IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.744 of 2011 In (CIVIL WRIT JURISDICTION CASE 8205/2010) SUDEB KUMAR MOOKHERJEE, S/O LATE SUDHIR KUMAR MUKHERJEE, RESIDENT OF 801, LEELABRATA APARTMENT, PHASE-2, NEAR ALPANA MARKET, PATLIPUTRA COLONY, P.S. PATLIPUTRA, DISTRICT- PATNA. … Appellant Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT (IN SHORT P.H.E.D.), BIHAR, PATNA 3. THE JOINT SECRETARY, MANAGEMENT CELL, PHED, BIHAR, PATNA. 4. THE ENGINEER IN CHIEF CUM SPECIAL SECRETARY, PUBLIC HEALTH ENGINEERING DEPARTMENT, BIHAR, PATNA. .. Respondents. For the Appellant: Mr. Arvind Kumar Tiwary, Advocate. For the State: Mr. M.K. Pathak, Asstt. Counsel to GA-4. ---------------------------------- 4 29-09-2011 Heard learned counsel for the appellant and learned counsel for the State. The appellant superannuated from service as Assistant Engineer in the department of Public Health and Engineering, Government of Bihar on 30-11-1997. He had earlier moved this court through a writ petition bearing CWJC no. 16162/2004 claiming salary for officiating on the post of Assistant Engineer even after 4-8-1981 when he was reverted to the post of Junior Engineer on account of his lower position in the seniority list. That writ petition was disposed of on 9-7-2007 with a direction to the authorities to consider 2 the claim of the petitioner/ appellant within a fixed period. The Principal Secretary of the department by a reasoned order contained in annexure-1 to the writ petition which was challenged by the appellant, allowed officiating allowance under Rule 103 of the Bihar Service Code for the period between 19-4-1979 to 4-8-1981 when the appellant had been granted adhoc promotion and had worked as Assistant Engineer (Mechanical). However, the claim for the period after 4-8-1981 till superannuation on 30-11- 1997 was not accepted on the plea that during this period he was not working on the post of Assistant Engineer (Mechanical). This factual ground has been seriously challenged by the appellant on the basis of various orders annexed with the writ petition as annexure-5 series. In the counter affidavit filed in this appeal the stand of the respondent authorities is that the appellant merely officiated as Assistant Engineer till his retirement but he was holding the post of Junior 3 Engineer. This position is apparent from paragraph 16 of the counter affidavit. Since there is no dispute that the appellant was holding the post of Junior Engineer but was assigned the work of officiating on the higher post of Assistant Engineer between 5-8-1981 till his retirement on 30-11-1997, we are of the considered view that he would be entitled for officiating allowance as determined by the State Government under the provisions of Rule 103 of Bihar Service Code. There cannot be any substantive distinction for allowing officiating pay between 19-4-1979 till 4-8-1981 when the appellant had been granted adhoc promotion to the higher post of Assistant Engineer which was of course found to be against law on account of his lower position in the seniority list and for the period after 4-8-1981. The only distinction is that earlier an erroneous adhoc promotion was granted to the appellant under which he worked as Assistant Engineer and during the later period he officiated as Assistant Engineer without there being any such promotion. Learned counsel for the state has referred to 4 some judgements including one of the Apex Court in the case of Engineering Officer’s Association vs. State of Maharashtra, 1990 (2) PLJR SC 23 to submit that adhoc promotion cannot confer seniority unless it was granted for valid reasons after considering all the requirements of rules of seniority. In the present case there is no issue of seniority involved and, hence, the said judgement is of no help. On the other hand learned counsel for the appellant has placed reliance upon judgements of the Supreme Court reported in AIR 1999 SC 838 (Selvaraj Vs. Lt. Governor of Island, Port Blair) and (1998) 5 SCC 87 (Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma) in support of the plea that if the employee has worked on higher post though temporarily and in officiating capacity he is entitled to salary attached to higher post but payment of such higher salary will not amount to promotion. The rights of Government servant officiating on a higher post will have to be guided and controlled by the provisions under the rules such as Bihar Service 5 Code in the present case. Here as per opinion of the department itself Rule 103 was applicable to entitle the appellant for part of the period to higher officiating allowance/ pay. The same provision will apply even to the later period, that is, 5-8-1981 to 30-11-1997 when he was made to officiate on the higher post of Assistant Engineer. We direct the authorities to grant the consequential monetary benefits to the appellant after taking required decision under the provision of Rule 103 of the Bihar Service Code within a period of four month from today. It is made clear that such officiating pay will not confer any benefit to the appellant for the purpose of retiral benefits because officiating assignment was obviously not based upon any order of adhoc promotion or position in the seniority list. Persons senior in service to the appellant cannot be put to any disadvantage in the matter of retiral benefits vis a vis the appellant. Hence, the pensionary benefits will be guided by the substantive pay which he was entitled to receive and has already received. 6 In view of aforesaid discussion, the order of the writ court is set aside and the appeal is allowed to the extent indicated above. There shall be no order as to costs. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)