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2007 DIGILAW 945 (PAT)

Nitya Gopal Bandyopadhyay v. State Of Bihar

2007-05-15

BARIN GHOSH, NAVANITI PRASAD SINGH

body2007
Judgment 1. The admitted facts of this case are that in 1966 when the appellant acquired Masters degree in Ayurvedic he was occupying a teaching post though not in the Ayurvedic College, Patna. On 30th January, 1970 the appellant was appointed as Lecturer in the Government Ayurvedic College, Patna. On 1st July, 1970 an advertisement was published inviting applications for filling up the post of Principal of the said College. This advertisement was followed by yet another advertisement published on 16th December, 1972. These advertisements required postraduation in Ayurvedic, ten years teaching experience and five years administrative experience as basic qualifications for being eligible to respond to the said advertisement. It appears that on 2nd June, 1973 recommendation was made in favour of seven persons for being selected for the post of Principal of the said College. Appellant was one of those recommendees. It appears that one Sri Shrikant Sharma was qne of those recommendees. It also appears that Sri Shrikant Sharma was appointed as Principal of the said College. Sri Shrikant Sharma was to attain his age of superannuation on 31st January, 1984. It further appears that by a letter dated 31st January, 1984 Joint Secretary to the Government of Bihar in its Health Department informed Sri Shrikant Sharma that on the eve of his retirement on 31st January, 1984 he shall handover charge of the Office of the Principal of the said College to the appellant who has been appointed as Incharge Principal of the said College until further orders. A copy of the said letter was marked, amongst others, to the appellant. 2. Appellant continued to discharge the duties and functions attached to the post of Principal of the said College from 1st April, 1984. The appellant was to superannuate on 31st December, 1993. It appears that the appellant in 1991 filed a writ petition which was registered as CWJC No. 3003 of 1991 and which was disposed of by Division Bench of this Court by an order dated 18th December, 1991 whereby and under the Court found, as a fact, that in none of the Government Ayurvedic Colleges, the posts of Principal have been filled up on regular basis and different persons including the appellant are holding charge of the post of Principal in different Colleges since several years. The Court, accordingly, directed the State Government, to take steps for filling up of those posts without any delay. Although the said judgment and order was rendered by this Court on 18th December, 1991 but until the date of superannuation of the appellant on 31st December. 1993, i.e., for about little more than two years the State Government took no steps for filling up those posts, including the post of Principal of the said College. 3. In the meantime, on 27th January, 1993 the appellant was sought to be reverted to his original post for the purpose of appointing another person as Incharge Principal of the said College. This action was assailed by the appellant by filing yet another writ petition registered as CWJC No. 1103 of 1993. A Division Bench of this Court, which dealt with the said writ petition, by its judgment and order dated 17th February. 1994 held principally that when the appellant was appointed as Incharge Principal of the said College an ad hoc arrangement had been made and on the principle that an ad hoc employee cannot be replaced by another ad hoc employee, the Court quashed the order dated 27th January, 1993 and once again directed the State Government to take early step but not later than six months from the date of receipt on production of a copy of the said judgment and order to fill up the cost of Principal in the said College in accordance with law keeping in view the observations made in the said judgment and order of this Court. 4. It appears that in view of the said judgment and order of this Court dated 17th February, 1994, steps were taken to fill up the post of Principal of the said College but by that time the appellant had superannuated and, accordingly, he could not respond to such steps as were taken to fill up the post of the Principal of the said College. 5. 5. Inasmuch as the appellant discharged the duties and functions attached to the post of Principal of the said College in his capacity as Incharge Principal of the said College from 1st January, 1984 until his superannuation, i.e., 31st December, 1993, the appellant filed the third writ petition registered as CWJC No. 5411 of 1996 and thereby claimed recognition of his status as Principal of the said College from 1st January, 1984 to 31st December, 1993. 6. It is an accepted position that no statutory or administrative Rules had been framed before 31st December, 1993 pertaining to appointment of Principal of the said College. However, inasmuch as those two advertisements were published in 1970 and in 1972, the provisions contained therein appears to be the basic eligibility criteria for being appointed as Principal of the said College. The said advertisements suggest that the candidate must be a Post-Graduate in Ayurvedic and shall have ten years teaching experience and five years administrative experience. As aforesaid the appellant became a Post-Graduate in 1966 when he was teaching. The appellant undisputedly continued to teach until 31st January, 1984. Prior to 30th January. 1970 the appellant was teaching in some other College and since 30th January. 1970 the appellant was teaching in the self-same College. It is undisputed that since 20th May 1975 the appellant taught in his capacity as Professor. Before that he was teaching in his capacity as Lecturer. In those circumstances, as on 1st February, 1984 the appellant had acquired all the basic minimum requirements to offer himself as a candidate for being appointed as Principal of the said College. 7. However, the manner in which the advertisements had been published it appears that to be appointed as Principal of the said College the person to be appointed must be the best amongst all other eligible candidates. In such view of the matter, although the appellant was qualified to be appointed and although despite direction of this Court dated 18th December, 1991 no step was taken to appoint Principal of the said College, we cannot direct the State to accept that the appellant was regularly appointed when he was made the Incharge Principal of the said College with effect from 1st February 1984. 8. However, the fact remains and which has not been disputed and cannot be disputed that since 1st February, 1984 until 31st December. 8. However, the fact remains and which has not been disputed and cannot be disputed that since 1st February, 1984 until 31st December. 1993, i.e., until the appellant retired, the appellant while working as Incharge Principal of the said College, officiated as the Principal of the said College. 9. Bihar Service Code contains Rules framed under proviso to Article 309 of the Constitution of India. Rule 89 of the said Rules deals with officiating pay. The same is as follows: "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 as sumption of duties or responsibilities of greater importance than those attached 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 of the aforesaid permanent cost or on a scale of pay identical therewith." 10. A plain reading of Rule 89, makes it abundantly clear that a Government servant shall be entitled to draw higher than his substantive pay only when he has been asked to discharge officiating duties involving assumption of duties and responsibilities of greater importance than those attached to the post he is entitled to and when the officiating post carries a better scale of pay. The directions contained in Rule 89 are subject to the provisions of Rule 103 of the said Code. The said Rule is as follows: "103. The directions contained in Rule 89 are subject to the provisions of Rule 103 of the said Code. The said Rule is as follows: "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 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 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." 11. Therefore, if a Government servant is asked to discharge officiating duties involving assumption of duties and responsibilities of greater importance than those attached to the post held by him originally, and if the officiating post carries a higher scale of pay than the scale of pay the said Government servant is entitled to, he shall be entitle to the scale of pay attached to the officiating post. This entitlement will continue until such time he continues to discharge the officiating duties. 12. Therefore, the question is whether the cost of Principal in which the appellant was directed to officiate on and from 1st February, 1984 involved assumption of duties or responsibilities of greater importance than those attached to the post then held by the appellant, i.e. the post of Professor. There is no dispute that the scale of pay applicable to the post of Professor is lower than the scale of pay applicable to the post of Principal. It goes without saying that Principal, being the leader of the team of teachers, the post of Principal involves assumption of duties and responsibilities of greater importance. There being no dispute that the appellant having discharged the duties of Principal from 1st February, 1984 until his retirement, i.e. until 31st December, 1993, the appellant is entitle to the highest pay to which he would be entitled if his appointment to that post stood alone. There being no dispute that the appellant having discharged the duties of Principal from 1st February, 1984 until his retirement, i.e. until 31st December, 1993, the appellant is entitle to the highest pay to which he would be entitled if his appointment to that post stood alone. In the instant case, his appointment in officiating capacity stood alone to the post of the Principal of the said College involving assumption of greater responsibilities and duties. The appellant, thus, in terms of the provisions of the said Code, became entitle to the pay attached to the post of Principal of the said College on and from 1st February, 1984 until 31st December, 1993 and also to pension and other terminal benefits upon taking into account the entitlement of such pay. 13. In the circumstances, we do not agree with the writ court that the appellant was only entitled to special allowances and not the pay of the Principal of the said College and, accordingly, set aside the judgment and order under appeal and dispose of the letters patent appeal by directing the State to pay to the appellant the emoluments attached to the post of Principal of the said College less remunerations already paid to the appellant for the period 1st February, 1984 until 31st December, 1993 and to realculate pension and other terminal dues due and payable to the appellant taking into account the pay to which he is entitled to but not paid to him, as above, within a period of six months from today. 14. The appeal is allowed to the extent, as above.