IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5461 of 2005 Kashi Nath Prasad Son of Late Naresh Prasad, Resident of Mohalla-Dahiyawa Tola, Near Pani Tanki, P.S.-Chapra Town, Dist.-Chapra (Saran)……………………………Petitioner Versus 1. The State of Bihar, 2. Secretary, Personnel and Administrative Reforms, Govt. of Bihar New Secretariat, Patna. 3. The Commissioner, Saran Division, Saran at Chapra. 4. The District Magistrate,/Collector, Saran, at Chapra. …………………..Respondent. 5. 28.6.2011 In this case, the issue has been raised as to whether the petitioner will be entitled the salary of P.A. for work done by him for the period from 1.2.1992 to 31.12.04. This fact which is not in dispute that the petitioner has worked during the aforesaid period as a P.A. to the Collector, Saran, Chapra but he has been deprived of the pay scale of P.A. i.e. Rs. 6500/- to Rs. 10,500/- The petitioner in his writ petition has stated that after the retirement of Sri Bishwanath Prasad, P.A. to the Collector. Vide letter no. 74 dated 31.01.1992, the Collector, Saran at Chapra directed the petitioner to take over the charge from Sri Bishwanath Prasad and he will discharge additional work of P.A. The Additional Secretary, Department of Personnel and Administrative, Govt. of Bihar vide letter no. 11315 dated 6.12.95 (Annexure-2) issued a circular to constitute Selection Committee for the purposes of appointment of P.A. from the category of ministerial staff as well as from the Stenographer staff and also directed that the names of candidates for the aforesaid post should be recommended. 2 The District Magistrate, Saran at Chapra vide letter dated 28.4.1997 (Annexure-3 to the writ petition) addressed to the Commissioner, Saran Division has stated that Sri Bishwanath Prasad had already retired from service on 31.12.92 from the post of P.A. and the same is vacant. In the said letter, he had also recommended the name of the petitioner for being appointed to the post of P.A. on the basis of seniority-cum-merit and requested for the appointment of petitioner to the post of P.A. The D.M., Chapra, Saran, Respondent No. 4 (Annexure-4 to the writ petition) again wrote a letter dated 14.4.1998 to the Commissioner, Saran, Chapra reiterated the earlier letter dated 1.2.1992 stating that his predecessor has recommended the name of the petitioner for being considered for the petitioner to the post of P.A. The D.M. Chapra, Saran (Respondent No. 4) again wrote a letter dated 28.4.1999 (Annexure-6) in which he has again reiterated that he has already recommended the name of the petitioner for the post of PA to the Collector. The petitioner has further submitted that the Selection Committee was constituted for the appointment of P.A. and accordingly, he was selected by the Selection Committee in its meeting dated 20.7.1999 and his name is appearing in letters dated 14.9.1999 and 19.9.1999 shows that the recommendation of Selection Committee was sent to the Secretary, Department of Personnel and Administration for taking appropriate steps but 3 no action was taken by the said Department. The counsel for the petitioner has stated that it is an undisputed fact that he had worked to the post of P.A. from the period 1.2.1992 to 31.12.2004 and the State had not taken any action for the substantive appointment as a P.A. to the Collector. The State has filed a counter affidavit in which the State has not disputed with regard to the working of the petitioner as a P.A. to the Collector for the aforesaid period after the superannuation of Sri Bishwanath Prasad but raised question, the petitioner was not promoted to the post of P.A. on substantive posts and as such, he is not entitled to the benefit to scale of pay of P.A. The petitioner has relied on Judgement in the case of Prafulla Ranjan Srivastava Vs. State of Bihar reported in 2008 (3) P.L.J.R. 144 where Rule 67, Rule 89 and Rule 103 of Bihar Service Code were dealt with in similar issue. The counsel for the State has pointed out that the case reported in Prafulla Ranjan Srivastava case (supra) is not of an identical matter as the issue of promotion was not involved. In this context it will be relevant to consider Rule 103 of Bihar Service Code which is as follows:- “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 4 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.” This issue entitlement of higher pay has been specifically considered by this Court in the judgement Prafulla Ranjan Srivastava case (Supra) in which it has been held as follow- “Learned counsel for the appellant has place reliance on Sreedam Chandra Ghosh vs. State of Assam, (1996) 10 SCC 567 as also on State of Haryana vs. S.M.Sharma, 1993 Supp. (3) SCC 252, to contend that since the respondent was promoted on the basis of stop-gap arrangement, he could not claim promotion as a matter of right nor could he claim salary for the post of Junior Engineer I as he was given only current duty charge of that post. Both the contentions cannot be accepted. The Tribunal has already held that the respondent having been promoted as Junior Engineer I, though in stop-gap arrangement, was continued on that post and, therefore, he has a right to be considered for regular promotion. Having regard to the facts of 5 this case, there is no reasons to differ with the Tribunal.” From the aforesaid fact, it is apparent that after retirement of one Bishwanath Prasad, P.A. to the Collector, the petitioner was asked to work as a P.A. to the Collector, Saran during the period 1.2.1992 to 31.12.2004, so much so that the petitioner was even selected by the Selection Committee and recommended his name for being appointed to the post of P.A. but the State Authority did not take any steps in pursuance of recommendation of selection. It appears from undisputed record that the Collector and the Commissioner had recommended the name of petitioner for being appointed to the post of P.A. to the Collector. The respondents ought to have taken decision one way of other in connection with the petitioner rather they allowed the petitioner to work on the post of P.A. without giving the salary of the aforesaid post and allowed him to superannuate from his office without taking any decision otherwise. The aforesaid case covers dispute involved in this present writ petition. This case is completely covered by the aforesaid judgment. Hence, it is directed that the petitioner should be paid the difference of salary of PA vis-a-vis stenographer for the aforesaid period i.e. 1.2.1992 to 31.12.2004. The petitioner should be paid such benefit within 6 months from the date of receipt/production of the order of this Court. 6 Accordingly, the writ petition is allowed. Mkc/ ( Shivaji Pandey, J.)