Jharkhand High Court
Dr.Sukumar Das Gupta vs State Of Jharkhand & Ors. on 26 August, 2009
Equivalent citations: 2010 LAB. I. C. (NOC) 419 (JHAR.), 2010 (1) AIR JHAR R 543, (2009) 4 JCR 565 (JHA), (2010) 85 ALLINDCAS 461 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.S. No. 2674 of 2003
Dr. Sukumar Das Gupta..................... Petitioner.
Versus
1. The State of Jharkhand
2. The Secretary, Mines & Geology, Government of Jharkhand,
Ranchi.... ............... Respondents
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Coram: Hon'ble Mr. Justice Amareshwar Sahay
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For the Petitioner : Mr. V.Shivnath, Sr.Advocate
For the Respondents : Mr. Rajesh Shankar, SC-I
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5/26.08.2009Heard Mr. V. Shivnath, learned senior counsel appearing for the petitioner and Mr. Rajesh Shankar, learned SC-I for the respondents.
The facts, which are not disputed, are that the petitioner while holding the post of Geologist in the Department of Mines and Geology was made Incharge Deputy Director, Geology by issue of notification dated 04/04/1996 (Annexure-1). He discharged the duty of the Deputy Director till 29/06/2001, i.e. more than 4 years at various places such as, Daltonganj, Ranchi and Dumka. While he was officiating the post of Deputy Director in the Department of Geology at Dumka, on the retirement of the Director Incharge of Geology, he being the senior most Geologists, by issue of Annexure-6 dated 29/06/2001, was made Director of Geology and Mines on officiating basis. The petitioner took the charge of Director on 30/06/2001.
According to the petitioner, he discharged the duties and function of a Director, Mines and Geology with full satisfaction to all concerned and he superannuated from the said post on 30/06/2003.
The claim of the petitioner is that as per Rule 58 and Rule 103 of the Jharkhand Service Code, he is entitled to have the salary and allowances attached to the post of Deputy Director and of the Director for the period he discharged the duty and function of W.P.S. No. 2674 of 2003 [2] Deputy Director and Director respectively. In support of his submissions, Mr. Shivnath relied on a decision of a learned Single Bench of Patna High Court in the case of "Dr. Sachita Kumar Sinha- versus- State of Bihar & Others, reported in 1995 (1) P.L.J.R., 362".
On the other hand, Mr. Rajesh Shankar, learned SC-I has submitted that the petitioner is not entitled to the salary attached to the posts since he was only made Incharge and he discharged the duties in officiating basis only. He further submitted that no such notification under Rule 103 (B) was issued giving the petitioner benefit of the salary for those posts. He has further submitted that as per Rule 40 of the Jharkhand Service Code, the petitioner, at best, can be said to be entitled to the presumptive pay but he cannot claim the salary attached to the posts.
Mr. Shankar further submitted on the basis of the statements made in the supplementary counter affidavit that the petitioner was facing some departmental enquiry for certain charges also and, therefore, it cannot be said that he discharged the duties to the satisfaction of all concerned.
In order to appreciate the rival contentions of the parties, Rule 40, 58 and 103 of Jharkhand Service Code, referred by them, are reproduced herein below for ready reference:-
"40. Presumptive pay of a post, when used with reference to any particular Government servant, means the pay to which he would be entitled if he held the post substantively and were performing its duties, but it does not include special pay unless the Government servant performs or discharges the work or responsibility, or is exposed to the unhealthy conditions, in consideration of which the special pay was sanctioned."
58. (a) Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, W.P.S. No. 2674 of 2003 [3] a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.
(b) Unless in any individual case the State Government otherwise direct a person recruited overseas shall commence to draw pay on fir4st appointment as follows;-
(i) in the case of a person who receives a first class passage to India, from the date of his arrival in India, [subject to his proceeding to take up his duties without avoidable delay].
(ii) in the case of a persons who receives a second class passage to India from the date of his embarkation for India.
103. The pay of a Government servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post at one time shall be regulated as follows:-
(a) the highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;
(b) for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix; and
(c) if a compensatory allowance is attached to one or more of the posts he may draw such compensatory allowance as the State Government may fix provided that such allowance shall not exceed the total of the compensatory allowance attached to all the posts."
On a bare perusal of Rule 40, 58 and 103 of the Jharkhand Service Code, it appears that Rule 40 is not applicable in the facts and W.P.S. No. 2674 of 2003 [4] circumstances of the present case; rather the present case is covered by Rule 58 as well as Rule 103 of the Jharkhand Service Code.
In the case of "Dr. Sachita Kumar Sinha" (supra) the learned Single Judge of Patna High Court was also dealing with a case in which the writ petitioner claimed for payment of salary with all admissible allowance and retiral benefit for the post of Additional Director (Secondary Education) w.e.f. 06/09/1988 till 09/05/1990 and also for the post of Director (Secondary Education), Bihar, Patna w.e.f. 10/05/1990 till the date of his retirement, i.e. 31/12/1991 on the ground that he was discharging the duties of the Director (Secondary Education) and Additional Director (Secondary Education) in addition to his own work.
The learned Single Judge having taken note of the observation of the Supreme Court to the effect that the State has to 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 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.
The learned Single Judge held that there is no relevant rule which prohibits the grant of pay attached to the posts as claimed by the petitioner and as a matter of fact rules 58 and 103 of the Bihar Service Code supported the claim.
I find that Rules 58 and 103 of the Bihar Service Code are in para-materia with the Rules 58 and 103 of the Jharkhand Service Code. Therefore, the decision of the Patna High Court is applicable in the facts and circumstances of the present case also. W.P.S. No. 2674 of 2003 [5]
So far as the allegation that the petitioner was facing some departmental proceeding for certain charges, I find that the allegation made in that regard is absolutely vague and general in nature without giving any specific details such as in which year it was initiated, what were the charges and what was the result of such departmental proceeding. It is not clear as to whether the said proceeding was initiated against the petitioner when he was holding the officiating posts of Deputy Director or the Director. Therefore, on such vague statements no reliance can be placed.
On the other hand, there is no denial of the fact in the counter affidavit that the petitioner was successfully discharging the duties and functioning of the posts held by him on officiating basis. Therefore, in my view, the petitioner has been able to make out a case for grant of relief as claimed by him.
Accordingly, this writ application is allowed. The respondents are directed to pay the petitioner the salary and other allowances for the work taken from him for the posts of Deputy Director for the period from 04/04/1996 to 29/06/2001 and for the post of Director, Mines and Geology for the period from 30/06/2001 till the date of his superannuation, i.e. 30/06/2003 after deducting the salary already paid to the petitioner. The petitioner would further be entitled to the retiral benefit on the basis of his pay as Director, Mines and Geology, the post on which he retired from service. The respondents are further directed to make payment of arrears of salary within a period of three months from today and fix the pension of the petitioner and other retiral benefits as aforesaid within a period of four months.
(Amareshwar Sahay, J) RC-Mukund/-