Rajendra Mahto And Ors vs The Bihar State Power Holding ...
2021 Latest Caselaw 1144 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.20478 of 2018
     ======================================================

1. Rajendra Mahto, Son of late Balo Mahto, Resident of Panjiyar Tola, P.O. and P.S.-Rosera, District-Samastipur, Presently residing at Surya Chandra Vihar, Flat No. 203D, near Sonu Market, Gola Road, P.S.- Rupaspur, District-Patna.

2. Suresh Chaudhary, Son of Late Chaturbhuj Chaudhary, Resident of Ram Krishna Nagar, Pokhariya Peer, New Colony, Sadpura, P.S.-Kazi Mohammadpur, Distirct-Muzaffarpur.

3. Ram Chandra Chaudhary, Son of late Chaturbhuj Chaudhary, Resident of Gannipur Pokhariya Peer, P.S.-Kazi Mohammadpur, District- Muzaffarpur.

... ... Petitioners Versus

1. The Bihar State Power Holding Company Ltd. through its Chairman.

2. The Chairman, Bihar State Power Holding Company Ptd., Patna.

3. The Deputy General Manager Personnel, Bihar State Power Holding Company Ltd. Patna.

4. The Bihar State Power Transmission Company Ltd., theough its Managing Director,

5. The Managing Director, Bihar State Powe Transmission Company Ltd., Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.Prashant Sinha, Advocate For the Respondent/s : Mr.Ranjit Sinha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 25-02-2021

Heard Mr. Prashant Sinha, learned counsel for the

petitioners and Mr. Ranjit Sinha, learned counsel for the

respondents.

2. Petitioners in the present case are praying for the

following reliefs:

Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

"(i) For issuance of writ in the nature of certiorari for quashing of the letter No. 975 dated 29.08.2018 issued by the Deputy General Manager (Personnel), Bihar State Power Holding Company Ltd. whereby the representation made by the petitioners for grant of officiating allowance for working on the post of Accounts Officer (Look After) has been denied to the petitioners.

(ii) For necessary direction upon the respondent authorities to pay 20% officiating allowance to the Petitioners as the Petitioners while working on the substantive posts of Accountant were posted on a higher post of Accounts Officer in the name of Accounts Officer (Look After) (Petitioner No.2 was given the additional charge of much higher post of Deputy Director of Accounts) but the benefit of 20% officiating allowance has not been paid to the Petitioners, while a similarly situated employee, namely, Sri Ganesh Lal has been paid with 20% officiating allowance in terms of the order passed by this Hon'ble Court in CWJC No. 3687/2013, which has been affirmed by the Hon'ble Supreme Court.

(iii) For holding that the respondents cannot discriminate between the employees while the similarly situated employee has been paid with 20% officiating allowance, the Petitioners are being deprived of the same benefit on the ground that the case of Ganesh Lal does not create a Precedence.

(iv) For issuance of an alternative direction upon the respondent authorities to pay the salary and allowances attached to the post of Accounts Officer to the Petitioners as the Petitioners holding the post of Accountant were posted to discharge the duty of Accounts Officer (Look After), which is a higher post carrying the higher responsibility. Further, the respondents may be directed to revise the pension and other retiral benefits of the Petitioners.

(v) For any other direction, which your Lordships may deem fit and proper in the facts and circumstances of the case."

3. Earlier while hearing the writ application, this Court Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

has summarized the facts of the case and the submissions on

behalf of the parties in it's order dated 04.02.2021 which reads as

under:

"Heard Mr. Prashant Sinha, learned counsel for the petitioners and Mr. Ranjit Sinha, learned counsel representing the Bihar State Power (Holding) Company Limited (hereinafter referred to as the 'BSPHCL').

Petitioners in the present case are seeking to challenge the decision communicated by the Deputy General Manager (Personnel), 'BSPHCL' vide letter no.975 dated 29.08.2018 by which the representation of the petitioners for grant of officiating allowance for working on the post of Accounts Officer (Look After) has been denied to the petitioners. The petitioners also seek a direction to the respondent authorities to pay 20% officiating allowance to the petitioners as according to them while working on the substantive post of Accountant, they were posted on a higher post of Accounts Officer in the name of Accounts Officer (Look After). Petitioner no.2 was given the additional charge of much higher post of Deputy Director of Accounts. The common grievance of the petitioners is that while in the case of one of the employees Sri Ganesh Lal the 'BSPHCL' has paid him the officiating allowance in terms of the order passed by this Hon'ble Court in CWJC No.3687/2013, the same has been refused to the petitioners.

Mr. Sinha, learned counsel representing the petitioners submits that so far as petitioner no.1 is concerned, he had officiated during the period 04.05.2010 to 31.03.2013 when he retired from service. Petitioner no.2 was posted as Accounts Officer (Look After) on 26.08.2006, thereafter he was relieved to work as Accounts Officer and he submitted his joining on the post of Accounts Officer on 06.09.2006, while working as Accounts Officer, he was given the additional charge of Deputy Director of Accounts vide memo no.155 dated 17.09.2009. He retired from service on 31.01.2015 as Accountant. Petitioner no.3 had Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

also served on the post of Accounts Officer (Look After) since 26.08.2006 till his superannuation on 31.07.2008.

Learned counsel submits that in the case of Ganesh Lal reported in 2016(2) PLJR 370 the learned writ court has allowed his writ to the extent that he was found entitled for 20% of the officiating allowance. The said judgment has been affirmed in the Letters Patent Appeal and the Special Leave Petition preferred against the same stood dismissed.

Mr. Ranjit Sinha, learned counsel representing the 'BSPHCL' submits that the case of these petitioners are distinguishable from the case of Ganesh Lal (supra). It is submitted that in the case of Ganesh Lal it was found that he had been officiating for 14 years continuous till the date of his retirement, moreover the most important distinguishing factor in the case of Ganesh Lal was that he had raised the issue of officiating charges allowance during his service period and in fact he had filed the writ application in the year 2013 itself, prior to his retirement on 31.01.2014. It is submitted that so far as these petitioners are concerned, they had never raised any issue of officiating allowance. No representation at all was ever submitted to the respondent Company and even after their superannuation from service the petitioners did not claim the officiating allowance.

Learned counsel further points out from the clarifications given to Rule 103 of the Bihar Service Code that the additional post, duties of which are combined but should not be in the same Establishment or Office and should not also fall in the line of normal promotion. He has drawn the attention of this Court towards the example rendered under the clarification. For example the post of Under Secretary, Deputy Secretary, Deputy Directors, Deputy Commissioner, accountants, Assistants and Clerks etc. in the same office or establishment are not independent of each other for this purpose. It is thus his submission that the post of Accounts Officer (Look After) was in the same line and in the same establishment, therefore the Rule 103 of the Bihar Service Code read with clarifications does not Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

provide for the officiating benefits to the petitioners.

Learned counsel further submits that the judgment rendered in the case of Ganesh Lal (supra) cannot give rise to a cause of action to the petitioners and if they have not raised any claim in this regard during their service period or immediately after their retirement, at this stage, they are not entitled for the reliefs prayed in the writ application. According to him, the delay is such that it would make the petitioners disentitle for the reliefs prayed in the writ application.

Mr. Prashant Sinha, learned counsel for the petitioners admits that during their service period or immediately after their retirement the petitioners had not submitted any claim to the respondents and at least to that extent there is no pleading in the writ application. Learned counsel, however, prays for some time just by passing over the matter to enable him to come out with some judicial pronouncement on the subject.

Let this matter be passed over for the day.

List on 11.02.2021."

4. On the next date of hearing, Mr. Prashant Sinha,

learned counsel for the petitioners submitted that so far as the case

of the present petitioners are concerned, the respondents are

deviating from their own stands in the subsequent case of one

Ganauri Paswan who had moved this Court for identical reliefs in

CWJC No. 16750/2019. This Court having perused the

supplementary affidavit filed on behalf of the petitioners and after

noticing the judgment passed by the learned Coordinate Bench in

CWJC No. 16750/2019 passed the following order on 11.02.2021

which reads as under:

"Although in the present writ application, learned Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

counsel for the respondents have raised some issues for consideration but learned counsel for the petitioners has brought to the notice of this Court the deviating standard of consideration on the part of the respondents and the inconsistent stand which they are said to be taking in respect of different employees. On record is now a supplementary affidavit of the petitioners in which they have brought on record a copy of the judgment dated 02.09.2019 passed by a learned coordinate Bench of this Court in CWJC No.16750 of 2019. The said writ application was filed by one Ganauri Paswan for identical reliefs and the learned coordinate Bench having noticed the earlier order of this Court in CWJC No.3687 of 2013 affirmed by Hon'ble Division Bench in LPA No.1166 of 2016, set aside the order passed on 07.09.2018 by the Deputy General Manager (Personnel), Bihar State Power (Holding) Company Limited, Patna (hereinafter referred to as 'the BSPHCL') and directed him to write out a fresh order in accordance with law in view of the judgments referred to by the learned coordinate Bench.

It appears that though in the said writ application the pleas which are being taken on behalf of the respondents in this writ application were not taken, the fact remains that the respondents has now allowed the same benefit to Ganauri Paswan, but surprising to this Court is the contents of the office order no.997 dated 08.12.2020 issued under the signature of the Additional Secretary of the BSPHCL, Patna. The said letter is being reproduced hereunder:-

" fcgkj LVsV ikoj ¼gksfYMax½ daiuh fyfeVsM] iVukA dk;kZy; vkns"k la[;k&997 fnukad% 08-12-2020 lekns"k ;kfpdk la[;k [email protected] xukSjh ikloku cuke fcgkj LVsV ikoj (gksfYMax) daiuh fyfeVsM esa ekuuh; iVuk mPp U;k;ky;, iVuk }kjk ikfjr vkns"k fnukad 02-09-2019 ds vuqikyu esa Jh xukSjh ikloku lsokfuo`Rr ys[kk inkf/kdkjh ¼ns[k&js[k½ fcgkj LVsV ikoj Vz~kalfe"ku daiuh fyfeVsM dks fnukad 23-05-2006 ls 31-12-2015 rd ys[kk inkf/kdkjh ¼ns[k&js[k½ dk dk;Z fd;k tkus gsrq 20% LFkkiUu HkRrk dh jk"kh #0 5]71][email protected]& ¼ikWap yk[k bdgRrj gtkj X;kjg #i;s½ ek= ds Hkqxrku dh Lohd`fr iznku dh tkrh gSA blesa l{ke izkf/kdkj dk vuqeksnu izkIr gSA vU; ds ekeys ds fy, bls iokZnkgj.k ds :i esa ugha ekuk tk,xkA vkns"k ls] [email protected]& ¼lqjsUnz "kekZ½ Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

vij lfpo fnukad% 08-12-2020"

This Court finds that the order has been issued saying that the payment is being sanctioned in compliance of the order of this Court passed in CWJC No.16750 of 2019. This is not the correct fact, the learned coordinate Bench of this Court had directed the respondent Deputy General Manager (Personnel), BSPHCL, Patna to write out a fresh order in accordance with law, examine the judgments and then in case the claim of the petitioner is found to be tenable, the necessary sequel order providing the admissible amount shall also be passed.

Learned counsel for the respondents submits that he is not aware of any such exercise and the pleas which are being taken before this Court are required to be considered because order if any passed in respect of Ganauri Paswan cannot be taken as in accordance with law and that does not confer negative parity and the plea of negative discrimination cannot give rise to a right in favour of the petitioner.

Let the respondent Deputy General Manager (Personnel), BSPHCL file his affidavit saying as to how Annexure-10 is in compliance of the order of this Court and whether prior to issuance of Annexure-10 a reasoned order has been passed by him as per direction of this Court in CWJC No.16750/2019. Let complete facts be brought on record.

As prayed by Mr. Ranjit Sinha, learned counsel for the respondents, let this matter be listed on 25th February, 2021."

5. Today, Mr. Ranjit Sinha, learned counsel representing

the respondents has filed an affidavit sworn by the Deputy General

Manager (Personnel), BSPHCL. The order passed by him as

contained in Memo No. 313 dated 12.11.2020 has been annexed as

Annexure 'A' to the supplementary counter affidavit. This Court

would reproduce the same as under:

Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

"vkns"k

ekuuh; mPp U;k;ky;] iVuk }kjk lekns"k ;kfpdk la[;k [email protected] xukSjh ikloku cuke fcgkj LVsV ikoj (gksfYMax) dEiuh fyfeVsM ,oa vU; esa fnukad 02-09-2019 dks fuEu vkns"k ikfjr fd;k x;k %& "In such view of the matter, the order impugned is set aside and remitted to the Deputy General Manager (Personnel), Bihar State Power (Holding) Company Ltd. Patna (Respondent no. 03) to write out a fresh order in accordance with law and in view of the judgments referred to above within a period of four weeks of the production of a copy of this order. In case the claim of the petitioner is found to be tenable, necessary sequel order providing the admissible amount shall also be passed. While passing the order, Deputy General Manager (Personnel), Bihar State Power (Holding) Company Ltd., Patna shall also look at the fact whether the case of the petitioner is squarely covered by the judgments which have brought on record."

mi;qZDr vkns"k ds vkyksd esa ;kfpdkdrkZ Jh xukSjh ikloku }kjk fnukad 09-09-2019 dks vkosnu lefiZr djrs gq, ys[kk inkf/kdkjh (ns[k&js[k) ds in ij dk;Zjr vof/k dk 20% LFkkuki+Uu HkRrk] lekns"k ;kfpdk la[;k [email protected]] x.ks"k yky cuke fcgkj LVsV ikoj (gksfYMax) dEiuh fyfeVsM ,oa vU; esa ikfjr U;k; fu.kZ; ds vkyksd esa nsus dh ekax dh x;hA U;k;kns"k fnukad 02-09-2019 ds vkyksd esa lEiw.kZ ekeys dh leh{kk dh xbZ vkSj ik;k x;k fd Jh x.ks"k yky] lsokfuo`r ys[kkiky ds }kjk muds lsokdky esa ys[kk inkf/kdkjh (ns[k&js[k) ds in ij drZO; fuoZgu ds fy, 20% LFkkuki= HkRrk (Officiating Allowance) ds Hkqxrku gsrq ekuuh; iVuk mPp U;k;ky; esa lekns"k ;kfpdk [email protected] nk;j fd;k x;k Fkk] ftlesa ekuuh; U;k;ky; }kjk fnukad 03-02-2016 dks ikfjr vkns"k esa ys[kk inkf/kdkjh (ns[k&js[k) ds in drZO; fuoZgu ds fy, 20% LFkkukiUu HkRrk (Officiating Allowance) ds Hkqxrku gsrq funs"k Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

fn;k x;kA dEiuh }kjk ekuuh; U;k;ky; ds vkns"k ds fo:/k LPA No- [email protected] nk;j fd;k x;k ftls ekuuh; U;k;ky; us fnukad 19-07-2017 dks ikfjr vkns"k ds }kjk [kkfjt dj fn;k x;kA iqu% dEiuh }kjk mDr LPA dks ekuuh; U;k;ky; }kjk [kkfjt fd;s tkus ds mijkar ekuuh; loksZPp U;k;ky; esa SLP nk;j fd;k x;k ftls ekuuh; loksZPp U;k;ky; }kjk [kkfjt dj fn;k x;kA U;k;kns"k ds vkyksd esa Jh yky dks ys[kk inkf/kdkjh (ns[k&js[k) ds :i esa dk;Zjr vof/k dk LFkkukiUu HkRrk Lohd`r fd;k x;kA Jh yky dh Hkkafr ;kfpdkdrkZ Jh xukSjh ikloku dks Hkh iwoZorhZ fcgkj jkT; fo/kqr cksMZ ds vf/klwpuk la[;k 218 fnukad 23- 05-2006 ds }kjk ys[kk inkf/kdkjh (ns[k&js[k) dk dk;ZHkkkj iznku djrs gq, ys[kk inkf/kdkjh] lapj.k vapy] iVuk ds :i esa inLFkkfir fd;k x;kA Jh Ikkloku fnukad 31-12-2015 dks ys[kk inkf/kdkjh (ns[k&js[k) ds :i esa fcgkj LVsV ikoj Vz~kalfe"ku dEiuh fyfeVsM ls lsokfuo`r gq,A U;k;kns"k fnukad 02-09-2019 ds vuqikyu esa dh x;h leh{kk esa ;kfpdkdrkZ Jh xukSjh ikloku dk ekeyk Jh x.ks"k yky] lsokfuo`r ys[kkiky ds ln`"; ikrs gq, l{ke izkf/kdkj ls izkIr vuqeksnu ds vkyksd esa Jh xukSjh ikloku] lsokfuo`r ys[kkiky dks fnukad 23-05- 2006 ls 31-12-2015 rd ys[kk inkf/kdkjh (ns[k&js[k) dk dk;Z lEiUu fd;s tkus gsrq ns; 20% LFkkukiUu HkRrk dh jkf"k :0 5]71][email protected]& (IkkWap yk[k bdgRrj gtkj X;kjg :i;s) ek= ds Hkqxrku dh Lohd`fr iznku dh tkrh gSA mi;ZqDr LFkkukiUu HkRrk ekuuh; U;k;ky; }kjk ikfjr U;k;kns"k ds vkyksd esa vuqekU; fd;k x;k gSA vr,o iwoksZngkj.k ds :i esa vU; fdlh ekeys esa ekU; ugha gksaxsA

Lkquhy dqekj flag mi egkizca/kd (dkfeZd)

Kkikad la[;k- 331 fnukad:12/11/2020 izfrfyfi%& Jh xukSjh ikloku ys[kk inkf/kdkjh (ns[k&js[k)] xzke iksLV& yaxjiqj] LVs"ku jksM] Fkkuk& ck<+] ftyk& iVuk] fiu dksM& 803213 dks lwpukFkZ iszf'krA (lqjsUnz "kekZ) voj lfpo"

6. Learned counsel for the respondents submits that Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

again the case of Ganauri Paswan has been treated as an exception

on the ground that he was also given the charge of Accounts

Officer while discharging his duties on the post of Accounts

Officer (Look After) vide the same notification no. 218 dated

23.05.2006 by which Sri Ganesh Lal had been given the

officiation. Sri Ganauri Paswan had also retired from service on

31.12.2015 and during the period from 23.05.2006 to 31.12.2015

he was in officiating charge of the post of Accounts Officer.

7. Learned counsel is, however, categorical in his

submission that except the fact that Sri Ganauri Paswan was also

given the officiation along with Sri Ganesh Lal, no other ground

has been noticed by the competent authority. According to learned

counsel, the question of law involved in this case has been left

open by the Hon'ble Supreme Court, but, he had no opportunity to

look into the matter of Sri Ganauri Paswan when the competent

authority granted Ganauri Paswan the similar benefits as had been

granted to Sri Ganesh Lal.

8. Learned counsel for the petitioners submits that the

case of these petitioners stand on identical footing with that of Sri

Ganesh Lal and Sri Ganauri Paswan. According to him, the

authorities of the 'BSHPCL' cannot play fast and lose and they

cannot be allowed to take one view in respect of one of the

employees and another view in respect of another employee. That Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

would be discrimination.

9. Learned counsel submits that these petitioners have

also discharged their duties of the higher post for several years

before their retirement. Petitioner no. 1 has served from

04.05.2010 to 31.03.2013 when he retired from service. Petitioner

no. 2 had been given additional charge of Deputy Director of

Accounts vide Memo No. 155 dated 17.09.2009, while he was

working as Accounts Officer w.e.f. 06.09.2006. Similarly the

petitioner no. '3' has served on the post of Accounts Officer (look-

after) since 26.08.2006 till his superannuation on 31.07.2008.

10. It is submitted that the Corporation is not taking a

stand that payments made to Sri Ganesh Lal or Sri Ganauri

Paswan is against the law, therefore, there is no occasion for this

Court to go into that aspect of the matter. In his submission, if the

Corporation is of the view that Sri Ganauri Paswan would be

entitled for the same benefit which Sri Ganesh Lal, there is no

reason why the petitioners who have rendered service in identical

manner on a higher post but by different notifications would not be

entitled for the same benefit.

11. It is his submission that the plea which is being

taken on behalf of the Corporation/BSPHCL that it will open a

Pandora Box was required to be considered while granting benefit

to Sri Ganauri Pawan but once the authorities have found that Sri Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

Ganauri Paswan is entitled for the same benefit, there is no point

of distinction in between the case of the Sri Ganauri Paswan and

that of these petitioners. The date of issuance of notification would

be wholly irrelevant.

12. Having heard learned counsel for the parties and

taking into consideration the submissions noticed hereinabove, this

Court finds that during pendency of this writ application since the

respondents have considered the case of Sri Ganauri Paswan in

compliance of the order passed by the learned Coordinate Bench

of this Court in CWJC No. 16750/2019 and has found Sri Ganauri

Paswan entitled for the benefit of 20% of the officiating

allowances for rendering service on the higher post, the

respondents are now obliged to consider the case of the petitioners

as well for similar benefits in the light of the discussions here-in-

above.

13. To be fair to the learned counsel for the respondents,

the Court observes, that, had the competent authority of the

Corporation while passing the order in the case of Sri Ganauri

Paswan acted with caution and in tandem with the stand of learned

counsel for the respondents in the pending writ petition for similar

reliefs, perhaps all issues could have been taken care of by the

concerned authorities and this Court would have benefit of

knowing the stand of the authorities on various aspects. In such Patna High Court CWJC No.20478 of 2018 dt.25-02-2021

circumstance, this Court would have been able to consider all the

submissions at this stage itself. Since the respondents have

considered the case of Sri Ganauri Paswan and has found him fit

for the benefits without looking into any other aspect save and

except that he was given officiation vide the same notification with

Ganesh Lal, this Court is of the view that the same respondents

should now take upon themselves to look into the case of these

petitioners.

14. Let such consideration be given within a period of

eight weeks from today by passing an appropriate order and for

this purpose the pleadings in the writ application shall be

considered as the representation of the petitioners.

15. This Court would also make it clear that the

competent authority will write an independent order as this Court

has not expressed any opinion on the merit of this case.

16. This writ application stands disposed off

accordingly.

(Rajeev Ranjan Prasad, J) Rajeev/-

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