IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.9446 OF 2007 RAM CHANDRA MAHTO,S/O BACHCHA MAHTO, R/O VILLAGE KAPARI, P.S BIBHUTIPUR, DISTRICT SAMASTIPUR. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA. 2.DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, SAMASTIPUR. 4.AREA EDUCATION OFFICER, ROSRA, SAMASTIPUR. ………………………RESPONDENTS. ----------- 02/ 13.10.2011 Heard counsel for the parties. The prayer of the petitioner in this writ application is for a direction to the respondents for making payment of salary of the post of Headmaster from the date he was asked to hold additional charge on the post of Headmaster i.e. 17.05.2005. Learned counsel for the petitioner in support of the aforesaid relief has also relied on an unreported judgment of the Division Bench of this Court dated 31.10.2006 passed in L.P.A No. 12 of 2006, whereby and whereunder, according to him it has been held that the person on being assigned duty on the higher post will not be entitled for payment of salary of that post but would be entitled for being given 2 20 per cent of extra remuneration by way of additional salary in terms of Rule 103 of the Bihar Service Code. Counsel for the State having not filed his counter affidavit would adopt a safer course by attacking the very eligibility of the petitioner to work on the post of Headmaster. He would further submit that whatever working arrangement was made on account of suspension of the regular Headmaster must have come to an end and that the post of Headmaster after the judgment of the Full bench in the case of Ram Nath Singh & Ors vs The State of Bihar & Ors, 2009(3) PLJR 384 has to be filled up after issuance of a fresh gradation list. This Court however would find great difficulty in disposing of the writ application on supposition. The writ petition was filed on 31.07.2007 and when it is has been taken up today after more than four years there is still no counter affidavit while this Court would not like to say anything in this regard it is however obvious that the State and its officials are not serious in contesting the 3 litigation even when they are solely responsible for creating such litigation. Be that it may, the petitioner claims additional salary for the post of Headmaster, when he was given the additional charge of the post of Headmaster by office order dated 17.05.2005, when the regular Headmaster was placed under suspension. The petitioner claims that the said arrangement of the petitioner discharging the work of the Headmaster was continuing for a period of more than five years and as such he would be entitled for salary of the post of Headmaster. This court however in the absence of the counter affidavit cannot decide the issue, but then so far the entitlement of the petitioner for additional salary of the post of Headmaster in terms of Rule 103 of the Bihar Service Code is concerned, that stands settled by the judgment of the Division Bench of this Court in the case of The State of Bihar and Ors Vs Nagendra Nath Jha and Ors, wherein, it has been held as follows:- “After having given our anxious thoughts and consideration to the 4 relevant rule provision, celebrated principles of service jurisprudence, as well as, the submission offered by the learned counsels, we are of the opinion that the case of original writ petitioner is covered by Note 4 of Rule 103 of the Bihar Service Code, and he shall be entitled to the extra remuneration accordingly, and, therefore, the direction to pay the salary payable to a regular Headmaster could not be sustained. No doubt, the original writ petitioner has been holding charge since very long and, therefore, we had specifically desired the appellant- State to make statement as to how long time is going to be consumed for the regular appointment to the post of Headmaster, and we have been told that maximum within four months the regular appointment of the Headmaster shall be made. Notwithstanding that, Note 4 to the Rule 103 of the Bihar Service Code does not preclude the government from giving extra further remuneration than 20% in view of the expression implied in Note 4 that ordinarily it shall not exceed 20% and, therefore, it is open for the government to consider the payment of extra remuneration equivalent to the due and payable salary to the regular Headmaster. Since long the post is held additionally by the petitioner, therefore, it is always open to the party to move to the Government and it will be open for the Government to consider and exercise its discretion.” In that view of the matter, this Court would direct the District Education Establishment Committee to consider the claim of the petitioner in the light of the observations and directions given by the 5 Division Bench in the case of Nagendra Nath Jha (supra) and make payment of the admissible amount in terms of Rule 103 of the Bihar Service Code at least to the tune of 20 per cent of his additional salary or Rs. 250/- per month whichever is less for the entire period commencing from 17.05.2005, from which the petitioner is said to have continued to work on the post of Headmaster. This exercise including the payment of admissible amount to the petitioner must be completed within a period of six months from the date of receipt/production of a copy of this order by the District Programme Officer, Samastipur, who must act upon the decision of the District Education Establishment Committee in the aforementioned time limit. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)