IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.720 of 2010 1. BASUDHA SINGH S/O LATE RAMA NAND SINGH R/O VILL.- BASANTPUR, P.S. ARA MUFFASIL, DISTT.- BHOJPUR AT ARA, RETIRED ASSISTANT ENGINEER, PUBLIC HEALTH SUB-DIVISION, BIKRAMGANJ, DISTT.- ROHTAS Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE FINANCE SECRETARY GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 4. THE JOINT SECRETARY PUBLIC HEALTH AND ENGINEER DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE ENGINER-IN-CHIEF - CUM - SPECIAL SECRETARY PUBLIC HEALTH AND ENGINEERING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 6. THE DEPUTY SECRETARY PUBLIC HEALTH AND ENGINEER DEPARTMENT, GOVERNMENT OF BIHAR, PATNA ----------- 3/ 02/08/2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was given officiating charge of Assistant Engineer on 31.12.1993 while holding substantively the post of Junior Engineer. His case then came to be considered for promotion and after following procedure he was granted such promotion by an order dated 10.1.2002 with effect from the date of his taking over the charge of the office. Learned counsel for the petitioner submits that the petitioner assumed charge of the office of Assistant Engineer in the officiating capacity on 1.1.1994. The submission on behalf of the petitioner therefore is that he is entitled to the full salary of the post of Assistant Engineer from the date of officiation as the - 2 - delay in consideration of his case for promotion was attributable to the respondents alone. The action of the respondents in paying him the full salary of an Assistant Engineer from 10.1.2002 was contrary to law. The petitioner has wrongly been paid officiating allowance only from 1.1.1994 till the date of payment of regular salary. Countering the submission learned counsel for the State submitted that the petitioner was asked to officiate as an Assistant Engineer in the quota of direct recruit. No sooner that vacancy has become available in the promotee quota, the petitioner has been given promotion as an Assistant Engineer and therefore is entitled to his salary from that date only. The order dated 31.12.1993 giving officiating charge to the petitioner states that the promotion to the 35 persons mentioned therein was being granted against the direct recruit quota also. It does not specify that the petitioner was given such promotion against the direct recruit quota as is contended on behalf of the State. This is further fortified from the order of promotion dated 10.1.2002 which does not impose or consider any such restrictive promotion granted to the petitioner, as is urged on behalf of the State. The Supreme Court in AIR 1999 S.C. 838 - 3 - (Selva Raj, Appellant v. Lt. Governor of Island, Port Blair and others, Respondents) considering a similar situation has observed in relevant extract at para- 3 as follows:- “3…… Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.” The petitioner is held entitled to full salary of the post of Assistant Engineer from the date that he assumed officiating charge on 1.1.1994 till the date of his formal promotion whereafter he has been paid his regular salary. Let the full salary for the period 1.1.1994 till the date of actual commencement of the full salary be paid to the petitioner. The State is entitled to take into account the officiating allowance stated to have been paid to the petitioner within the aforesaid period while computing his total salary and make necessary deductions therefrom. Let the order be complied with within a - 4 - maximum period of six weeks from the date of receipt/presentation of a copy of this order. This order is confined to the present petitioner alone. The writ application stands allowed. KC ( Navin Sinha, J.)