Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1327 (PAT)

Md. Masood Yusuf v. State Of Bihar

2012-09-19

CHAKRADHARI SHARAN SINGH, T.MEENA KUMARI

body2012
CAV JUDGMENT CHAKRADHARI SHARAN SINGH, J. 1. All the three appeals under Clause 10 of the Letters Patent of the Patna High Court arise out of the common order dated 27.10.2005 passed by the learned Single Judge in CWJC No. 9448 of 1997 (Md. Masood Yusuf vs. State of Bihahr & ors) and CWJC No. 5942 of 1998 ( Md. Mjibur Rahman Vs. State of Bihar & ors.). 2. It would be apt to refer to the facts first before describing the circumstance in which the above mentioned three Letters Patent Appeals have been filed. 3. Md. Masood Yusuf was appointed as Assistant Anti- Malaria Officer on 1.2.1956. The nomenclature of the post was changed to Assistant Malaria Officer with effect from 26.9.1977. The case of Md. Masood Yusuf is that he was asked to officiate as District Malaria Officer, Katihar with effect from 28.7.1982 in addition to holding the substantive post of Assistant Malaria Officer. The further plea of the petitioner is that he retired as such after attaining the age of superannuation with effect from 28.2.1993. Md. Masood Yusuf filed CWJC No. 9448 of 1997 on 3.10.1997 seeking the relief from this Court to grant deemed promotion to the petitioner to the post of District Malaria Officer with effect from 28.7.1982 till the date of superannuation; to pay differences of pay and arrears of salary arising out of such promotion and to pay revised retirement benefits or alternatively pay 20% of officiating allowances and also to pay revised Leave encashment of 240 days of un-utilized leave salary admissible to the post of In-charge District Malaria Officer. His case was based on the provisions envisaged under Rules 58 and 103 of the Bihar Service Code. 4. The case of Md. Masood Yusuf in the writ application was that he was entitled to pay scale of Rs. 3000 to 4000/- per month which is the pay admissible to the District Malaria Officer from 28.7.1982 till the date of his superannuation i.e. 28.2.1993 as against the pay actually paid to him admissible to the post of Assistant Malaria Officer which he was holding in substantive capacity. His further case was that he was entitled for consequential revision in the fixation of pension treating his last pay drawn to be in the scale admissible to the District Malaria Officer. 5. Md. Mojibur Rahman was appointed as Assistant Anti-Malaria Officer on 4.3.1957. His further case was that he was entitled for consequential revision in the fixation of pension treating his last pay drawn to be in the scale admissible to the District Malaria Officer. 5. Md. Mojibur Rahman was appointed as Assistant Anti-Malaria Officer on 4.3.1957. In his case also as stated above, nomenclature of his post was also changed to Assistant Malaria Officer. He claims that he officiated as District Malaria Officer with effect from 15.12.1982 and retired after attaining the age of superannuation with effect from 30.12.1993. He also claimed similar reliefs as sought for by Md. Masood Yusuf by filing CWJC No. 5942 of 1998 on 23.7.1998. 6. Learned Single Judge by the common order dated 27.10. 2005 passed in both the writ applications allowed the claim of Md. Masood Yusuf and Md. Mojibur Rahman to the extent that they were entitled to pay and allowances of District Malaria Officer for the period during which they worked as such in officiating capacity. Learned Single Judge, however, rejected their claim of revision of pension on the basis of entitlement of their pay of the post of District Malaria Officer. 7. Md. Massod Yusuf has filed LPA No. 1344 of 2005 challenging the order of the learned Single Judge to the extent the learned Single Judge rejected his claim for grant of revised pension on the basis of the pay of the District Malaria Officer which he has been held to have been entitled to as per the order of the learned Single Judge. Md. Mojibur Rahman has not preferred any appeal against the order of the learned Single Judge. The State of Bihar has filed two appears vide LPA No. 484 of 2006 (State of Bihar & ors. Vs. Md. Masood Yusuf) and LPA No. 485 of 2006 (State of Bihar and ors Vs. Md. Majibur Rahman), questioning the validity of the order of the learned Single Judge to the extent he allowed the claim of the respondents for grant of pay admissible to the District Malaria Officer. These are the circumstances in which these three appeals have come up for hearing before us. 8. We have heard Mr. Farooque Moazzam, learned counsel for the appellants, Md. Massod Yusuf in LPA No. 1344 of 2005 and Mr. Alok Kumar, JC to G.A.-I for the State of Bihar, the appellant in LPA No. 484 of 2006 and LPA no. These are the circumstances in which these three appeals have come up for hearing before us. 8. We have heard Mr. Farooque Moazzam, learned counsel for the appellants, Md. Massod Yusuf in LPA No. 1344 of 2005 and Mr. Alok Kumar, JC to G.A.-I for the State of Bihar, the appellant in LPA No. 484 of 2006 and LPA no. 485 of 2006 at length. Mr. Moazzam has represented the private respondents in LPA No. 484 of 2006 and LPA No. 485 of 2006 and has made his submissions. 9. The facts and issues involved in both the cases are more or less identical. From the facts it appears that even if it is presumed for the time being that the private respondents in fact officiated as District Malaria Officer from 1982 to 1993, in the pleadings in their respective writ applications, there is absolutely no assertion that during these eleven years they ever claimed higher pay of the post of District Malaria Officer or even the officiating pay. Even after superannuation they did not raise any such plea as there is no statement in the writ applications that they ever approached the authorities for grant of pay of the post of District Malaria Officer against which they were said to have been asked to officiate while holding the post of Assistant Malaria Officer in substantive capacity. More than four years after their superannuation they straight away filed the writ applications before this Court, for the first time claiming the pay admissible to the post of District Malaria Officer, on the ground that they were asked to officiate as District Malaria Officer. In our opinion, such belated claim can not be entertained in exercise of the discretionary writ jurisdiction under Article 226 of the Constitution of India in the absence of any justification or explanation in their respective pleadings. 10. Now coming to the pleadings in the writ application Md. Masood Yusuf has made the following statements in paragraph 10 of the present memo of appeal (LPA No. 1344 of 2005) in order to claim the pay of the District Malaria Officer. “10. 10. Now coming to the pleadings in the writ application Md. Masood Yusuf has made the following statements in paragraph 10 of the present memo of appeal (LPA No. 1344 of 2005) in order to claim the pay of the District Malaria Officer. “10. That it is important to state here that the State Government has taken a decision and to that effect a proposal was pending before the State Government that in near future all Assistant Malaria Officer have to be given charge of or to officiate on the post of District Malaria Officer. Accordingly the appellant awaiting the decision of the State Government unilaterally taken over the charge of District Malaria Officer, Katihar on 28.7.1982 and started officiating as such and also became Drawing and Disbursing authority in addition to the post of Assistant Malaria Officer and superannuated on 28.2.1993 as in the case of sri S.S. Haque, Assistant Malaria Officer, Gopalganj was done vide memo no. 1650 dated 8.6.1981 and Memo No. 1657 dated 17.7.1981 the Chief Malaria Officer, Bihar directed the Civil Surgeon-cum-Chief Medical officer, Gaopalganj to direct Dr. Subash Chandra Roy to hand over charge of District Malaria Officer, Gopalganj to Sri S.S. Haque, Assistant Malaria Officer on the ground that a proposal is pending before the State Government that in near future all Assistant Malaria Officer have to be given charge of or to officiate on the post of District Malaria Officer. Accordingly Sri S.S. Haque did officiate to the post of District Malaria Officer, Gopalganj on 23.6.1981 and superannuated on 31.12.1990. They are Annexures-4 and 4/A respectively to the writ application”. 11. A counter affidavit was filed on behalf of the State of Bihar in the said CWJC No. 9448 of 1997. Paragraph 5 of the said counter affidavit reads thus:- “5. That it is stated that the petitioner was asked to discharge the duty of drawing and disbursing Officer in the capacity of Assistant Malaria Officer vide order no. 125(19) dated 24.2.1982. The petitioner was never asked to function as District Malaria Officer, a post of Medical cadre, a spost of non-medical. In the light of the above order the petitioner discharged the duty of drawing and disbursing officer in the capacity of Assistant Malaria Officer which clearly indicates that the petitioner never worked as District Malaria Officer. Hence, the grievances of the petitioner is not justified in (sic.)as per service rules”. In the light of the above order the petitioner discharged the duty of drawing and disbursing officer in the capacity of Assistant Malaria Officer which clearly indicates that the petitioner never worked as District Malaria Officer. Hence, the grievances of the petitioner is not justified in (sic.)as per service rules”. 12. No reply to the counter affidavit was filed on behalf of Md. Masood Yusuf. The specific plea of the State in the writ proceeding was that Md. Masood Yusuf was merely asked to discharge the duties of Drawing and Disbursing Officer in the capacity of Assistant Malaria Officer. In such circumstance, he could not have been held that he in fact officiated as District Malaria Officer. 13. In CWJC No.5942 of 1998 also a counter affidavit was filed taking the following specific plea in para 7 of the counter affidavit. “7. That with regard to the relief prayed for in paragraph no. 1(a),3,9,19,20,24,25,26,28 and 29 of the writ application, it is stated that the post of District Malaria Officer is a post of Health cadre i.e. Medical Officer or Doctor having a minimum qualification of MBBS, whereas the post of Malaria Officer is a non-medical post having a minimum qualification of B.Sc. It is clear that the post of District Malaria Officer is quite different from the post of Assistant Malaria Officer. It is further stated that vide letter No. 127 dated 24.2.1982 (Annexure-4 of the writ petition) the petitioner was never designated as In-charge District Malaria Officer rather simply they were declared Drawing and Disbursing Officer in the capacity of Assistant Malaria Officer and not as a District Malaria Officer, to facilitate the working of the programme. The demand of the petitioner is not justified in the light of the fact that both the posts are quite different from each other i.e. District Malaria Officer is a medical Graduate post, whereas Assistant Malaria Officer post is a non- medical Graduate post”. 14. No rejoinder to this counter affidavit was filed on behalf of Md. Mojibur Rahman. It could not be held on the basis of pleadings that he in fact officiated as District Malaria Officer. 15. The claim of Md. Masood Yusuf and Md. Mojibur Rahman is based on Rules 58 and 103 of the Bihar Service Code. 14. No rejoinder to this counter affidavit was filed on behalf of Md. Mojibur Rahman. It could not be held on the basis of pleadings that he in fact officiated as District Malaria Officer. 15. The claim of Md. Masood Yusuf and Md. Mojibur Rahman is based on Rules 58 and 103 of the Bihar Service Code. I am afraid, Rule 58(a) of the Bihar Service Code can have any application in the facts and circumstances of the case. Rule 58(a) of the Bihar Service Code reads thus:- “58. (a) Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.” 16. The Rule provides for payment of pay and allowances attached to his “tenure post”. Rule 49 of the Bihar Service Code defines the “tenure post” in following terms:- “49. Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period. In case of doubt the State Government will decide whether a particular post is, or is not a tenure post”. 17. The petitioners before learned Single Judge in no circumstance could successfully claim that they were holding “tenure post” of District Malaria Officer in officiating capacity while holding the post of Assistant Malaria Officer so as to claim that they would have been entitled to the pay admissible to the post of District Malaria Officer. In our opinion, therefore, the writ petitioners who are respondents in LPA No. 484 of 2006 and LPA No. 485 of 2006 cannot invoke Rule 58 of the Bihar Service Code to claim pay admissible to the post of District Malaria Officer. 18. As regards their claim under Rule 103 of the Bihar Service Code is concerned, it would be appropriate to quote the provision itself:- “103. 18. As regards their claim under Rule 103 of the Bihar Service Code is concerned, it would be appropriate to quote the provision itself:- “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 the 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”. Below Rule 103 of the Bihar Service Code, there is a note which reads thus:- “Note 1.- The expression “independent posts” used in this rule means posts which are independent of one another i.e. posts the incumbent of one of which is not expected to do the duties of any other”. 19. In order to claim benefit under Rule 103 of the Bihar Service Code an employee has to establish that he was holding two or more “ independent posts”. The expression “independent posts” has been clarified in note 1 as quoted above. The State of Bihar vide Memo No. 1479F dated 30.12.1968 had issued a clarification on the grant of additional pay under Rule 103 of the Bihar Service Code. While clarifying the position it has been specifically mentioned in the above mentioned letter that the additional post, duties of which are combined should not be on the same establishment or office and should not fall in the line of normal promotion. Citing example, it says that the post of Under Secretary/Deputy Secretary, Deputy Directors, Deputy Commissioner, Accountants, Assistants and Clerks in the same office or establishment are not independent of each other for the purpose of the rule. However, in the present case there is no whisper in either of the writ applications filed by Md. Masood Yusuf and Md. Citing example, it says that the post of Under Secretary/Deputy Secretary, Deputy Directors, Deputy Commissioner, Accountants, Assistants and Clerks in the same office or establishment are not independent of each other for the purpose of the rule. However, in the present case there is no whisper in either of the writ applications filed by Md. Masood Yusuf and Md. Mojibur Rahman that the post of District Malaria Officer which they claimed to have held in officiating capacity was independent or the duties of the Assistant Malaria Officer which they were holding substantively. For this reason also, we find that the petitioners cannot claim benefit of Rule 103 of the Bihar Service Code to claim the pay admissible to the post of District Malaria Officer. 20. As we have held that the respondents in LPA No. 484 of 2006 and 485 of 2006 are not entitled for any enhanced pay on the basis of their claim that they officiated on higher post of District Malaria Officer, there is no occasion for us to decide whether they would be entitled to revision of pension on that basis or not. 21. In our opinion, the condition of service of Members of any public service are governed by statutory rules or orders, judgments of service law are to be understood in the context of the relevant rules. 22. Md. Farooque Moazzam, learned counsel appearing on behalf of the writ petitioners (respondent in the Appeals preferred by State) has heavily relied on a Single Judge judgment of this Court reported in 1995(1) PLJR 362 ( Dr. Sachita Kumar Sinha Vs. State of Bihar), in order to contend that they are entitled for higher pay and for consequent revision of pension. We are of the view that the said judgment has not scrutinized the relevant rules under the Bihar Service Code and cannot be held to be a good law. Unless it is held that the combination of posts, one held in substantive capacity and other(s) is/are officiating capacity are “independent posts”, the Government servant cannot get additional/compensatory pay on the strength of Rule 103 of the Bihar Service Code. 23. Learned Single Judge has relied on the judgment of the Apex Court reported in (1998) 4 SCC 291 (Selvaraj V. Lt. Governor of Island. 23. Learned Single Judge has relied on the judgment of the Apex Court reported in (1998) 4 SCC 291 (Selvaraj V. Lt. Governor of Island. Port Blair) to allow the claim of writ petitioners before him for grant of pay admissible to the higher post of District Malaria Officer. From the reading of the said judgment, it appears that the Government servant in that case was a teacher in Primary School and was transferred to the Directorate of Education (Scout Sections) to look after the duties of Secretary (Scouts). The said judgment of the Apex court, in our opinion, cannot be applied in facts and circumstances of the present case. 24. For applying precedents the Court can place reliance only after discussing as to how facts/situation of the case before it fits in with the facts and situation of the decision on which reliance is placed. As has been held by the Apex court in the judgment reported in (2011) 7 SCC 397 (Union of India vs. Arulmozhi Iniarasu) that observations of Courts are neither to be read as Euclid’s theorems nor as provisions of statute. 25. In view of the above, we are of the opinion that the writ petitions being CWJC No. 9448 of 1997 (Md. Masood Yusuf Vs. State of Bihar & ors) and CWJC No. 5942 of 1998 ( Md. Mojibur Rahman Vs. State of Bihar & ors) are fit to be dismissed and are accordingly, dismissed. 26. LPA No. 1344 of 2005 (Md. Masood Yusuf Vs. State of Bihar and others) has no merit and is accordingly dismissed. LPA No. 484 of 2006( State of Bihar Vs. Md. Masood Yusuf) and LPA No. 485 of 2006 ( State of Bihar Vs. Md. Mojibur Rahman) are allowed. As we fail to agree with the reasoning and the order of the learned Single Judge dated 27.10.2005 passed in CWJC No.9448 of 1997 and CWJC No. 5942 of 1998, the same is set aside. There will be no order as to costs. T. Meena Kumari, J.- I agree.