IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5459 of 2008 UMESH LAL, SON OF LATE BADRI LAL, RESIDENT OF CHAUDHRANA ROAD, DANAPUR CANTT, P.S. DANAPUR, DISTRICT PATNA. ---- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, VISHWESHWARIYA BHAWAN, BAILY ROAD, PATNA. 2. PRINCIPAL SECRETARY, FINANCE DEPARTMENT, BIHAR, OLD SECRETARIAT, PATNA. 3. CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILY ROAD, PATNA. 4. ADDITIONAL SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, BAILY ROAD, PATNA. 5. ACCOUNTANT GENERAL, BIHAR, PATNA. 6. THE DEPUTY SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR,VISHWESHWARIYA BHAWAN,BAILY ROAD, PATNA. – RESPONDENTS For the petitioner :- Mr. Satya Prakash Srivastava, Advocate Mr. Sunil Kumar Gupta, Advocate Mr. Anil Kumar, Advocate For the State :- Mr. Tej Bahadur Singh, A.A.G. 7 Mrs. Shashi Priya Pathak, A.C. to A.A.G. 7 For the B.P.S.C. :- Mr. Ranjit Sinha, Advocate ----------- 2 6.5.2011 The petitioner has filed this writ application challenging the order by which he has been given promotion in the year 2002 w.e.f. 1996 to the post of an Assistant Engineer in the Public Health Engineering Department (hereinafter referred to as the „P.H.E.D.‟). The claim is that the petitioner should be granted promotion from 1989. The facts are that the petitioner was appointed as a Junior Engineer in the P.H.E.D. In the year 1989 a Departmental Promotional Committee was constituted and on 2 the basis of the relevant considerations, five persons were appointed. The petitioner claims that he was considered for appointment by the Departmental Promotional Committee constituted in 1989, but he found that his name was not recommended, rather other persons who were also in the list were appointed in his place. In reply thereto it is clarified by the State Government that there were 25 posts vacant. 18 were meant for General Category, 4 were meant for Scheduled Caste and 3 were meant for Scheduled Tribe candidates. In the meeting held on 17.2.1989 and 22.2.1989 matters were examined and finally the Government decided that only five posts would be filled up by way of promotion. Subsequently in the general category roster points 201, 203 and 205, in the scheduled caste category roster point 202 and in the scheduled tribe 204, were granted promotion to the post of Assistant Engineer. The petitioner claims that he is senior to two persons who were promoted earlier to him i.e. Jawahar Lal Singh and Ram Singhasan Prasad Singh. The seniority 3 claimed by the petitioner is on the basis of the provisional seniority list annexed and marked as Annexure-B to the counter affidavit. When the seniority list was finalized in the year 1995, the petitioner‟s name was at serial 90 whereas the names of the aforesaid two persons were at serial 71 and 72. A prayer has also been made on behalf of the petitioner that since vide Annexure-5 dated 27.4.1989, the petitioner was asked to work on officiating basis on the post of an Assistant Engineer along with several other persons he should be given the benefits of the higher salary. The petitioner, therefore, prays that as per Rule 89 of the Bihar Service Code, he should be granted the pay scale of an Assistant Engineer as he has worked right from the year 1989 till he was promoted in the year 2002. Eventually as indicated the petitioner was granted promotion to the post of an Assistant Engineer w.e.f. 1996. In the facts aforesaid the question that arises in this writ application is whether the petitioner would be entitled to 4 be granted the pay scale of an Assistant Engineer on the basis of officiating basis on the post of Assistant Engineer? As also whether the petitioner can explain that he is senior to Jawahar Lal Singh and Ram Singhasan Prasad singh? And lastly whether the petitioner would be entitled to grant of the pay of an Assistant Engineer w.e.f. 1996? Dealing with the question of claim of seniority, as per the pleadings of the petitioner and the statements in the counter affidavit, filed on behalf of the State, it would appear that in the provisional gradation list, the petitioner was at serial no. 89 whereas Jawahar Lal Singh was at serial no. 71 and Ram Singhasan Prasad Singh was at serial no. 72. After objections were filed with respect to the provisional seniority list, a final seniority list was prepared in which the petitioner was at serial no. 90, Jawahar Lal Singh was at serial no. 71 and Ram Singhasan Prasad Singh was at serial no. 72. The petitioner submits that the seniority has wrongly been decided as the seniority should be fixed 5 from the d ate of appointment. This Court cannot look into these facts in view of the fact that the final gradation list was prepared in the year 1995 and the petitioner has not challenged the final gradation list, rather he is raising this issue after his retirement i.e. in the year 2008. It is well settled that if any relief is to be sought regarding a particular action of the State Government, the concerned incumbent should immediately come to this Court or move the Court within reasonable time. To challenge indirectly, the final gradation list, after 13 years is not permissible and it is hit by delay and laches. It has next been argued on behalf of the petitioner that he had been working as an Assistant Engineer since 1989 and, therefore, he ought to be paid the salary as per the provisions of Rule 89 of the Bihar Service Code. Rule 89 provides as follows: “89. (1) Subject to the provisions of rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came into force, a Government servant who is appointed to 6 officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post other than a tenure post, unless the officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. (2) For the purpose of this rule the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the aforesaid permanent post, or, on a scale of pay identical therewith.” Rule 103 envisages that: “103. 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 post at one time shall be regulated as follows:- (a) the highest pay to which he 7 would be entitled if his appointment to one of the 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.” For this purpose I would like to refer to the clarifications given to Rule 103 which was essential in view of the fact that there had been certain anomalies in the pay scale which had been granted to persons who were entitled under Rule 89 of the Bihar Service Code and as such the government issued a clarification. “*Regarding.-…………. 2. In order to …………… (i) In cases where Government 8 servant takes full charge of more than one post (other than inferior or subordinate post), he may be allowed Additional Pay not exceeding 20% of his “substantive pay‟ by the competent authority. In cases where it is proposed to sanction 20% of “officiating pay” as distinct from “substantive pay” the prior concurrence of Finance Department will be necessary. (ii) Arrangement regarding combination of appointment as contemplated in the rule shall be made with the prior approval of an authority not below the rank of the appointing authority. In such cases necessary notification or office order, as the case may be, appointing the Government servant concerned to perform the duties of additional posts in addition to his own duties should invariably issue. For such combination of appointment however, approval of the Council of Ministers or the Public Commission will not be required. (iii) Such an arrangement should not be made in vacancies of less than fifteen days duration and in case the same has to continue for more than six months, Finance 9 Department‟s concurrence must be obtained. (iv) The Additional post/posts, the duties of which a Government servant is required to combine must be independent of his own post. The term “independent post‟ has been defined in note below rule 103 of the Bihar Service Code. The additional post, the duties of which are combined should not be on the same establishment or office and should not also fall in the line of normal promotion. For example the posts of Under Secretary/Deputy Secretary, Deputy Directors, Deputy Commissioners, Accountants, Assistants and Clerks etc, in the same office or establishment are not independent of each other for the purpose of the rule.” Rule 89 has been read with rule 103. It is obvious on reading of the rule that it envisages that the person should be performing apart from his own duties, the duties of a higher post and that would entitle him to an additional pay not exceeding 20%. It also envisages that the additional post that the person is holding 10 should not fall in the line of normal promotion. The claim of the petitioner that he was entitled to 20% additional pay cannot be substantiated in view of the fact that the petitioner was working on officiating basis. It is not a case where the petitioner was holding a dual charge and performing functions of a Junior Engineer as well as an Assistant Engineer. The second hurdle in the way of the petitioner is that the said post which the petitioner was holding i.e. the post of an Assistant Engineer falls in the normal line of promotion as far as the petitioner is concerned, which is substantiated by the fact that eventually the petitioner was granted the promotion to the post of an Assistant Engineer. It may be noted that this writ application in which the petitioner has made a claim of getting benefit of rule 89 read with rule 103 of the Bihar Service Code has come at a belated stage which is an additional reason for this Court to reject the prayer. As far as the third issue is concerned, in the opinion of this Court the 11 notional promotion granted to the petitioner vide Memo No. 203 dated 10.1.2002 w.e.f. 1.2.1996 cannot be granted with a rider that he would not be entitled to the monetary benefits. The reasons given by the State that those persons who have got the monetary benefits had moved this Court, and therefore, they were given the benefits, is not a good enough reason for depriving others from being granted the monetary benefits. It has been held in several decisions including the decisions rendered by the Apex Court in the case of Shiva Narayan Lal Vs. State of Bihar & Ors. [1999 (1)PLJR 243] and in the case of Md. Hafiz Vs. State of Bihar & Ors. [2003 (2) PLJR 44] that the material benefits cannot be withheld to the government servant who has been granted promotion notionally or retrospectively. As such the writ application is allowed in part. The petitioner would be entitled to the monetary benefits to the post of an Assistant Engineer from the year 1996. The retiral dues should be accordingly recalculated on the basis of this order within a period of 12 three months from the date of receipt/production of a copy of this order and the dues should be paid to him within a period of six months thereafter. However, this Court does not accept the contention of the petitioner that he should be granted promotion from 1989, or that he would be entitled to an additional pay under rule 89 and 103 of the Bihar Service Code. Sanjay/A.F.R. ( Sheema Ali Khan, J.)