Jharkhand High Court
Murari Bhagat vs The State Of Jharkhand on 17 May, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4108 of 2023
.....
Murari Bhagat ..... Petitioner
Versus
1.The State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
2.The Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
3.The Joint Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
4.The Principal Secretary, Department of Finance, Government of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
5.The Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, District-Ranchi.
6.The Principal Accountant General (Accounts & Entitlement), Jharkhand, Ranchi, P.O.,and P.S. Doranda, District-Ranchi.
..... Respondents .....
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN .....
For the Petitioner : Mr. Jitendra Singh, Sr. Advocate Ms. Amrita Sinha, Adv For the Respondent : Mr. Mithilesh Singh, G.A.-IV .....
CA V On 15.03.2024 Pronounced of 17.05.2024 Heard learned counsel for the parties.
2. The instant writ application has been preferred by the petitioner for the following reliefs:
a) For holding and declaring that the petitioner having discharged the duties of the higher posts of Superintending Engineer and Chief Engineer under the Government of Jharkhand in the Departments of Road Construction, Building Construction and Rural Development Department (Rural Works Affairs) is entitled for payment of pay and allowances to these higher duty posts and accordingly for issuance of a Writ in the nature of Mandamus directing the respondents to pay to the petitioner for discharging the duties of these two posts in the following manner and for the following periods:-
(i) Pay and allowance for the duty post of Superintending Engineer from 2.8.2002 to 19.7.2007 excluding the pay and allowance already paid for the duty post of Executive Engineer;1
(ii) Pay and allowance for the duty post of Chief Engineer from 20.7.2007 to 23.12.2018 excluding the pay and allowance already paid to the petitioner for the duty post of Executive Engineer from 20.7.2007 to 7.7.2014 and for the duty post of Superintending Engineer from 8.7.2014 to 23.12.2018.
b) For holding and declaring that the claims of the petitioner for payment of pay and allowance for the posts of Superintending Engineer and/or Chief Engineer from 2.8.2002 onwards was wrongly and illegally rejected by the Road Construction Department, Govt. of Jharkhand, Ranchi vide Reasoned Order bearing memo No. 7173(S) dated 15.10.2015 (Annexure-20) passed in purported compliance of order dated 22.7.2015 passed by the Hon'ble Court in W.P.(S) No. 415 of 2015 (Annexure-19) filed by the petitioner and accordingly for issuance of Writ in the nature of Certiorari/ order/ direction quashing and setting aside the said memo No. 7173(S) dated 15.10.2015 (Annexure- 20 pg. 159-161).
c) For holding and declaring that the claim of the petitioner for reconsideration of the above impugned Order bearing memo No. 7173(S) dated 15.10.2015 was wrongly and illegally rejected by letter No. 896(S) dated 22.2.2023 (Annexure-25) of the Road Construction Department, Govt. of Jharkhand, Ranchi and accordingly for issuance of Writ in the nature of Certiorari/ order/ direction quashing and setting aside the said Letter No. 896(S) dated 22.2.2023 (Annexure-
25).
d) For issuance of a Writ in the nature of Mandamus/ order/ direction to the respondents to regularise the period of service of the petitioner from 31.8.2015 to 31.3.2016 alongwith pay and allowances being a period during which the petitioner was in effect kept under compulsory waiting in Road Construction Department for posting and also to regularise the period of service of the petitioner from 1.4.2016 to 4.4.2018 alongwith pay and allowances being the period for which the petitioner was posted on non-existing post of Chief Engineer, Ranchi Jal Parishad, Ranchi.
e) For issuance of a Writ in the nature of Mandamus directing the respondents to pay the above said pay and allowances to the petitioner with interest at the prime lending rate of State Bank of India from the due dates till the date of their payment.
3. The brief fact of the case is that the Petitioner was recruited as Assistant Engineer in the Road Construction Department, Government of Bihar and was promoted to the post of Executive Engineer w.e.f. 15.06.1995 vide notification dated 27.08.1996. Upon bifurcation of the State, the service of the petitioner was allotted to State of Jharkhand.
Vide Notification dated 16.02.2002 of Road
Construction Division, Jharkhand, the service of the
2
petitioner was made available to the Building Construction Department, Jharkhand (in short BCD) on the post of Superintending Engineer in his own pay scale. Further, vide Notification dated 17.07.2007 of the BCD, the petitioner was also given the additional charge of Chief Engineer, BCD (next higher post) in his own pay scale. He discharged duties and responsibilities of both the post till 29.10.2008. Thereafter, vide Notification dated 31.12.2008, he was posted as In- charge Chief Engineer, National Highway Wing (in short NHW), Road Construction Department, Jharkhand (in short RCD). He took charge of this post on 3.1.2009. Vide Notification dated 08.07.2014, the petitioner was promoted to the post of Superintending Engineer and vide Notification dated 03.09.2014. The petitioner was posted on the post of Technical Secretary to the Chief Engineer, NHW with additional charge of Chief Engineer.
While working on the above two posts the petitioner went on leave on health grounds, thereafter when the petitioner submitted his joining in the department, the RCD directed the petitioner to assume the charge of the post of Technical Secretary to the Chief Engineer, NHW under the said Department. However, Charge report dated 9.11.2015 was not countersigned or returned by his controlling officer thereby the petitioner could not take charge of this post as also of the post of Chief Engineer.
4. The Petitioner filed writ bearing W.P. (S) No. 01 of 2016 raising grievance against the above order. Thereafter, the petitioner was posted as Superintending Engineer, Jharkhand State Housing Board. The petitioner raised grievance against the same by filing I.A. in the above writ wherein. Pursuant to the order of this Court dated 03.03.2016 and vide Notification dated 31.03.2016, the petitioner was posted with immediate effect as In-charge, Chief Engineer. However, the said post of Chief Engineer, Ranchi Water Board, was a non-existing post;
3therefore, he raised grievance against such a purported posting in L.P.A. No. 110 of 2017. Accordingly, vide notification dated 04.04.2018 of RCD, the service of the petitioner was handed over to the Rural Development Department (in short RDD). On submitting his joining on 5.4.2018 in RDD, the petitioner was authorized to discharge the duties of Chief Engineer, Jharkhand State Rural Road Development Authority Ranchi. The RDD posted the petitioner on the post of Secretary to Engineer-in-Chief, RDD and also ordered that the petitioner would also hold the additional charge of Chief Engineer. Petitioner on 12.6.2018 assumed the charge of these two posts.
The petitioner had filed W.P.(S) No. 415 of 2015 before this Court praying to direct the respondent therein to pay arrears of salary and other service benefits payable for the post of Superintending Engineer w.e.f. 2.8.2002 till 19.7.2007 and for the post of Chief Engineer w.e.f. 20.7.2007 with interest. This Court disposed of the above writ with direction to consider the above two claims of the petitioner. Pursuant thereto, RCD passed impugned order rejecting the claims of the petitioner. On 03.12.2018, the petitioner filed representation raising objection to the impugned order and prayed for its reconsideration followed with a reminder dated 06.01.2023. Petitioner was informed that his representation has been reconsidered by the Department and that the impugned order is correct and requires no inference. Hence, this writ petition.
5. It has been submitted by Mr. Jitendra Singh, learned Sr. counsel assisted by Ms Amrita Sinha, Advocate that a conjoint reading of the relevant provision of Jharkhand Service Code manifestly reveals that the Code visualized exigency of administrative need for conferment of discharge on officiating basis by a Government Servant, of functions and duties of higher post and/or in 2 posts and has provided 4 clearly for entitlement of the Government Servant in such eventuality. The Relevant rules of Jharkhand Service Code are Rule-58(a), Rule-89, Rule-103-(a), 103-(b) and the 4 notes appended to Rule 103 and also Rule 14 which provides that joining time is included in the word "DUTY".
6. Learned Sr. Counsel further submits that the impugned reasoned decision dated 15.10.2015 (Annexure-
20) and decision upon reconsideration dated 22.2.2023 (Annexure 25) being in contravention of the clear legal entitlement of the petitioner qua his claims is both bad in law as well as on facts. The Departmental Memo/Circular like the Memo dated 22.02.1988 and Circular dated 30.12.1968 cannot override the substantive provisions of Rule 58 and 103 of Jharkhand Service Code and provide to its contrary.
So far as ground (iii) of the reasoned order is concerned; the basis that the petitioner was discharging the functions of higher post on temporary basis is not a ground either under Rule-58 (a) or Rule-103-(a) & (b) for consideration for entitlement of full pay of the higher post and/or in addition 20% presumptive pay if simultaneously functions and duties were being discharged. The Jharkhand Service Code does not either in rule 58 or in rule 103 (a) and (b) provides that if post (including 2 posts) fall in line of promotion from the substantive rank and post held by officiating officer, the pay and allowances of officiating post shall not be admissible as such Para 4 of Circular dated 30.12.1968 of Finance Department clearly and wrongly overrides the substantive provisions of Jharkhand Service Code and illegally negates the entitlement provided under Jharkhand Service Code. The only delegation or discretion conferred on the State Government is to fix the amount of presumptive pay for other posts under Rule 103(b) of the Jharkhand Service.
57. Learned Sr. Counsel further submits that the issue with regard to entitlement of a government employee to pay and allowances of higher post officiated by him is no longer res integra and has been authoritatively decided by the binding judgment of the Division Bench of this Court vide its Order dated 07.09.2021 passed in L.P.A. No. 735 of 2019. The said judgment also relied the case of State of Punjab and another versus Dharam Pal, reported in (2017) 9 SCC 395 and allowed the L.P.A. while confirming the Order and Judgment of the Writ Court which had held that the writ petitioner was entitled to get the pay scale of Superintending Engineer and Chief Engineer as also fixation of pension on the basis of last payment drawn. As a matter of fact, the SLP filed by the State of Jharkhand against the order dated 07.09.2021 passed in L.P.A. No. 735 of 2019 was also dismissed by the Hon'ble Apex Court vide its order dated 16.03.2022. The decision rendered in L.P.A. No. 735 of 2019 has been followed in L.P.A. No. 79 of 2022.
He further submits that the Petitioner on 15.05.2023 had filed a specific last representation before the Respondent-Authorities pointing out the Judgment and order of this Court rendered in L.P.A. No. 735 of 2019 and L.P.A. No. 79 of 2022 with analogous cases, yet the respondents in spite of clear finding in the aforesaid judgements has neither accorded the same treatment nor admitted that the claims of the petitioner are well founded.
8. It has been further submitted by learned Sr. Counsel that the petitioner is also entitled for regularisation of his service with all pay and allowances with interest for the period 31.08.2015 to 04.04.2018 when despite the petitioner having submitted his joining on 31.08.2015, the post on which he was posted vide order dated 06.11.2015 and joining given by him; however, the same was not accepted on the post notified and the incumbent already 6 discharging the functions of the said post was allowed to continue. Thereafter, the petitioner was posted on the post of Chief Engineer, Ranchi Jal Parishad, Ranchi vide notification dated 31.03.2016 on a non-existent post.
He contended that the above said period forms part of period of compulsory waiting for posting which under Rule-14 has to be counted as period of duty under Rule 14(a)(ii) and therefore entitles the petitioner to full pay and allowances for the entire period.
9. Mr. Mithilesh Singh, G.A.-IV, learned counsel representing the respondent submits that the petitioner had earlier filed W.P.(S) No. 415 of 2015 praying for payment of legally admissible salary with effect from 02.08.2002 i.e. the date he was posted as In-charge, superintending engineer and In-charge, Chief Engineer. The said writ application was disposed vide order dated 22.07.2015 [Annexure-19] directing the concerned respondents to consider the case of the petitioner. In compliance of the said order, the Principal Secretary, Road Construction Department, Govt. of Jharkhand passed a reasoned order dated 15.10.2015 [Annexure-20] rejecting the claim of the petitioner.
Subsequently, the petitioner vide representation dated 03.12.2018 and 06.01.2023 requested to review the aforesaid reasoned order dated 15.10.2015. The said representation was disposed vide letter dated 22.02.2023 in addition to the claim of salary for the period from 02.08.2002 to 19.07.2007 and 20.07.2007 to 23.12.2018 excluding the pay and allowance already paid for the substantive post of the petitioner. The petitioner had also challenged aforesaid reasoned order dated 15.10.2015 and letter dated 22.02.2023.
10. He further submits that the prayer made by the petitioner is hit by the principle of delay and laches as the 7 order dated 15.10.2015 has been challenged after inordinate delay of 7 years. The representations dated 03.12.2018 and 06.01.2023 [Annexure-23 and Annexure-24] to review the order dated 15.10.2015 is nothing but an eye wash and futile exercise to overcome the vice of delay and laches. It is settled principle of law that mere filing of the representation does not dilute the principle of delay and laches.
So far, as the claim of the petitioner for 16 long years i.e. from 02.08.2002 to 23.12.2018 is concerned; the petitioner is not entitled in view of Judgment of the Hon'ble Supreme Court passed in the case of Union of India vs. Tarsem Singh reported in (2008) 8 SCC 648 at para-4 to 8 wherein the Hon'ble Apex Court has held that arrears should have been restricted to three years prior to filing of the Writ Petition. The petitioner arose from slumber and approached this Court only after the Judgment dated 7.09.2021 passed in L.P.A. No. 735 of 2019 and judgment dated 04.08.2022 passed in L.P.A. No. 79 of 2019 as is evident from Para-20 (D) of the Writ Petition. He further relied upon the Judgment of the Hon'ble Apex passed in the case of Chairman/ Managing Director, Uttar Pradesh Power Corporation Ltd. & Ors. vs. Ram Gopal reported in (2021) 13 SCC 225- Para-11 and
12.
11. He further submits that the reliance of the petitioner on Judgment dated 07.09.2021 passed in L.P.A. No. 735 of 2019 and judgment dated 04.08.2022 passed in L.P.A. No. 79 of 2019 is misplaced as there is factual difference between the facts of case in hand and of those involved in the said Judgments. The basic difference of the facts is that in the present case the petitioner from time to time was directed to discharge the duty in addition to his substantive post; whereas the petitioners in L.P.A. No. 735 of 2019 and L.P.A. No. 79 of 2019 were directed to discharge duties in the independent capacity. In this regard, the respondent relies 8 upon Para-12 and 13 of the Judgment dated 04.08.2022 passed in L.P.A. No. 79 of 2019 which was passed relying upon the judgment dated 07.09.2021 passed in L.P.A. No. 735 of 2019.
The petitioner was promoted on the post of Executive Engineer vide notification dated 27.08.1996 and was further promoted to the post of Superintending Engineer vide notification dated 08.07.2014. Subsequently, the petitioner was promoted to the post of Chief Engineer vide notification dated 06.08.2019 and was given the notional benefit with effect from 24.12.2018 vide notification dated 05.11.2019. The fact that the petitioner was directed to discharge the duty in addition to his substantive post is evident from the following:
i. Vide notification dated 17.07.2007 [Annexure-5], the petitioner who was holding the post Superintending Engineer was given the additional charge of Chief Engineer, Building Construction Deptt., Govt. of Jharkhand.
ii. Vide notification dated 29.10.2008 [Annexure-6], the petitioner was transferred and posted as Director, Monitoring - cum Valuation cum Purchase, Ranchi. Admittedly as per para-8 of the Writ Petition this post is of the Rank of Superintending Engineer. iii. Vide notification dated 03.09.2014 [Annexure-9], the petitioner holding the post of In-charge Chief Engineer, National Highway Wing (N.H.W) was given additional charge of Secretary (Technical) to Chief Engineer, N.H.W. Admittedly, the post of Secretary (Technical) to Chief Engineer is of the rank of Superintending engineer.
iv. Vide notification dated 11.06.2018 (Annexure-18), the petitioner was posted as Secretary (Technical) to Chief Engineer, Rural Development Deptt and was given the additional charge of Chief Engineer, J.S.R.R.D.A, Ranchi. The post of Secretary (Technical) to Chief Engineer is of the rank of Superintending Engineer.
12. Learned counsel for the State lastly submits that in view of the facts and circumstances, the reasoned order dated 15.10.2015 was rightly passed in compliance of the order dated 22.07.2015 passed in W.P.S. No. 415 of 2015 and so far as the period from 31.08.2015 to 31.03.2016 and from 01.04.2016 to 04.04.2016 with respect to the petitioner under 9 Urban Development and Housing Department is concerned;
the earned leave for the period from 31.08.2015 to 06.11.2015 [68 days] has been sanctioned vide departmental order dated 28.05.2018 and the regularization of the period from 07.11.2015 to 04.04.2018 is under process. Accordingly, he contended that there is no merit in the prayer made by the petitioner and the same is liable to be dismissed by this Court.
13. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein; the first issue which requires determination by this Court is whether the petitioner can be held entitled for payment of pay and allowances by way of difference for higher posts of Superintending Engineer and Chief Engineer on the face of impugned order dated 15.10.2015 as contained in Annexure- 20 and whether a challenge can be laid after seven years by invoking powers under Article 226 of the Constitution of India.
14. To decide the aforesaid issues, it is necessary to examine different provisions enshrined under Jharkhand Service Code (herein after to be referred as the Code). A conjoint reading of the relevant provisions of the Code manifestly reveals that it visualized exigency of administrative need for conferment of discharge on officiating basis by a Government Servant, of functions and duties of higher post and/or in 2 posts and has provided clearly for entitlement of the Government Servant in such eventuality. The Relevant rules of the Code are; Rule-58(a), Rule-89, Rule-103(a), 103(b) and the 4 notes appended to Rule 103 and also Rule 14 which provides that joining time is included in the word "DUTY".
Rule 58(a) mandates that a government servant shall begin to draw the pay and allowances attached to his tenure of a post 10 w.e.f. the date on which he assumes the duty of that post and shall cease to draw them as soon as he ceases to discharge duties of the same. This Rule 58(a) is not subject to any manner and mode of assuming duty whether on substantive basis or officiating basis.
Provision of Rule 89 inter alia is subject to provision of Rule 103 and provides that the Government Servant appointed to officiate on a post will not draw a pay higher than his substantive pay. The same has been made subject to the condition and made inapplicable if the officiating appointment involves the assumptions of duties and responsibilities of greater importance than that of the permanent post. In the instant case, the petitioner was holding the substantive permanent post of Executive Engineer and was made to discharge functions, duties and responsibilities of greater importance attached to the post of Superintending Engineer as also that of Chief Engineer.
The Executive Engineer, who is only In-charge of a division, is not expected to perform duties of Superintending Engineer or the Chief Engineer who are Heads of Department. The latter posts have duties/ responsibilities of greater importance than that of Executive Engineer.
Rule 103 deals with a circumstance where a government servant holds substantively as a temporary measure 2 or more post at one time, or officiates in 2 more independent posts at one time. In express terms, Rule 103(a) makes the government servant in such circumstances entitled to the highest pay of the post if it stood alone. Rule 103(b) provides for an entitlement in addition to rule 103(a) qua the lesser paid post and provides that the government for the other post may fix a reasonable pay not exceeding 50% of presumptive pay of the post.
Notes 1 to 4 appended to Rule 103 defines the expression "independent post" used in Rule 103(a) and mandates that holding charge of another independent post does not mean merely doing routine duties but taking up full responsibilities and 11 functions of that post.
15. The stand of the petitioner is that as an Executive Engineer he was holding charge of 2 independent posts and as such during that period he was entitled to higher pay of the post if it stood alone and also presumptive pay under 103(b). For the aforesaid contention, it is necessary to go through the period of service of the petitioner when was discharging full function and duties of 2 posts simultaneously, which would be evident from the facts given hereunder;
(i) From 20.07.2007 to 03.06.2008 vide Notification No. 1930 (Bha) dated 17.07.07 of Building Construction Department (Annexure-5);
(ii) From 3.1.2009 to 21.5.2009 vide Notification No. 8268(S) dated 31.12.2008 of Road Construction Department (Annexure- 7);
(iii) From 03.09.2014 to 13.05.2015 vide Notification No. 6612(S) dated 03.09.2014 of Road Construction Department (Annexure 9); and
(iv) From 12.06.2018 to 23.12.2018 vide Notification No. 1812 dated 11.06.2018 of Rural Development Department (Rural Works Affairs) at Annexure 18 A perusal of reasoned order dated 15.10.2015 reveals that the reasons and basis for rejection of the claim as assigned in the Order are three-fold.
i) Reliance has been placed on Rule 103 (b).
ii) Reliance has been placed on Memo dated 22.02.1988
of Department of Finance.
iii) The Petitioner was directed to discharge the duties of
higher post of Superintending Engineer / Chief Engineer on temporary basis and in his own pay-scale of posts which fall in line of promotion from post of Executive Engineer in the same establishment.
16. At the outset, it is clarified that the Departmental Memo/ Circular like the Memo dated 22.02.1988 and Circular dated 30.12.1968 cannot override the substantive provisions of Rule-58 and 103 of the Code and provide to its contrary. The aforesaid 12 memos and circulars being contrary to and in contravention of expressed mandate of Rule-58(a) and 103 of the Jharkhand Service Code cannot be invoked to reject the claim of the Petitioner.
So far as the argument that the petitioner was discharging the functions of higher post on temporary basis is not a ground either under Rule 58 (a) or Rule 103 (a) & (b) for consideration for entitlement of full pay of the higher post and/or in addition 20% presumptive pay if simultaneous functions and duties were being discharged.
The relevant issue to consider whether full duties and responsibilities of the higher post of officiation were being discharged or merely routine duties thereof; few facts of the case is to be seen.
(i) As pointed out herein before, the Notifications authorising discharge on officiating/temporary basis duties of higher post did not stipulate that only current duties are to be performed and such notifications were sent for publication in the official gazette.
(ii) The Jharkhand Service Code does not either in Rule 58 or in Rule 103 (a) and (b) provides that if post (including 2 posts) fall in line of promotion from the substantive rank and post held by officiating officer, the pay and allowances of officiating post shall not be admissible as such Para 4 of Circular 30.12.1968 of Finance Department clearly and wrongly overrides the substantive provisions of the Code and illegally negates the entitlement provided under the Code. The only delegation or discretion conferred on the State Government is to fix the amount of presumptive pay for other posts under Rule 103(b) of the Jharkhand Service Code.
(iii) The impugned decision dated 22.02.2023 (Annexure - 25) which upon reconsideration holding the reasoned order dated 15.10.2015 to be correct as per rules 13 and requiring no modifications for the aforesaid facts and reasons is also hence, unsustainable and fit to be set aside apart from the fact that it is a cryptic order without assigning any reasons or referring to any provision of Jharkhand Service Code.
17. The issue with regard to entitlement of a government employee to pay and allowances of higher post officiated by him is no longer res integra and has been authoritatively decided by the judgment rendered by the Division Bench of this Court vide its Order dated 07.09.2021 passed in L.P.A. No. 735 of 2019. In the said case, specific issue was framed at Para 10 as to whether the Appellant-State of Jharkhand once having taken work from the writ petitioner of the higher post, could the writ petitioner be denied the monetary benefit of higher post of Superintending Engineer and Chief Engineer.
After consideration of the contentions of the parties and the judgment of the Hon'ble Apex Court rendered in the case of State of Punjab and another versus Dharam Pal, reported in (2017) 9 SCC 395 the Division Bench of this Court allowed the L.P.A. and confirmed the Order and Judgment of the Writ Court which had held that the writ petitioner was entitled to get the pay scale of Superintending Engineer and Chief Engineer as also fixation of pension on the basis of last payment drawn. A perusal of the aforesaid judgment would reveal that the facts before the Court in aforesaid LPA as noticed and set out in Para 2 and 3 of and the grievances raised are in nature the same as that arising for adjudication in the instant writ petition. For brevity, relevant portion of the order passed in the case of L.P.A. No. 735 of 2019 is extracted herein below:-
"10. We, in order to examine the applicability of the provision of Rule 103 in the given facts of the case, have considered the notification issued by the appellant State of Jharkhand of the post of Superintending Engineer (Current Charge) and the Chief Engineer (Current Charge) issued vide notification dated 19.07.2007 and 09.07.2011 respectively to examine as to whether the writ petitioner was assigned to discharge duties in two or more 14 independent post but on close scrutiny of notification dated 19.07.2007, we have found that although the writ petitioner was posted on substantive basis to the post of Executive Engineer and while working as such, the writ petitioner, by way of ad hoc arrangement, was posted as Superintending Engineer (Current Charge) so is the condition in the notification by which the writ petitioner was posted as Chief Engineer vide notification dated 09.07.2011. Therefore, these notifications clarify that the writ petitioner was never assigned to discharge duty in two or more independent post. Even though the writ petitioner was holding the post of Executive Engineer on substantive capacity, but he was asked to discharge the duty attached to the higher post of Superintending Engineer (Current Charge) and Chief Engineer (Current Charge) independent to the duty attached to the post of Executive Engineer, the substantive post of writ petitioner and, therefore, the provision of Rule 103 of Jharkhand Service Code will not be applicable in the facts of this case but the question is that as to whether the appellant State of Jharkhand once taken work from the writ petitioner of the higher post can he be denied the monetary benefit attached to the higher post of Superintending Engineer and Chief Engineer?
Reliance has been placed by the appellant State of Jharkhand on the judgment rendered by the Hon'ble Apex Court in A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) primarily at paragraph
6. We have gone through the aforesaid judgment and found from the factual aspect that the appellant in the said case was appointed as a Clerk in the Tamil Nadu State Transport Department, subsequently promoted to the post of Section Officer in the year 1991. Thereafter, he was posted as Assistant Manager In- charge (Public Relations) with specific condition that the same will not confer any preferential righ for regular promotion and that the appellant will continue to draw his grade pay in his present cadre i.e. Assistant Labour Welfare Officer and superannuated from service on 31.05.2005 as Assistant Labour Welfare Officer and as such he sought for the salary attached to the higher post and in that pretext the Hon'ble Apex Court has been pleased to hold at paragraph 6 that since the appellant in the said case vide order dated 28.02.2001, was allowed to discharge duties in the post of Assistant Manager making it clear that the appellant would not be entitled to claim any benefit therefrom including higher salary and further that he would continue to draw his salary in the post of Assistant Labour Welfare Officer. If the above was an express term of the order allowing him to discharge duties in the higher post, it is difficult to see as to how the said condition can be overlooked or ignored. The decision of this Court in Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Others [(1998) 5 SCC 87] was rendered in a situation where the incumbent was promoted on ad hoc basis to the higher post. The aforesaid decision is also distinguishable inasmuch as there was no specific condition in the promotion order which debarred the incumbent from the salary of the higher post. Such a condition was incorporated in an undertaking taken from the employee which was held by this Court to be contrary to policy decision.
15Thereafter almost similar issue has again been decided by the Hon'ble Apex Court in State of Punjab v. B. K. Dhir (Supra) wherein the judgment rendered by the Division Bench of Punjab and Haryana High Court rendered in LPA No. 198 of 2003 [B.K. Dhir v. State of Punjab] has passed an order as has been quoted in the aforesaid judgment which reads as hereunder:-
"2. ... .... ...
"Having thoughtfully considered the rival contentions, we find merit in the prayer of the appellant and are of the view that his case is squarely covered by the ratio of the judgment in Pritam Singh Dhaliwal case [Pritam Singh Dhaliwal v. State of Punjab, 2004 SCC OnLine P&H 1428] . It was not a case where the appellant had laid a claim to promotion on the basis of the officiating status conferred on him, but had prayed only for the pay which was admissible to incumbents working on the said posts and performing similar duties. Resultantly, therefore, if the respondents had extracted work from him as Joint Director and Additional Director, he would certainly be entitled to pay as is admissible to the regular incumbents working on the said posts, regardless of any condition that may have been sought to be imposed upon him."
The Hon'ble Apex Court, in the said judgment, however, has considered the fact about adjudication of the issue by the Punjab and Haryana High Court wherein the concerned employee has been held entitled to salary of the post of Joint Director and Additional Director, Panchayats for the period he worked as such.
The aforesaid order has been challenged before the Division Bench of the Punjab and Haryana High Court. The stand of the State before the Division Bench of the Punjab and Haryana High Court was that the view of the learned Single Judge was correct inasmuch as the orders passed posting the appellant on officiating posts incorporated a condition that he would continue to draw his pay in the pay scale of Deputy Director, Panchayat and no extra financial benefit would be given to him for the officiating charge. Additionally, it was asserted that the officer concerned had submitted to the said terms and conditions and not raised any protest.
11. The matter fell for consideration before the Hon'ble Apex Court and while considering the issue, reference has been made to the judgment rendered in State of Punjab and Another v. Dharam Pal (Supra), in which, at paragraph 22 it has been held as under:-
"22. In the instant case, the Rules do not prohibit grant of pay scale. The decision of the High Court granting the benefit gets support from the principles laid down in P. Grover [(1983) 4 SCC 291] and Hari Om Sharma [(1998) 5 SCC 87] . As far as the authority in A. Francis [(2014) 13 SCC 283] is concerned, we would like to observe that the said case has to rest on its own facts. We may clearly state that by an incorporation in the order or merely by giving an undertaking in all circumstances would not debar an employee to claim 16 the benefits of the officiating position. We are disposed to think that the controversy is covered by the ratio laid down in Hari Om Sharma [(1998) 5 SCC 87] and resultantly we hold that the view expressed by the High Court is absolutely impeccable."
The Hon'ble Apex Court, in view of the decision rendered in P.Grover (Smt) v. State of Haryana and Another [(1983) 4 SC 291], Secretary-cum-Chief Engineer, Chandigarh v.Hari Om Sharma and Others (Supra) and A. Francis v. Management of Metropolitan Transport Corporation Limited, Tamil Nadu (Supra) has been pleased to hold that the issue of eligibility to hold the post was not taken before the High Court and the appeal was disposed of taking into consideration the fact that when the respondent had worked in the officiating post and has been granted the benefits by the High Court, he should be extended the said benefit by making an observation that had there been a contest on the eligibility of the respondent, possibly the matter would have been different and taking note of the situation, the order passed by the Punjab and Haryana High Court has been declined to be interfered with."
At this stage it is also relevant to mention here that the decision and law laid down in L.P.A. No. 735 of 2019 has been followed and reiterated in a subsequent decision by the Division Bench of this Court vide its order dated 04.08.2022 passed in L.P.A. No. 79 of 2022.
Even the SLP filed by the State of Jharkhand against the order dated 07.09.2021 passed in L.P.A. No. 735 of 2019 was dismissed by the Hon'ble Apex Court vide its order dated 16.03.2022.
18. Having regards to the aforesaid discussions and the judicial pronouncements, it is held that the petitioner is entitled for payment of pay and allowances by way of difference for higher posts of Superintending Engineer and Chief Engineer, inasmuch as, the petitioner has discharged full duties and responsibilities of the higher post of officiation and not merely routine duties
19. So far as the issue of regularisation of the period of service of the petitioner from 31.8.2015 to 31.3.2016 along with pay and allowances being a period during which the petitioner was in effect kept under compulsory waiting in Road Construction Department for posting and also to regularise the period of service of the petitioner from 01.04.2016 to 04.04.2018 along with pay and 17 allowances being the period for which the petitioner was posted on non-existing post of Chief Engineer, Ranchi Jal Parishad, Ranchi is concerned; it is evident that the petitioner having submitted his joining on 31.08.2015, the post on which he was posted vide order dated 06.11.2015; however, the same was not accepted on the post notified and the incumbent already discharging the functions of the said post was allowed to continue and thereafter, the petitioner was posted on the post of Chief Engineer, Ranchi Jal Parishad, Ranchi vide notification dated 31.03.2016 on a non- existent post.
The contention of the petitioner with regard to this issue that above part of period of compulsory waiting for posting entitles the petitioner to full pay and allowances for the entire period appears to be correct and in accordance with the applicable Rule, inasmuch as, the above said period forms part of period of compulsory waiting for posting which has to be counted as period of duty under Rule 14(a)(ii) of the Code and therefore entitles the Petitioner to full pay and allowances for the entire period.
It further transpires that information with regard to it was also informed to the competent Respondent-Authorities The assertions made in the writ petition with regards to the aforesaid issue has not been denied by the Respondent-Authorities in the Counter Affidavit. In fact, with regard to regularization of services of the petitioner for the period from 31.08.2015 to 31.03.2016 and from 01.04.2016 to 04.04.2018, at Para 16 and 17 of the Counter Affidavit all that is stated is that report has been demanded from Urban Development and Housing Department regarding the posting period of the writ petitioner vide letter dated 18.08.2018, 27.01.2023, 19.04.2023, 22.08.2023 but the desired report is still awaited.
20. The Petitioner on 15.05.2023 had filed a specific last representation before the Respondent-Authorities pointing out the Judgment and Order of this Court, yet the respondents notwithstanding the same despite being a model employer has 18 neither accorded the same treatment nor admitted that the claims of the Petitioner are well founded.
21. The stand of delay and latches raised by the respondents is not accredited by this Court. It is observed that after the impugned order dated 15.10.2015, the petitioner did not remain silent; rather kept on making representation/s from time to time (right from 3.12.2018 - Annexure- 23 followed by last reminder dated 6.1.2023 - Annexure-24) and even after the impugned letter dated 22.2.2023, he made representation dated 27.3.2023 and 15.5.2023 vide Annexures-26 and 29 respectively. Accordingly, the judgments relied by the State respondent is not applicable in the peculiar facts and circumstances of this case.
In this connection, it is also observed that there is no prescribed period of limitation for filing writ petitions under Article 226 of the Constitution of India. The only principle is that the High Court should not examine stale causes. It is a rule of judicial circumspection and has to be applied wisely. Where the explanation offered for the delay is convincing and acceptable, the writ petition should not be dismissed on the sole ground of delay.
In this regard reference may be made to the judgment delivered by the Hon'ble Apex Court in the case of State of U.P. versus Bahadur Singh & Other reported in (1983) 3 Supreme Court Cases 73 at Para-2.
Moreover, the instant case cannot be rejected merely on the ground that it is a stale claim. Neither the petitioner can be said to be a fence sitter as he was regularly knocking the door of the department/Court. Moreover, soon after the judgments passed by this Court in the similar matter, he made the representation for reconsideration. Besides, even the respondents had duly considered his representation and rejected the claim.
22. Before parting, it is also necessary to deal with the claim of the petitioner regarding interest on the amount of difference of pay and allowances which he is entitled. In this regard, it is observed that though it has already been held that the petitioner is not a 19 fence sitter and was conscious of his claim; but this Court cannot ignore the facts that after disposal of the L.P.A. No. 735 of 2019 the petitioner represented to the Respondents. Even the State has challenged the order passed in the said appeal before the Hon'ble Apex Court which was finally dismissed. Thus, it cannot be said in any manner that the State was sitting tight over the matter on the lis involved in the case. Accordingly, this Court holds that the petitioner is not entitled for any interest.
23. Having regard to the aforesaid discussions, the instant writ application deserves to be, and is, allowed. The impugned Orders dated 15.10.2015 (Annexure-20) & 15.10.2015 (Annexure-25) is quashed and set aside. It is held that the petitioner having discharged the duties of the higher posts of Superintending Engineer and Chief Engineer under the Government of Jharkhand is entitled for payment of pay and allowances to these higher duty posts.
Accordingly, the respondents are directed to calculate the difference of amount and pay the same to the petitioner for discharging the duties of these two posts in view of the findings given herein above considering the period of service of the petitioner as regular service from 31.8.2015 to 31.3.2016 and from 01.04.2016 to 04.04.2018 after excluding the pay and allowance already paid to him.
It goes without saying that the entire exercise shall be completed by the concerned Respondent within a period of four months from the date of receipt/production of copy of this order.
24. As a result, the instant writ application is allowed and disposed of in the manner indicated herein above. Pending I.A, if any, is also closed.
(Deepak Roshan, J.) Amardeep/ 20