Patna High Court
Ram Awtar Raut vs The State Of Bihar on 30 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1215 of 2019
In
Civil Writ Jurisdiction Case No.5877 of 2015
======================================================
Ram Awtar Raut S/o Ram Roop Raut Resident of Village and P.O.- Rakhwari,
P.S.- Andhrathari Rudrapur, District - Madhubani. At present residing at 2/22
Roshar Garden-II, Kakrola Road, Nazafgarh, New Delhi.
... ... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary Cabinet, Secretariat and
Co-ordination, Bihar, Patna
2. The Principal Secretary Finance Department, Govt. of Bihar, Patna
3. The Resident Commissioner Bihar Bhawan, New Delhi
4. The Chief Administrative Officer Bihar Bhawan, New Delhi
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bijay Kumar Pandey, Advocate
Mr. Neeraj Nandan, Advocate
For the Respondent/s : Mr. Gyan Prakash Ojha, GA 7
Ms. Kriti, Advocate
Mr. Abhishek, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 30-01-2024
Heard learned counsels for the respective parties.
2. The appellant has assailed the order of the learned
Single Judge dated 21.08.2019 passed in CWJC No. 5877 of 2015.
His grievance is that he is entitled to have the benefit of pay scale
of Rs. 5,000 - 8,000/- with reference to the post held by him like
Receptionist-cum-Telephone Attendant. He was stated to be
appointed as Receptionist-cum-Telephone Attendant on
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
2/12
18.10.1996
. Thereafter, in the year 2013, he was asked to hold the
post of Assistant Manager on 28.02.2013. Later on he was reverted
back to the post of Attendant on 19.02.2015. He has attained age
of superannuation and retired from service in the month of
January, 2021. In this backdrop, question for consideration is
whether the appellant is entitled to pay scale of Rs. 5,000 - 8,000/-
attached to the post of Receptionist-cum-Telephone Attendant or
not?
3. Learned counsel for the appellant submitted that the
appellant was initially appointed as Attendant. Thereafter, he was
appointed to the post of Receptionist-cum-Telephone Attendant on
18.10.1996. He had also discharged the duties of the next higher
post of Assistant Manager from 28.02.2013 till the reversion order
dated 19.02.2015 to the post of Attendant. Learned counsel for the
appellant, in support of relief of pay scale of Rs. 5,000 - 8,000/- to
the extent that he was holding the post of Receptionist-cum-
Telephone Attendant, consequently he is entitled to all service and
monetary benefits attached to the post of Receptionist-cum-
Telephone Attendant, in support of such claim he is relying on two
decisions namely Arindham Chattopadhyay and Others vs. State
of West Bengal and others reported in (2013) 4 SCC 152 (para
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
13) and Chairman, Bihar State Power Holding Company Ltd.
Patna vs. Ganesh Lal reported in 2017 (4) PLJR 282, (para 8).
4. Per contra, learned counsel for the respondent - State
resisted the aforementioned contentions and submitted that the
post of Receptionist-cum-Telephone Attendant was required to be
filled up through selection from the Bihar Staff Selection
Commission and thereafter, the appointment order was required to
be issued by the respondent - Resident Commissioner, Bihar
Bhavan, New Delhi. On the other hand, it is stated that
appointment order to the post of Receptionist-cum-Telephone
Attendant dated 18.10.1996, it is only an ad hoc arrangement for
want of regular Receptionist-cum-Telephone Attendant. Such
arrangement has been made by the Chief Administrative Officer,
Bihar Bhavan, New Delhi. The appellant has not produced any
material to show that he was selected through the Bihar Staff
Selection Commission and appointed by the competent authority -
Resident Commissioner, Bihar Bhavan, New Delhi, on the other
hand, Chief Administrative Officer, Bihar Bhavan, New Delhi has
asked the appellant to discharge the duties of the post of
Receptionist-cum-Telephone Attendant. The word used in the
order dated 18.10.1996 is a misnomer instead of specifically
stating to the extent that appellant was made in-charge of the post
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
of Receptionist-cum-Telephone Attendant. If he was regularly
appointed to the post of Receptionist-cum-Telephone Attendant, in
that event, he would have been selected through selection and
appointment process. In this regard, no material has been placed
on record by the appellant. It was also submitted that if such
appointment is with reference to selection and appointment to such
post, in that event, necessary notes and entries should have been
made in the service record. On the other hand, there were no
entries in the service record to the extent that appellant was
selected and appointed to the post of Receptionist-cum-Telephone
Attendant. Therefore, there is no infirmity in the order of the
learned Single Judge. Consequently, the present LPA is liable to
the dismissed.
5. Heard learned counsels for the respective parties.
6. Core issue involved in the present lis is whether
appellant was holding the post of Receptionist-cum-Telephone
Attendant on permanent basis or not? If it is so, is he entitled to the
pay scale attached to the post of Receptionist-cum-Telephone
Attendant at Rs. 5,000 - 8,000/- and consequential benefits or not?
In order to understand that whether appellant was regular holder of
the post of Receptionist-cum-Telephone Attendant, it is necessary
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
to reproduce copy of the order dated 18.10.1996 which reads as
under :
"fcgkj ljdkj
fcgkj Hkou ubZ fnYyh
dk0 vk0 la0 ---------@fn 21 ubZ fnYyh fnukad vDVwcj 1996
dk;kZy; vkns"k
fcgkj Hkou ds nSfud dk;Z iz.kkyhdks lwfuf"pr djus ds fy;s deZpkfj;ksa ds uke ds
lkeus vafdr in ij fu;qfDr djrs gq, dk;Z vkoafVr fd;k tkrk gSA
uke ,oa inuke
1- Jh ftrsUnz izlkn flag dk;Z dyki
Lokxrd lg nwjHkk"k ifjlj vfrfFk;ksa dk Lokxr djuk ljdkj
}kjk dejk vkoaVu ds vuq:i O;O;Fkk
lqfuf'pr djuk Vzd dkWy ,oa jsUV
iath dh lapkj.k ,oa olwyh@fofHkUu
dejks ls izkIr f'kdk;r vLi"V vkfn
vU; dh lwpuk la;qDr mi izca/kd dks
nsukA
2- Jh jk/ks';ke ik.Ms; Lokxrd rFkS;
lg nwjHkk"k
3- Jh fla/ks'oj jke Lokxr lg rFkS;
nwjHkk"k
4- Jh jke vorkj gkml LokxrdrFkS;
lg nwjHkk"k
fpjatho eq[; iz.kkyh inkf/kdkjh
fcgkj Hkou ubZ fnYyh
Kki la[;k 868@ fo0 Hk0 ubZ fnYyh fnukad 18 vDVqcj 1996 bZ
izfrfyfi lacaf/kr deZpkjh dks lwpukFkZ ,oa vko';d dkjokbZ ds fy;s vxzlkfjr
1- ;g vkns'k rqjUr izHkko esa ykxw gksxkA
2- lHkh lacaf/kr deZpkjh la;qDr@mi izca/kd ds Ik;Zos{k.k esa dk;Z djsaxsA
3- deZpkfj;ksa dk vkdfLed @ mikftZr vodk'k Lohd`fr esa la;qDr@ mi
izca/kd dh vuqla'kk vfuok;Z gS vU;Fkk fcpkj ugh fd;k tk;sxkA
4- la;qDr @ mi izca/kd vodk'k dh vof/k esa oSdfYid O;oLFkk lqfuf'pr
djsaxsA
g0 vLi"V
eq[; iz.kkyh inkf/kdkjh
fcgkj Hkou ubZ fnYyh"
7. There is no iota of material evidence in the order like
appellant was subjected to selection and appointment by the Bihar
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
Staff Selection Commission and Resident Commissioner. That
apart, appointing authority to the post of Receptionist-cum-
Telephone Attendant is Resident Commissioner, Bihar Bhawan,
New Delhi. Therefore, whatever, the words used by the Chief
Administrative Officer, Bihar Bhawan in the order dated
18.10.1996 is a misnomer. It should have been specific to the
extent that appellant was holder of the post of Attendant/Telephone
Attendant, he was made in-charge of the post of Receptionist-cum-
Telephone Attendant which is higher post to that of Telephone
Attendant and carries different pay scale. Neither of the parties
have apprised what is the method of recruitment to the post of
Receptionist-cum-Telephone Attendant. On the other hand, there is
difference of pay scale attached to the post of Attendant and
Receptionist-cum-Telephone Attendant. These materials reveal
that the post of Receptionist-cum-Telephone Attendant is superior
to that of Attendant post and consequently method of recruitment
to the post of Receptionist-cum-Telephone Attendant must be
direct recruitment or promotion or both.
8. Further, there is no entries in the service register of
the appellant insofar as giving effect to the order dated 18.10.1996
insofar as alleged to be appointed to the post of Receptionist-cum-
Telephone Attendant, therefore, one has to draw inference that
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
appellant was never appointed to the post of Receptionist-cum-
Telephone Attendant and we have to draw inference to the extent
that it is only in-charge arrangement. Even post of Assistant
Manager held by him from 28.02.2013 till reversion on 19.02.2015
to the post of Attendant was also in-charge.
9. Learned counsel for the appellant relied on two
decisions of Hon'ble Supreme Court in the case of namely
Arindham Chattopadhyay and Others, para 13 (cited supra) and
Chairman, Bihar State Power Holding Company Ltd. Patna
(cited supra) It is necessary to reproduce para Nos. 13 and 8 of the
aforementioned judgments which reads as under:
"13. Reverting to the facts of this case, we find
that although the appellants were recruited as ACDPOs, the
State Government transferred and posted them to work as
CDPOs in ICDS Projects. 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
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
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. The convening of the Promotion Committee or
taking other steps for filling up the post of CDPO by
promotion is not in the control of the appellants. Therefore,
they cannot be penalised for the Government's failure to
undertake the exercise of making regular promotions.
8. The Writ Court in para 10 of its judgment has
noted the judgment of two Division Benches of the Patna High
Court in the case Patna High Court LPA No.1166 of 2016
dt.19-07-2017 of Prafulla Ranjan Shrivastava Vs. The State of
Bihar & Ors.: 2008(3) PLJR 144 and in the case of Dr. Nitya
Gopal Bandyopathyay Vs. The State of Bihar & Ors.:2008(1)
PLJR 245 and a judgment of the Apex Court in the case of
Secretary-cum- Chief Engineer, Chandigarh Vs. Hari Om
Sharma & Ors: (1998) 5 SCC 87. In those judgments the
Division Bench of this Court as well as the Apex Court
considering continuous officiation and discharge of duty on
higher post, issued direction for promotion and payment of
salary of the post on which the incumbent has performed the
duty. The Writ Court referring to the aforesaid judgment noted
that "it has been consistently held by this Court as well as the
Apex Court that if the employer asked the employee to
perform a duty of higher post attached with higher
responsibility, he cannot be deprived from the pay attached to
that post. It is admitted fact that the work of Accounts Officer
is of higher responsibility than the Accountant, having a
higher pay" After noting the aforesaid fact the Writ Court was
economic in the matter of grant of relief to the writ petitioner.
As a matter of corollary in terms of the aforesaid judgment
discussed by the Writ Court, the writ petitioner should have
been granted the benefit of pay attached to the post of
Accounts Officer but the Writ Court instead of granting the
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
pay scale of the post of Accounts Officer issued direction for
grant of benefit of 20% officiating allowance for discharging
higher responsibility. The claim with regard to officiating
allowance are ordinarily meant for Patna High Court LPA
No.1166 of 2016 dt.19-07-2017 payment for officiating on
higher post in contingency of situation and not for the purpose
of posting an employee for a long period of a decade as in the
instant case and then deny the benefit of regular pay scale
attached to the office on which the incumbent was posted and
has performed the duty and shouldered the higher
responsibility. In fact, the Division Bench in the case of
Prafulla Ranjan Shrivastava (supra) in para-8 has noted that
Rule 103 of the Bihar Service Code was intended to take care
of a situation where an employee was given additional charge
on a purely temporary and transitional basis. Para-8 of the
judgment is quoted below:
"8. In our view, Rule 103 of the Code was
intended to take care of a situation where an employee was
given additional charge on a purely temporary and
transitional basis, where permanent arrangement was not
required, or for a period or pending finalization of the
permanent arrangement.
8.1) A number of cases are coming up before this
Court where the Government has not taken steps to till up the
higher post on a permanent basis. Furthermore, Rule 103 of
the Code does not, to our mind, seem to contemplate a
situation where the additional charge of a higher post is
given. Perhaps Rule 103 covers cases of equivalent or
coordinate post. In this connection, we may usefully reproduce
para-12 of the judgment in Dr. Sachita Kumar Sinha (supra);
"12. There is also another aspect of the matter
inasmuch as the Supreme Court has repeatedly asked the
State to Patna High Court LPA No.1166 of 2016 dt.19-07-
2017 act as a model employer. In a welfare State where the
Government is one of laws and not of men, the role of a model
employer of the State is not at all compatible with its action in
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
the present case, namely, getting the work for higher posts
discharged by the petitioner and at the time of making
payment trying to defeat the claim of the petitioner by raising
all sorts of, if I may say so, without any disrespect, specious
pleas."
10. Reading of the aforementioned paragraphs, if an
employee is holding a higher post for a longer period, in that
event, automatically he is entitled to be considered for promotion.
The aforementioned principles is not attracted to the case in hand
for the reasons that neither of the parties have apprised this Court
that what is the method of recruitment to the post of Receptionist-
cum-Telephone Attendant.
11. Be that as it may, Hon'ble Supreme Court in the case
of State of Haryana vs. Charanjit Singh reported in (2006) 9
SCC 321 held that on ad hoc basis if an employee is holding
certain post, in that event, he is entitled to pay scale attached to
that post. In the present case, appellant was holder of the post of
Receptionist-cum-Telephone Attendant from 18.10.1996 till
28.02.2013 read with reversion dated 19.02.2015 from the post of
Assistant Manager to that of Attendant. In other words, appellant is
entitled to only basic pay attached to the post of Receptionist-cum-
Telephone Attendant during the period from 18.10.1996 to
28.02.2013. In this regard, relevant basic pay attached to the post
of Receptionist-cum-Telephone Attendant shall be taken note of
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
and difference of salary shall be paid to the appellant. Similarly, he
was holding the post of Assistant Manager with effect from
28.02.2013 till 19.02.2015, the date on which he was reverted back
to the post of Assistant, he is entitled to basic pay attached to the
post of Assistant Manager. In this regard also the concerned
authority is hereby directed to take note of basic pay attached to
the post of Assistant Manager, calculate difference of pay and the
amount shall be disbursed in favour of the appellant.
12. To overcome the cited decisions, it is necessary to
take note of Hon'ble Supreme Court decision in the case of Nair
Service Society vs. Dr. T. Beermasthan reported in (2009) 5 SCC
"48. Several decisions have been cited before
us by the respondents, but it is well established that
judgments in service jurisprudence should be understood
with reference to the particular service rules in the State
governing that field. Reservation provisions are enabling
provisions, and different State Governments can have
different methods of reservation. There is no challenge to
the Rules, and what is challenged is in the matter of
application alone. In our opinion the communal rotation
has to be applied taking 20 vacancies as a block."
13. Having regard to the principle laid down by the
Hon'ble Supreme Court in the case of Nair Service Society (cited
supra) read with the service particulars of the appellant to the
Patna High Court L.P.A No.1215 of 2019 dt.30-01-2024
extent that there were no entries in the service record to the effect
that he was regularly selected and appointed through selection
process to the post of Receptionist-cum-Telephone Attendant. That
apart, pay scale of Attendant and Receptionist-cum-Telephone
Attendant are entirely different, therefore, before entering into the
cadre of Receptionist-cum-Telephone Attendant on behalf of the
appellant, he must have been appointed through promotional
process or direct recruitment process. The same are not
forthcoming from any documents including service register.
14. Accordingly, order of learned Single Judge dated
21.08.2019 is modified to the above effect. The appellant is
entitled to only certain monetary benefits as observed in the
previous paragraphs. The same shall be calculated and disbursed in
favour of the appellant within a period of three months from the
date of receipt of copy of this order.
15. The present LPA stands allowed in part.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
GAURAV S./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.02.2024
Transmission Date NA
