IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3062 of 2004 RANDHIR SINGH SON OF LATE RAMANUJ SINGH RESIDENT OF VILLAGE RAMPUR, P.S. BARAHARA, DISTRICT BHOJPUR AT PRESENT WORKING AS OFFICATING DIVISIONAL PROSECUTION OFFICER, SARAN AT CHAPRA Versus 1. THE STATE OF BIHAR THROUGH THE HOME SECRETARY, GOVT. OF BIHAR, PATNA. 2. HOME SECRETARY, GOVT. OF BIHAR, PATNA. 3. DEPUTY SECRETARY, HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. DIRECTOR GENERAL OF PROSECUTION, GOVT. OF BIHAR, PATNA. 5. ADDITIONAL DIRECTOR PROSECUTION, GOVT. OF BIHAR, PATNA. 6. DIVISIONAL COPMMISSIONER, SARAN AT CHAPRA. 7. DISTRICT MAGISTRATE, SARAN, CHAPRA. ----------- 3 15/07/2010 Petitioner was initially appointed as an Assistant Public Prosecutor as per the provisions of section 25 of the Code of Criminal Procedure. While he was performing his duty in that capacity, government notification no. 3257 dated 21.3.1999 came to be notified which is annexure-1. All those persons indicated in that notification were asked to officiate as District Prosecution Officer. It is the case of the petitioner that he had worked on that post after being posted but he never got the pay and privileges of that post. Primary relief sought for in the present writ application is payment of salary etc. in terms of the notification in question. In the alternative - 2 - it is also prayed that even if it is held that the petitioner is not entitled to that payment of pay scale available to him, he should be given atleast allowances for shouldering higher responsibilities for the period he worked on the higher post. Question of service conditions, promotional avenues and other issues have been agitated by the Assistant Public Prosecutors before this Court in various litigations. Some of those litigations led to passing of an order, one of them being in the case of Sharda Nandan Sharma and others Vs. State of Bihar reported in 1996 PLJR, 75. Court was of the considered opinion that there is no promotional opportunities available for the Assistant Public Prosecutor and, therefore, to give that opening State was directed to consider for creating certain post at the sub- divisional level, district level and divisional level. Based on the observation of the Court Annexure-3 came to be issued which is dated 12.10.1998. According to the said notification the post created were posts of Assistant Public Prosecutor, District Prosecution Officer and the Divisional Prosecution Officer having certain pay scales. It is the stand of the State that annexure-3 was - 3 - only an ad-hoc arrangement to fill in the gap from time to time and to meet the observation of the Court in various litigations at the relevant time. For the first time the Prosecution Manual came to be codified in the year 2003 and it came to be notified subsequently. Prosecution Manual lays down terms and conditions of appointment, service conditions, promotions, responsibilities of the post etc. Learned counsel for the petitioner submits that it is well settled that when a person is posted to a particular post and shoulders the responsibilities of the post he is entitled to draw salary of that post and he cannot be compelled to draw salary of a lower post. If the petitioner has worked, his entitlement flows from that work. Stand of the respondent State is that looking at the exigencies and the order passed by the Court from time to time, annexure-1 dated 21.3.1999 came to be issued. On the date when that annexure- 1 was issued, it was issued in the nature of working arrangement and it was not a notification of posting the petitioner or similarly situated persons on the substantive post of District Prosecution Officer. More so, the petitioner could not be given that post in view of the fact that - 4 - the petitioner was not drawing pay scale of Rs.2400-4150, which was the minimum pay scale required for a person to be posted as the District Prosecution Officer. That pay scale came to be conferred on the petitioner much later which would be evident vide notification contained in Annexure-B to the counter affidavit. It is further stated that from the pleading of the petitioner in the writ application itself it would be evident that despite notification (annexure-1) no infrastructure was made available, no work was available and that the petitioner continued to shoulder his responsibility as an Assistant Public Prosecutor to the court concerned and assigned. It is further stand of the State that in absence of regular posting of the petitioner on the post, there is no question of granting him the pay scale or the benefit thereof on the basis of annexure- 1 dated 21.3.1999. Mechanism, however, has been put in place after the notification of Manual and the postings and assignments are being done on that basis by the State. There seems to be some force in the submission made on behalf of the State because the averments made in - 5 - the writ application itself demolishes the assertion of the petitioner that he had shouldered the responsibility in terms of annexure-1. It seems that the stand of the State is correct that that notification was only to meet the exigencies of service at the relevant time and was not with the object of conferring benefit of the post upon the petitioner in terms of the notification. The averments of the petitioner that he was prevented from working on the post because of absence of infrastructure etc. by itself is a give away that the demand for payment of salary is only with the object of drawing advantage on the basis of the notification instead of substantive performance of responsibility on the post. In absence of clear pleading about shouldering the responsibility of the office of the District Prosecution Officer in terms of annexure-1 the claim for payment of salary of the pay scale of that post cannot be permitted. As far as claiming benefit of 20% extra pay for shouldering responsibility on higher post is concerned, this Court is not convinced and is not willing to pass any direction in favour of the petitioner. If the petitioner can still establish that he had substantively worked on the post of District Prosecution Officer in terms of - 6 - annexure-1, matter may be considered by the respondents if the petitioner approaches them with his claim with supporting material. This writ application is disposed of with the above observation. AMIN (Ajay Kumar Tripathi, J.)