IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.594 of 2007 The State of Bihar through the Executive Engineer, Rural Development Special Division, Jamui. …. …. Appellant/Respondent Versus 1. Basant Kumar Singh, son of Late Brij Kishore Prasad Singh, resident of Village-Majlispur, P.O.-Alipur Hatta, via-Mahnar, District-Vaishali, at present posted as Executive Engineer in the office of Land Reforms Office, Jamui. …. …. Respondent/Writ petitioner 2. The Chief Secretary, Government of Bihar, Patna. 3. The Finance Secretary, Government of Bihar, Patna. 4. The Chief Engineer, Samagra Yojna, Water Resources Department, Government of Bihar, Patna. 5. The District Magistrate-cum-Chairman, D.R.D.A., Jamui. 6. The Dy. Collector, Land Reforms, Jamui. 7. Commissioner cum Engineer in Chief, Water Resources Deptt. Govt. of Bihar, Patna. …. …. Respondents/Respondents 2nd Set. ----------- For the appellant: Mr. J. P. Shukla, Senior Advocate Mr. R.K.Shukla, Advocate For the respondent No.1 : Mr. Prabhat Ranjan Singh, Advocate -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 04th December, 2008 This Letters Patent Appeal suffers from delay of more than two years. For its condonation, an application (I.A.No.3811/2007) has been made. The cause set out for condonation of delay is that the writ petition was taken up by the court on 16th May, 2005 and the ex parte order was passed on that date. The Executive Engineer, Rural - 2 - Development Special Division, Jamui learnt about the order dated 16th May, 2005 on 27th May, 2005 from the petitioner when he gave a copy of the letter dated 16th May, 2005 addressed to the Finance Commissioner and others including the Executive Engineer, Rural Development Special Division, Jamui. The Department also came to know of the said order on 27th May, 2005 when they received a Fax message sent by the Additional Advocate General. The Additional Advocate General was asked to provide certified copy of the order vide communication dated 06th June, 2005. The certified copy was made available on 11th July, 2005. The Commissioner-cum-Secretary, Rural Development Department asked the Additional Advocate General II to file Letters Patent Appeal vide its letter dated 24th August, 2005, but the appeal could not be filed. Accordingly, the Commissioner-cum-Secretary sent a letter dated 31st September, 2005 to the Additional Advocate General II intimating that Mr. J.P.Shukla, senior counsel has been engaged and he was requested to furnish the complete information to him. The Department then approached Sri J.P.Shukla on 03rd September, 2005 and requested him to file the appeal against order dated 16th May, 2005, but Sri Shukla suggested the Department to file review application instead Letters Patent Appeal. In the light of the opinion of Mr. J.P.Shukla, the complete information was collected and the review application was prepared and filed before the court on 12th September, 2005. The review application was dismissed on 30th April, 2007 and thereafter on 31st - 3 - May, 2007, the present appeal was preferred. 2. Although, the respondent no.1 has been served, but no reply affidavit has been filed. In the circumstances, we are of the view that delay in filing the appeal is sufficiently explained and it deserves to be condoned. 3. We, accordingly, grant the application (I.A.No.3811/2007) and condone the delay in filing the appeal. 4. We heard the senior counsel for the appellant and, in our view, the appeal does not deserve to be admitted. 5. The senior counsel would submit that the respondent no.1 did not do any work of Draftsman Grade II and he was only given charge of an almirah and, therefore, he was not entitled to any additional pay under rule 103 of the Bihar Service Code. The senior counsel would also submit that the respondent no.1 held the substantive post of Tracer and he was not entitled to promotion to the post of Draftsman Grade II or junior selection grade. 6. We are not persuaded by the submissions of the senior counsel. In the writ petition, the present respondent no.1 (writ petitioner) made a specific averment that pursuant to letter dated 28th July, 1992 issued by the Executive Engineer, Advance Planning & Investigation Division, Jamui, he was instructed to take additional charge of Draftsman Grade II upon transfer of one Ashok Kumar Ghosh and he took additional charge of Draftsman Grade II on 30th July, 1992 in addition to his original post of Tracer. That the - 4 - respondent in the writ petition (present appellant) and proforma respondent nos. 2 to 7 did not file any counter affidavit in opposition to the writ petition is an admitted position. As a matter of fact, there was no denial of the fact that the writ petitioner was asked to take additional charge of Draftsman Grade II vide letter dated 28th July, 1992 of the Executive Engineer, Advance Planning & Investigation Division, Jamui and that the additional charge was taken by the petitioner on 30th July, 1992. Thus, there is no merit in the contention of the senior counsel that the writ petitioner did not discharge the duties of Draftsman Grade II and that he was only given charge of an almirah. The letter of the Executive Engineer, Advance Planning & Investigation Division, Jamui dated 28th July, 1992 has been placed by the petitioner as Annexure-3 with the writ petition. It is apparent therefrom that one Ashok Kumar Ghosh, Draftsman Grade II was transferred to Bhagalpur and he was to be relieved immediately. Accordingly, the petitioner was asked to take charge of Draftsman Grade II from Mr. Ghosh as an additional charge. In compliance of the aforesaid direction dated 28th July, 1992, the writ petitioner took additional charge of Draftsman Grade II on 30th July 1992. 7. Rule 103 of the Bihar Service Code, inter alia, provides that in case where government servant takes full charge of more than one post (other than inferior or subordinate post), he may be allowed additional pay not exceeding 20% of his substantive pay by the competent authority. Since the writ petitioner was asked to take full - 5 - charge of Draftsman Grade II vide letter dated 28th July, 1992 and, in fact, the writ petitioner took full charge of Draftsman Grade II on 30th July, 1992, he became entitled to additional pay of 20% of his substantive pay under Rule 103 of the Bihar Service Code. 8. Consequently, we find that the direction given by the Single Judge to the State Government to pay to the writ petitioner 20% of his substantive pay as an additional pay for holding full charge of Draftsman Grade II does not suffer from any legal infirmity. 9. Needless to say that the writ petitioner is entitled to additional pay of 20% of his substantive pay under rule 103 of the Bihar Service Code only up to the period he held full charge of Draftsman Grade II. 10. With the aforesaid clarification, the appeal is dismissed in limine. R.M. Lodha, CJ Kishore K. Mandal, J. Sunil