IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.113 of 2011 3 13.4.2011 Shiv Lal Sah, son of Sri Rajgir Sah, resident of Shanti Niwas, West Jai Mahabir Colony (Shiv Shakti Nagar), P.S. Sultanganj, Patna- 800006 ….. Petitioner/ Appellant VERSUS 1. The State of Bihar 2. The Secretary, Public Health Engineering Department (PHED), Government of Bihar, Patna 3. The Joint Secretary, PHED, Govt. of Bihar, Patna 4. The Deputy Secretary, PHED, Govt. of Bihar, Patna 5. The Accountant General, Bihar …… Respondents/ Respondents ------- Heard learned counsel for the appellant and learned counsel for the State and perused the order of the Writ Court dated 3.11.2010 whereby CWJC No.4980 of 2006 has been dismissed because the Court found that there was no basis to justify petitioner’s claim for grant of promotion to the post of Executive Engineer when he had superannuated before the claim for promotion of juniors or seniors in transaction could reach finality. We do not find any good ground to take a different view in the matter. So far as petitioner’s claim for salary on account of his officiating in the higher post is concerned, Note 1 to Rule 103 of the Bihar Service Code is clear that the expression “independent” post used - 2 - in the Rule means posts which are independent of one another i.e. posts the incumbent of one of which is not expected to do so the duties of any other. This does not apply to post in hierarchy i.e. Assistant Engineer and Executive Engineer. In such eventuality, the petitioner was not entitled for payment in terms of Rule 103 although the authorities chose to give him 20 per cent extra pay because he officiated on the post of Executive Engineer for more than two years. Since the authorities have themselves chosen to pay to the petitioner extra pay, that pay cannot be withheld or realize back. In any case, we find no good reason to allow the claim of the petitioner that his retirement benefit should be fixed differently from his batch-mates on a higher basis because of claim for officiating pay. sk (Shiva Kirti Singh, J.) (Akhilesh Chandra, J.)