IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1363 of 1995 THE STATE OF BIHAR & ORS Versus SIDHESHWAR PRASAD & ORS ----------- 5 01-04-2009 Heard learned counsel the appellants. Nobody appears on behalf of private respondents. It has been submitted on behalf of the appellants that the judgment of the writ court is in dis-regard to provisions of Rules 58 and 103 of the Bihar Service Code. The aforesaid Rules are quoted herein below :- “Rules 58(a) Subject to any exception specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. (b) Unless in any individual case the State Government otherwise direct a person recruited overseas shall commence to draw pay on first appointment as follows:- (i) In the case of a person who receives a first class passage to India,from the date of his arrival in India, (subject to his proceeding to take up his duties without avoidable delay). (ii) In the case of a person who receives a second class passage to India, from the date of his embarkation for - 2 - India”. Rule 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 posts at one time shall be regulated as follows:- (a) the highest pay to which he would be entitled if his appointment to one of 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.” Rule 58 begins with a clause that provisions made therein are subject to any exception specifically made in these rules and it is by way of general condition of service under the Government providing that a government servant shall begin to draw the pay and allowances of his post with effect from the date on which he assumes the duties of that post. This general provision does not affect the case of either of the parties. So far as Rule 103 is concerned, a careful reading of the same - 3 - makes it clear that this provision is applicable only where a government servant is made to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time. In such a situation as per Sub-rule (a) the highest pay to which he would be entitled if his appointment would have been only to one of the post may be drawn by him on account of his tenure of that post. As per other Sub-rules, he is entitled to extra money for working on the other post as the State Government may fix. According to circular of the State Government the extra payment shall not exceed 20% of his substantive pay, even he takes full charge of more than one post. So far as facts of this case are concerned, there is no difficulty in agreeing with the writ court that petitioner though holding a post in class-iv was asked to work for long number of years only on a higher post of Revenue Inspector and there was no situation similar to one contemplated in Rule-103 as the petitioner was not asked to hold simultaneously an inferior or superior post. In such a situation the writ court rightly relied upon an earlier judgment of this Court in the case of Dr. Sachchida Kumar Sinha Vrs. The State of Bihar, reported in 1995 (1) BLJ 54. In that case also in similar circumstances the court had held that Rules 58 and 103 of the Bihar Service Code supported the view of the court but the same were not found to be applicable. In fact the court held in paragraph-13 of the judgment that there is no relevant rule which prohibits the grant of pay attached to the posts of the petitioner and therefore the claim ought to succeed. Similar is the finding in this - 4 - Naresh case by the writ court and the same requires no interference. Hence, the appeal is found to be without any merit. It is, dismissed accordingly. It is clarified, at the instance of learned counsel for the State that payment to the petitioners as per pay and emolument for the post of Revenue Inspector shall be made after adjusting and accounting earlier payment which they might have received by treating them as Class-IV employees. ( Shiva Kirti Singh,J) ( Dharnidhar Jha, J)