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2020 DIGILAW 880 (JHR)

Preeti Devi v. State of Jharkhand

2020-09-11

DEEPAK ROSHAN

body2020
JUDGMENT : Heard Mr. Dhananjay Kumar Dubey, learned counsel for the petitioner and Mr. Rahul Kamlesh, AC to SC-IV for the State through V.C. 2. The instant application was preferred by the original petitioner-Narayan Ram for a direction upon the respondent authorities to make payment of 20% additional pay of basic pay of the petitioner in lieu of work taken by the respondent authorities for the post of Draftsman in terms of order passed in C.W.J.C. No. 3966 of 2000 as well as Letter No.1090 dated 21.06.2001 for the period from 5.11.1987 till date of his retirement i.e. 31.07.2013. 3. During pendency of this writ application, the original petitioner has died and thereafter, his widow has been substituted pursuant to the order of this Court. 4. The facts of the case as it appears from the writ application is that the petitioner was initially appointed as Work Charge in the year 1972 and, accordingly, he joined in the Department on 29.05.1972. After completing the age of superannuation, the petitioner retired from his service on 31.07.2013. During his service, on the basis of application filed by the petitioner for grant of promotion to the post of Draftsman, Respondent no.6 had issued a letter no.163 dated 14.2.1985, stating therein that in his division, there are three sanctioned posts of Draftsman and out of three only one Draftsman is posted and two posts are lying vacant. By the said letter, the said respondent had recommended the petitioner for promotion on officiating basis against vacant sanctioned posts of Draftsman (Annexure-1). Again by Memo no.583 dated 17.4.1985, an office order was issued, whereby the petitioner had been allowed 20% additional pay of his basic pay till further order in terms of Rule 103 of the Service Code (Annexure-2). Subsequently, under Memo no.2467 dated 28.10.1986, a letter was issued under the signature of the Engineer-in-Chief, road Construction Department-Respondent No.5, where a request had been made to get consent of the Finance Department regarding payment of 20% additional pay of the basic pay of the petitioner, who is working on the post of Draftsman in terms of rule 103 of the Service Code. In the meantime by Letter no.433 dated 14.5.1987, a letter had been issued by the Respondent no.6 to the Respondent no.5 in which it has been specifically mentioned that in the division, there are three sanctioned posts of Draftsman and out of three, two posts are still vacant and he had requested to consider the case of the petitioner for promotion to the post of Draftsman (Annexure-4). Again an office order was issued vide Memo no.1242 dated 13.7.1987, whereby approval had been given for payment of 20% additional pay of the basic pay in terms of Rule 103 of the Service Code for further six months (Annexure-5). Thereafter, again the Respondent No.5 had issued Letter no.2146 dated 11.12.1987 to the Respondent no.6, directing him to send a clear cut opinion to the office of the signatory for the purpose of giving promotion on officiating basis on the post of Draftsman to the petitioner, so that appropriate step may be taken accordingly (Annexure-6). After expiry of the sanction order for payment of 20% additional pay, as shown in letter dated 13.7.1987, again by letter no.1101 dated 19.12.1987, a letter has been issued from the office of the Respondent no.6 to the Respondent no.5, whereby Respondent no.6 has clearly stated that all three posts of Draftsman in his division are vacant and due to non-availability of regular Draftsman the petitioner is working since long and his work is fully satisfactory to the concerned authority. Therefore, he may be given promotion on the post the Draftsman and at present, 20% additional pay of basic pay can be given to the petitioner, as he is performing the duty of Draftsman (Annexure-7). Pursuant to the said letter dated 19.12.1987, an office order was issued by the Respondent no.5, whereby sanction had been accorded for payment of 20% additional pay of basic pay from the date of issuance of the letter in terms of Rule 103 of the Service Code (Annexure-8). Thereafter, the petitioner filed a representation before the Respondent no.6 on 25.3.1988, requesting therein to grant him promotion on officiating basis or to pay 20% additional pay of his basic pay. Thereafter, the petitioner filed a representation before the Respondent no.6 on 25.3.1988, requesting therein to grant him promotion on officiating basis or to pay 20% additional pay of his basic pay. The said representation of the petitioner was forwarded by the Respondent no.6 vide Letter no.1203 dated 21.11.1998 with an observation that by letters dated 17.4.1985, 13.7.1987 and 15.1.1988, on account of functioning on the post of Draftsman, the petitioner was granted 20% additional pay of his basic and still he is functioning on the post of Draftsman (Annexure-9). When the petitioner was not able to get any positive response from the side of the respondents regarding payment of 20% additional pay of basic pay and also seniority list, which was published and objections were invited, was not finalized, then the petitioner finding no way moved this Court by way or filing writ application, bearing C.W.J.C. No. 3966 of 2000, which was finally heard and disposed of by order dated 15.3.2001 (Annexure-10), whereby the respondent authorities were directed to issue a final seniority list and also to take a final decision on the issue of 20% additional pay to the petitioner. Thereafter, Respondent no.5 vide his Letter no.1090 dated 21.6.2001 wrote a letter to the Chief Engineer for compliance of the direction issued by the Hon'ble High Court in the writ application. (Annexure-11). Again by Letter no.579 dated 14.7.2001, Respondent no.6 had written a letter, in compliance of Letter no.748 dated 8.5.2001, specifically mentioning therein with regard to working of the petitioner on the post of Draftsman. In the last paragraph of the said letter, it has been mentioned that the petitioner is working apart from his post on the post of Draftsman since 17.4.1985 and for some period as per the sanction he has been paid 20% additional pay of his basic pay (Annexure-12). In the year 2002, by Office Order no.61, which was issued vide Memo No.545 dated 3.6.2002, on account of transfer of one draftsman, namely Amit Kumar Dutta, the petitioner was directed to take over the charge of the office of said Amit Kumar Dutta and, accordingly, on 4.6.2002 in compliance of the direction issued on 3.6.2002 the petitioner had taken over the charge of Draftsman, Class-II (Annexure-13 and 13/1). On attaining the age of superannuation, an office order was issued from the office of the Respondent no.6 vide Memo no.1007 dated 29.7.2013, directing the petitioner to hand over the charge of Draftsman to one Anurag Anand, since he is going to superannuate on 31st July, 2013. Accordingly, in compliance of the said office order dated 29.7.2013, the petitioner handed over the charge on 31.7.2013 (Annexure-14 and 14/1). 5. The specific case of the petitioner is that in spite of the order passed by this Court, the petitioner did not get the fruit of the order. The petitioner also made a representation before the concerned respondent authorities, requesting therein to make payment of 20% additional pay of his basic pay for working on the higher post of Draftsman for which for some period he has already been paid 20% additional pay of his basic pay in terms of the sanctioned order issued by the respondents authorities from time to time (Annexure-15). 6. Learned counsel for the petitioner submits that as per rule 103 of Bihar Service Code, the petitioner is entitled for additional pay not exceeding 20% of substantive pay as has been given to him earlier. Learned counsel further contended that the original-petitioner filed representation before the respondent authorities to act in accordance with law, however, the same has not been taken care of. He further submits that the action of the respondent authorities in not making payment of 20% additional pay of the basic pay amount is arbitrary, illegal and bad in law. He further relied upon the judgment passed by this Court in the case of Arun Kumar Sinha vs. State of Bihar reported in 2000 (4) PLJR 515 and also the case of Ramesh Prasad & Ors. Vs. State of Bihar & Ors. reported in 2004 (1) JCR 29 (Jhr.) and contended that the petitioner is entitled for additional pay not exceeding 20% of substantive pay as per rule 103 of the Bihar Service Code which is applicable in the case of petitioner. 7. Learned counsel for the respondent State submitted inter alia that for making extra payment to any employee who has performed the duty of additional charge given to him; approval of the Finance Department is necessary. 7. Learned counsel for the respondent State submitted inter alia that for making extra payment to any employee who has performed the duty of additional charge given to him; approval of the Finance Department is necessary. It has been further submitted that as per Rule 103 of the Service Code, no payment can be made in such situation even though it is admitted position that the petitioner has been paid 20% additional pay of basic pay of the petitioner in lieu of work taken by the respondents for the post of draftsman.(Annexure-A). Learned counsel further submitted that in compliance of the order dated 15.03.2001 passed in C.W.J.C. No.3966/2000, the respondent authorities have started the proceeding vide memo no.1090 dated 21.06.2001 (Annexure-11 of the writ petition) to seek the clearance /approval from the Finance Department for making payment to the petitioner, considering the fact that the petitioner had already been paid six months extra salary and for any further payment, approval of Finance Department is must. It has been further submitted that after getting the opinion of the Finance Department, it was decided that no payment can be made to the petitioner as per Rule 103 of the Service Code and in view of that the claim of the petitioner has been rejected by the respondent authorities and it was further decided that the present petitioner on earlier occasions had been paid excess amount for the period from 17.04.1985 to 30.08.1986, 01.11.1986 to 31.05.1987 & 05.05.1987 to 05.11.1987 which is recoverable from the petitioner and it was recommended by the Deputy Secretary, Road Construction Department, Ranchi to Superintending Engineer, Road construction Department, Road Circle, Hazaribagh vide memo no.1115 dated 05.03.2003 to initiate proceeding of recovery of excess amount in accordance with law/rules.(Annexure-B). Thereafter, the Executive Engineer, RCD, Road Division, Koderma was conveyed with the decision of the respondent authorities for the recovery of excess payment made to the petitioner by the Technical Advisor, Road Construction Department, Road Circle, Hazaribagh vide letter no.403 dated 13.03.2003. (Annexure-C). However, the respondent authorities did not proceeded for the recovery of the excess amount paid to the petitioner, but vide letter no.81 dated 19.06.2015 decided to adjust the excess payment made to the present petitioner as contained in Annexure B & C. (Annexure-D). 8. (Annexure-C). However, the respondent authorities did not proceeded for the recovery of the excess amount paid to the petitioner, but vide letter no.81 dated 19.06.2015 decided to adjust the excess payment made to the present petitioner as contained in Annexure B & C. (Annexure-D). 8. Having heard learned counsel for the parties and after going through the materials available on record it appears that the petitioner has moved before this Court earlier in CWJC No.3966 of 2000 wherein the petitioner has prayed for quashing the office order whereby the provisional seniority list of Draftsman and Tracer has been issued. The said writ application was disposed of with a direction to issue a final seniority list after disposing the objection filed by the petitioner and it was specifically directed that “So far payment of 20% additional pay is concerned, the authorities shall also take a decision in this regard within 30 days from the date of receipt of the copy of this order.” 9. From record it also appears that the respondents had recommended the name of petitioner for promotion on officiating basis against vacant sanctioned posts of Draftsman. On 17.4.1985, an office order was issued, whereby the petitioner had been allowed 20% additional pay of his basic pay. Further, vide Memo no.1242 dated 13.7.1987, approval had been given for payment of 20% additional pay of the basic pay in terms of Rule 103 of the Service Code for further six months. Again by letter no.1101 dated 19.12.1987, a letter has been issued from the office of the Respondent no.6 to the Respondent no.5, whereby Respondent no.6 has clearly stated that all three posts of Draftsman in his division are vacant and due to non-availability of regular Draftsman, the petitioner is working since long and his work is fully satisfactory. Thus, it is an admitted case that the petitioner has worked as Draftsman and the respondent authorities had also sanctioned additional pay of 20% of the basic pay and the said extension was extended from time to time till 1988. 10. Similar issue came before the Patna High Court in the case of Arun Kumar Sinha (supra) wherein the Court after hearing the parties has held in para 6 as under: “6. After hearing the learned Advocates, we have also perused the impugned order and in the facts and circumstances of the case find no reason to interfere with the same. Similar issue came before the Patna High Court in the case of Arun Kumar Sinha (supra) wherein the Court after hearing the parties has held in para 6 as under: “6. After hearing the learned Advocates, we have also perused the impugned order and in the facts and circumstances of the case find no reason to interfere with the same. Because in view of specific provision as prescribed under Rule 103 of the Bihar Service Code, to provide additional allowances, it would not be proper for the court to direct the authorities to make payment of full salary of the post. We have already noticed that there are certain cases where in exigency of work duties are also assigned, ignoring the seniority of the employee at a particular place. Therefore, save and except the benefit of additional pay as provided under Rule 103 any other financial benefit to such employee may be held detrimental to the interest of other similarly situated employee. It is a matter of common knowledge that a government employee always gets higher salary on promotion. It is not necessary for us to repeat that in order to grant promotion against a higher post and in order to get an employee higher scale attached to such post, various requirements are to be observed in accordance with the Service Rules and Regulations. The evaluation of such job for the purposes of pay scale must be left to the expert bodies and unless there are any malafidies, its evaluation should be accepted. (Emphasis supplied) 11. Yet in another judgment this Court in the case of Ramesh Prasad (supra) has held in para 13 and 14 as under: “13. In the case of Arun Kumar Sinha v. State of Bihar, reported in 2000 (4) PLJR 515 a Division Bench of the Patna High Court, relying on several other decisions, has held that it is the prerogative of the Government due to exigency of the work, an employee holding lower post can be directed to discharge the duties of a higher post, at the time of making such arrangements the seniority and other service conditions of such Government employee is not at all to be looked into and therefore to safeguard the interest of such employee under the Bihar Service Code, Rule 103 has already been prescribed to additional pay not exceeding 20% of the substantive pay to a Government employee. 14. Considering the rival contention of the parties and Rule 103 of the Bihar Service Code, and also decision of the Patna High Court in the case of Arun Kumar Sinha (supra), I hold that the petitioners are entitled for the officiating allowances of the Incharge Headmasters.” (Emphasis supplied) 12. Respectfully, relying upon the aforesaid judgments and the settled proposition of law with regard to additional pay not exceeding 20% of substantive pay for government employee in lieu of work done; in my considered opinion, the original petitioner was entitled for additional pay not exceeding 20% of his substantive pay in lieu of work taken by the respondent authorities for the post of Draftsman, which was also sanctioned in his favour several times. As such, I hold that original petitioner was entitled for officiating allowance for the in-charge Draftsman i.e. 20% of his substantive pay. Since the original petitioner has died, the present petitioner is directed to file representation along with copy of this order before the respondent No.2 for redressal of her grievance. If any such representation is filed before the respondent No.2, the same shall be disposed of in accordance with law and the aforesaid findings and also in the light of judgments referred to herein above. The amount which would be calculated and found payable shall be paid to this petitioner. The entire exercise shall be completed within a period of 4 months from the date of receipt of such representation failing which the respondent authorities shall be liable to pay interest @ 7% per annum from the date of entitlement till the date of actual payment. 13. With the aforesaid observations and directions, the instant writ application is allowed and disposed of.