IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.515 of 2011 1. THE STATE OF BIHAR through the Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna. 2. The Deputy Secretary, Public Health and Engineering Department, Govt. of Bihar, Patna. 3. The Principal Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Pana. ……………….Respondents/ Appellants. Versus 1. RAJENDRA PRASAD Son of late Ghuteshwar Harizan, resident of 204 RLV Apartment, Punaichak, District Patna, at present posted as Executive Engineer (I/C) Drinking Water and Sanitation Department, District Giridih. 2. Yamuna Ram Son of Late Shanichar Ram, resident of 204 RLV Apartment, Punaichak, District Patna at present posted as Executive Engineer (I/C) H.R. Drinking Water and Sanitation Department, Jharkhand Ranchi. …………………Petitioners/ Respondents 1st Set. 3. The State of Jharkhand through the Principal Secretary, Drinking Water and Sanitation Department, Govt. of Jharkhand at Ranchi. ………………….Respondent/Respondent. IInd Set. ----------- For the Appellant- State:- Smt. Neelu Agrawal, G.A.6 & Mr. Zaki Haider, A.C. For Respondent Nos. 1 & 2:- Mr. Ashwani Singh, Sr. Advocate & Mr. Anil Kumar Sinha, Advocate. For the Respondent No.3 (State of Jhrkhand):- Mr. Dhruba Mukherjee & Mr. Neeraj Kumar, Advocates. 3 01.04.2011 The present L.P.A. has been filed against an interim order dated 7.10.2010 passed by the learned Single Judge in C.W.J.C. No.3521 of 2010. The grievance of the writ petitioners- respondents herein seems to be as with regard to non payment of additional pay holding the post of Executive Engineer from 30.6.1994 and 30.6.1995. The case of the writ petitioners- respondents herein was that they were made in-charge Executive Engineer, but as the assignment was not in addition to the duties of an Assistant Engineer the petitioners, respondents here were not entitled to the full pay scale of the Executive Engineer from the date of their 2 discharging the duties of in-charge Executive Engineer. The learned Single Judge having heard counsel for the parties has directed the State of Bihar to pay the arrears of salary to the petitioners till the date they continued to work in the State of Bihar and same direction was also given to the State of Jharkhand. Being aggrieved by the aforesaid order this appeal has been filed by State of Bihar and its officials. It has been contended by the learned counsel appearing on behalf of the appellants that the notification says that the petitioners, respondents herein have been transferred on the post of additional charge of in-charge Executive Engineer in their regular pay scale in the year, 1995 and they have been paid as such till today. Learned counsel for the appellants further submitted that even though promotions have been refused in the year 2007 but the fact remains that they were officiating on the post and as such they are not entitled for regular pay scale as per section 89 (1) of the Bihar Service Code Clarification Rule 103 issued by the State Government vide Memo No. PAR- 4054/ 60/ 12886 F, dated 7.6.1960. Learned counsel has further contended that they have been transferred to work as in- charge Executive Engineer in addition to the duties of Assistant Engineer and hence they are entitled only for additional pay as per clarification made in Rule 103 of the Bihar Service Code. We had the occasion to go through the order by which the petitioners, respondents herein were transferred to discharge the duties of the in-charge Executive Engineer in addition to the 3 duties of the Assistant Engineer which they were holding. Fact remains that the respondents had never chosen to challenge the aforesaid notification at any point of time and for the first time they have chosen to consider their promotion from the post of Assistant Engineer to the post of Executive Engineer by filing a writ petition in the year 1994. We had also the occasion to go through Rules 89 and 103 of the Bihar Service Code by which entitlement of the Government servant holding additional charge has been decided. Under Rule 103 of the Bihar Service Code a clarification has been issued by the Finance Department vide Memo No. 1479 F dated 30.12.1968. Clarification of the State Government regarding Additional Pay under Rule 103 of the Bihar Service Code reads as follows:- “Cases have come to the notice of the Finance Department where additional pay under rule 103 of the Bihar Service Code has been sanctioned to a Government Servant for holding additional charge of subordinate posts of lower rank. The question whether payment of additional pay in such cases is justified was under consideration of Government and it has since been decided that no additional pay under the above rule should be sanctioned to a Government servant for the additional charge of subordinate post even though the other conditions of rule 103 of the Service Code, may have been satisfied. (Vide Memo No. PAR- 4054/ 60/ 12886 F, dated 7.6.1960).” In order to avoid irregular sanction of Additional Pay the following provisions have been made:- Clause 2:-“(i) In cases where Government 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 4 proposed to sanction 20% of „officiating pay‟ as distinct from „substantive pay‟ the prior concurrence of Finance Department will be necessary.” “(viii)- For holding current charge of doing routine duties of additional posts, no additional pay will be admissible. In deserving cases where a gazetted officer holds current charge of another higher gazetted post, additional pay may be allowed at the rate not exceeding 10% of pay with the concurrence of Finance Department”. In the counter affidavit filed by the appellants they have admitted to pay 20% officiating pay in terms of Clause 2 (i) of the aforesaid clarification. Under the above circumstances, we are of the opinion that the order of the learned Single Judge can be modified to the extent that the Additional Pay should be allowed by the State Government at the rate of 20% from the date of assumption of charge till the date of holding the said additional charge, if not already paid. Such payment shall be made subject to result of the writ application. However, this order will not preclude the writ petitioners, respondents herein to agitate their right in the writ application in accordance with law. With the above modification in the order of the learned Single Judge, the appeal is disposed of. Abhay Kumar ( T. Meena Kumari, J.) (Akhilesh Chandra, J.)