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2008 DIGILAW 296 (PAT)

State Of Bihar v. Parmanand Sinha

2008-02-12

BARIN GHOSH, RAJESH BALIA

body2008
Judgment 1. Having heard learned counsel for the appellants, we do not find any force in this appeal. 2. The respondent-petitioner has been appointed on probation as Assistant Professor in Mining vide order dated 26.2.1969. Having successfully completed the period of probation, he was confirmed. In 1985 he was promoted as Associate Professor. On 16.1.2.1985 (sic), the petitioner was appointed as Incharge Principal on the vacant post of Principal on which post he continued until he superannuated on 31.1.1998. However, the petitioner has not been paid the emoluments of the post of Principal but was paid the emoluments only for the post of Associate Professor for the entire period during which he was discharging the functions of Principal of the College. 3. Having not got the reliefs at the hands of the present appellants, the petitioner, in the first instance, preferred a writ petition being CWJC No. 11139 of 1999. The said writ petition was disposed of vide order dated 18.1.2005 directing the petitioner to submit a representation before the concerned authority with regard to his claim for additional allowance in view of the provisions contained in Rule 103 of the Bihar Service Code. Pursuant thereto the respondent-petitioner has submitted a representation on 5.3.2005 before the Secretary, Science & Technology Department but the same was rejected on 29.11.2005. It appears that the petitioner-respondent in the first instance moved an MJC No. 2436/ 2005 in the writ application which already stood disposed of. However, vide order dated 28.6.2006, the petitioner withdrew the MJC application for enabling him to pursue his remedy in a duly constituted fresh writ petition. This led to filing of CWJC No. 10764 of 2006, out of which this appeal has arisen. 4. The writ petition has been allowed by quashing the order rejecting the representation of the petitioner and directing the appellants to allow additional remuneration in accordance with law for the period 13.1.1986 to 31.1.1998, i.e. for the period during which the petitioner was made to work as Principal of the College. Hence, this appeal. 5. 4. The writ petition has been allowed by quashing the order rejecting the representation of the petitioner and directing the appellants to allow additional remuneration in accordance with law for the period 13.1.1986 to 31.1.1998, i.e. for the period during which the petitioner was made to work as Principal of the College. Hence, this appeal. 5. The learned counsel for the appellants contends that since the post of Principal was not a promotional post and was only carrying additional duties of administration, it cannot be said that the petitioner was holding two independent posts for the purpose of Rule 103 of the Bihar Service Code and his basic appointment as a Teacher continued to remain as such because the Principal also has to discharge the duties of a Teacher. Hence, in terms of the Government decision of 1968, referred to in the impugned order of the Secretary, Science & Technology, the petitioner was not entitled to any additional emoluments. 6. This contention of the learned counsel for the appellants, on the face of it, is fallacious. If the posts of Principal and Associate Professor are two independent posts, then in terms of Rule 89 the petitioner became entitled to get the pay of higher post for which he has been discharging the functions. If it is to be considered on the.basis that post which he was holding was a substantive post. Moreover, the contention of the learned counsel that the post of Principal does not carry higher amount of responsibilities is itself not well founded. The learned counsel for the appellants himself urged that the Principal has to discharge a lot many administrative functions and is not a post carrying merely teaching duties. It is also not in dispute that the post of Principal carries higher pay scale. The learned counsel for the appellants himself urged that the Principal has to discharge a lot many administrative functions and is not a post carrying merely teaching duties. It is also not in dispute that the post of Principal carries higher pay scale. If while working as a Principal, an Associate Professor has to discharge in addition to his own duties carrying higher responsibilities of different field altogether, it cannot be urged that he is not taking additional responsibilities other than his post so as to warrant higher of the pay of two posts in terms of Rule 89, and, if it is taken to be considered as two independent posts, which appears to be correct as the learned counsel appears to be justified in submitting that the post of Principal is not a promotional post nor an officiating post but those two posts are to be manned independently. Admittedly, the petitioner-respondent was required to discharge the duties of Teacher as well as Principal and for almost 13 years he was holding the two independent posts. In that event Rule 103 applies under which also the petitioner is entitled to pay of higher pay (sicpost ?). 7. Taking the third contingency that he was only to discharge the functions of the Principal and none other post, then also he was holding a higher post with higher pay scale. In that view of the matter, it cannot be conceived that the petitioner-respondent was not discharging the duties of a higher post whether in terms of Rule 89 or Rule 103 or independent of it by holding only one post. 8. It has also been candidly stated by the learned counsel that this officiating arrangement continued for 13 years because no selection could be made on the post for want of any action taken by the Public Service Commission for filling up the vacant post of Principal. That being so, it cannot also be considered to be a back-door entry by the petitioner-respondent so as to deny the fruits of the duties discharged by the petitioner-respondent. 9. Viewed from any angle, the judgment and order of the learned Single Judge does not call for interference. 10. Moreover, we are satisfied in the facts and circumstances of the case which are not in dispute. The judgment and order of the learned Single Judge is in furtherance of substantial justice. 11. 9. Viewed from any angle, the judgment and order of the learned Single Judge does not call for interference. 10. Moreover, we are satisfied in the facts and circumstances of the case which are not in dispute. The judgment and order of the learned Single Judge is in furtherance of substantial justice. 11. The appeal fails and the same is hereby dismissed.