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2012 DIGILAW 82 (PAT)

Krishna Kumar Singh v. State of Bihar

2012-01-16

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner, the State and the Accountant General, Bihar, Patna. 2. At the relevant time, petitioner served on the substantive post of Correspondence Clerk in the office of the Senior Electrical Inspector, Bihar, Patna and was asked to hold additional charge of the post of Head Clerk, Licence and Head Clerk, Inspection under office order No. 19 dated 15.2.1996 and office order No. 56 dated 9.8.1996 respectively. While holding the additional charge of the aforesaid two posts, petitioner superannuated with effect from 31.1.1997. 3. By filing this writ petition, petitioner has assailed Memo No. 492 dated 22.2.2005, Annexure-7 whereunder he has been allowed 20% of his basic pay as officiating allowance for holding the aforesaid two posts which according to the counsel for the petitioner is contrary to sub-clause (b) of Rule 103 of the Bihar Service Code (hereinafter referred to as the Code), as thereunder employer should pay officiating allowance for each of the posts held by the Government servant. 4. During the pendency of the writ petition, petitioner filed I.A. No. 3614 of 2011 assailing the order passed by the Accountant General dated 21.4.2005, Annexure-8 whereunder while fixing the pension of the petitioner, emoluments paid to the petitioner just before his superannuation, including officiating allowance was not taken into account for fixing his pension and such omission is contrary to Rule 151 of the Bihar Pension Rules (hereinafter referred to as the Rules), which require the authorities to take into account the emoluments received by the Government servant immediately before his superannuation for fixing his pension. 5. Counsel for the State and the Accountant General have opposed the aforesaid contention and have supported the contents of the impugned orders dated 22.2.2005 and 21.4.2005, Annexures-7, 8 with reference to sub-paragraph (iv) of paragraph 2 of Memo No. 14794 F dated 30.12.1968 of the Finance Department clarifying Rule 103 of the Code providing for payment of officiating allowance for each of the additional post/ posts the Government servant is required to combine with his own post provided the post combined by the Government servant is independent and in different establishment. In appreciation of the aforesaid clarification made by Finance Department, petitioner has been allowed additional pay only with respect to one of the two posts of the Head Clerk held by him as the post of Head Clerk, Inspection and Licence both are under the same establishment where the petitioner held his own substantive post of Correspondence Clerk. 6. In rejoinder, learned counsel for the petitioner submitted that post of Head Clerk, Licence and Head Clerk, Inspection are independent of each other and both cannot be combined together and officiating allowance in the light of sub-clause (b) of Rule 103 of the Code is required to be paid for each post. 7. I regret not to accept the aforesaid submission of the learned counsel for the petitioner for the reason that under circular letter of the Finance Department, bearing Memo No. 14794 F dated 30.12.1968, Rule 103 of the Code has been supplemented by providing that the additional post, the duties of which is combined by the Government servant for earning officiating allowance should not only be independent but also in the different establishment. Under clarification dated 30.12.1968, Finance Department of the Government has clarified sub-clause (b) of Rule 103 of the Code supplementing and not supplanting the rules. In the light of the instructions of Finance Department dated 30.12.1968, I do not find any illegality in the order dated 22.2.2005, Annexure-7 whereunder petitioner has been allowed officiating allowance for only one post of Head Clerk. 8. So far challenge of the petitioner against order dated 21.4.2005, Annexure-8 is concerned, that has to succeed, as while fixing his pension, the emoluments received by the petitioner just before his superannuation is required to be taken into account for calculating his pensionery benefit as is required under Rule 151 of the Rules and in appreciation of such fact order dated 21.4.2005, Annexure-8 is quashed with direction to the Accountant General to take into account the emoluments received by the petitioner just before the date of his superannuation for calculating his pensionery benefit in the light of order dated 22.2.2005, Annexure-7. 9. Necessary compliance of this order be made by the Senior Electrical Inspector, Accountant General, Bihar, Patna as early as possible, in any case within two months from the date of receipt/ production of a copy of this order before the authorities.