Conditions of service of government servants are governed by the rules issued by the government: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.25416 Nagendra Bhagat S o Late Ram Rattan Bhagat Resident of Village Aakopur P.S. Rampur Chauram District Arwal ... Petitioner s The State Of Bihar and Ors Principal Secretary Water Resources Department Government of Bihar Sichai Bhawan Patna. The Chief Engineer Water Resources Department Aurangabad Zone Aurangabad. Suoerintending Engineer Water Resources Department Aurangabad. Executive Engineer Water Resources Department Daudnagar Aurangabad. ... Respondent s For the Petitioner s For the Respondent s CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN CAV JUDGMENT Mr.Pramod Kumar Singh Ms. Archna Meenakshee G.P. 6 Date : 13 11 2020 It is a fundamental principle of service jurisprudence that the conditions of service of Government servants are governed by the rules or orders issued by the appropriate Government. In the absence of rules the right of a government servant is to be determined on the basis of orders which govern their service conditions. The Bihar Service Code 1952 hereinafter referred to as ‘the Code’) define inter alia the conditions under which salaries and other allowances are earned by service under the State 2. Keeping in mind the said legal principle and the Patna High Court CWJC No.25416 dt.13 11.20 provisions under the Code the Court is required to examine legitimacy of the petitioner’s claim of salary of a Class III employee while substantively holding a Class IV post under the 3. I have heard Mr. Pramod Kumar Singh learned counsel for the petitioner and Ms. Archna Meenakshee learned Government Pleader No.6 representing the State of Bihar 4. It would be apt to take note of the facts first as pleaded in the writ application and in the counter affidavits filed on behalf of the respondents 5. It is the petitioner’s case that pursuant to notices inviting applications for appointment against Class IV posts in Irrigation Department Government of Bihar he had submitted his application and he was finally appointed by an order issued on 04.12.1981 by Chief Engineer Dehri Camp Patna. In 1990 he made an application seeking his promotion to Class III post. He again submitted his representation for promotion in 1991. Subsequently the Executive Engineer Water Resource Department Daudnagar came out with an office order asking the petitioner to do khatayani work. It is the petitioner’s case that khatayani work is performed by a Class II employee and not by a Class IV employee. It is petitioner’s further case Patna High Court CWJC No.25416 dt.13 11.20 that since he was made to discharge such functions which are ordinarily performed by a Class III employee he was entitled to salary admissible for a Class III post. It is his further case that subsequently by letter dated 11.03.2010 issued by the Chief Engineer Water Resource Department Aurangabad Zone Aurangabad he was asked to perform the duty of Revenue Collection which duty also he duly discharged. He again represented before the authorities claiming salary admissible to the said Class III post agasinst which he was discharging his duties. Subsequent thereto in 2013 when an incumbent to the post of Revenue Inspector was due to retire the petitioner was asked to assume his charge by an office order dated 08.08.2012 issued by the Executive Engineer wherein the Court noticing the provisions under Rule 103 of the Code held the petitioner of that case entitled to 20% additional pay of the substantive pay of the post which the petitioner of that case was holding. Another Division Bench decision of this Court in case of Chairman State Power Holding Company Ltd. vs. Ganesh Lal reported in 2017(4 PLJR 282 has been referred to by Mr. Singh 9. As I have noted at the very outset the terms and conditions of service of a Government servant is dependent upon the rules governing their service conditions. This is not in dispute that the Code defines the conditions under which salaries and other allowances are earned by service under the State Government. Rule 103 of the Code lays down the determination of pay of the Government servant in case he is asked to hold substantively as a temporary measure or to officiate in two or more independent posts at one time. Rule 103 of the Code in my opinion is at the centre of the issue for the determination of the present case and is therefore being Patna High Court CWJC No.25416 dt.13 11.20 reproduced herein below: “103. The pay of a Government servant appointed by the State Government to hold substantively as a temporary measure or to officiate in two or more independent posts at one time shall be regulated as follows: a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone may be drawn on account of his tenure of that post b) for each other post he may draw such reasonable pay in no case exceeding half the pay overseas pay) of the post as the State Government may fix and c) If a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provided that such allowance shall not exceed the of compensatory allowance attached to all the posts.” Note 1. The expression “independent posts” used in this rule means posts which are Patna High Court CWJC No.25416 dt.13 11.20 independent of one another i.e posts the incumbent of one of which is not expected to do the duties of 10. Interpretation of Rule 103 of the Code had fallen for consideration by a Division Bench of this Court in case of Md. Masood Yusuf Vs State of Bihar and others reported in 2012(4) PLJR 996. Taking into account the note below Rule 103 of the Code the Division Bench on considering the said provision held in paragraph 19 as under: “19. In order of claim benefit under Rule 103 of the Bihar Service Code an employee has to establish that he was holding two or more “independent posts”. The expression “independent posts” has been clarified in note 1 as quoted above. The State of Bihar vide Memo No. 1479F dated 30.12.1968 had issued a clarification on the grant of additional pay under Rule 103 of the Bihar Service Code. While clarifying the position it has been specifically mentioned in the above mentioned letter that the additional post duties of which are combined should not be on Patna High Court CWJC No.25416 dt.13 11.20 the same establishment or office and should not fall in the line of normal promotion. Citing example it says that the post of under Secretary Deputy Secretary Deputy Directors Deputy Commissioner Accountants Assistants and Clerks in the same office or establishment are not independent of each other for the purpose of the rule However in the present case there is no whisper in either of the writ applications filed by Md. Masood Yusuf and Md. Mojibur Rahman that the post of District Malaria Officer which they claimed to have held in officiating capacity was independent or the duties of the Assistant Malaria Officer which they were holding substantively. For this reasons also we find that the petitioners cannot claim benefit of Rule 103 of the Bihar Service code to claim the pay admissible to the post of District Malaria Officer.” 11. The said Division Bench judgment in case of Md. Masood Yusuf in my opinion applies with full force in the present case. The condition of service of principles of any service are Patna High Court CWJC No.25416 dt.13 11.20 governed by statutory rules and orders lawfully made in the absence of rules to cover the area which has not been specifically covered by the Rules as has been clearly held in case of Syed T.A. Naqshdandi and others vs. State of Jammu and Kashmir reported in 2003) 9 SCC 592has no application in the present set of facts. In Sabha Shankar Dubey the appellants were daily rated workers employed in Group B posts. They had filed a writ petition before the High Court of Allahabad seeking regularization of their services minimum of the pay scale available to their counter part and directing them as being in continued service Their claim seeking direction for regularization and minimum pay scale was rejected by the learned single Judge of this Court holding that such direction could not be issued in exercise of power under Article 226 of the Constitution of India. Appeals preferred before Division Bench of Allahabad High Court were also dismissed. When the order of the High Court was assailed before the Supreme Court the Supreme Court Patna High Court CWJC No.25416 dt.13 11.20 relaying on its earlier decision in case of State of U.P and others Vs. Putti Lal reported in 9 SCC 337 held that they were entitled to minimum of pay scales as long as they continued in his service. The decision in case of Sabha Shankar Dubey has also no application in the present case which is governed by rules viz Bihar 13. In the present case the right of the petitioner to claim salary of higher post is to be examined in the background of service rules governing his service conditions. It is well settled principle that judgments on service law are to be understood in the context of relevant service Rules5 SCC 545the relief which the petitioner is seeking cannot be granted. The said Division Bench decision is Patna High Court CWJC No.25416 dt.13 11.20 subsequent in time to the decision of coordinate Bench of this Court in case of Birendra Rao (supra 15. I therefore do not find any merit in this application which is accordingly dismissed (Chakradhari Sharan Singh J

Summary: In the absence of rules regarding the right of a government servant, the order given to her/him which govern the service conditions will define such rights. The High Court of Patna bench consisting of J. Chakradhari Sharam Singh, in the matter of Nagendra Bhagat S/o Late Ram Rattan Bhagat v. The State of Bihar and Ors. [Civil Writ Jurisdiction Case No. 2549 of 2016], reiterated Rule 103 of the Bihar Service Code, 1952. The petitioner had submitted an application pursuant to which he was appointed by Chief Engineer (Irrigation), Dehri Camp, Patna to be in a Class-IV post in Irrigation Department. The petitioner made an application seeking promotion to Class-III post after which an Executive Engineer ordered the petitioner to do khatayani work which was always done by a Class-III employee. The petitioner stated that since he was made to discharge work which was ordinarily performed by a Class-III employee, he was entitled to the salary admissible for Class-III post. He again claimed such a salary when he was asked to perform the duty of Revenue Collection which he duly discharged. With this plea, the petitioner claimed that he is entitled for pay admissible to a Class-III employee under the State Government on the principles of equal pay for equal work. It was stated in the counter affidavit that if some employees were literate and could issue ‘receipts’ then the department could utilize their work performed by the persons holding Class-III posts. It was a stop gap arrangement in the interest of work and for that there was no provision for payment of extra emolument to the employees. It was in that background a decision was taken that such employees who were literate and were able to issue receipts could be engaged in the work of collection of tax/revenue. It was further mentioned that such employees who were not literate and who could not be adjusted as Peon, their services would be terminated after giving them notice. The counsel for the petitioner, relying on Sabha Shankar Dubey v. Divisional Forest Officer [AIR 2019 SC 220], argued that the petitioner could not be denied the salary admissible to a Class-III employee since admittedly the work which he had performed for the period in question were to be performed by a Class-III employee and invoked principles of equal pay for equal work.