IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11673 of 1993 MAN MOHAN BELWARIAR (Since dead), son of late Shiv Nandan Sahay Belwariar, resident of Mohalla Khaderen singh Road Kadamkuan, Police Station Kadamuan, District Patna, retired from the post of Deputy Director Agriculture (Crops) Bihar, Patna. substituted by the following heirs: 1. Mrs Leela Belwariar widow of Late Man Mohan Belwariar 2. Pranay Belwariar 3. Priya Ranjan Belwariar 4. Pankaj Belwariar, All the sons of late Man Mohan Belwariar. Versus 1. THE STATE OF BIHAR through the Agriculture Production commissioner, having his office at Vikas Bhawan, Patna. 2. The Additional Secretary, in the Department of Agriculture, having his office at Vikas Bhawan, Patna. 3. The Director of Agriculture, having his office at Vikas Bhawan, Patna. 4. The Secretary Cum Commissioner in the Department of Finance, having his office at Old Secretariat, Patna. 5. The Accountants General of Bihar, having his office on Birchand Patel Marg, Patna. ----------- For the Petitioners :- Mr. Mukteshwar Dayal, Adv. For the State :- Mr. Prabhakar Tekriwal, Govt. Adv. ----------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (26.10.2010) ---------- Mihir Kumar Jha, J. Heard counsel for the petitioner and counsel for the State as with regard to the following relief:- “That this is an application for issuance of writ in the nature of mandamus commanding respondents to make payment of salary to the petitioner in the pay scale of Rs.1350-2000 with effect from 1.9.1982 to 31.3.1985 as petitioner has been posted on the higher post vide notification no.1/a G-132/82 -6636 dated 4.6.1992 and joined to the said post on 1.9.1982 and further directed for commanding the Respondents no. 1 to 4 for making payment of the salary in the pay scale of Rs.3700- 5000 with effect from 1.2.1989 to 30.11.1989 i.e. date of superannuation and other consequential post retiral benefits with interest as petitioner has been made Deputy Director (Crops) Head Quarter, Patna vide notification no.14490 dated 31.12.1988 and 2 joined to the said post on 1.2.1989 and continued till his superannuation i.e. 30.11.1989.” Let it be noted that the original writ petitioner who had filed this writ application on 17.11.1993 i.e. almost four years after his retirement claiming salary for the post of Assistant Director and the Deputy Director for the period 1.9.1982 to 31.3.1985 and also from 1.2.1989 to 30.11.1989 respectively, has been after his death substituted by his wife who has continued to press this application by walking in the shoe of her husband for claiming the financial benefit of her deceased husband. The facts are not in dispute, inasmuch as, the original writ petitioner came to be appointed against Class-II post of specialist (Agronomy), Bihar Agriculture Service on 29.12.1958. The petitioner was transferred from time to time on the equivalent post of Additional Subdivisional Agriculture Officer and for some time he was also directed to hold the post of Assistant Agronomist followed by the post of Instructor Farmer Training Center. The petitioner was subsequently transferred on the post of Subdivisonal Agriculture Officer on 4.6.1982 and on 30.6.1984 he was transferred to the post of Assistant Director of Agriculture. The petitioner while holding the post of Assistant Director, Agriculture was given promotion to the Junior Selection Grade of Bihar Agriculture Service, Category-1 w.e.f. 1.4.1985 and thereafter on 31.12.1988, he was sought to be posted on the post of Deputy Director, Agriculture in the Headquarters and had continued for the same capacity till the date of his retirement i.e. 3 30.11.1989. After four years of his retirement, the petitioner realized that while he was working on the higher post of Sub Divisional Officer in between 1982-1984 and on the post of Assistant Director in between 1984 to 1988 and the post of Deputy Director in 1988-89, he was not given his salary of those higher posts and accordingly he had filed this writ application claiming salary for the post of Subdivisional Officer and the Assistant Director for the period 1.9.1982 to 31.3.1985 and that of Deputy Director for the period 1.2.1989 to 30.11.1989. Learned counsel for the petitioner relies not only on the provisions of Bihar Service Code including Rule 89 and 103 to support his submission as with regard to the higher pay of the promotional post to the original petitioner for the period 1.9.1982 to 31.3.1985 and again also 1.2.1989 to 30.11.1989 but has also placed reliance on the judgment of the Apex Court in the case of Selvaraj Vs. L.T. Governor of Island, Port Blair & Ors. reported in (1998) 4 S.C.C. 291 and in the case of Secretary-cum- Chief Engineer, Chandigarh Vs. Hari Om Sharma & Ors. reported (1998) 5 S.C.C. 87 as also judgment of this Court in the case of Prafulla Ranjan Srivastava Vs. The State of Bihar & Anr. reported in 2008(3) PLJR 144. Mr. Prabhakar Tekriwal, learned Government Advocate appearing on behalf of State on the other hand had submitted that from the records it would be clear that the post of 4 Specialist on which the petitioner was appointed in the year 1958 was also the post of basic grade of Bihar Agriculture Service equivalent to the post of Subdivisional Officer on which as per working arrangement, the petitioner was made to work for some time. He was in this regard referred to the order of transfer (Annexure-2) describing both the posts as equivalent post by which the petitioner was posted as S.D.O., Agriculture. He has also explained that as the petitioner was given promotion in the Junior Selection Grade of Bihar Agriculture Service with at least 110 seniors to him by a common order dated 27.9.1989 which was in continuation with the earlier order dated 4.7.1987 and 18.7.1987, the petitioner could not have been given promotion on the post of Senior Selection Grade, inasmuch as, the minimum period of Kalawadhi for such promotion is five years as prescribed by the Personnel and Administrative Reforms Department in its Circular/Instruction dated 27th September, 1979. He had also submitted that as the petitioner had been given junior selection grade w.e.f. 1.4.1985 and the period of five years could have been completed only on 1.4.1990 but, the petitioner had already superannuated on 30.11.1989. He has also distinguished decisions relied by the learned counsel for the petitioner both on fact and law and has concluded that there is no judgment which has laid down on abstract proposition of law that the moment a person is asked to work on the higher post, he automatically becomes entitled for the pay and emoluments of such higher post. To that 5 extent, he has also tried to explain certain distinction between the provision of Rule 1989 of Bihar Service Code as with regard to officiating arrangement and Rule 89 of Bihar Service Code conferring benefit to Government servant for holding two posts. In the opinion of this Court, once this fact is not in dispute that the post of Specialist (Agronomy) which the petitioner was appointed and the post of Subdivisional Officer was in the same rank, as has also been clearly asserted in the supplementary counter affidavit filed by the respondent, there would be no difficulty in rejecting the much belated claim of the original writ petitioner with regard to payment of salary for the period 1.9.1982 to 31.3.1985 in the pay scale of junior selection grade in which the petitioner came to be promoted w.e.f. 1.4.1985. In fact, there is no any material on record to show that post on which the petitioner was appointed or had been continued as on 31.8.1982 was having a lower pay scale or the post of Subdivisional Officer was having a higher pay scale. Merely because some posts in the department or in any organization have/had better job prospect, that will not make the other post an inferior post though in the same rank. Here, the petitioner was earlier appointed as Specialist and later on his services were utilized on an equivalent post and as such, the original writ petitioner could not had claimed salary for the post by S.D.O. claming his retrospective promotion in the junior selection grade w.e.f. 1.9.1982. It has to be kept in mind that if such promotion of the 6 original writ petitioner is allowed, at least 110 persons senior to him would also be entitled for such promotion in junior Selection Grade w.e.f. 1.3.1982. It has to be also kept in mind that the post of junior selection grade in a cadre as per the 4th pay revision committee report were always restricted to that 20% of the cadre strength. It can be found that from the notification of promotion dated 27.9.1989 that persons including the petitioner from serial no.1 to serial no.77 were given junior selection grade w.e.f. 1.4.1981 and the remaining thereafter were given such J.S.G. from the date of vacancy. From the said notification, it is clear that not only the petitioner but even 110 seniors to him of Bihar Agriculture Service were given junior selection grade as per vacancies and the entitlement. Therefore, this Court would not find any merit in that part of submission of the learned counsel for the petitioner where claim for higher salary of the original writ petitioner was sought to be pressed on the ground of holding the post of Subdivisional Officer, Agriculture. As with regard to claim of original petitioner for being paid salary of the post of Assistant Director of Agriculture, it has to be kept in mind that in Bihar Agriculture Service when there were three grades post, namely, basic grade, junior selection grade and senior selection grade and the petitioner and his seniors had continued to work in the basic grade till they were promoted in the junior selection grade, the mere fact that they were asked to hold 7 the post categorized in the junior or senior selection grade would make no difference at least for the purposes of earning retrospective promotion, inasmuch as, it is only for this purpose that the State Government has made provisions in Rule 103 of Bihar Service Code or the Circulars issued thereunder as with regard to grant of certain allowance for holding higher post. Once this aspect becomes clear that the petitioner was given his promotion in junior selection grade from the date of his entitlement and after his seniors were so given the junior selection grade, it would be quite easy to understand the purport and scope of notification of another transfer of the petitioner dated 31.12.1988 wherein the petitioner not in isolation but at least 20 of them together were transferred to the different post including that of the Deputy Director or Principal of Training Centre or District Agriculture Officer. The said notification would itself go to show that at least five persons senior to the petitioner who had been promoted to the junior selection grade w.e.f. an earlier date prior to the petitioner were also given assignment of the post of Deputy Director or its equivalent post of Principal. The notification dated 31.12.1988, therefore, is plain and simple order of transfer which cannot be even remotely referred to as an order of officiating promotion. The case of the petitioner however is that since these posts of Deputy Director are to be manned by the officers of senior selection grade of Bihar Agriculture Service respectively with the 8 pay-scale of Rs. 1575-2300 respectively, the moment the petitioner in the Junior Selection Grade pay-scale of Rs. 1350- 2000 was asked to hold the post of Deputy Director, he would be also entitled for such higher pay of the senior selection grade. In the opinion of this Court, if this argument of the original petitioner is taken to its logical conclusion, he would become entitled for his retrospective promotion in senior selection grade even when the statutory rules had completely debarred him for such promotion as he had not completed his service of five years from the date of his promotion from the junior selection grade. It, therefore, becomes clear that the respondents have methodologically assigned the post of Deputy Director both to the seniors and juniors to the petitioner based on seniority figuring in the list of officers of junior selection grade. For example, Mr. Prem Shankar who is at serial no.4 of the said notification contained in Annexure-6 and was already holding the post of Deputy Director at Ranchi and he was sought to be transferred again on the post of Deputy Director, Agriculture in the Directorate of Agriculture, Ranchi. It would however appear from the notification of promotion of the post of junior selection grade in Bihar Agriculture Service that he was given junior selection grade was given w.e.f. 4.2.1983 whereas the petitioner was given the same with 1.4.1985. It is, therefore, clear that the working arrangement made by way of transfer order on the higher post of Deputy Director cannot remotely be held as an order of making officiating promotion against the higher post. Such order 9 in service jurisprudence is known as current charge arrangement in which the incumbent continues to work against the higher post by drawing salary of his own post and is entitled only for extra or additional allowances as per statutory rules. It is here that Rule 103 of Bihar Service Code comes into play which ordinarily envisaged that if a person is holding two posts, he would be entitled for payment of fixed allowances subject to maximum of 20% of his basic pay. The Circular of the State Government dated 22.2.1988 clarifies that the said provision of Rule 103 which is meant for the situation like the present one. In the said circular, the State Government had made it clear that the moment a person will be given higher post even by way of current charge arrangement after following the prescribed procedure with due regard to the seniority and observance of the roaster and reservation, he would be entitled for getting 20% of basic pay. To that extent, the circular dated 22.2.1988 being relevant for the purpose of this writ application is quoted hereinbelow:- ^^foRr foHkkx Kki la[;k 3@,e0 2&5&4@ 88@ 1082 fo0] fnukad 22&2&1988 fo"k;& Hkwry{kh izHkko ls izksUufr ds lEcU/k esa A foRr foHkkx ls Kkikad 2074 fo0] fnukad 4&4&1985 }kjk Hkwry{kh izksUufr lEcU/kh ekeys dks foRr foHkkx esa Hkstus ls iwoZ mldh leh{kk ds fy, ,d lkekU; vkns” fuxZr fd;k x;k Fkk A tSlk mlh ifjp; esa Li"V fd;k x;k Fkk] mDr lkekU; vkns” fcgkj lsok lafgrk ds fu;e 58 ,oa fcgkj foRrh; fu;ekoyh ds fu;e 74 dk gh lesfdr fo’ys"k.k Fkk A 2&bl lEcU/k ls jkT; ds fofHkUu lsok la/kksa }kjk ;g ekax dh x;h Fkh fd 10 iz”kklfud foyEc ds pyrs o"kksZ rd fof/kor izksUufr ugha gks ikrh gS tcfd in fjDr jgrk gS] rFkk ckn esa Hkwry{kh izHkko ls izksUufr ij lk/kkj.kr% jksd jgus ds pyrs ;ksX; inkf/kdkfj;ksa dks o"kksZ rd viuh ns; izksUufr ds ykH ls oafpr jguk iM+rk gS A 3&ljdkj }kjk ;g Hkh y{; fd;k x;k gS fd dbZ foHkkxksa }kjk inkf/kdkfj;ksa dks vius fuEurj osrueku esa gh mPprj in dk dk;Zdkjh izHkkj fn;k tkrk gs tks iz”klfud dfBukbZ rks mRiUu djrk gh gS] lkFk gh] lEcfU/kr inkf/kdkjh dks mPprj in dk dk;Zdkjh izHkkj xzg.k djus dh vof/k ds fy, vuqikfrd osru c`f) ds ykHk ls Hkh oafpr jguk iM+rk gS A 4&jkT; ljdkj dk lqfuf’pr eUrO; gS fd ,sls vf/kdka” ekeys esa iz”klh foHkkxksa }kjk izksUufr dh fufgr izfdz;k ds vuqlkj dksbZ vfxze ;kstuk ugha cuk;h tkrh gS vkSj blds pyrs izksUufr nsus dh dkjZokbZ lle; lEiUu ugha gks ikrh gS A ljdkj dk lqfu’pr fopkj gS fd ;fn vfxze ;kstuk ds vuqlkj vk;ksx dks vf/k;kpuk Hksth tk; rks vk;ksx dh vuq”alk ds vk/kkj ij fjDr dh frfFk ls fu;fer izksUufr nsus dh dk;ZokbZ vo’; iwjh dh tk ldrh gS A 5&mi;qZDr ds vkyksd esa HkyhHkkWfr fopkjksijkUr ljdkj us bl ekeys esa fuEuor fu.kZ; fy;k gS& d&;fn fu/kkZfjr izfdz;k ds vuqlkj iz;kl ds okotwn lle; fu;fer@ rnFkZ izksUufr ugha nh tk ldsa] ijUrq dk;Zfgr esa mPprj in ds fy, dk;Zdkjh O;oLFkk djuk vR;ko’;d gks rks fuEurj osrueku ds ;ksX; inkf/kdkjh dks mPprj in dk dk;Zdkjh izHkkj fn;k tk ldrk gS A [k&mPprj in dk dk;Zdkjh izHkkj nsus ds iwoZ iz”klh foHkkx ojh;rk lg;ksX;rk vFkok ykxw laoxhZ; fu;ekoyh dze esa fu/kkZfjr vgZrk izkIr inkf/kdkfj;sak dh lwph cuk ysxk rFkk vkj{k.k lEca/kh jkT; ljdkj dh uhfr;ksa dk vuqikyu djrs gq, mDr cuh lwph ls] fcgkj lsok lafgrk ds fu;e 103 ds v/khu] fuEurj osreku ds lEcaf/kr inkf/kdkjh }kjk mPprj in dk dk;Zdkjh izHkko xzg.k fd, tkus ds fufeRr vkSipkfjd vkns” fuxZr djsxk A Xk&mPprj in dk dk;Zdkjh izHkkj xzg.k djus dh frfFk ls lEcfU/kr inkf/kdkjh dks fcgkj lsok lafgrk ds fu;e 103 ds v/khu, fuEurj osrueku esa izkIr ewy osru dk vf/kdre 20 izfr”r vfrfjDr osru 11 vuqekU; gksxk A rRlEoa/kh izLrko esa foRr foHkkx dh vkSipkfjd lgefr izkIr dj ysuh gksxh A /k&;fn ckn esa ,sls inkf/kdkjh dks mPprj osreku esa vk;ksx dh Lohd`fr dh izR;k”kk esa rnFkZ izksUufr nh tk; rc fu;fer izksUufr nsus ij fopkj djrs le; foHkkxh; izksUufr lfefr @vk;ksx lafgrk@ dh bl foUnq ij Li"V vuq”alk izkIr dh tk; fd dk;Zdkjh izHkkj xzg.k djus vFkok rnFkZ izksUufr dh frfFk ls gh lacaf/kr inkf/kdkjh dks fopkjk/khu mPprj in ij fu;fer izksUufr nh tk; ;k ugha A ;fn vk;ksx dh vuqdwy vuq”alk gks rks dk;Zdkjh izHkkj xzg.k djus dh frfFk mPprj in ij fu;fer izksUufr nsrs gq,] osru fu/kkZj.k ds le; dk;Zdkjh izHkkj dh vof/k ds fu, nh x;h vfrfjDr osru dh jkf” dk lkeatu dj fy;k tk;xk A M&mi;qZDr O;oLFkk mu ljdkjh lsodksa ds ekeys esa Hkh ykxw gksxh ftudh izksUufr ds ekeys fcgkj yksd lsok vk;ksx dh vuq”alk gsrq Hksth tkrh gS A Pk&mi;qZDr vkns” Hkwry{kh izHkko ls ykxw ugha gksxk rFkk bl vkns” ds fuxZr gksus dh frfFk ls iwoZ ds dksbZ ekeys bl vkns” ds vUrxZr fdlh Hkh ifjfLFkfr esa fopkj.kh; ugha gksxsa A 6&mi;qZDr va” rd foRr foHkkx dk ifji= la[;k 3@,e0&2&5&8@83&2074@ fo0] fnukad 4&4&1985 ,oa ih0 ,0 vkj0& 1023@68@14794@ fo0] fnukad 30&12&1968 la”kksf/kr le>kk tk;A” (Underlining for emphasis) The said circular had already been come into force while the original petitioner was continuing in service and thus it would have been much better if he had confined his case for grant of 20% of pay for holding the post of the Deputy Director, but then as noted above the petitioner remained silent for at least four years after his retirement before filing of this writ application in the year 1993. Nonetheless, as the respondents also admit that the post of Deputy Director was the post of higher responsibility and 12 the petitioner was allowed to work on the said post wherein not only the petitioner but even his seniors were assigned the similar assignment, this Court would direct the respondents to consider the case of the petitioner for grant of 20% of basic pay in terms of the aforementioned circular of the State Government provided it is found that other requirement of such circular is also fulfilled in all respect while making arrangement and transfer vide notification dated 31st December, 1988. This Court in fact having found of the petitioner to be entitled for grant of allowances in terms of Rule 103 would however must take notice of the three judgments heavily relied by the learned counsel for the petitioner while pressing for payment of full salary for the post of Deputy Director to the original petitioner. In this context, reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of Selvaraj (Supra) seems to be wholly misplaced, inasmuch as, from the factual narration noted in paragraph no.2 of the judgment it becomes clear that the notification of transfer of Selvaraj had itself contained a clear provision to enable him to draw salary against the post of Secretary under G.A. Rule 77. Therefore, the special fact of that case cannot be made applicable in the case of the original petitioner, inasmuch as, in his transfer order assigning the post of Deputy Director, it has clearly mentioned that he and others would continue to hold the post in their own pay scale. In the case of Hari Om Sharma (Supra) the issue as a 13 matter of fact was with regard to respective quota of reservation on the post of Junior Engineer and in that context it was found that Hari Om Sharma and others belonging to the category of non diploma holders with ten years experience were denied their regular promotion, but then they were already promoted as a Junior Engineer-I in 1990. Thus, having noted that there was an order of temporary (officiating) promotion in their cases, the Apex Court had held that since they were working on the post of Junior Engineer since 1990 and their regular promotion was also due, they would be entitled for payment of salary of the post. In the present case, however, there is no such order from which it can be even remotely shown that there was an order of promotion of the petitioner on the post of Deputy Director either on temporary basis or even by way of officiating basis. As noted above, the petitioner was simply transferred from one post to another post and that by itself cannot be held to be an order of officiating promotion specially when it is found that the petitioner was not even entitled to be promoted on the post of Deputy Director in Senior selection grade as he had not completed the requirement of period of Kalawadhi of five years on the lower post in junior selection grade. Thus, the judgment of the Apex Court in the case of Hari Om Sharma (Supra) can also have no application to the fact of the present case. Reliance placed by learned counsel for the petitioner on the judgment in the case of Prafulla Ranjan Srivastava (Supra) 14 is again wholly misplaced, inasmuch as there it has been held on analysis of the fact that Mr. Srivastava was the senior most person qualified to hold the post of Chief Town Planner and he had discharged the duty of Chief Town Planner from 8.2.1996 to 30.1.1997. The case of the petitioner, however, would be completely distinguishable, inasmuch as, he was neither the senior most in the cadre for being assigned the work of Deputy Director in senior selection grade and in fact as noted above by the same transfer order at least five seniors to the petitioner including Mr. Prem Shankar promoted earlier in the junior selection grade were also assigned the higher post of Deputy Director. It therefore becomes clear that the ratio of the case of Prafulla Ranjan Srivastava (Supra) can also not be made applicable to the facts of the present case of the original petitioner. The aspect as to what would be entitlement of an officer entrusted with current duty of the higher post in his own pay scale was in fact gone into directly by the Apex Court in the case of State of Haryana Vs. S.M. Sharma & Ors. Reported in AIR 1993 SC 2273 where the Apex Court had on appreciating the fact that there was no order of promotion of Mr. S.M. Sharma on the post of Executive Engineer and that he was only entrusted the current charge of the duty on the said post on his own pay scale had held as follows:- “We are constrained to say that the High Court extended its extraordinary jurisdiction under Article 226 of the Constituti8n of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did not 15 cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the court.” This aspect of the matter had again been clarified in the case of Sreedam Chandra Ghosh Vs. State