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2008 DIGILAW 727 (PAT)

Patna Municipal Corporation v. Ram Ratan Singh

2008-05-21

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ORDER 1. The fold contention has been advanced by the Senior Counsel for the appellant. Firstly, he submitted that in the writ petition filed In the year 2002, the payment of salary for the period from the year 1986 could not have been granted as the claim suffered from gross delay. Secondly, the Senior Counsel submitted that the original writ petitioner (Respondent No.1 here) would at best be entitled to the allowances provided under Rule 103 of the Bihar Service Code for the discharge of duties as Sanitary Inspector. Senior Counsel, thus, submitted that the order of the learned Single Judge in directing the present appellant to give benefit to the original writ petitioner of basic pay of the post of Sanitary Inspector for the period from 1.3.1986 to 2.1.2002 was bad in law. 2. We considered the submissions of the Senior Counsel. In our considered view, none of the contentions has any merit. It is not in dispute that the original writ petitioner-respondent no. 1, although was substantively holding the post of Sanitary Supervisor but he was asked to discharge the duties of Sanitary Inspector on and from 1.3.1986. That he continued to discharge the duties of Sanitary Inspector for an uninterrupted period of about 15 years 10 months upto 2.1.2002 is not in dispute. This factual position would show that although initially the original writ petitioner was asked to discharge the duties of Sanitary Inspector as a stop-gap arrangement but by passage of time that did not remain to be so, as he was asked to continue to discharge the duties of Sanitary Inspector as long as for more than 15 years. Seen thus, the direction of the Single Judge to the appellant-Corporation to give the benefit of basic pay of the post of Sanitary Inspector to the original writ petitioner cannot be said to suffer from any legal flaw. 3. In the case of Virendra Kumar Srivastava Vs. State of Bihar & Others, 2005(4) PLJR, 393, the learned Single Judge of this Court held thus: "8. Undlsputedly, the work on the post of Additional Director was taken from the petitioner from 1.8.1989 till his retirement on 31.5.1995 i.e. about six long years which in view of the principle decided by the Apex Court in the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others (supra) cannot be considered as, stop-gap arrangement. Undlsputedly, the work on the post of Additional Director was taken from the petitioner from 1.8.1989 till his retirement on 31.5.1995 i.e. about six long years which in view of the principle decided by the Apex Court in the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others (supra) cannot be considered as, stop-gap arrangement. The Supreme Court in the said case held that the respondents had right to be considered for regular promotion. In the present case, it is not the case of the respondents that work from the petitioner was taken out of this turn for due promotion. Under such circumstances, in my opinion, in view of the law settled by the Apex Court, the respondent-State was obliged to consider the case of the petitioner for regular promotion of which he has been kept I denied arbitrarily on lame excuse of pendency of the proceeding which also was over after quashing of the order of punishment referred to above by this Court. According to the provisions, contained in sub-clause (ii) of Clause (a) of proviso to Rule 43(b)of the Bihar Pension Rules, the proceeding can be initiated even after retirement but, in respect of an event which took place not more than four years before the institution of such proceeding. In absence of liberty sought for/granted by this Court, the proceeding ended by quashing of the impugned order. The State obviously now is required to take fresh decision regarding initiation of proceeding with respect to the charges relating to the period 1987-88. Under such circumstances, it is not free from doubt that such initiation of proceeding is barred in view of the aforementioned provision of the Bihar Pension Rules and thus the plea that the file is being processed and is being submitted for the decision before His Excellency Governor is mala fide. 9. Accordingly, writ application is allowed. In the light of the decision of the Supreme Court in the case of Smt. P. Grover Vs. State of Haryana and Another reported in AIR 1983 S.C. 1060 , the respondents are directed to consider the case of the petitioner for grant of salary for the post of Additional Director on which work has been taken from him from 1.8.1989 till his retirement i.e. 31.5.1995 and also for consequential fixation of his retirement dues accordingly from that day within one month from today. Further in the facts and circumstances aforementioned and in view of the principle decided by the Apex Court, in the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others (supra) the respondent State is directed to consider the case of the petitioner for regular promotion from. due date within three months from today. In view of the abovementioned order M.J.C. No. 697 of 2003, in which prayer is to initiate contempt proceedings against the opposite parties for their willful disobedience of the order dated 26.11.2002 passed in C.W.J.C. No. 9350 of 1998, whereby the opposite parties were directed to pay the petitioner the additional remuneration to which he is entitled under Rule 103 of the Bihar Service Code, is disposed of accordingly." 4. It may be immediately noticed that the aforesaid view of the learned Single Judge in Virendra Kumar Srivastava (supra) is based on two decisions of the Supreme Court in the case of (1) Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma & Ors., (1998)5 SCC 87 and (2) Smt. P. Grover Vs. State of Haryana & Anr., AIR 1983 S.C. 1060 . 5. Since the original writ petitioner was asked to work as Sanitary Inspector, although he was substantively holding the post of Sanitary Supervisor, for more than 15 years and he was denied regular promotion, in our considered view the original writ petitioner was entitled to the basic pay of the post of Sanitary Inspector. We, accordingly, concur with the view of the Single Judge. 6. Non-payment of basic pay of the post of Sanitary Inspector to which the original writ petitioner was entitled to, was a recurring cause of action and, therefore, there is no merit in the submission of the Senior Counsel that in the writ petition filed in the year 2002, it was not open to the learned Single Judge to direct the present appellant to pay the basic pay of the post of Sanitary Inspector for the period from 1.3.1986 to 2.1.2002. Incidentally, we may notice that on and from 3.1.2002 the original writ petitioner was substantively promoted to the post of Sanitary Inspector, the duties of which he has been discharging for the last more than 15 years. 7. Consideration of the matter by the Single Judge does not warrant any interference by us. 8. This Letters Patent Appeal is dismissed in limine.