IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.6814 OF 2007 DR.BISHWANATH PRASAD, S/O LATE BABUL AL PRASAD OF NARKATIAGANJ, P.S SHIKARPUR, DISTRICT WEST CHAMPARAN AT BETTIAH. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF HEALTH BIHAR, PATNA. 3.THE DIRECTOR IN CHIEF, HEALTH SERVICES, BIHAR, PATNA. 4.DR. BHAIRAV PD.CIVIL SURGEON, SITAMARHI. ………………………RESPONDENTS. ----------- 02/ 21.09.2011 Heard counsel for the parties. In this writ application the petitioner has prayed for the following relief:- “To direct the respondent by writ of Mandamus and/or with any other appropriate writ or writs to pay scale the salary etc. permissible in law to the petitioner for the post of the Civil Surgeon when he officiated as Civil Surgeon at Banka from 01.07.99 to 26.07.99, 17.08.99 to 19.03.2001 and 04.10.2006 to 31.10.2006. To direct the respondents to award the privileges of A.C.P. to the petitioner to which he is entitled to. To direct the respondents to pay the scale of the civil Surgeon as also other allowances etc. and declare the Notification contained in Annexure-1 to the existing scale of Additional Chief Medical Officer as arbitrary and contrary to law and accordingly be held illegal and totally unjustified. To direct the respondents to treat the petitioner’s promotion from the day, a junior Doctor Sri Bhairab Prasad was promoted.” Learned counsel for the petitioner has 2 submitted that when this writ application was filed on 23.05.2007, the petitioner was in service but during the pendency of this writ application the petitioner has already retired and as such he would be entitled for monetary relief being prayed in this writ application either on account of the salary of the post of Civil Surgeon which he had held on officiating basis for the period from 01.07.1999 to 26.07.1999 or 17.08.1999 to 19.03.2001 and 04.10.2006 to 31.10.2006 as also regular promotion or grant of ACP. In this regard, he has also submitted that once the petitioner was directed to hold the charge of the higher post even on a current charge basis, he could not have been denied the salary of the higher post and to that extent the notification dated 18.12.2006 posting the petitioner as Principal of Health and Family Training Centre, Bhagalpur in his own pay scale of Additional Chief Medical Officer, Bhagalpur is bad and unsustainable. The respondents have filed the counter affidavit, wherein, it has been stated that during the pendency of this writ application the petitioner has been subjected to an order of punishment in a departmental proceeding 3 and an order of punishment has been passed on 27.01.2011 as contained in Annexure-A to the counter affidavit. It has been explained that the case of promotion of the petitioner could not have been considered during the pendency of the departmental proceeding and now when the departmental proceeding has been concluded his case for grant of ACP/promotion will be placed before the Departmental Promotion Committee and consequently action will be taken as per the recommendation of the Departmental Promotion Committee. In that view of the matter, this Court would direct the respondent to consider the case of promotion and/or grant ACP to the petitioner in the light of his service records including the order of punishment and if the Departmental Promotion Committee would recommend for grant of promotion and/or ACP, consequential decision will be taken by the State Government within a period of six months from the date of receipt/production of a copy of this order. Let it be made clear that this Court has not expressed its opinion on the merits of the claim of the petitioner for grant of such promotion and/or ACP, inasmuch as, when a departmental proceeding 4 was pending against the petitioner in view of the memo of charge dated 17.11.2005 as amended by the subsequent resolution dated 12.05.2008, there was no question of grant of promotion to the petitioner till the pendency of the departmental proceeding. Now, when the departmental proceeding has been disposed of and an order of punishment has been passed on 27.01.2011, the Departmental Promotion Committee will be required to examine the effect of such order of punishment in relation to the claim of petitioner for grant of his promotion. The Government, however, would be under an obligation to take a final decision as with regard to the grant of promotion/ACP in the aforementioned prescribed period, inasmuch as, such decision for grant of ACP and/or awaiting the disposal of the departmental proceeding, and when the departmental proceeding has been disposed of, the claim of the petitioner for grant of promotion/ACP must be finalized strictly in accordance with law. The grievance of the petitioner for payment of officiating allowance in the period he was directed to hold the charge of the higher post will be required to be 5 separately examined in the light of the provisions made under Rule-103 of Bihar Service Code and the executive instructions issued thereunder from time to time. The petitioner has brought on record the notification by which he was directed to hold the higher post of Civil Surgeon in between 01.07.1999 to 26.07.1999 and 17.08.1999 to 19.03.2001 as well as from 04.10.2006 to 31.10.2006. From the letter dated 28.06.1999 issued by the Regional Deputy Director of Health, Bhagalpur Division addressed to Bhubaneshwar Singh, Civil Surgeon, Banka, it would appear that when Dr. Bhubaneshwar Singh had retired from service, an interim punishment was made by the Regional Deputy Director of Health, Bhagalpur asking him (Dr. Singh) to hand over charge to the petitioner in capacity of the Senior most Medical Officer holding the post of Deputy Superintendent, Sub-divisional Hospital, Banka. Such arrangement being fortuitousin nature made at the local level would not qualify for officiating allowance in terms of Rule 103 of Bihar Service Code. As a matter of fact, even this arrangement was not allowed by the State Government to continue 6 and the State Government by order dated 21.07.1999 had posted Dr. Chinta Kumari Verma, Regional Deputy Director of Health, Bhagalpur Division to hold the charge of the post of Civil Surgeon, Banka and as such in view of the Government notification dated 21.07.1999 by itself would eclipse the claim of the petitioner for grant of officiating allowance for the period from 01.07.1999 to 26.07.1999. It, however, transpires that subsequently the Government by an order dated 13.08.1999, had authorized the petitioner to work as Civil Surgeon, Banka in addition to his own duty as Deputy Superintendent, Sub- divisional Hospital, Banka and such arrangement made by a notification dated 13.08.1999 was allowed to continue till 17.03.2001 when one Dr. Kameshwar Mandal was posted as a regular Civil Surgeon, Banka, whereafter the petitioner has also handed over charge to Dr. Kameshwar Mandal on 20.03.2001. This period of working arrangement on the post of Civil Surgeon, Banka of the petitioner in view of the Government notification will have to be considered in terms of Rule 103 of the Bihar 7 Service Code because the petitioner was asked to work both on the post of Civil Surgeon, Banka as also his original post of Deputy Superintendent, Sub-divisional Hospital, Banka. Similarly the petitioner was again authorized to work as Civil Surgeon, Banka by the notification of the Health Department dated 03.12.2006 which arrangement had continued till 01.11.2006 when he handed over charge to Dr. Anjani Kumar Gupta. Thus the petitioner for this period of 28 days i.e. 04.10.2006 to 31.10.2006 can legitimately claim the officiating allowance, inasmuch as, that was backed by the decision of the Government dated 03.10.2006. As noted above, departmental proceeding against the petitioner for his acts of omission and commission has been initiated on 17.11.2005 and therefore, even when he could not have been given regular promotion due to the pendency of the departmental proceeding, if work was taken from the petitioner of a higher post, the respondents would be required to consider the grant of officiating pay for the period there was a valid Government notification for the petitioner to 8 work as Civil Surgeon, Banka. This exercise of grant of officiating pay to the petitioner as permissible in law and under Rule 103 of Bihar Service Code must be decided and the amount payable on this head be also extended to the petitioner within a period of six months from the date of receipt/ production of a copy of this order. In order to expedite this exercise of considering the case for grant of promotion and/or ACP and/or officiating pay in the light of the observations made above, the petitioner may file his representation before the Principal Secretary of the Health Department and a decision thereof must be taken by the State Government within a period of six months from the date of filing of the representation by the petitioner. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)