Jharkhand High Court

The State Of Jharkhand Through The ... vs Jai Prakash on 19 August, 2025

Author: Rajesh Shankar

Bench: Rajesh Shankar

                                                     2025:JHHC:24167-DB




  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A. No. 653 of 2017
1. The State of Jharkhand through the Principal Secretary, Home
    Department, Govt. of Jharkhand, Project Bhawan, PO & PS-
    Dhurwa, Dist. Ranchi.
2. The Deputy Secretary, Home Department, Govt. of Jharkhand,
    Project Bhawan, PO & PS- Dhurwa, Dist. Ranchi.
3. The Principal Secretary, Department of Personnel, Administrative
    Reforms and Rajbhasha, Govt. of Jharkhand, Project Bhawan, PO &
    PS- Dhurwa, Dist. Ranchi.
                                          ...   Respondents/Appellants
                          Versus
Jai Prakash, son of Late Ram Nath Prasad, Resident of at -47, Pipe Line
Flat, Jublee Park, P.O. & P.S. - Bistupur, Jamshedpur, Dist - East
Singhbhum.
                                      ...     Writ Petitioner/Respondent
                          ---------
CORAM:             HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE RAJESH SHANKAR
                          ---------
For the Appellants:       Mr. Jai Prakash, A.A.G.-IA
For the Respondent:       Mr. Sumeet Gadodia, Advocate
                          Mr. Prakhar Harit, Advocate
                          Mr. Ashotsh Agarwal, Advocate
                          Mr. Anish Lal, Advocate
                          Ms. Aanya, Advocate
                          ---------
Reserved on: 14.08.2025                 Pronounced on: 19/08/2025
Per Tarlok Singh Chauhan, C.J.

1. The State is aggrieved by the judgment dated 18.08.2017 passed

by the Writ Court in W.P. (S) No. 7061 of 2013 allowing the claim of

the writ petitioner (respondent herein) for grant of pay scale attached to

the post of Public Prosecutor.

2. The parties hereinafter shall be referred to as they are before the

Writ Court.

3. The writ petitioner was initially appointed as Assistant Public

Prosecutor by the undivided State of Bihar on 02.12.1984. On

22.08.1997, he was granted 1st Time Bound Promotion.

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4. On 15.11.2000, the cadre of the writ petitioner was allocated to

the State of Jharkhand after its bifurcation from the erstwhile State of

Bihar.

5. The petitioner was posted as Assistant Public Prosecutor,

Saraikela and thereafter he was transferred vide notification dated

11.03.2008 and posted at Jamshedpur, where, in addition to his work of

Assistant Public Prosecutor, he was also directed to discharge the duties

of In-charge Public Prosecutor in the Court of District & Sessions

Judge, Jamshedpur. However, in the said notification, it was stipulated

inter alia that claim of seniority and senior pay scale would not be

admissible to the petitioner.

6. On 09.04.2008, 22 posts of Public Prosecutors, 110 posts of

Additional Public Prosecutors and 31 posts of Assistant Public

Prosecutors were created. In addition, 209 posts of Additional Public

Prosecutors were allocated to the State of Jharkhand after bifurcation of

the State of Bihar.

7. On 27.06.2009, the petitioner was granted the 1st Assured Career

Progression Scheme (ACP) and subsequently, vide letter dated

25.05.2010, he was granted 2nd ACP.

8. The Jharkhand Abhiyojan Seva Niyamawali, 2011 was

promulgated on 27.08.2011, wherein, in Rule 6, it was provided that

Assistant Public Prosecutors would be appointed by way of direct

recruitment and the posts of Additional Public Prosecutors and Public

Prosecutors would be filled up by way of promotion. Additional Public

Prosecutors were to be promoted on the basis of seniority-cum merit

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and the Public Prosecutors were to be promoted on the basis of

seniority.

9. On 16.01.2012, the Department of Personnel, Administrative

Reforms & Rajbhasha, Government of Jharkhand, determined the

minimum eligibility period (Kalawadhi) for promotion from one pay

scale for promotion on the basis of grade pay.

10. Additional Public Prosecutor had Grade Pay of Rs.6600/- in Pay

Band of Rs.15600-39100/-. The Pay Band of the petitioner in the post

of Assistant Public Prosecutor was Rs.9300-34800/- with Grade Pay of

Rs.4800/- and, thus, as per Circular dated 16.01.2012, minimum

eligibility period of 06 years was prescribed for promotion to the post

of Additional Public Prosecutor.

11. Further, the post of Public Prosecutor was having Grade Pay of

Rs.7600/- in Pay Band of Rs.15600-39100/- and as per Circular dated

16.01.2012, Kalawadhi for 05 years was prescribed for promotion to

the said post from Additional Public Prosecutor.

12. The petitioner was promoted with effect from 08.09.2012 to the

post of Additional Public Prosecutor in the Pay Band of Rs.15600-

39100/- with Grade Pay of Rs.7600/-.

13. On 28.02.2014 the petitioner superannuated from service.

14. All the aforesaid facts were not disputed before the Writ Court,

where the petitioner had approached by way of writ petition claiming

inter alia the following reliefs:-

(i) For issuance of an appropriate writ/order/direction

particular a writ in the nature of Certiorari for quashing the

notification dated 11.3.2008, communicated vide Memo

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No.946 (Annexure-1 to the writ application) to the extent it

prescribes therein that the petitioner shall not be entitled to

claim salary of the post on which he has been directed to

office.

(ii) For issuance of further appropriate writ/order/direction

including Writ of Mandamus, directing the Respondents to

immediately and forthwith grant pay scale attached to the

post of Public Prosecutor in view of Rule 58 and 103 of

Jharkhand Service Code which provides that a government

servant appointed by the State Government to hold

substantially or as a temporary measure or to officiate in two

or more than independent posts at one time, shall be entitled

for the higher pay to which he would be entitled if his

appointment to one of the post stood along, may be drawn on

account of tenure.

15. Learned Writ Court after concluding that the duty performed by

Assistant Public Prosecutor was not in any manner different to those

performed by Public Prosecutor, therefore, the petitioner was entitled to

the grant of pay scale attached to the post of Public Prosecutors, despite

the conditions imposed by the respondents to the effect that the

petitioner is not entitled to the pay scale or seniority of the said post.

16. The Writ Court further relied upon Rules 58 and 103 of the

Jharkhand Service Code, which inter alia provides that a government

servant appointed by the State Government to hold substantially or as a

temporary measure or to officiate in two or more independent posts at

one time, shall be entitled for 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.

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17. It is vehemently argued by Sri Jai Prakash, learned Additional

Advocate General-IA, that once the notification dated 11.03.2008

clearly lays down a condition that the petitioner shall not claim

seniority and/or pay scale of the higher post, then the writ petitioner

would not be entitled to claim any benefit including higher salary and

would continue to draw the salary in the post of Assistant Public

Prosecutor. Strong reliance in support of his contention is placed on a

Two-Judge Bench judgment of the Hon'ble Supreme Court in

A. Francis v. Management of Metropolitan Transport Corporation

Limited, Tamil Nadu, (2014) 13 SCC 283, more particularly paragraph

6 thereof which reads as under:-

"6. The order dated 28-2-2001, by which the appellant was allowed

to discharge duties in the post of Assistant Manager had made it

clear that the appellant would not be entitled to claim any benefit

therefrom including higher salary and further that he would

continue to draw his salary in the post of Assistant Labour Welfare

Officer. If the above was an express term of the order allowing him

to discharge duties in the higher post, it is difficult to see as to how

the said condition can be overlooked or ignored. The decision of this

Court in Secy.-cum-Chief Engineer [(1998) 5 SCC 87 : 1998 SCC

(L&S) 1273] was rendered in a situation where the incumbent was

promoted on ad hoc basis to the higher post. The aforesaid decision

is also distinguishable inasmuch as there was no specific condition

in the promotion order which debarred the incumbent from the

salary of the higher post. Such a condition was incorporated in an

undertaking taken from the employee which was held by this Court

to be contrary to public policy."

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18. However, we find no merit in such contentions as the aforesaid

judgment in A. Francis (supra) has subsequently been distinguished in

the judgment rendered by Three-Judge Bench of the Hon'ble Supreme

Court in State of Punjab and Another v. Dharam Pal, (2017) 9 SCC

395, wherein the Hon'ble Supreme Court held that the judgment

rendered in A. Francis (supra) rests on its own facts and it was further

held that simply by an incorporation in the order or merely by giving an

undertaking in all circumstances would not debar an employee to claim

the benefits of the officiating position. It shall be apt to reproduce

paragraph 22 of the said judgment which reads as under:-

"22. In the instant case, the Rules do not prohibit grant of pay

scale. The decision of the High Court granting the benefit gets

support from the principles laid down in P. Grover [P.

Grover v. State of Haryana, (1983) 4 SCC 291 : 1983 SCC (L&S)

525 : AIR 1983 SC 1060] and Hari Om Sharma [Secy.-cum-Chief

Engineer v. Hari Om Sharma, (1998) 5 SCC 87 : 1998 SCC (L&S)

1273] . As far as the authority in A. Francis [A.

Francis v. Metropolitan Transport Corpn. Ltd., (2014) 13 SCC 283 :

(2015) 1 SCC (L&S) 376] is concerned, we would like to observe

that the said case has to rest on its own facts. We may clearly state

that by an incorporation in the order or merely by giving an

undertaking in all circumstances would not debar an employee to

claim the benefits of the officiating position. We are disposed to

think that the controversy is covered by the ratio laid down in Hari

Om Sharma [Secy.-cum-Chief Engineer v. Hari Om Sharma, (1998)

5 SCC 87 : 1998 SCC (L&S) 1273] and resultantly we hold that the

view expressed by the High Court is absolutely impeccable."

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19. Similar issue again came up before the Three-Judge Bench of

Hon'ble Supreme Court in State of Punjab v. B.K. Dhir, (2017) 9

SCC 337, where a question arose whether the respondent therein was

entitled to salary of the posts of Joint Director and Additional Director,

on which posts he has been discharging the duties while working as a

Deputy Director. The Hon'ble Supreme Court relying upon the ratio of

the judgment of Dharam Pal's case (supra), more particularly

paragraph 22 thereof as reproduced hereinabove, dismissed the appeal

preferred by the State of Punjab affirming the judgment passed by the

Division Bench of Punjab & Harayan High Court in L.P.A. No. 198 of

2003, wherein the Division Bench after placing reliance on a judgment

in Pritam Singh Dhaliwal v. State of Punjab, 2004 SCC OnLine P&H

1428, held as follows:-

"Having thoughtfully considered the rival contentions, we find merit

in the prayer of the appellant and are of the view that his case is

squarely covered by the ratio of the judgment in Pritam Singh

Dhaliwal case [Pritam Singh Dhaliwal v. State of Punjab, 2004 SCC

OnLine P&H 1428 : (2004) 4 RSJ 599] . It was not a case where the

appellant had laid a claim to promotion on the basis of the

officiating status conferred on him, but had prayed only for the pay

which was admissible to incumbents working on the said posts and

performing similar duties. Resultantly, therefore, if the respondents

had extracted work from him as Joint Director and Additional

Director, he would certainly be entitled to pay as is admissible to the

regular incumbents working on the said posts, regardless of any

condition that may have been sought to be imposed upon him."