggest that the State of Bihar had authorised any predecessor of the appellant to draw Nepal allowance at the same rate as the Central Government employees had been authorised by the Central Government to receive the same. On the other hand, it appears that the predecessor of the appellant was entitled to Nepal allowance of Rs. 5725 plus 25% thereof. In such view of the matter, the promise to pay Nepal allowance stood concluded at Rs. 5725/- plus 25% thereof. Such contract was not linked with the variation of such allowance in relation to the Central Government employees working at Kathmandu. We do not think that the appellant can claim Nepal allowance at the rate at which employees of the Central Government had received the same. 9. 5725/- plus 25% thereof. Such contract was not linked with the variation of such allowance in relation to the Central Government employees working at Kathmandu. We do not think that the appellant can claim Nepal allowance at the rate at which employees of the Central Government had received the same. 9. According to the appellant, during his tenure at Kathmandu he travelled by air at the instance of the State of Bihar and accordingly incurred travelling expenses, which he is entitled to receive. It is the contention of the appellant that he submitted all necessary papers in support of his claim for travelling allowance, but the same had not been redressed before the writ petition was filed. On the other hand, it js the case of the respondents that the file pertaining to such claim had been removed by the appellant, and with that it has been contended that such claims are outside the purview of the contract of employment, since those are private trips of the appellant. Significantly, the respondents have not lodged a first information report for the alleged removal of the file by the appellant. Accordingly, we do not give any credence to the allegation that the file has been removed by the appellant. We think that the respondents are duty bound to ascertain, whether in fact at the request of the State of Bihar, the appellant had undertaken such trips and if so, whether he is entitled to be reimbursed therefor and to what extent. 10. It is not in dispute that the quantum of travelling allowance depends upon the pay of the Government employee. Inasmuch as Nepal allowance is a special pay, the same is required to be treated as pay for the purpose of travelling allowance and the same was made absolutely clear in the letter of the State Government dated 29th April, 1965 in relation to Class IV employees of the State Government working at Kathmandu. There is no justification why such special pay will not be treated as pay for Liaison Officer for the purpose of travelling allowance. Accordingly, in the event, it is found that the appellant did undertake such trips at the direction of the State of Bihar, his claim for reimbursement should be assessed on the basis of basic pay plus Nepal allowance for determining as to which class of travelling the appellant is entitled to. Accordingly, in the event, it is found that the appellant did undertake such trips at the direction of the State of Bihar, his claim for reimbursement should be assessed on the basis of basic pay plus Nepal allowance for determining as to which class of travelling the appellant is entitled to. For that purpose on and from 1st March, 1993 such special pay on account of Nepal allowance shall be treated as Rs. 2000/-. 11. In the premises, we allow the appeal, set aside the judgment and order under appeal and at the same time allow the writ petition by directing payment of difference of emoluments to be calculated on the basis of pay plus Rs. 5725 plus 25 per cent of Rs. 5725 less basic pay plus dearness allowance plus Rs. 2000 on and from 1st March, 1993 to 22nd June, 1996 as quickly as possible but not later than three months from today. 12. The appellant shall resubmit the letter dated 12th January, 1996, being Annexure-8 to the memorandum of appeal, and all annexures thereto for the purpose of ascertaining whether the claim lodged thereunder on account of travelling allowance is payable to the appellant and if so, to what extent. In the event, the appellant submits a copy of Annexure-8 to the memorandum of appeal within a period of one month from today, the decision as regards the claim lodged thereunder should be communicated to the appellant within two months therefrom and if any sum is payable on that account to the appellant, the same should also reach the appellant within the said period. 13. There shall be no order as to cost.