Jharkhand High Court
Jaideep Kumar Sinha vs The State Of Jharkhand Through The Chief ... on 8 June, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1416 of 2020
Jaideep Kumar Sinha, Retired Fisheries Extension Officer, Aged about
61 Years, Son of late Awadhesh Kumar, resident of Village - Hansadih,
P.O. & P.S. - Jamui, District - Jamui, Bihar, At present Resident of
Lalit Gram Colony, Road No.2, Kathitand, Ratu, P.O. & P.S. - Ratu,
District - Ranchi, Jharkhand ... ... Petitioner
Versus
1. The State of Jharkhand through The Chief Secretary, Government of
Jharkhand, Ranchi, At Project Building, Dhurwa, P.O. & P.S. -
Dhurwa, District - Ranchi, Jharkhand
2. The Principal Secretary, Finance Department, Government of
Jharkhand, Ranchi, At Project Building, Dhurwa, P.O. & P.S. -
Dhurwa, District - Ranchi, Jharkhand
3. The Principal Secretary, Personal, Administrative & Raj Bhasha
Department, Government of Jharkhand, Ranchi, At Project Building,
Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi, Jharkhand
4. The Principal Secretary, Agriculture, Animal Husbandry and Co-
operative Department (Animal Husbandry Sell) Government of
Jharkhand, Ranchi, At Nepal House, Doranda, Ranchi, P.O. & P.S.
Doranda, District - Ranchi, Jharkhand
5. The Director, Fisheries, Ranchi, Fish Farm, Doranda, P.O. & P.S. -
Doranda, District - Ranchi, Jharkhand.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Mahesh Kumar Sinha, Advocate For the Respondents : Ms. Soumya S. Pandey, A.C. to A.A.G I
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06/08.06.2022 Learned counsels for the parties are present.
2. This writ petition has been filed for the following relief:
"For a direction upon the respondents to pay the petitioner's arrears of differences of salary of the higher post of District Fisheries Officer - cum - Chief Executive Officer from the period 16/12/2005 to 28/02/2014, although petitioner worked and discharged his duty as In charge District Fisheries Officer - cum - Chief Executive Officer from the period 16/12/2005 to 28/02/2014 against the sanction post of District Fisheries Officer - cum - Chief Executive Officer as per the order and direction and with the satisfaction of respondents."
3. The specific case of the petitioner is that the petitioner has been working and discharging his duty as Incharge District Fisheries Officer - cum - Chief Executive Officer during the period from 16.12.2005 to 28.02.2014 against the sanctioned post of District Fisheries Officer cum
- Chief Executive Officer as per the order and direction issued by the respondents and therefore the petitioner is entitled for difference of salary and he is entitled for salary of the higher post.
24. The learned counsel has referred to the order passed by Hon'ble Patna High Court in C.W.J.C. No.3724 of 2007 dated 23.09.2011 to submit that the petitioner is entitled for the salary of the post at which he was working in the officiating capacity. He submits that the order passed by the learned Single Judge of Hon'ble Patna High Court was challenged in L.P.A. No.76 of 2012 before Hon'ble Patna High Court which was dismissed vide order dated 25.09.2012. The learned counsel also submits that the Special Leave Petition against the judgment passed by Hon'ble Patna High Court before the Hon'ble Supreme Court was also dismissed. During the course of argument, it is not in dispute that the petitioner was never promoted to the post on which he was officiating and is claiming the salary for the said post.
5. Learned counsel for the respondents, on the other hand, has opposed the prayer and has referred to the notification by which the petitioner was given the officiating post. She submits that such charge was given to the petitioner vide Notification No.2346 dated 14.12.2005 and it was clearly mentioned in the same that he would be entitled to the salary which he is getting. Learned counsel has also referred to a judgment passed by this Court in L.P.A No.162 of 2014 to submit that it has been clearly held that when a government servant holds more than one post, he shall be entitled to compensatory allowance i.e., officiating pay, but the same does not entitle him to get a salary of the higher post and the same cannot be treated as promotion.
6. The learned counsel for the State has also submitted that the petitioner has retired in the year 2019 and his claim itself is belated claim related to the period 2005 to 2014 and accordingly, the petitioner is not entitled to any relief.
7. At this, learned counsel for the petitioner submits that even as per the judgment which has been referred to by the learned counsel for the respondents, the officiating allowance/compensatory allowance for holding additional charge is to be paid.
8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the petitioner was never promoted to the post of District Fisheries Officer - cum - Chief Executive Officer, but was only discharging his duty as In- charge to the said post during the period from 16.12.2005 to 28.02.2014. It further appears from the Notification No.2346 dated 14.12.2005 that 3 the petitioner was given the officiating post clearly mentioning that he would continue to draw the pay as per his existing pay scale.
9. This Court finds that it has been held by this Court in judgement dated 12.01.2015 in L.P.A No.162 of 2014 (The State of Jharkhand versus Jai Prakash Singh) that when a government servant holds more than one post, he is entitled to officiating allowance / compensatory allowance and the notification for holding In-charge promoted post, does not amount to promotion and therefore such person cannot be given salary of higher post. The aforesaid judgement considered the provisions of Rule 58 and 103 of Jharkhand Service Code and held as follows: -
"8. .........
On close reading of the aforesaid provisions, it appears that when a Government servant holds more than one post, shall be entitled to compensatory allowance i.e. officiating pay. In the instant case, the respondent-writ petitioner has been given the additional charge of Deputy Director and Additional Director apart from discharging his duties on substantive posts. The notification for holding in-charge promoted post does not amount to promotion of the respondent-writ petitioner and there is distinction between a situation where a Government servant is promoted to higher post and the one where he is merely asked to discharge on the higher post. Asking an officer, who substantially holds lower post merely to discharge the duties of higher post cannot be treated as promotion. In such a case he does not get a salary of higher post but gets only what in service parlance i.e as per Jharkhand Service Code, 2001, is called officiating pay/compensatory allowance. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges duties of the higher post essentially as a stop-gap arrangement. In the instant case, the respondent-writ petitioner was asked to hold the higher post of Deputy Director/Additional Director but the regular promotion was affected after convening of the Departmental Promotion Committee. So convening of Departmental Promotion Committee always precedes the regular promotion and in the Departmental Promotion Committee the criteria for promotion is looked into and eligible candidate within the zone of consideration are considered for promotion. In the case at hand, the respondent-writ petitioner was regularly promoted vide notification dated 28.05.2009 and 16.12.2009 under Annexures 3 and 6 respectively. Therefore, the promotion affected in the year 2009 pursuant to Departmental Promotion Committee cannot 4 be antedated to anterior date. Otherwise that would create anomalous position.
(III). Assuming that the case of the respondent-writ petitioner is squarely covered by the case of Kedar Nath (supra) but the said judgment has been rendered without referring Rule 103 of the Jharkhand Service Code and relevant circular/memorumdum and it is no more res integra that there cannot be equity or equality in illegality. It is a settled principle of law that guarantee of equality before law enshrined under Article 14 of the Constitution of India is a positive concept and it cannot be enforced by citizen or Court in a negative manner. If any illegality or irregularity has been committed in favour of any individual or group of individuals; others cannot invoke the jurisdiction of higher Court for repeating or multiplying the same irregularity or illegality. In other words, equality or equity has no place in case of any irregularity or illegality. Even if it presumed that the case of the respondent-writ petitioner stands on the same footing as the case of the Kedar Nath (supra), as per the judicial pronouncements and as per the above provisions of Jharkhand Service Code, 2001, circulars etc. the respondent-writ petitioner is only entitled for officiating pay or compensatory allowance.
On this ground also, we are unable to persuade ourselves to accept the reasonings given by learned Single Judge in Kedar Nath case.
(IV) Even if the respondent-writ petitioner in addition to his substantive post was allowed to officiate in the promoted post, de hors of selection in Departmental Promotion Committee, the same does not confer any right on the respondent-writ petitioner to claim regular scale of pay in the said promoted post during the in-
charge period.
(V). The Hon'ble Apex Court in the case of Ramakant Shripad Sinai Advalpalkar Vs. Union of India & Ors. reported in 1991 Supp 2 SCC 733 has been pleased to hold that 'In-charge arrangement' of working on higher post for long period gives no rights, equities or expectations for the higher post.
(VI). The Hon'ble Apex Court in the case of Pabitra Mohan Dash Vs. State of Orissa reported in AIR 2001 Supreme Court 560 has been pleased to hold in paragraph 7 of the judgment that:
"............A person who has been appointed contrary to Regn. 17 as Headmaster Incharge cannot claim any right to post of Headmaster on the basis of that appointment/even if the same might have been approved by any Competent Educational Authority. The Incharge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain Incharge and discharge the duties of a Headmaster. In this view of the matter where the 5 appointment itself has been to the post of Headmaster as Incharge, and such appointment had been approved, obviously the said appointee cannot to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster........"
On conjoint reading of relevant provisions of Jharkhand Service Code with aforesaid judgment of Hon'ble Apex Court, there cannot be shadow of doubt or debate that an employee holding a substantive lower post while being kept in dual additional charge of higher post is not entitled to get scale of pay attached to the higher post that too in absence of selection in 'Departmental Promotion Committee'."
10. Considering the aforesaid law laid down by this Court in L.P.A. No.162 of 2014 read with the aforesaid Notification bearing No.2346 dated 14.12.2005, the petitioner was transferred to the post of District Fisheries Officer - cum - Chief Executive Officer, Saraikella Kharsawan wherein it was clearly stated that the petitioner would be entitled for the pay which he is receiving, the posting of the petitioner District Fisheries Officer - cum - Chief Executive Officer, Saraikella Kharsawan, being only officiating and not by way of promotion, the claim of the petitioner for differential salary at a higher pay scale during which he was working as District Fisheries Officer - cum - Chief Executive Officer, Saraikella Kharsawan for the period from 16.12.2005 to 28.02.2014, is not sustainable in the eyes of law.
11. So far as the judgment passed by Hon'ble Patna High Court in L.P.A. No.76 of 2012 (State of Bihar versus Devendra Prasad) dismissed vide order dated 25.09.2012 is concerned, it appears from the order passed by Hon'ble Supreme Court arising out of said proceedings that the order passed in L.P.A. No.76 of 2012 was upheld by holding that writ petitioner of the said case had functioned on the promoted post for seven long years and therefore he was held to be entitled for salary for the duty. However, in the present case, the petitioner was never promoted to the aforesaid post and he continued to be officiating on the said post by virtue of the aforesaid notification clearly mentioning that the petitioner will be drawing the same salary as he was drawing. In view of the aforesaid facts in the present case, the judgment passed by Hon'ble Patna High Court is clearly distinguishable. Otherwise also, in view of the binding precedent of this Court as decided in L.P.A No.162 of 2014 after, inter alia, considering the relevant Rule 55 and 103 of Jharkhand 6 Service Code and the judgements passed by the Hon'ble Supreme Court, this Court is not inclined to take any different view. Accordingly, no relief as prayed for by the petitioner can be granted in this writ petition.
12. Accordingly, this writ petition is dismissed.
13. It is not the case of the petitioner that he was holding any additional charge. However, in case the petitioner is entitled to any allowance by virtue of his officiating position, he may claim the same in accordance with law.
(Anubha Rawat Choudhary, J.) Saurav