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2022 DIGILAW 643 (JHR)

State of Jharkhand v. Rajshree Bhardwaj

2022-06-13

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2022
JUDGMENT : 1. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 14.05.2018 passed by the learned Single Judge of this Court in W.P.(S) No. 5750 of 2010, whereby and whereunder, direction has been passed upon the respondent-State of Jharkhand to make payment of salary and other allowances in favour of the writ-petitioner from the date he was discharging his official duties on the post of the Deputy Director, Additional Director and the Director till the date of his superannuation after deducting the salary already paid to the writ petitioner and the writ petitioner had been held entitled for the pensionary benefits on the basis of the pay of the Director, the post on which on attaining the age of superannuation, the writ petitioner was retired. The respondents have further been directed to make payment of arrears of salary within a period of four months from the date of receipt/communication of the order. 2. The brief facts as per the pleading made in the writ petition which require to be enumerated, read as hereunder: It is the case of the writ-petitioner that he was appointed on the post of Geologist in the basic grade in the year 1976 and was given the senior Grade of Geologist w.e.f. 11.05.1990 and worked on the said post of the senior Geologist. Thereafter, the writ-petitioner was directed to discharge his duties as the Deputy Director, Geology vide notification dated 31.12.1996, accordingly, the writ-petitioner took charge on 28.02.1997 and worked to the said post of the Deputy Director, Geology. The writ-petitioner was not given regular promotion, however, he was given acting In-charge of the said post of Deputy Director. Thereafter, in the year 2001, the writ-petitioner was given charge of the Additional Director, Geology, Hazaribagh vide Notification dated 29.06.2001. Subsequent thereto, the writ-petitioner was made Director, In-charge of the Geology vide Notification dated 07.07.2003, whereupon the writ-petitioner took over the charge and worked till his superannuation i.e., till 31.03.2007. The writ-petitioner, in the backdrop of the aforesaid decision of the State authority by which the writ-petitioner was directed to discharge the duties of higher post, has made representation requesting therein to release the difference of arrears of salary but having not been acceded to, the writ-petitioner being aggrieved with the same, approached to this Court by filing writ petition being W.P.(S) No.5750 of 2010. 3. 3. The writ-petitioner took the ground therein that since he has been directed to discharge the duties on the higher post, as such, he is entitled to get the pay-scale attached to the post of the higher post, i.e., Deputy Director, Additional Director and Director. 4. Counter affidavit has been filed on behalf respondent-State of Jharkhand before the learned Single Judge disputing the aforesaid claim by taking the plea that the writ-petitioner since has not been granted regular promotion, as such, he is not entitled to get the difference of arrears of salary. The respondent-State of Jharkhand has taken aid of the Rule 58 of the Bihar (Jharkhand) Service Code and memo dated 14.04.1985 (Clause-V) of the Finance Department. 5. The learned Single Judge has considered the rival submissions made on behalf of the parties and allowed the writ petition holding the writ-petitioner entitled for the salary attached to the higher posts with a direction upon the respondents to release the difference of arrears of salary as also the pensionary benefits on the basis of the pay attached to the post of Director, the post on which the writ-petitioner has superannuated on attaining the age of superannuation, the same is the subject matter of the instant intra-court appeal. 6. Mr. Sachin Kumar, learned AAG-II appearing on behalf of the State of Jharkhand has submitted that the order passed by the learned Single Judge suffers from material irregularity since the same has been passed without taking into consideration the fact that the writ-petitioner was holding the substantive post of Geologist but has been allowed to discharge the duties of the higher posts, as such, he is not entitled to get the pay scale attached to the higher posts but the learned Single Judge without appreciating this aspect of the matter, has allowed the writ petition holding the writ-petitioner entitled for the difference of arrears of salary, as such, the order passed by the learned Single Judge is not sustainable in the eye of law. It has further been submitted that the learned Single Judge has also committed error as here is no prayer made in the writ petition to issue a direction upon the respondents to release the arrears of difference of salary attached to the post of Director but even then the direction has been passed upon the respondent-State of Jharkhand to release the salary attached to the post of Director. According to the learned counsel, the order passed by the learned Single Judge at least to the effect wherein direction has been passed to release the arrears of difference of salary attached to the post of Director, is not sustainable in the eye of law reason being that no such prayer has been made in the writ petition. Learned counsel for the, in the backdrop of the aforesaid grounds, has submitted that the order passed by the learned Single Judge is not sustainable in the eye of law, as such, the same may be quashed and set aside. 7. Per contra, Mr. Anoop Kr. Mehta, learned counsel for the writ-petitioner has submitted by defending the order passed by the learned Single Judge taking the plea that there is no error in the order passed by the learned Single Judge since there is no applicability of the Rule 58 of the Bihar (Jharkhand) Service Rules since the writ-petitioner has not been directed to discharge the duties in addition to the substantive post rather he has been directed to discharge the duties of the higher post leaving apart the substantive post, i.e., post of Geologist, as such, Rule 58 will not be applicable for the reason that the Rule 58 speaks that the same will only be applicable if the public servant is allowed to hold more than one or two posts but as would appear from the notifications issued by the respondent-State of Jharkhand directing the writ-petitioner to discharge the duties of the higher post of Deputy Director, Additional Director and Director which is not in addition to the post of Geologist. Further argument has been made by refuting the argument made on behalf of the respondent-State of Jharkhand that since there is no prayer made in the writ petition for a direction upon the respondents to release the difference of arrears of salary attached to the post of Director but the order has been passed holding the writ petitioner entitled to get the pay scale of the post attached to the post of Director. It has been submitted in response that even though there is no prayer made to that effect in the writ petition but the pleading to that effect has been made in the writ petition as would appear from the statements made at paragraphs-9 and 10 to the writ petition and it is settled that if there is pleading to that effect, the writ Court sitting under Article 226 of the Constitution of India if comes to the conclusion about the entitlement of the benefits, it is well within the jurisdiction of the Writ court to pass such direction and taking into consideration that aspect of the matter, even if there is no prayer to that effect, if the direction has been passed, the same cannot be said to suffer from error. 8. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. 9. The undisputed fact in this case is that the writ petitioner joined his service as Geologist on substantive post. He was directed to discharge his duties to the post of Deputy Director vide notification dated 31.12.1996. The writ-petitioner in terms thereof, assumed the charge of the Deputy Director on 28.02.1997. Subsequent thereto, he has further been directed to discharge his duties as Additional Director vide notification dated 29.06.2001 and thereafter the writ petitioner has again been directed to discharge his duties as Director vide notification dated 07.07.2003. It is, thus, evident that from the aforesaid notifications dated 31.12.1996; 29.06.2001 and 07.07.2003 the writ petitioner was directed to discharge his duties on the higher posts of Deputy Director, Additional Director and Director which is not in addition to the substantive post of Geologist rather it is independent to the substantive post of the writ petitioner. 10. It is, thus, evident that from the aforesaid notifications dated 31.12.1996; 29.06.2001 and 07.07.2003 the writ petitioner was directed to discharge his duties on the higher posts of Deputy Director, Additional Director and Director which is not in addition to the substantive post of Geologist rather it is independent to the substantive post of the writ petitioner. 10. The writ-petitioner, when has been directed to discharge his duties of the higher posts, he made a claim to the State of Jharkhand for disbursement of the arrears of difference of salary of the pay scale but having not been granted, the writ-petitioner filed a writ petition being W.P.(S) No. 5750 of 2010, which has been allowed, against which the instant intra-court appeal has been preferred. 11. The respondents-appellants have preferred the instant intra-court appeal by taking the plea of Rule 58 of the Bihar (Jharkhand) Service Rules as per which, according to the learned counsel, the said provision bars in disbursement of the salary attached to the higher posts if one or the other has been directed to discharge his duties of the higher pots rather in such circumstances only the officiating allowances is required to be paid. 12. In course of argument, it has been informed by the learned counsel for the petitioner/respondent that similar matter fell for consideration before this Court in L.P.A. No.735 of 2019 wherein according to the learned counsel for the petitioner/respondent, the same issue has been decided and taking into consideration the facts exactly similar to the facts of the given case, this Court has held the appellant of the said appeal entitled for the pay scale attached to the higher post. 13. Mr. Sachin Kumar, learned counsel for the respondent-State of Jharkhand has not disputed about the consideration of the same issue as has been dealt with by this Court in L.P.A. No. 735 of 2019. This Court, therefore, deems it fit and proper to go through the factual aspect involved therein as also the deliberation made taking into consideration the judgment pronounced by the Hon’ble Apex Court. It is evident from the factual aspect involved in the said appeal wherein the appellant of the said case was promoted on substantive post of Executive Engineer w.e.f. 04.11.1992. Subsequent thereto, he was directed to discharge his duty to the post of Superintending Engineer but no monetary benefit was given to him. It is evident from the factual aspect involved in the said appeal wherein the appellant of the said case was promoted on substantive post of Executive Engineer w.e.f. 04.11.1992. Subsequent thereto, he was directed to discharge his duty to the post of Superintending Engineer but no monetary benefit was given to him. In that circumstances, the appellant of the said case made a prayer for release of the difference of arrears of salary on the basis of the pay scale attached to the post of Superintending Engineer and considering the fact that the appellant was directed to discharge his duties of the higher post but not in addition to the substantive post, the writ petition was allowed. The State of Jharkhand being aggrieved with the order of the writ court, which was the subject matter of the aforesaid appeal preferred L.P.A. No. 735 of 2019 (The State of Jharkhand and Anr. vs. Baneshwar Rabidas) which was disposed of vide order dated 07.09.2021. This Court had considered the provision of Rules 89 and 103 of the Jharkhand Service Code, 2001 as also by taking into consideration the judgment rendered by Hon’ble Apex Court as would appear from the discussion made in different paragraphs, the aforesaid appeal was dismissed by holding the writ-petitioner entitled for pay-scale attached to the higher post. Relevant paragraphs of L.P.A. No. 735 of 2019 are being reproduced as under: “9. Since the provisions of Rule 89 and 103 of the Jharkhand Service Code, 2001 have been relied upon by the State as also on behalf of the learned counsel appearing on behalf of the writ petitioner, therefore, we thought it proper to refer the provision of Rule 89 and 103 of Jharkhand Service Code, 2001. Rule 89 speaks about officiating pay scale which reads as hereunder :- “89. Rule 89 speaks about officiating pay scale which reads as hereunder :- “89. (1) Subject to the provisions of Rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post other than a tenure post, unless the officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. (2) For the purpose of this rule the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith. It is evident from the provision as contained in Rule 89 which is subject to the provisions of Rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post other than a tenure post, unless the officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. Further, for the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith. The provision of Rule 89 is subject to the provision of Rule 103, therefore, we have also thought it proper to discuss about the provision of Rule 103 which reads as hereunder :- “103. The provision of Rule 89 is subject to the provision of Rule 103, therefore, we have also thought it proper to discuss about the provision of Rule 103 which reads as hereunder :- “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 post 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.” It is evident from the provision as contained under Rule 103 wherein it has been stipulated that 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 post 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. Thus, it is evident that the provision of Rule 103 stipulates about a condition when a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post then the condition stipulated under the provision of Rule 103 would be applicable as also the provision contained under Rule 89 as because the applicability of the condition stipulated under Rule 89 depends upon the fulfilment of the condition as contained under Rule 103 of the Jharkhand Service Code, 2001. 10. We, in order to examine the applicability of the provision of Rule 103 in the given facts of the case, have considered the notification issued by the appellant State of Jharkhand of the post of Superintending Engineer (Current Charge) and the Chief Engineer (Current Charge) issued vide notification dated 19.07.2007 and 09.07.2011 respectively to examine as to whether the writ petitioner was assigned to discharge duties in two or more independent post but on close scrutiny of notification dated 19.07.2007, we have found that although the writ petitioner was posted on substantive basis to the post of Executive Engineer and while working as such, the writ petitioner, by way of ad hoc arrangement, was posted as Superintending Engineer (Current Charge) so is the condition in the notification by which the writ petitioner was posted as Chief Engineer vide notification dated 09.07.2011. Therefore, these notifications clarify that the writ petitioner was never assigned to discharge duty in two or more independent post. Even though the writ petitioner was holding the post of Executive Engineer on substantive capacity, but he was asked to discharge the duty attached to the higher post of Superintending Engineer (Current Charge) and Chief Engineer (Current Charge) independent to the duty attached to the post of Executive Engineer, the substantive post of writ petitioner and, therefore, the provision of Rule 103 of Jharkhand Service Code will not be applicable in the facts of this case but the question is that as to whether the appellant State of Jharkhand once taken work from the writ petitioner of the higher post can he be denied the monetary benefit attached to the higher post of Superintending Engineer and Chief Engineer? Reliance has been placed by the appellant State of Jharkhand in the judgment rendered by the Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) primarily at paragraph 6. We have gone through the aforesaid judgment and found from the factual aspect that the appellant in the said case was appointed as a Clerk in the Tamil Nadu State Transport Department, subsequently promoted to the post of Section Officer in the year 1991. Thereafter, he was posted as Assistant Manager In-charge (Public Relations) with specific condition that the same will not confer any preferential right for regular promotion and that the appellant will continue to draw his grade pay in his present cadre i.e. Assistant Labour Welfare Officer and superannuated from service on 31.05.2005 as Assistant Labour Welfare Officer and as such he sought for the salary attached to the higher post and in that pretext the Hon'ble Apex Court has been pleased to hold at paragraph 6 that since the appellant in the said case vide order dated 28.02.2001, was allowed to discharge duties in the post of Assistant Manager making it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored. The decision of this Court in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Others [ (1998) 5 SCC 87 ] was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher post. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. Such a condition was incorporated in an undertaking taken from the employee which was held by this Court to be contrary to policy decision. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. Such a condition was incorporated in an undertaking taken from the employee which was held by this Court to be contrary to policy decision. Thereafter almost similar issue has again been decided by the Hon'ble Apex Court in State of Punjab v. B. K. Dhir (Supra) wherein the judgment rendered by the Division Bench of Punjab and Haryana High Court rendered in LPA No. 198 of 2003 [B.K. Dhir v. State of Punjab] has passed an order as has been quoted in the aforesaid judgment which reads as hereunder :- “2. … …. … “Having thoughtfully considered the rival contentions, we find merit in the prayer of the appellant and are of the view that his case is squarely covered by the ratio of the judgment in Pritam Singh Dhaliwal case [Pritam Singh Dhaliwal v. State of Punjab, 2004 SCC OnLine P&H 1428] . It was not a case where the appellant had laid a claim to promotion on the basis of the officiating status conferred on him, but had prayed only for the pay which was admissible to incumbents working on the said posts and performing similar duties. Resultantly, therefore, if the respondents had extracted work from him as Joint Director and Additional Director, he would certainly be entitled to pay as is admissible to the regular incumbents working on the said posts, regardless of any condition that may have been sought to be imposed upon him.” The Hon'ble Apex Court, in the said judgment, however, has considered the fact about adjudication of the issue by the Punjab and Haryana High Court wherein the concerned employee has been held entitled to salary of the post of Joint Director and Additional Director, Panchayats for the period he worked as such. The aforesaid order has been challenged before the Division Bench of the Punjab and Haryana High Court. The aforesaid order has been challenged before the Division Bench of the Punjab and Haryana High Court. The stand of the State before the Division Bench of the Punjab and Haryana High Court was that the view of the learned Single Judge was correct inasmuch as the orders passed posting the appellant on officiating posts incorporated a condition that he would continue to draw his pay in the pay scale of Deputy Director, Panchayat and no extra financial benefit would be given to him for the officiating charge. Additionally, it was asserted that the officer concerned had submitted to the said terms and conditions and not raised any protest. 11. The matter fell for consideration before the Hon'ble Apex Court and while considering the issue, consideration has been given about the judgment rendered in State of Punjab and Another v. Dharam Pal (Supra) wherein at paragraph 22 it has been held which reads as hereunder :- “22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover [ (1983) 4 SCC 291 ] and Hari Om Sharma [ (1998) 5 SCC 87 ] . As far as the authority in A. Francis [ (2014) 13 SCC 283 ] is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma [ (1998) 5 SCC 87 ] and resultantly we hold that the view expressed by the High Court is absolutely impeccable.” The Hon'ble Apex Court, in view of the decision rendered in P.Grover (Smt) v. State of Haryana and Another [ (1983) 4 SCC 291 ], Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Others (Supra) and A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) has been pleased to hold that the issue of eligibility to hold the post was not taken before the High Court and the appeal was disposed of taking into consideration the fact that when the respondent had worked in the officiating post and has been granted the benefits by the High Court, he should be extended the said benefit by making an observation that had there been a contest on the eligibility of the respondent, possibly the matter would have been different and taking note of the situation, the order passed by the Punjab and Haryana High Court has been declined to be interfered with. 12. We have also gone across the judgment rendered in yet another case by the Hon'ble Apex Court on the issue i.e., State of Punjab and Another v. Dharam Pal (Supra) wherein controversy involved was disbursement of salary in course of discharging duty in the officiating capacity. The provision of Rule 4.13 and 4.22 of Punjab Civil Services Rules has been considered by the Hon'ble Apex Court. We, after close scrutiny of the provisions as contained in Rule 4.13 and 4.22 (Pay of Officiating Government Employees) prevalent in the State of Punjab, have found therefrom that the provisions as contained under Rule 89 and 103 of the Jharkhand Service Code, 2001 are pari materia. For ready reference both the provisions are being referred hereunder :- “4.13. We, after close scrutiny of the provisions as contained in Rule 4.13 and 4.22 (Pay of Officiating Government Employees) prevalent in the State of Punjab, have found therefrom that the provisions as contained under Rule 89 and 103 of the Jharkhand Service Code, 2001 are pari materia. For ready reference both the provisions are being referred hereunder :- “4.13. (1) Subject to the provisions of Rules 4.22 to 4.24, a government employee who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which he is appointed to officiate is one enumerated in the Schedule to this Rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post on which he holds a lien: Provided that the competent authority may exempt from the operation of this Rule, any service which is not organised on a time-scale basis and in which a system of acting promotions from grade to grade is in force at the time of the coming into force of these Rules: Provided further that the competent authority may specify posts outside the ordinary line of a service the holders of which may, notwithstanding the provisions of this Rule and subject to such conditions as the competent authority may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide and may thereupon be granted the same pay (whether with or without any special pay, if any, attached to such posts) as they would have received if still in the ordinary line. (2) For the purpose of this Rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien, or on a scale of pay identical therewith.” *** 4.22. The competent authority may appoint one government employee to hold substantively, as a temporary measure or to officiate in, two or more independent posts at one time. The competent authority may appoint one government employee to hold substantively, as a temporary measure or to officiate in, two or more independent posts at one time. In such cases, the government employee shall draw the highest pay to which he would be entitled if his appointment to one of the posts stood alone: Provided that the employee must fulfil the requisite qualifications and conditions for services for both the posts.” The Hon'ble Apex Court, after considering the aforesaid provisions of law, has been pleased to hold at paragraph 13 to the effect that as the respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts, the conclusion has been arrived at that the Rules do not bolster the proposition advanced by the learned counsel for the State. Paragraph 13 reads as hereunder :- “13. On a careful scrutiny of the aforesaid prescription, it is perceptible that the said Rule envisages a different situation altogether. The present factual matrix is quite different. We are inclined to so hold as the respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts. Thus analysed, we arrive at the conclusion that the Rules do not bolster the proposition advanced by the learned counsel for the State.” 13. The present factual matrix is quite different. We are inclined to so hold as the respondent herein was holding higher posts and further he was performing the duties of higher responsibility attached to the posts. Thus analysed, we arrive at the conclusion that the Rules do not bolster the proposition advanced by the learned counsel for the State.” 13. So far as the argument advanced by learned Advocate General by putting reliance upon the judgment rendered by Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) is concerned, the aforesaid aspect of the matter has also been considered as also consideration has been made about the acceptance of the condition to get the pay scale attached to the substantive post and thereafter the Hon'ble Apex Court has come to the conclusion about applicability of the judgment rendered in A. Francis (Supra) by observing at paragraph 22 that the fact in the Francis case has to rest on its own facts and thereafter it has been clarified that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim the benefits of the officiating position and further holding therein that the controversy is covered by the ratio laid down in Secretary-cum-Chief Engineer v. Hari Om Sharma, [ (1998) 5 SCC 87 ] and it has been held that the view expressed by the High Court is absolutely impeccable. 14. It requires to refer herein that the order passed by this Court in L.P.A. No. 735 of 2019 had been challenged by the State of Jharkhand by filing Special Leave to Appeal (C) No.4104 of 2022 before the Hon’ble Supreme Court but the same has been dismissed vide order dated 16.03.2022. The said order reads as under: “Learned senior counsel for the petitioners wishes to withdraw the present special leave petition. The present special leave petition is, accordingly, dismissed as withdrawn.” 15. This Court after having discussed the judgment rendered by this Court, deems it fit and proper to discuss about the factual aspect of this case in order to see the similarity. This Court has found that the writ-petitioner was holding the substantive post of Geologist. He was directed to discharge his duties to the post of Deputy Director vide notification dated 31.12.1996. This Court has found that the writ-petitioner was holding the substantive post of Geologist. He was directed to discharge his duties to the post of Deputy Director vide notification dated 31.12.1996. The writ-petitioner in terms thereof, assumed the charge of the Deputy Director on 28.02.1997. Subsequent thereto, he has further been directed to discharge his duties as Additional Director vide notification dated 29.06.2001 and thereafter the writ petitioner has again been directed to discharge his duties as Director vide notification dated 07.07.2003. It further appears that it is not a case where the writ petitioner was asked to discharge the duty of the higher post in addition to the substantive post, i.e., of Geologist so as to make the provision of Rule 58 applicable since under Rule 58 it has been provided that the said rule will be applicable only in a case where an employee has been directed to discharge his duties on the post more than one or two. The notifications issued by the State of Jharkhand as has been appended to the writ petition does not refer that the writ petitioner was directed to discharge the duties of the higher posts of Deputy Director or Additional Director or of Director in addition to the substantive post of Geologist rather he had been directed to discharge his duties of Deputy Director or Additional Director or of Director on current charge which is not in addition to the substantive post, as such, the provision of Rule 58 will not be applicable in the facts and circumstances of the case. Further, since the writ petitioner was directed to discharge his duties of the higher posts which is not in addition to the substantive post of Deputy Director or Additional Director or of Director, therefore, factual involved in the facts of the given case is exactly similar to that of the facts of L.P.A. No.735 of 2019., therefore, this Court has passed an order by taking into consideration the judgments rendered by the Hon’ble Apex Court in this context as referred in the quoted part of the order hereinabove, has dismissed the appeal by allowing the writ petition wherein the appellant of the said case was held entitled to the pay scale attached to the higher posts. 16. 16. This Court, therefore, is of the view that the factual aspect involved in the given case is exactly similar to the factual aspect involved in L.P.A. No. 735 of 2019, therefore, there is no reason to take different view in the instant case. However, argument has been advanced on behalf of the learned State counsel that the learned Single Judge, even though there is no prayer made that the pay scale attached to the post of Director is also to be given but the said prayer has been allowed. Admittedly, there is no prayer to that effect but specific pleading to that effect has been made as would appear from paragraphs-9 & 10 of the writ petition, which read as under: “9. That it is stated that the petitioner was subsequently made the Director Incharge, Geology vide notification No. 1464 dated 7th July, 2003, whereupon, the petitioner took over the charges on 9th July, 2003 and worked to the said post i.e., the Director Incharge, Geology till his superannuation i.e., on 31.03.2007. 10. That it is stated that from the aforesaid fact, it will be evident that the petitioner has continuously discharged the duties to the higher post of the Dy. Director, Geology, Additional Director, Geology and the Director, Geology but the petitioner has not given the regular promotion to the said post and ultimately, the petitioner retired from his service on 31.03.2007.” 17. It is the settled position of law that if there is pleading in the writ petition and if there is no prayer, it is always available to the Court sitting under Article 226 of the Constitution of India to mould the prayer. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in Sri Justice S.K. Ray vs. State of Orissa and Ors., (2003) 4 SCC 21 . Relevant paragraph of the said judgment reads as under: “11. The learned counsel for the respondents further submitted that the appellant had not presented his case or claimed compensation for loss of future employment but has claimed only the loss for the present tenure and, therefore, we should not grant any relief to him. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. A writ petition, which is filed under Article 226 of the Constitution, sets out the facts and the claims arising thereto. Maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same.” 18. This Court, therefore, is of the view by taking into consideration the judgment rendered by Hon’ble Apex Court that in a case where there is no prayer in the writ petition but pleading to that effect is made, it is always available to the writ court to mould the prayer and if considering the specific statement made at paragraphs-9 & 10 of the writ petition, direction to that effect has been passed in absence of such prayer, it cannot be said to suffer from error. 19. This Court, in the entirety of the facts and circumstances of the case and taking into consideration the order passed by this Court in L.P.A. No. 735 of 2019 as also the discussion made hereinabove, is of the view that the instant appeal lacks merit. Accordingly, the instant appeal fails and stands dismissed. 20. Pending interlocutory application, if any, also stands disposed of.