IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10660 of 2001 =========================================================== Mithilesh Kumar Dwivedi, son of late Ayodhya Dwivedi, resident of Village Dehrgaon, P.S. Bikramganj, Dist. Rohtas. At present posted as Judicial Magistrate 1st Class, Hajipur. .... .... Petitioner/s Versus 1. The State of Bihar through the Commissioner- cum- Secretary, Department of Appointment and Administrative Reforms, Old Secretariat, Patna. 2. Additional Secretariat, Department of Appointment and Administrative Reforms, Govt. of Bihar, Old Secretariat, Patna. 3. Deputy Secretary, Department of Appointment and Administrative Reforms, Govt. of Bihar, Old Secretariat, Patna. .... .... Respondent/s =========================================================== Appearance : For the Petitioner/s : Mr. Basant Kumar Singh, Advocate For the Respondent/s : Mr. (AAG-2) =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL JUDGMENT 13th July 2011 (Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution of India is filed by a Judicial Officer to claim one additional increment in view of the family planning operation undergone by him on 7th October 1994. The petitioner claims that the State Government has, in exercise of power conferred by the proviso to Article 309 of the Constitution, framed Bihar Government Servant (Family Planning Special Provision) Rules, 1977. Under Rule 3 of the said Rules the Government has allowed one additional increment to a Government servant below the age of 40 years who undergoes the family planning operation. Patna High Court CWJC No.10660 of 2001 dt.13-07-2011 2 The learned Advocate Mr. Basant Kumar Singh has appeared for the petitioner. He has relied upon the order dated 15th September 1999 made in the matter of “Yogesh Narayan Singh Vs. The State of Bihar & Ors. [CWJC No.1701 of 1998]”. He has submitted that in similar fact this Court has allowed one additional increment to the petitioner of the said petition. We are afraid, the submission of the learned Advocate appears to be illfounded. Clause (iii) of Rule 1 of the said Rules specifically excludes the Officers of the High Court and of the Courts Subordinate to the High Court from the applicability of the said Rules. It appears that in the matter of Yogesh Narayan Singh, the aforesaid Rules were not brought to the notice of the Court. The order does not reflect whether that petitioner was a judicial officer. However, on perusal of the judgment , it does appear that the said petitioner was an officer in a Court subordinate to the High Court. If that be so the said order is per incuriam Rules of 1977. In view of the express exclusion of the Judicial Officers from the applicability of the 1977 Rules, the claim for additional increment made by the writ petitioner shall fail. Petition is dismissed. The parties will bear their own cost. M.Rahman/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)