Jharkhand High Court

Bipin Bihari Singh vs The State Of Jharkhand & Ors on 17 February, 2021

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    W.P.(S) No. 3820 of 2010
     Bipin Bihari Singh                          ..... Petitioner
                            Versus
     The State of Jharkhand & Ors.         .....   Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Kalyan Roy, Advocate For the Respondents : Mr. Kaushik Sarkhel, Advocate

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25/Dated: 17th February, 2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing the order dated

21.07.2010, whereby the application of the petitioner for

payment of salary for the post of Director, Mines has been

rejected on the ground that the petitioner has accepted the

posting of In-charge, Director of Mines on his same pay

scale.

3. Facts necessary for consideration are that the

petitioner had been working as District Mining Officer in

the Department of Mines and Geology, Government of Bihar

since 11.04.1989. Thereafter, vide order dated 31.07.2000,

the petitioner took charge on the post of Additional Director

of Mines and vide Notification No. 803/M dated 10.05.2005,

the petitioner was authorized to work as In-charge,

Directorate of Mines.

Subsequently, vide Resolution No. 260/M dated

28.02.2008, a post of Director of Mines in the pay scale of

Rs.16,400-20,000/- has been created in the Directorate of

Mines, Department of Mines and Geology. Pursuant

thereto, the petitioner was authorized to perform the duties

of the post of Director of Mines as In-charge in his own pay

scale vide Notification No. 603/M dated 31.03.2008 and

accordingly, the petitioner took over the charge as Director

of Mines on 31.03.2008.

4. Mr. Kalyan Roy, learned counsel for the petitioner

submits that though regular promotion on the post of

Deputy Director of Mines and on the post of Additional

Director of Mines have been given to the petitioner w.e.f.

15.11.2000 and 15.11.2004, respectively but he is not

being paid salary for the post of Director of Mines in spite of

the fact that he has been working regularly on the post of

Director, Mines w.e.f. 31.03.2008.

5. In support of his contention with regard to claim for

payment of salary on the post of Director Mines, he relied

upon the judgment delivered in the case of Arindam

Chattopadhyay and Others Vs. State of West Bengal

and Others, reported in (2013) 4 SCC 152, wherein the

Hon'ble Apex Court while dealing similar case has held at

para 13 as under.

"13......... If this would have been a stopgap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for a fixed period, they could not have legitimately claimed salary in the scale of the higher post i.e. CDPO. However, the fact of the

matter is that as on the date of filing of the original application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and discharged the duties of the higher post. It is neither the pleaded case of the respondents nor has any material been produced before this Court to show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from the other CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs since July, 1999. Therefore, there is no legal or other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with the Rules..................."

6. He further relied upon the judgment passed in the

case of State of Punjab and Another Vs. Dharam Pal

reported in (2017) 9 SCC 395, wherein the Hon'ble Apex

Court in para 20 while referring another judgment of the

Hon'ble Apex Court has held that if a person is put to

officiate on a higher post with greater responsibilities, he is

normally entitled to salary of that post. The Hon'ble Court

has further observed that the Tribunal has noticed that the

respondent has been working on the post of Junior

Engineer I since 1990 and promotion for such a long period

of time cannot be treated to be a stopgap arrangement and

finally decided the case in favor of the employee.

7. Per contra, learned counsel for the respondent-State

opposes the prayer of the petitioner and submits that

admittedly; the petitioner was not given promotion on the

post of Director Mines, but he was given the post in

addition to the post of Additional Director of Mines which is

his substantial post.

Learned counsel further relied upon Rules 58 and

103 of the Jharkhand Service Code and submits that now it

is no more res-integra that the person is entitled only for

the salary in which he has substantially posted.

Learned counsel further relied upon the judgment

passed in L.P.A.No. 162 of 2014 [The State of

Jharkhand VS Jai Prakash Singh], wherein it has been

held that In-charge arrangement of working on a higher

post for long period gives no rights, equities or expectations

for the higher post.

Learned counsel for the Respondent State further

relied upon another judgment passed by this Court in

L.P.A. No. 572 of 2009 [State of Jharkhand VS Smt.

Meera Das Gupta], wherein the Division Bench of this

Court has held at para 7 and 8 as under;

"7. In the light of the applicable Rules there is no room of doubt that the writ petitioner, not having been substantially promoted to the higher post, could not claim pay or allowance of the higher post while discharging his duties of the higher post in In-charge capacity.

8. Learned counsel for the appellant has rightly relied upon the opinion of the Hon'ble Apex Court rendered in

the case of A. Francis (Supra) at para-6 thereof. The impugned order therefore suffers from errors of law. The direction to make payment of salary and other allowances of the higher post of Deputy Director and Director for the periods in question respectively and also holding the writ petitioner entitled to retiral benefits on the basis of the pay as Director, Mines and Geology, cannot be sustained in the eye of law."

8. Having heard learned counsel for the parties and

after perusing the judgment in the case of Arindam

Chattopadhyay (supra), it appears that the Hon'ble Apex

Court has held that a person if posted on a higher post for

stopgap arrangement for few months and had been given

additional charge for a fixed period then certainly he could

not legitimately claim salary in the scale of higher post, but

when the person is continuously working on the higher

post then certainly he shall be entitled for the salary of the

higher post. The same principle was reiterated in the case

of Dharam Pal (Supra) that if a person is put to officiate

on any higher post with greater responsibility; he is

normally entitled to salary of that post.

On the other hand, this Court in the case of Jai

Prakash Singh (supra) and also in the case of Meera Das

Gupta (supra) has held that In-charge arrangement of

working on a higher post for long period gives no right for

the higher post and in the light of Rule 58 and 103 of the

Jharkhand Service Code that an employee not having

substantially promoted to the higher post, could not claim

pay or allowance of the higher post while discharging his

duties on the higher post in In-charge capacity.

9. In view of the aforesaid facts and judgments cited

hereinabove, it is apparent that the petitioner was working

not for stopgap arrangement or for a fixed period as In-

charge Director; rather he was fully functioning the duties

of the Director for a long time. However, in view of the Rule

58 and 103 of the Jharkhand Service Code and also in view

of the judgments passed by the Division Bench of this

Court, whether the petitioner shall be entitled to get the

salary for the post of Director, Mines with effect from the date

of his jointing on the said post.

10. On careful consideration of the rival contentions and

the Judgments referred to herein above this writ application

is being referred to the Division Bench for determination of

the following questions of law:

(i) Whether the petitioner is entitled to get the salary for

the post of Director, Mines with effect from the date of

his jointing on the said post ?

(ii) Whether the respondents are justified in depriving

the petitioner from payment of salary for the post of

Director, Mines with effect from the date of his joining on

the said post taking the ground that the petitioner has

accepted the posting of In charge Director of Mines on

his same pay scale in spite of the fact that it was not a

stopgap arrangement for a fixed period ?

(iii) Whether the petitioner is entitled for his claim in view

of the observation given by the Hon'ble Apex Court in

the case of Arindam Chattopadhyay (supra) &

Dharam Pal (supra) in spite of Rules 58 and 103 of the

Jharkhand Service Code and the judgments rendered by

Division Bench of this Court referred to herein above ?