ORDER This writ petition by the four writ petitioners is for a direction to the State and the respondents to substantively give promotion to them from the date they were appointed as acting Executive Engineers and, consequently, to quash the order of the Secretary, Public Health Engineering Department, Bihar, Patna (Annexure-1). 2. There is a counter affidavit and the supplementary affidavit thereto and with consent of parties the writ petition has been heard for its final disposal at this stage itself. 3. Mr. Basant Kumar Choudhary, learned Senior Counsel appearing in support of the writ petition submits that substantively the petitioners were Assistant Engineers in the Department of Public Health Engineering. They were fully qualified to be promoted to the post of Executive Engineers. There were vacancies available but for various ulterior motive and considerations State instead of giving them substantive promotion gave them promotion as incharge Executive Engineers which posts they were qualified to hold substantively. They all retried as such. The adverse effect that has taken place is that they have retired on substantive pay scale of an Assistant Engineer with only officiating allowance added to their pay scale. There is a big difference between the substantive pay of Executive Engineer and that which the petitioners were being paid being substantive pay of Assistant Engineer plus allegedly 20% as the officiating pay. It may be noted that in the impugned Annexure-1 itself the Secretary has noted that even officiating pay of 20% have not been actually paid to the petitioners as such request for the same has been made to the Finance Department. The effect is that even upon superannuation the petitioners become deprive of substantial benefits while State wrongly gains in this manner. In other words, it is a wrongful loss to the petitioners and wrongful gain for the State. 4. In my view, the first question arises for consideration is that whether there were substantive vacancy on the post of Executive Engineers or not because if there was no substantive vacancy there could be no promotion. Then, acting Executive Engineer would be merely a stop gap arrangement and not a camouflage to deny payments. In this connection, learned counsel for the State submits that the stand taken in the counter affidavit as well as in the impugned Annexure-1 is that there was no vacancy. This raises two issues. Then, acting Executive Engineer would be merely a stop gap arrangement and not a camouflage to deny payments. In this connection, learned counsel for the State submits that the stand taken in the counter affidavit as well as in the impugned Annexure-1 is that there was no vacancy. This raises two issues. Firstly, whether the statement is correct and, secondly, if there was no vacancy then on what posts were the petitioners made incharge. Was it additional post created? The stand of the State that there was no additional post created. At this stage attention of the Court is drawn to Annexure-5 page-96 of the writ petition which is a communication of the Joint Secretary of the Department to the Bihar Public Service Commission. In the said communication, it is clearly stated that on 07.12.1993 14 Executive Engineers were promoted and made acting Superintending Engineers on the vacant posts of Superintending Engineers. Thus, there were 14 posts of Executive Engineers which were lying vacant. This position is not denied by the State. What the State submits is that indeed there were vacant posts of Superintending Engineers but Executive Engineers were not substantively promoted as Superintending Engineers. They were made to function as acting Superintending Engineers. They being substantively Executive Engineers, there was no substantive vacancy at that level and consequently petitioners could only be acting Executive Engineers and not substantive Executive Engineers. I am afraid that the State has put the entire system upside down. It has not explained nor any attempt to explain has been made as to why the substantive vacancies at different levels were not filled up by a substantive promotions immediately. People like the petitioners who were substantively Assistant Engineers were made to work as a substantive Executive Engineers not as a stop gap arrangement but till their superannuation. Similarly substantive Executive Engineers were made to work like substantive Superintending Engineers without substantive promotion. The reason is one and singular. Lethargy on the part of the Government in taking appropriate actions for promotions which indirectly inured to the benefit of the Government in terms of saving huge sum of money. The acting Superintending Engineers, being substantively the Executive Engineers, were never paid wages of the Superintending Engineers. Petitioners though made to work as Executive Engineers were paid only as substantive Assistant Engineers. When it came to retirement benefit again all were calculated on this arbitrary basis. The acting Superintending Engineers, being substantively the Executive Engineers, were never paid wages of the Superintending Engineers. Petitioners though made to work as Executive Engineers were paid only as substantive Assistant Engineers. When it came to retirement benefit again all were calculated on this arbitrary basis. The question would be, can the State, which is a welfare State, be permitted to device the system and operate it in such a manner? The answer is emphatic no. Obviously, what the State was doing was instead of giving substantive promotions which would entail substantial payment due to everyone they were given ad hoc or incharge designations upon promotion, thus, depriving them of their legitimate rights of remunerations. It does not behove of welfare Government under our constitutional set up to do so. 5. Learned counsel for the State points out that under the Bihar Service Code there is a provision for payment of officiating allowance, the petitioners at best would be entitled to officiating allowance. In my view, the contention is noted only to be rejected. If we refer to the provisions of the Service Code, there are two provisions for this contingency. One as the learned counsel for the State points out the officiating pay. Yet, there is another which says that if a person duly qualified is required to exercise functions and duties of a higher position which entails different and higher degree of responsibility then he has to be paid the emolument for the higher position. The distinction between the two is clear. In the first with regard to officiating pay, a person substantively is on a lower pay scale and as a stop gap arrangement temporarily as an additional charge is put on a higher position. The measure is for short time and temporary. In the other case it is different. The person is substantively exercising functions of a higher post rather then said to be merely acting there. The Service Code itself provides that he has to be paid higher remuneration otherwise it would be highly arbitrary. A person may be an Assistant Engineer and by dint of his seniority and length of service entitled to be promoted as Executive Engineer and then Superintending Engineer. The Service Code itself provides that he has to be paid higher remuneration otherwise it would be highly arbitrary. A person may be an Assistant Engineer and by dint of his seniority and length of service entitled to be promoted as Executive Engineer and then Superintending Engineer. The State can deprive him of all those promotions and instead of granting substantive promotion make him acting Superintending Engineer pay him only 20% of his basic pay as officiating allowance and be done with it. This would be gross exploitation and cannot be permitted. 6. Thus, found there were substantive vacancies but for governmental in-action petitioners were in fact filling up those vacancies as substantive Executive Engineers. It is not denied, rather in the counter affidavit it is accepted, that the petitioners were eligible to be considered for promotion to the post of Executive Engineer but merely because the State had not finalize the gradation list and merely because the Executive Engineers had not substantively be promoted to Superintending engineers where vacancies were available, the petitioners could not be promoted as substantive Executive Engineer. In other words, one default after another default by the State itself is raised as a ground for denying rights which belonged to the petitioners. That, in my view, cannot be permitted. The designation “Acting” was a colourable exercise. 7. Thus, it is found that petitioners were required to officiate on a higher post of the Executive Engineers involving higher responsibility. That was not for a short period but in all cases up to their superannuation. I may note one other aspect that though they are shown to be substantive Assistant Engineers, they were not posted as Assistant Engineers, but they ceased to hold that post while officiating as Executive Engineers. In some what similar case the Division Bench of this Court in the case of Prafulla Ranjan Shrivastava Vs. the State of Bihar and others since reported in 2008(3) PLJR 144 has held that where the person was holding additional charge of Chief Town Planner for almost a year before superannuating, this Court held that he would entitle to differential amount of salary and post retirement benefit accordingly. In this connection, I may refer to another Division Bench judgment in which I was also a member, that is, in the case of Dr. Nitya Gopal Bandyopadhyay Vs. In this connection, I may refer to another Division Bench judgment in which I was also a member, that is, in the case of Dr. Nitya Gopal Bandyopadhyay Vs. the State of Bihar and others since reported in 2008(1) PLJR 245 , this Court analyzed the provisions of the Bihar Service Code and held in view of the Rules-89 & 103 of the Service Code that a person would be entitled to full remuneration of the higher post on which he is officiating. In that case a Supervisor was required to officiate as a Principal, this Court found that the pay were different, the responsibilities were much greater and as such he was entitled to full remunerations of the said post. 8. If we look to the facts of the present case, it is not much different from the two Division Bench judgments aforesaid. Here the petitioners were substantive Assistant Engineers. They were fully qualified to be appointed as Executive Engineers who had been promoted and were made acting Superintending Engineers on substantive vacancies. But, State having slept on all these steps is now denying the rightful claim of the petitioners. It is out right exploitation. The work of Executive Engineer was being taken from them without payment thereof. Here I may profitably refer to what Chief Justice Chagla has to say in the case of All India Groundnut Syndicate Limited Vs. Commissioner of Income Tax, Bombay City, since reported in AIR 1954 Bombay 232, which is quoted hereunder:– “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income-tax Department is included in that definition- can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 9. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 9. In view of the aforesaid, I have no option but to direct that either the State is obliged to confirm the petitioners as substantive Executive Engineers from the date they were appointed as incharge Executive Engineers with all consequential benefits or in terms of Rules-89 & 103 of the Bihar Service Code pay them the full remuneration of the higher post, that is, Executive Engineers from the time they were appointed as incharge Executive Engineers which pay and pay scale would also be the last pay drawn for the purposes of calculating all retirement benefits. Whatever decision is taken has to be taken by the Secretary, Public Health and Engineering within a period of three months from this date and the benefits would be ascertained and paid within three months thereafter. The order would be required to be communicated to the petitioners. 10. With the aforesaid observations and directions, the writ petition is allowed and, accordingly, Annexure-1 is quashed.