Patna High Court
Rakesh Kumar Mishra vs The State Of Bihar on 21 July, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18238 of 2019
======================================================
Rakesh Kumar Mishra, S/o Late B.K. Mishra, Resident of 304, Mourya Vihar,
Mourya Path, B.V. College, Khajpura, Rukanpura, District-Patna, Pin Code-
800014.
... ... Petitioner
Versus
1. The State of Bihar through the Principal Secretary, Law Department, Bihar,
Patna.
2. Principal Secretary, Finance Department, Bihar, Patna.
3. Registrar General, Patna High Court, Patna.
4. Registrar (Establishment), Patna High Court, Patna.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Abhinav Srivastava, Sr. Advocate
Mr. Pushkar Bhardwaj, Advocate
For the Respondent/s : Mr. Gopal Krishna, AC to GP-2
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date: 21-07-2025
Heard Mr. Abhinav Srivastava, learned Senior
Advocate with Mr. Pushkar Bhardwaj, learned Advocate for the
petitioner and Mr. Gopal Krishna, learned Advocate for the
State.
2. The question for consideration in the present writ
petition is, as to whether the petitioner, who had been serving
East Central Railway at Patna, on being selected for the post of
Assistant in the Establishment of the Patna High Court, Patna in
pursuant to an advertisement was entitled to the benefit of pay
protection in terms with the provisions contained under Rule-78
of Bihar Service Code.
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
2/19
3. Before coming to the impugned order(s), it would
be pertinent to give the short facts of the case, in the premise of
which, the present writ petition came to be filed.
(i) The petitioner after facing due process, on being
duly selected, was appointed against the post of Chemical &
Metallurgical Assistant-II, in the East Central Railway in the
Grade Pay of Rs.5000-8000/- vide Office Order dated
12.12.2001
(Annexure-1). During the service tenure, the
petitioner was posted at Work Shop Project under East Central
Railway at Patna, in the meanwhile, in pursuant to
Advertisement No.1/2010 issued by the Authority of the
Establishment of the Patna High Court, Patna, the petitioner
after procuring "No Objection Certificate", from the concerned
authority, participated in the process of selection for the post of
Assistant in the Establishment of the Patna High Court, Patna.
On being found successful, vide letter dated 08.08.2011
(Annexure-3), the petitioner was informed with respect to his
selection for appointment against the post of Assistant in the
revised pay structure having Pay Band-2 of Rs.9300-34800/-
plus Grade Pay of Rs.4600/-.
(ii) Subsequent upon the appointment of the
petitioner, he was relieved from his duties in the Indian
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Railways and thus he submitted his joining as Assistant; the
basic salary payable in favour of the petitioner upon his joining
in the capacity of an Assistant was fixed at Rs.12540/- with
Grade Pay of Rs. 4600/-; however, while continuing in the
capacity of Chemical & Metallurgical Assistant-II, in the East
Central Railway, till month of October, 2011, the basic salary
admissible in favour of the petitioner was fixed at Rs.14920/-.
(iii) The petitioner aggrieved with the action of the
respondent authorities of the Establishment of the Patna High
Court, Patna as also the Government of Bihar, submitted a
representation dated 14.01.2016, requesting therein to extend
him the benefits of pay protection and also to take steps towards
processing the transfer of Provident Fund Account, which had
remained with the Indian Railways. The representation was duly
sent to the concerned authorities under the Law Department of
the State Government. The service history as well as service-
book and appointment letter etc. were called for to examine the
claim of the petitioner at the level of the Finance Department of
the State Government.
(iv) Following due deliberation, letter no.423 dated
23.01.2017 was issued by the Law Department of the State
Government, by which the opinion expressed by the Finance
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Department of the State Government was communicated to the
Registrar Establishment, Patna High Court, informing him that
the petitioner was not entitled to the benefit of pay protection in
terms with Rule-78 of Bihar Service Code. The aforesaid letter
clearly postulates that said rule was applicable only in cases of
State Government employee(s) and not extended to the Central
Government employee(s).
(v) In the circumstances, afore-noted, the petitioner
submitted a detailed representation dated 27.09.2018 before the
Establishment of the Patna High Court; however, that letter also
did not persuade the respondent authorities of the State
Government and finally the claim of the petitioner negated vide
letter dated 26.03.2019 issued from the Law Department of the
State Government.
4. That it is these two letters dated 23.01.2017 and
26.03.2019, which are under challenge before this Court,
whereby the benefit of pay protection under the provisions
contained under Rule-78 of Bihar Service Code has been turned
down, assigning reason that in terms of the provisions contained
under Rule-2, which contemplate that Rule-2 applies to all
Government servant under the State Government and Rule-45
thereof says that the expression "State Government or
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Government" connotes employees of the Government of State
of Bihar and, as such, the petitioner could not be extended the
benefits of pay protection, taking note of the services rendered
by him in the Indian Railways prior to his appointment in the
capacity of Assistant in the Establishment of the Patna High
Court.
5. Mr. Abhinav Srivastava, learned Senior Advocate
for the petitioner taking this Court through Rule-78 of Bihar
Service Code has submitted that the petitioner was entitled for
being extending the benefit of fixation of his initial pay in the
time-scale mentioned above the substantive pay that was
admissible in his favour while continuing in the capacity of
Chemical & Metallurgical Assistant-II, in the East Central
Railway. Referring to the provisions contained under Rule-78 of
Bihar Service Code as well as the definition of "Government
Servant" as contained under Annexure-B to Appendix-6 of
Bihar Service Code, according to which, "Government Servant
means service under Government of Bihar and includes service
under the Government of India and other Provincial
Governments of India"; it is urged that reason assigned for
negating the claim of the petitioner is untenable and contrary to
the provisions contained under Rule-78 of Bihar Service Code.
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Moreover, the opinion expressed by the concerned authorities
under the Finance Department of the State Government
referring to Rule-2 and Rule-45 of Bihar Service Code, would
clearly demonstrate that provisions contained under said Rules
have been clearly misinterpreted. So far as Rule-2 of Bihar
Service Code is concerned, it only provides that the provisions
contained under Bihar Service Code would apply to the
employees of the State Government and would also include the
staff attached to the Patna High Court and the secretarial staff of
Assembly and Council. Rule-45 of the Bihar Service Code does
not define the expression "Government Servant" and on the
contrary it prescribes what the expressions "State Government"
or "Government" mean and in manner the same does not
concern or cover the definition of "Government Servant". On
the grounds, afore-noted, learned Senior Advocate sought
quashing of the impugned order(s).
6. It has further been informed to this Court that
during the pendency of the present writ petition, the Finance
Department had expressed its agreement for counting the
services rendered by the petitioner for the period between
12.12.2001 to 16.11.2011 under the Government of India, which
in the humble submission of the learned Senior Advocate, has
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
material bearing on the issue(s) involved in the present writ
petition. In furtherance of the agreement expressed by the
Finance Department, the consequential order as contained in
Memo No.16435-16448 dated 23.03.2022 came to be issued and
notified that the services rendered by the petitioner under the
Indian Railways along with his services in the Establishment of
the Patna High Court shall be considered for the purposes of
pensionary benefits.
7. While concluding the submissions, learned Senior
Advocate further referred to Office Order dated 02.12.2008
(Annexure-P/13 to the supplementary affidavit) and submitted
that the authorities of Rajendra Agricultural University, Bihar,
Pusa, who had appointed a person against the post of Assistant
Professor-cum-Junior Scientist in the services of the said
University has been extended the benefits of pay protection
taking note of the services rendered by the said person under
Birsa Agricultural University, Kake, which falls under the State
of Jharkhand, in terms with the provisions contained under
Rule-78(A)(II) of Bihar Service Code. By referring
abovementioned instance, a further submission has been added
basing the case of the petitioner on parity and in case of non-
adherence to equality, it will cause discrimination.
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
8. Per contra, Mr. Gopal Krishna, learned Advocate
for the State dispelling the aforesaid submissions advanced by
the learned Senior Advocate for the petitioner, vehemently
contended that admittedly pursuant to Advertisement
No.1/2010, the petitioner applied and participated in the
selection process and on being found successful, joined as
Assistant and accordingly the petitioner was granted admissible
pay-scale applicable to the post of Assistant. The petitioner has
not raised any objection to the pay-scale given to him;
surprisingly, after four years, for the first time, the petitioner
filed a representation claiming pay protection under Rule-78 of
Bihar Service code. Rule-2 of Bihar Service Code makes the
code applicable to all Government servants under the rules
making control of the State Government as also the staff
attached to the Patna High Court and thus the provisions
underlying with Rule-78 clearly restrict the privilege of pay
protection to the employees of Bihar State Government, it
cannot be extended to the employees of other State/Central
Government being appointed as fresh appointees. Since the
petitioner had never been under the rule making control of the
State Government of Bihar, he is not entitled to pay protection
as prayed for.
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
9. Refuting the contention of the petitioner, it is
further submitted by the learned Advocate for the State that as
per Note-3 of Rule-78(2) of Bihar Service Code, the provisions
of Appendix-6 is applicable in case of pay fixation of Gazetted
Government servant on promotion to higher post or on
promotion from a Non-Gazetted to a Gazetted post and in no
way applicable to fresh appointee.
10. Reliance has also been placed on a decision of the
learned Division Bench of this Court in the case of The State of
Bihar & Ors. v. Rajendra Rai and other analogous cases
[L.P.A. No. 374 of 2019], wherein the benefit of pay protection
has been denied to the respondents on being found their
appointment through fresh recruitment. It is also contended that
similar view has been taken by the learned co-ordinate Bench of
this Court in the case of Dr. Sunita Kumari v. The State of
Bihar and other analogous cases [C.W.J.C. No.5152 of 2016]
and further in the case of Praveen Kumar Mishra v. The State
of Bihar & Ors. [C.W.J.C. No.368 of 2017].
11. After having given anxious consideration to the
submissions advanced by the learned Advocate for the
respective parties, this Court finds that the facts are admitted
and it do not require any comment; since the claim of the
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
petitioner is resisted on the point of delay; hence, it is required
to be dealt with primarily.
12. There is no dispute that the issue regarding delay
and laches had immense significance and if the Court while
exercising the extraordinary writ jurisdiction finds that the
claims raised are stale in nature and the delay is unexplained on
the part of the litigant, it deserves to be scuttle at the very
threshold, is the settled legal position.
13. In Karnataka Power Corporation Ltd. through
its Chairman and Managing Director and Another v. K.
Thangappan and Another [(2006) 4 SCC 322], while
reinforcing the afore-noted proposition, the Apex Court has
observed that "Delay or laches is one of the factors which is to
be borne in mind by the High Court when they exercise their
discretionary powers under Article 226 of the Constitution and
if there is such negligence or omission on the part of the
applicant to assert his right as taken in conjunction with the
lapse of time and other circumstances, causes prejudice to the
opposite party, the High Court may refuse to invoke its
extraordinary powers in appropriate cases."
14. Normally, in a case relating to service
matter/promotion, an aggrieved person should approach the
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Court at least within six months or at the most a year of arising
of the cause of action has been ruled by the Apex Court long
back in the case of P.S. Sadasivaswamy v. State of Tamil
Nadu [(1975) 1 SCC 152].
15. It would also be worth benefiting to note the
relevant observation made by the Apex Court in the case of
Tukaram Kana Joshi and Others v. Maharashtra Industrial
Development Corporation Limited and Others [(2013) 1
SCC 353], wherein the learned Court ruled that delay and
laches is adopted as a mode of discretion to decline exercise of
jurisdiction to grant relief. The Court is required to exercise
judicial discretion. The said discretion is dependent on facts and
circumstances of the cases. Delay and laches is one of the facets
to deny exercise of discretion. It is not an absolute impediment.
There can be mitigating factors, continuity of cause action, etc.
That apart, if whole thing shocks the judicial conscience, then
the Court should exercise the discretion more so, when no third
party interest is involved.
16. Admittedly, in the case in hand, the petitioner was
duly appointed long back in the year 2011 and submitted his
joining on 17.11.2011 after having been relieved from his duties
in the Indian Railways. For the first time, the petitioner
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
submitted a representation on 14.11.2016 requesting therein to
extend the benefit of pay protection by fixation of his initial pay
in the time-scale mentioned above the substantive pay that was
admissible in his favour while continuing in the capacity of
Chemical & Metallurgical Assistant-II, in the East Central
Railway. Thus, admittedly there is a delay of five years. This
reason is alone requiring no interference by this Court while
exercising extraordinary writ jurisdiction; however, in order to
give quietus to the litigation, this Court thinks it apt and proper
to consider the matter on its merit(s).
17. To answer the issue(s) as formulated in the case in
hand, it would be apt and proper to encapsulate relevant
provisions of Bihar Service Code, which are applicable herein.
Rule-2 of Bihar Service Code speaks "These Rules
apply to all Government Servant under the rule making control
of the State Government. They also apply to staff attached to the
Patna High Court and the secretarial staff of the Assembly and
Council."
18. Bare reading of the afore-noted provisions, there
is no iota of confusion that the Rules under Bihar Service Code
shall only apply to the employees of the State Government and
would also include the staff attached to the Patna High Court
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
along with secretarial staff of the Assembly and Council.
Further, Rule-45 says, the State Government or Government
means the "State Government of Bihar" meaning thereby
wherever the terms "State Government" or "Government" used
in the Bihar Service Code, it denotes to State Government of
Bihar.
19. There is no ambiguity with regard to the
application of the provisions that Bihar Service Code would
only be applicable to the employee(s) of the State Government
i.e. State Government of Bihar, including the staff attached to
the Patna High Court and secretarial staff of Assembly and
Council
20. Now coming to Rule-78 of Bihar Service Code,
which prescribes pay protection to the Government servant. The
relevant provisions of which is quoted hereinbelow:-
"The initial substantive pay of a Government
Servant who is appointed substantively to a post on
a time scale of pay is regulated as follows:-
(a) If he holds lien on a permanent post other
than a tenure post, or would hold a lien on such a
post had his lien not been suspended;
(i) When appointment to the new post
involves the assumption of duties or
responsibilities of greater importance (as
interpreted for in purpose of rule 89) than those
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
attaching to such permanent post, he will draw as
initial pay in the stage of the time-scale next above
his substantive pay in respect of the old post:
(ii) When appointment to the new post does
not involve such assumption, he will draw as
initial pay the stage of the time-scale which is
equal to his substantive pay in respect of the old
post, or if there is no such stage the stage next
below that pay, plus personal pay equal to the
difference and in either case will continue to draw
that pay until such time as he would have received
an increment in the Time-scale of the old post or
for period after which an increment is earned in
the time-scale of new post, whichever is less. But
if the minimum pay of the time-scale of new post,
is higher than his substantive pay in respect of the
old post, he will draw that minimum as initial pay.
(iii) When appointment to the new post is
made on his own request under rule 56 (a) and the
maximum pay in the time-scale of that post is less
than his substantive pay in respect of the old post
he will draw that maximum as initial pay."
(Emphasis supplied)
21. From reading of Rule-78 of Bihar Service Code, it
would be evident that all the three contingencies as mentioned
under Rule-78(a), (i), (ii) and (iii) would be applicable to a
Government Servant, if he holds lien on a permanent post other
than a tenure post, or would hold a lien on such a post had his
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
lien not been suspended. The three eventualities and
consequential protection would flow only if the pre condition as
prescribed under Rule 78(a) fulfilled. Once, a Government
servant is appointed on substantive basis on any permanent post,
under Rule-68 of Bihar Service Code, the Government servant
ceases to hold lien previously acquired to any other post, unless
in any case, it would be otherwise provided, in the rules.
22. In the case in hand, the petitioner had applied his
application in terms of Advertisement No.1/2010 issued by the
authorities of the Establishment of the Patna High Court, Patna
with open eyes. The advertisement in nowhere stipulates
regarding pay protection; nonetheless, the petitioner applied for
the post of Assistant and on being selected he submitted his
joining, however, without any objection. There is no provision
under Bihar Service Code to the extent it prescribes that the
employee, who had come from the Central Government
Services or from other States will get pay protection of his
previous post.
23. The identical issue has come up for consideration
before the learned Division Bench in Rajendra Rai (supra),
wherein the appellant-State aggrieved with the order passed by
the learned Single Judge extending the benefit of pay protection
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
on the ground of parity, preferred appeal; while setting aside the
order of the learned Single Judge, the Court has observed that
the original writ-petitioners participated in the recruitment
process which was conducted afresh for the post of Headmaster.
The target pool of persons who could have participated in such
recruitment process was open to all, including employees of the
Central Government and all such persons who are having
experience of teaching in other States as well. In that view of
the matter, if the original writ-petitioners were appointed as
Headmasters, there cannot be any dispute over the proposition
that such appointment was fresh recruitment and in cases of
fresh recruitment, there cannot be any claim for protection of
pay merely on the ground that for some time in their teaching
experience, they had rendered their services in the State of
Bihar.
24. Since much emphasis has been given to the
exception to Rule 78, it is to be noted here that it only clarifies
that the entitlement of pay protection in paragraph (iii) of the first
proviso that the temporary post should be on the same time-scale
as a permanent post shall not be enforced in two eventualities,
mentioned therein, which has nothing to do with the case of the
petitioner, as it confined to temporary post having same nature
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
of work with that of earlier permanent post, sanctioned with
identical time-scale in the cadre under the different Government
and Department.
25. Further, Note-3 of Rule-78 stipulates that for rules
regarding fixation of pay of gazetted Government servants on
promotion to certain higher posts or on promotion from a non
gazetted to a gazetted post, Appendix-6 is required to be seen.
Thus there is no confusion to visualize that the "Government
Servant" as defined under Annexure-B to Appendix-6 only
covers the cases with respect to promotion of a Government
servant either in the service of Government of Bihar or the
Government of India and other Provincial Governments of
India.
26. So far the contention of the petitioner that
counting of service rendered by him for the purposes of retiral
benefits is concerned, in the opinion of this Court would have
no material bearing over the issue as the same was extended in
terms with the prescription provided under Resolution No.665
dated 15.07.2019, which clearly stipulates that the past services
of the Central Government employees' rendered before joining
the State Government will be added for death-cum-gratuity
under New Pension Scheme, in case, inter alia, they were
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
governed under the New Pension Scheme and joined the
services of the State on or after 01.09.2005, on being lawfully
relieved from earlier services.
27. Now coming to the next contention of the
petitioner based upon parity, it would be pertinent to observe
that the decision to extend the benefit of pay protection to one
Pallav Shekhar, who has been allowed pay protection on being
appointed as Assistant Professor under Rajendra Agriculture
University; on being relieved from Birsa Agricultural
University, Kake, there is neither any relevant material nor even
the facts have been disclosed as to in what manner he was
appointed. Moreover, it is admitted to be a wrong by the
answering respondent.
28. It would be suffice to encapsulate the relevant
para of State of Bihar v. Upendra Narayan Singh [(2009) 5
SCC 65], wherein the Apex Court reinforce the following
settled proposition:-
"By now it is settled that guarantee of
equality before law is a positive concept and it
cannot be enforced in a negative manner. If an
illegality or irregularity is committed in favour of
any individual or a group of individuals, or a
wrong order has been passed by a judicial forum,
others cannot invoke the jurisdiction of higher
Patna High Court CWJC No.18238 of 2019 dt.21-07-2025
Court or superior Court for repeating or
multiplying the same irregularity or illegality."
29. In view of the discussions made hereinabove, this
Court is of the opinion that the provisions underlying Rule-78 of
Bihar Service Code, restrict the privilege of pay protection to
the employee(s) of Bihar State Government and cannot be
extended to the employee(s) of other State and the Central
Government employee(s) on being appointed as a fresh
appointee after going through a fresh recruitment process; unless
it is otherwise provided, hence, this Court does not find any
merit in the present writ petition. Accordingly, the same stands
dismissed.
rohit/- (Harish Kumar, J)
AFR/NAFR NAFR
CAV DATE 23-06-2025
Uploading Date 24-07-2025
Transmission Date
