IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.341 of 2010 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR-CUM-JOINT SECRETARY PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. THE ADDITIONAL SECRETARY PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 5. THE VICE CHAIRMAN BIHAR STATE PLANNING BOARD, PATNA 6. THE SECRETARY BIHAR STATE PLANNING BOARD, PATNA 7. THE DEPUTY SECRETARY BIHAR STATE PLANNING BOARD, PATNA 8. THE ADMINISTRATIVE OFFICER BIHAR STATE PLANNING BOARD, PATNA Versus 1. SIYARAM SINGH S/O LATE JENALAL SINGH R/O LOHANIPUR, P.S.- KADAM KUAN, DISTT.- PATNA ----------- For the appellants:- Mr. Harish Kumar, AC to GP 4. For the Respondent:- Ms. Amita Roy Choudhary, Advocate ----------- 2. 04.03.2010 Heard learned Government Pleader No. 4 for the appellants and Ms. Amita Roy Choudhary, learned counsel for the sole respondent on the point of limitation. On a consideration of submissions of learned counsels for the parties, we are of the view that sufficient cause has been shown for condoning the 2 delay of 37 days in filing the Letters Patent Appeal. Hence, the delay is condoned. I.A. No. 1716 of 2010 is accordingly disposed of. Having condoned the delay, the matter is taken up for admission and with the consent of learned counsels for the parties, it is finally heard. The Letters Patent Appeal has been filed against the order dated 30.11.2009 passed in CWJC No. 15069/2009 by a learned Single Judge of this Court by which he has directed that while the petitioner who was a Class-IV employee of the Planning and Development Department, may not be promoted as driver but because he has served as driver since 1975, arrears of difference of salary of the post of driver be paid to him. The writ petitioner-respondent had filed the writ application seeking a direction to the appellants authorities to promote him to the post of driver from the post of peon on the ground that he had been discharging the duty of driver since 7.1.1982 in the Bihar State Planning Board and fulfills all the requisite 3 qualifications to be promoted to the said post of driver and to give him all consequential benefits including the fixation of pay scale, arrears of salary/revised salary and all other monetary benefits. The admitted fact is that the respondent was appointed on the post of peon with effect from 18.2.1975 in the Planning Board. The respondent claims that he was a skilled driver having a valid driving licence and that the authorities of the Board started taking work of driver from him since 7.1.1982 and he was still working as incharge driver of the staff car of the Board. He also annexed some of the certificates issued by different authorities of the Board to the effect that work was taken from him as driver. The writ petitioner also claims to have worked on leave vacancy for a period of 19 days from 27.10.1983 to 14.11.1983 on the post of Staff Car driver. On 20.6.2001 the respondent filed his representation seeking his promotion to the post of driver claiming to have been continuously discharging the duty of driver in the Board and in the alternative prayed for fixation of salary in the driver’s pay scale. However, despite 4 repeated reminders the matter was not taken up and ultimately the respondent approached this Court by filing the writ petition. It is stated that the petitioner- respondent has since retired on 31.10.2009. The stand of the appellants in their counter affidavit to the writ petition, inter alia, was that the writ petitioner was appointed on the post of orderly, a Class-IV post and at times he was directed to perform the duty of Staff Car driver in his capacity as an orderly in the Board. It was further pointed out that the appointment and promotion of drivers comes within the purview of Bihar Drivers (Appointment and Service Condition) Rules, 2005 which have been framed under the proviso to Article 309 of the Constitution of India and the case of the respondent does not come within the purview of the said Rules. Learned counsel for the appellants submits that the writ petitioner had been appointed on the post of orderly which is a Class-IV post and not on the post of driver, which is a Class-III post and he cannot claim the pay scale of driver unless he is appointed regularly on the said post in terms of the Rules of the 5 Government. It is further submitted that the post of driver is not a promotional post from the post of orderly and thus, the case of the petitioner could not have been considered for promotion on the said post. It is contended that the respondent having been appointed on the post of orderly, cannot claim to be given the pay scale of Class-III post of driver to which he had never been appointed and he was merely permitted to drive the Staff Car which permission does not entitle him to the pay scale of the said post. It is urged by learned counsel for the appellants that as per the claim of the respondent himself the authorities had started taking work of driver from him since 7.1.1982; hence, in any view of the matter, no direction could have been issued to pay him salary of driver from the year 1975. It is also submitted that the petitioner-respondent himself has admitted that he had worked on leave vacancy in the year 1983 which goes to show that at that time there was a regular driver in the Board working on the single sanctioned post of Staff Car driver and that the claim of the respondent that he was regularly working as a driver 6 since 7.1.1982 is also falsified by his said admission. It is lastly urged by learned counsel for the State that on his own showing the petitioner for the first time made his representation before the authority of the Board on 20.6.2001 and thus he cannot be permitted to raise a claim for any promotion prior to the same. It is also pointed out by learned counsel that in the aforesaid representation dated 20.6.2001, the respondent has admitted that he is Class-VII pass whereas in the 2005 Rules, which are statutory in nature, the minimum educational qualification for the post of driver is Class- VIII pass and thus the writ petitioner was not even qualified for the appointment on the post of driver in terms of the said Rules. Learned counsel for the writ petitioner- respondent, on the other hand, has sought to support the order of the learned Single Judge stating that since the authorities have taken the work of driver from him he was entitled at least to the salary of driver and rightly the arrears of difference of salary have been directed to be paid by the impugned order dated 30.11.2009. Having considered the rival submissions of 7 learned counsels for the parties, we find substantial force in the submission of learned counsel for the appellants. Admittedly the respondent was appointed as an orderly in the Bihar State Planning Board and all that can be said from the materials on the record is that he had volunteered to work as a driver from time to time in the said Board and that he was by the order dated 11.12.1981 permitted to drive the Staff Car from 7.1.1982 in addition to performing his own duties. Thus, it is evident from the said order that the respondent continued to be an orderly in the Planning Board. Moreover, this Court finds that for the first time in the year 2001, the respondent has filed his representation before the authorities for being either promoted or granted pay scale of the higher post of driver which claim was not acceded to and subsequently after the coming into force of the 2005 Rules, he was not even eligible for being appointed as driver as he does not possess the requisite qualification under the Rules having statutory force. The respondent having represented before the 8 authorities in the year 2001 but such claim not having been allowed, he has not chosen to raise his claim at that stage and only a few days before his retirement he has approached this Court by filing the writ application when he was not at all qualified to be appointed on the post of driver under the Rules framed under Article 309 of the Constitution of India. A person who has been appointed on a Class- IV post cannot claim the pay scale of a Class-III post that too when it has no connection with and is not in the line of promotion from the post on which he has been appointed, more so when his status is that of a mere volunteer to function additionally on the said post. It is not the case of the respondent that he was compelled to perform the said job by the authorities. Having willingly agreed to perform the work of driver of the Staff Car, no right can be claimed by the respondent de hors the statutory rules or the notifications issued by the Government from time to time. In the aforesaid view of the matter, the respondent is not entitled to the salary of driver since 9 1975 or, as claimed by him in the writ application, since 7.1.1982. Hence, the order dated 30.11.2009 of the learned Single Judge directing to pay salary of the post of driver to the respondent is set aside. The writ petition filed by the respondent is dismissed. The Letters Patent Appeal is accordingly allowed. S. Pandey (Dipak Misra, C.J.) ( Ramesh Kumar Datta, J.)