Patna High Court
Laxman Ram vs The Bihar State Power Holding Company ... on 22 July, 2024
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.725 of 2021
In
Civil Writ Jurisdiction Case No.20755 of 2018
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1. Laxman Ram Son of Late Ram Briksh Ram Resident of Village and P.O.-
Dhurlakh, P.S.- Samastipur Muffasil, District- Samastipur.
2. Baijnath Das, Son of Late Karley Mistry Resident of Laxmi Chown Police
Line Road, SBI ATM Gali, Near Urban Primary Health Centre, Brahmpura,
P.S.- Brahmpura, District- Muzaffarpur.
3. Kant Lal Paswan, Son of Late Jhagru Paswan Resident of Basant Vihar
Colony, Dighi Kala Paschim, P.S.- Sadar, Hazipur, District- Vaishali at
Hazipur.
4. Sikandar Ram, Son of Late Yadu Ram Resident of Amrud Bagan, Jail
Chowk, Chandwara, P.S.- Town Muzaffarpur, District- Muzaffarpur.
5. Ranjan Prasad, Son of Late Bishnu Prasad Resident of Mali Ghat, Near Dr.
Shiv Shankar Prasad Singh, Police Line Road, P.O.- Ramna, P.S.-
Mithanpura, District- Muzaffarpur.
... ... Appellant/s
Versus
1. The Bihar State Power Holding Company Ltd. through its Chairman.
2. The Chairman, Bihar State Power Holding Company Ltd., Patna.
3. The Deputy General Manager (Personnel), Bihar State Power Holding
Company Ltd., Patna.
4. The North Bihar Power Distribution Company Ltd. Patna through its
Managing Director.
5. The Managing Director, The North Bihar Power Distribution Company Ltd.,
Patna.
6. The South Bihar Power Distribution Company Ltd., Patna through its
Managing Director.
7. The Managing Director, The South Bihar Power Distribution Company Ltd.,
Patna.
8. The Bihar State Power Generation Company Ltd., Patna through its
Managing Director.
9. The Managing Director, The Bihar State Power Generation Company Ltd.,
Patna.
10. Smt. Sheela Devi Wife of Late Satya Narain Ram Resident of Village-
Dhepura, P.O.- Pandaul, P.S.- Sakri, District- Madhubani.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prashant Sinha, Advocate
For the Respondent/s : Mr. Vinay Kirti Singh, Sr. Advocate
Mr. Venkatesh Kirti, Advocate
Mr. Akhileshwar Singh, Advocate
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Patna High Court L.P.A No.725 of 2021 dt.22-07-2024
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 22-07-2024
The appellants are aggrieved with the judgment of the
learned Single Judge which denied them the claim of officiating
allowances in the promotion post of Accounts Officer, in which
promotion post the appellants, who were Accountants, were
continuing temporarily on a charge basis from 2006 till their
retirement.
2. The learned Single Judge found that Rule 103 of
the Bihar Service Code (for brevity, the Code) specifically
provided for the higher pay in the post held as a temporarily
measure, only if he is entitled to hold the post substantively. The
appellants were all persons who did not have the eligibility to be
promoted to the post of Accounts Officer; which is admitted.
3. The learned Counsel for the appellants relied on a
number of decisions as relied on before the learned Single
Judge. Rule 103 of the Code was first considered by a learned
Single Judge in Dr. Sachita Kumar Sinha v. The State of
Bihar & Ors.; 1995 (1) PLJR 362; then by a Division Bench in
Prafulla Ranjan Shrivastava v. The State of Bihar & Ors.;
2008 (3) PLJR 144; followed by a learned Single Judge in
Ganesh Lal v. The Chairman, Bihar State Power Holding
Patna High Court L.P.A No.725 of 2021 dt.22-07-2024
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Company Ltd. & Ors.; 2016 (2) PLJR 370, approved by a
Division Bench in The Chairman, Bihar State Power Holding
Company Ltd. & Ors. v. Ganesh Lal.; 2017 (4) PLJR 282.
The learned Counsel for the petitioner would further urge that
Ganesh Lal stood identical to the petitioners; being not eligible
to occupy the promotion post for reason of having not passed
the 'Lekha Pravin' Examination, which was essential to enable
promotion. The SLP filed against the Division Bench judgment
in Ganesh Lal (supra) was dismissed as evident from
Annexure-4 (in the writ petition) order of the Hon'ble Supreme
Court.
4. The learned Government Advocate on the other
hand, pointed out that the Hon'ble Supreme Court had left the
question of law open, and in the case of the appellants herein,
they are mere fence-sitters who approached this Court long after
their retirement, hoping to get the same benefits as were given
to Ganesh Lal in the cited decision.
5. We have seen the various judgments placed before
us. Dr. Sachita Kumar Sinha (supra) was posted as a Deputy
Director of Education when he was appointed as Additional
Director of Secondary Education for about two years. Again, he
was asked to discharge the duties of the Director (Secondary
Education) in addition to his own work of Additional Director.
He claimed the higher pay applicable to the post of Additional
Patna High Court L.P.A No.725 of 2021 dt.22-07-2024
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Director and Director. The contention of the Government was
that the petitioner was never promoted to the post, and he had
agreed to work on the scale of pay of the Deputy Director in the
higher post. The learned Single Judge relied on the judgment of
the Hon'ble Supreme Court, which emphasized the requirement
of the State, being a welfare State, to act as a model employer,
in which circumstance, it was held the denial of payment of a
higher salary to the post in which an employee worked as an in-
charge cannot be justified. Prafulla Ranjan Shrivastava
(supra) relied on the aforesaid decision and therein; the
petitioner, being the senior-most Town Planner, was given the
additional charge of the Chief Town Planner, which was found
to have entitled him to higher pay. The eligibility to be
substantively appointed to the higher post, was never in
question, in the cited decisions.
6. Now we come to Ganesh Lal (supra), in which the
learned Counsel for the petitioner specifically pointed to
paragraph no. 6, wherein the petitioner therein, as contended by
the State, was not entitled to the promotion post because of his
having not obtained the essential qualification. However, we
notice from paragraph no. 3 that Ganesh Lal had retired on
31.01.2014and he had approached the Court by C.W.J.C. No. 3687 of 2013; when he was in employment.
7. Be that as it may, the Special Leave Petition from Patna High Court L.P.A No.725 of 2021 dt.22-07-2024 5/7 the Division Bench judgment in Ganesh Lal (supra) was dismissed; but as evident from Annexure-4, the question of law was kept open. Hence there is no merger of the decision of the High Court with that of the Hon'ble Supreme Court; and while inter-parties the decision was upheld, the question of law was kept open. Even the Division Bench judgment hence loses the sheen of a binding precedent.
8. We also notice the judgment of the Hon'ble Supreme Court referred to in the decision of the Division Bench in Ganesh Lal (supra), namely Arnidam Chattopadhyay & Ors. v. State of West Bengal.; (2013)4SCC152. Therein, the employees who were holding the higher post were found to be entitled to the salary and allowances of the higher post only since, by default of the respondent employer, the employees were not promoted in accordance with the Rules. Having not promoted them in accordance with the Rules, the said fact was relied on by the employer as a pretext to deny them the higher salary and allowances in the promotion post, which they held on, an in-charge basis. Here too the eligibility to hold the post substantively was not in question.
9. We agree with the reasoning of the learned Single Judge, which was insofar as the entitlement under Section 103 of the Code being available only to a person who held the higher post, substantively as a temporary measure. The petitioners were Patna High Court L.P.A No.725 of 2021 dt.22-07-2024 6/7 not entitled to hold the post substantively since they did not have the essential required qualification for promotion. There can be no fault attributed to the employer of not having carried out the promotions in time and continued the petitioners on an in-charge basis. If promotions were carried or selection for the same was conducted, the petitioners would not have been entitled.
10. We reiterate the observation of the Hon'ble Supreme Court in Annexure-4 that the question of law was left open, and in that circumstance, we find favour with the interpretation, of Rule 103 of the Code, by the learned Single Judge.
11. We also observe that the appellants are those who retired long back, the first appellant on 31.01.2014, the second appellant on 31.01.2016, the third appellant on 30.09.2013, the fourth appellant on 31.03.2015 and the fifth appellant on 31.01.2014.
12. It is long after their retirement they approached this Court in the year 2018 with the above writ petition. Obviously, by reason of a judgment of the Division Bench of this Court in Ganesh Lal (supra) delivered on 19.07.2017. The appellants, as argued by the learned Government Advocate, were fence-sitters, and they cannot claim the benefit of the judgment passed in a case of another employee, even if Patna High Court L.P.A No.725 of 2021 dt.22-07-2024 7/7 similarly situated; who had alertly within time and while in service approached this Court with a grievance. The writ petitioners hence are not entitled to claim the dues of officiating allowance prior to their retirement, long after retirement.
13. On the correct interpretation of Rule 103 of the Code and also on the ground of delay, the writ petition is liable to be dismissed, which was done by the learned Single judge.
14. We find absolutely no reason to interfere with the impugned judgment. The appeal stands rejected, leaving the parties to suffer their respective costs.
(K. Vinod Chandran, CJ) (Partha Sarthy, J) aditya/-
AFR/NAFR CAV DATE Uploading Date 25.07.2024. Transmission Date