IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13693 of 2009 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE SECRETARY, DEPARTMENT OF HOME GOVT. OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF FINANCE GOVT. OF BIHAR, PATNA 4. THE JOINT SECRETARY, DEPARTMENT OF HOME (POLICE), GOVT. OF BIHAR, PATNA 5. THE DEPUTY SECRETARY, DEPARTMENT OF HOME (POLICE), GOVT. OF BIHAR, PATNA ……………………….PETITIONERS Versus 1. KASSEY SUHITA ANUPAM I.P.S. W/O MR. AMRIT RAJ, I.P.S., RESIDENT OF C/O MR. K. S. ARTHUR, 7/5 SRI NAGAR, GUNTUR, P.S.- ARUNDELPET, DISTRICT- GUNTUR, ANDHRA PRADESH, PRESENTED POSTED AS S.P., WEST CHAMPARAN (BETTIAH) 2. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI 3. THE ACCOUNTANT GENERAL, BIHAR VIRCHAND PATH, PATNA. …………………….RESPONDENTS. with CWJC No.14011 of 2009 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF HOME GOVT. OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF FINANCE GOVT. OF BIHAR, PATNA 4. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (H.Q.) GOVT. OF BIHAR, PATNA 5. THE DEPUTY SECRETARY, DEPARTMENT OF HOME (POLICE), GOVT. OF BIHAR, PATNA 6. THE JOINT SECRETARY, DEPARTMENT OF HOME (POLICE), GOVT. OF BIHAR, PATNA ………………………….PETITIONERS Versus 1. SHALIN,I.P.S. S/O LATE RUP LAL, R/O FLAT NO. C-601, MANDKINI APARTMENT SECTOR II, DWARIKA, P.S.- DWARIKA, NEW DELHI, PRESENTLY POSTED AS S.P., NAWADAH, BIHAR 2. THE UNION OF INDIA THROUGH SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI. 3. THE ACCOUNTANT GENERAL, GOVT. OF BIHAR, VEER CHAND PATEL PATH, PATNA. ………………………..RESPONDENTS. ----------- For the petitioner State :- Mr. P. K. Verma, AAG XI Mr. S. R. Sharan, AC to AAGXI (in CWJC No. 13693 of 2009) 2 For the Petitioner State :- Mr. Manikant Mishra, G.P.-21 Mr. Gopi Jha, AC to GP-21 (in CWJC No. 14011 of 2009) For the Respondent No. 1 :- Mr. Mritunjay Kumar, Advocate For the Respondent No.5 :- Mr. M. Prasad For the Union of India :- Mr. Kameshwar Prasad Gupta SC of Central Govt. 2 30/10/2009 Heard the parties. Both the writ petitions raise a common question of law relating to service conditions of a member of Indian Police Service. The issue is, whether on being temporarily appointed or posted to a higher post which is in the senior time scale of pay, the officer will be entitled to the benefit of senior time scale only for the purpose of drawing remuneration or will it entitle him to claim promotion from an earlier date since he was temporarily posted or appointed to the higher post without being given regular promotion in the senior time scale of pay on fulfilling the requirement of rule such as four years of service etc. On going through the Rules which have been quoted by the Central Administrative Tribunal Patna Bench (hereinafter referred to as the Tribunal) in the impugned orders, it is clear that scale of pay including senior time scale of pay is governed by Rule 3 of the Indian Police Service (Pay Rules 1954) (hereinafter referred to as the Pay Rules). For senior scale, the proviso requires that a member of the service shall be 3 appointed to senior scale on his completing four years of service, subject to the provisions of Sub-Rule(2) of Rule 6-A of the Indian Police Service (Recruitment) Rules 1954 (hereinafter referred to as the Recruitment Rules). Rule 6-A of the Recruitment Rules requires an eligible officer only to be appointed to a post in the senior time scale of pay. He should have required length of service and experience and the State Government should be satisfied that he is suitable for appointment. Under the Sub Rule (3) the State Government has been given power to withhold the appointment of an officer to a post in the senior time scale of pay till he is confirmed in the service or till he passes the prescribed departmental examination or examinations and in case of such withholding, the State Government may appoint to such a post an officer junior to him. So far as the required length of four years of service is concerned, for appointment to a post in the senior time scale of pay such criterion appears to be mandatory but so far as the confirmation or passing of the departmental examination is concerned, the State Government appears to have a discretion. The officer may have a grievance if he is denied senior time scale of pay even after he has completed four years of service but he cannot claim such scale till 4 he has completed four years of service. So far as facts of the cases before us are concerned, in CWJC No. 14011 of 2009, the applicant Shalin was given senior time scale of pay from a date when he completed four years of service and from that date only he was ordered to be appointed to the senior time scale of pay. The effect of the order of the Tribunal is to grant him senior time scale of pay from the date prior to his completing four years of service in the IPS. The reasoning of the Tribunal is clearly based upon provisions in Rule 8 of the Pay Rules which runs as follows: “8. Pay of officers holding posts enumerated in Schedule III.- Any member of the Service appointed to hold a post specified in Schedule III shall, for so long as he holds that post, be entitled to draw the pay indicated for that post in the said Schedule.” The main argument raised on behalf of the petitioners is that unless the conditions are fulfilled and regular appointment is made to the Senior time scale of pay as per Pay Rules and Recruitment Rules, for temporary posting to a post having Senior scale of pay, the concerned officer cannot be given benefit of senior pay scale and in granting such benefit the Tribunal has 5 committed error of law and has misread the relevant rules. On behalf of the concerned respondents, the officers, it has been submitted that Rule 8 entitles any member of the service who has been appointed to hold a post specified in Schedule III which covers the post in question, that for so long he holds the post, he is entitled to draw the pay indicated for that post. Reliance has also placed by learned counsel appearing for the respondent officers upon a judgment of the Supreme Court in the case of State of H.P. Vrs. Vijay Pal Singh reported in 1997(10) SCC 160 to submit that in that case the concerned officer had merely discharged the duties of an ex-cadre post meant for IPS officer and he had not been even impaneled for the promotion as an IPS officer, but the Apex Court held that he was entitled to payment of the salary of the scale of pay attached to the post. So far as the aforesaid judgment of the Apex Court is concerned, it has rightly been submitted on behalf of the petitioners that it did not relate to entitlement for the senior time scale of pay under the present Pay Rules nor these rules were discussed by the Apex Court. However, in the present case Rule 8 clearly helps the respondent officers in their claim that they are 6 entitled to draw the pay indicated for the post specified under Schedule III which they held under valid orders of the State Government. As a result of aforesaid discussions and the rule position, the order of the Tribunal holding the respondent officers entitled for payment in senior time scale of pay on account of their first posting on the concerned posts needs no interference. However, it must be clarified that the relief which the respondent officers have been granted is only on the basis of Rule 8 which entitles them to draw the pay indicated for the post in question but this will not entitle them to claim that their date of regular appointment to senior time scale of pay should also be changed. Rule 8 entitles the concerned officers only to draw the pay in appropriate scale but does not entitle them to claim change in the date of their promotion to senior time scale of pay unless they can show that they were entitled for regular promotion to senior time scale of pay but were denied such regular promotion by the State Government for some wrong reasons. This observation has been made only to clarify the legal position. However, in the present cases the court has been informed that no competing interest of other officers is involved and there is no issue of seniority involved and hence the issue as to whether the date of regular 7 promotion of the concerned officers to senior time scale of pay requires to be changed or not, is not of any consequence in view of relief in respect of entitlement to pay granted to the officers by the Tribunal. As a result of the aforesaid discussions the dates of promotion of the concerned officers to senior time scale of pay will not be required to be changed simply by virtue of the order of the Tribunal holding them entitled to the senior time scale of pay. With this clarification, the writ petitions are disposed of. (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.) avin