CIVIL WRIT JURISDICTION CASE No.8712 OF 2008 ------------ In the matter of an application under Articles 226 and 227 of the Constitution of India. ------- 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE SECRETARY, DEPARTMENT OF PERSONNEL ANADMINISTRATIVE REFORMS, GOVRRNMENT OF BIHAR, OLD SECRETARIAT, PATNA…. PETITIONERS Versus 1. UNION OF INDIA , THROUGH THE SECRETARY, MINISTRY OF PERSONNEL AND PENSION AND PUBLIC GRIEVANCE, NORTH BLOCK, NEW DELHI……………. RESPONDENT 2. SHIVENDRA KISHORE SINHA, SON OF SHRI SURAJ PRASAD SINHA, PRESENTLY RESIDING AT A-3/11, BAILY ROAD, PATNA……………………………… RESPONDENT ---------- FOR THE PETITIONERS :- MR.SUBHASH PD.SINGH, G.A.-8, MR. BAJRANGI LAL,AC TO GA-8 FOR THE RESPONDENT :- MR. MADHURESH PD.ADVOCATE --------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR.JUSTICE BIRENDRA PRASAD VERMA ------------ Shiva Kirti Singh,J Heard learned counsel for the petitioners who are the State of Bihar, and the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar and also learned counsel for respondent no.2 who had preferred O.A. No. 75 of 2003 before the Central Administrative Tribunal, Patna Bench, Patna which has been allowed in part by the impugned order dated 15-1-2008. Nobody appeared on behalf of the Union of India. 2 2. The relevant facts are not in dispute and in brief they may be summarized as follows: The applicant is a member of Indian Administrative Service belonging to 1974 batch, Bihar cadre. He received promotion in the Super Time Scale of pay corresponding to Commissioner rank in October,1990. In December, 2000 he was posted in a cadre post of Excise Commissioner-Cum-Secretary and thereafter on 10-2-2001 he was posted as the State Editor Gazetteer, Department of Revenue and Land Reforms, Government of Bihar. But he did not join that post on the ground that he found the post to be virtually non- existent post and against said transfer the applicant filed O.A. No. 105 of 2001 before the Central Administrative Tribunal, Patna Bench, Patna which was dismissed on 27-3-2001. His writ petition bearing C.W.J.C. No. 7101 of 2001 against the said order of the Tribunal was disposed of vide order dated 17-10- 2005. This date has been wrongly mentioned in the writ petition as 19-10-2005 as apparent from a copy of the order available as annexure-E to I.A. No. 4827 of 2009 filed by the applicant for vacating the order of stay dated 16-7-2008 passed in the present proceeding. During the pendency of the aforesaid writ petition the applicant filed another application bearing O.A. No. 75 of 3 2003 before the Central Administrative Tribunal, Patna Bench, Patna for a direction for payment of his salary since February, 2000. By an order dated 23-8-2004 the learned Tribunal considered the fact that till then the applicant had not joined his post or submitted joining before the Chief Secretary and therefore the Tribunal directed the applicant to submit his joining report before the Chief Secretary, Govt. of Bihar within one week which should be accepted and thereafter appropriate order would be passed for payment of his salary as per law. The applicant submitted his joining report on 25-8-2004 but actually joined on the post on 9-10-2004 which was made available in the main Secretariat Building. By an order dated 30-10-2004 the State Government regularized the period from 25-8-2004 to 8- 10-2004 and the applicant was paid salary for this period. In this order/ letter dated 30-10-2004 addressed to the Accountant General of Bihar, Patna, it is mentioned that decision about regularization of period prior to 25-8-2004 would be taken separately. Pursuant to a direction of the learned Tribunal, the State Government by order dated 20th September, 2006 contained in notification no. 9487 took a decision to treat the period from 1-3-2001 to 24-8-2004 as extra-ordinary leave. Under Rule 15 of 4 All India Services ( Leave ) Rules 1955 ( hereinafter referred to as the Rules) such leave does not entitle the applicant to any leave salary. This decision was assailed by the applicant in pending O.A. No. 75 of 2003 which was finally decided partly in favour of the applicant by order dated 15-1-2008 which is under challenge. 3. By the impugned order the Tribunal considered the question as to whether the applicant can be allowed salary from 1-3-2001 to 24-8-2004, the period when he had not joined the post nor had given any joining report nor had done any work. For deciding this question the learned Tribunal considered paragraph-5 of the written statement of the Union of India which is extracted in paragraph- 12 of the impugned order. As per that statement the State Government had declared the post in question as Ex-cadre post in the year 1997-98 and further on 10th February, 2001 when the applicant was posted against this post, no further proposal for continuation of that post beyond the period of two years had been received by the Central Government till then. The State Government’s quinquennial Cadre Review proposal which was under consideration had also not proposed encadrement of any such post and therefore the 5 continued posting of the applicant was not under the provisions of I.A.S. ( Cadre ) Rules. The Tribunal on consideration of second proviso to Rule 4 of the Cadre Rules found that the State Government may add, for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years, one or more posts carrying duties and responsibilities of a like nature to the cadre posts. 4. The Tribunal also considered Rule 9 of the Indian Administrative Service ( Pay ) Rules 1954 and observed that a member of the service could be appointed only to a post as specified under schedule III of the pay rules unless the State Government concerned, in respect of posts under its control makes a declaration that the said post is equivalent in status and responsibility to a post specified in the said schedule. Thereafter on the basis of facts before it, the Tribunal held that no such approval required in the second proviso under Rule 4 of the Cadre Rules was sought from the Central Government after one year. On that basis the Tribunal held that the up-gradation of the post of State Editor, Bihar Gazetteer had continued for a period of one year that is up to 9-2-2002 but beyond that period the said post ceased to be so up-graded and therefore, with effect from 6 10-2-2002 the applicant was under no obligation to join the post. With effect from that date he continued to be transferred to a post which was not a cadre post. The Tribunal held that for the period of one year when the post stood up-graded the applicant was not entitled for any salary because he failed to submit his joining report to the Chief Secretary, Government of Bihar and did not work. According to the Tribunal with effect from 10-2-2002 the post had ceased to be so up-graded and therefore in spite of not having joined the post the applicant was entitled for salary as his plea was found correct that there was no such post in the cadre and therefore he could not have been posted to such post. Accordingly, the Tribunal by the impugned order allowed the application in part and directed the petitioners herein to calculate and pay the salary as admissible to the applicant for the period from 10-2-2002 to 24-8-2004 within two months of receipt of a copy of that order, failing which the dues of salary would be payable with interest at the rate of 9% per annum to be counted from the expiry of the period of two months, till the date of actual payment. 5. On behalf of petitioners it has been submitted that from the facts mentioned in paragraph-7 of the impugned order it 7 is evident that earlier also I.A.S. Officers were posted on the post in question and when the applicant was posted to that post, by the order of posting dated 10-2-2001 itself the State Government declared the post to be equivalent to the post of Divisional Commissioner so far emoluments, status and responsibility were concerned, as required under provisions of Rule-9 of the I.A.S. (Pay ) Rules 1954. It is further submitted that even according to Tribunal’s order under challenge, the post was not a non-existent post and hence there was no substance in such plea of the applicant for not joining the post and hence the Tribunal has held that he was not entitled to salary at-least till 10-2-2002. According to learned counsel for the petitioners the bar in Rule-9 of the I.A.S. ( Pay ) Rules 1954 is specific that no member of the service shall be posted to a post other than a post specified in Schedule-III unless the State Government concerned makes a declaration that the said post is equivalent in status and responsibility to a post specified in the said schedule. “ It was pointed out that although this provision in the rules has been noticed in paragraphs 13 and 14 of the impugned order, the learned Tribunal failed to consider such equivalence declared by the State Government in the order of posting dated 10-2-2001 8 which was noted by the Tribunal in paragraph-7 of the impugned order. According to learned counsel for the petitioners the provisions in the I.A.S. ( Pay ) Cadre Rules 1954 relate only to the strength of cadre but do not prohibit working on a post equivalent in status and responsibility and the pay is also protected under Rule 9 (2) of the I.A.S. ( Pay ) Rules 1954. In other words, the case of the petitioners is that even if there was no encadrement or up-gradation of the post after 10-2-2002, this could not have any effect upon the obligation of the applicant to join the post and such obligation did not cease after 10-2-2002 which is clear from the fact that under orders of the Tribunal the applicant actually joined the post by submitting joining on 25-8- 2004 and received pay and emoluments for working on that post since then. 6. On the other hand, learned counsel for the respondent applicant submitted that there was no error in the views taken by the learned Tribunal because a member of Indian Administrative Service cannot be obliged to join a post which was not up-graded and therefore had ceased to be a suitable post. 7. Having considered the relevant rules and the facts , we are of the considered view that once the State Government 9 had made the required declaration under Rule 9 of the I.A.S. (Pay ) Rules 1954 that the post in question is equivalent in status and responsibility to a post specified in Schedule III, there was no justification for the applicant in refusing to join that post even if no encadrement or up-gradation of the post was made after 10- 2-2002. 8. The learned Tribunal based its findings in favour of the respondent applicant on the strength of second proviso to Rule 4 of the I.A.S. (Cadre) Rules 1954, The said proviso runs as follows :- (2) “The Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Government concerned and may make such alterations therein as it deems fit: Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time: Provided further that the State Government concerned may add for a period not exceeding one year [and with the approval of the Central Government for a further period not exceeding two years] to a State of Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.” The said proviso only refers to the manner in which the State Government may temporarily add one or more posts in the joint cadre. However, it does not affect the power of the State Government to appoint the member of the Indian Administrative 10 Service to a post other than the posts specified in schedule III, once the State Government in respect of posts under its control makes the required declaration in terms of Rule 9 of the I.A.S. (Pay ) Rules 1954. 9. In view of aforesaid discussions and finding it has to be held that the submissions advanced on behalf of the petitioners have sufficient merit. Accordingly, we are constrained to hold that the impugned judgment and order of the learned Tribunal is not in accordance with law and it deserves to be set aside. We order accordingly. As a result O.A. No. 75 of 2003 will stand dismissed. This writ petition is allowed. There shall be no order as to costs. B.P. Verma, J I agree Patna High Court, Patna Dated the 29th July, 2010 AFR Naresh ( Shiva Kirti Singh, J.) ( B.P. Verma, J)