Patna High Court
Rajendra Mahto And Ors vs The Bihar State Power Holding Company ... on 25 February, 2021
Equivalent citations: AIRONLINE 2021 PAT 924
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20478 of 2018
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1. Rajendra Mahto, Son of late Balo Mahto, Resident of Panjiyar Tola,
P.O. and P.S.-Rosera, District-Samastipur, Presently residing at Surya
Chandra Vihar, Flat No. 203D, near Sonu Market, Gola Road, P.S.-
Rupaspur, District-Patna.
2. Suresh Chaudhary, Son of Late Chaturbhuj Chaudhary, Resident of
Ram Krishna Nagar, Pokhariya Peer, New Colony, Sadpura, P.S.-Kazi
Mohammadpur, Distirct-Muzaffarpur.
3. Ram Chandra Chaudhary, Son of late Chaturbhuj Chaudhary, Resident
of Gannipur Pokhariya Peer, P.S.-Kazi Mohammadpur, District-
Muzaffarpur.
... ... Petitioners
Versus
1. The Bihar State Power Holding Company Ltd. through its Chairman.
2. The Chairman, Bihar State Power Holding Company Ptd., Patna.
3. The Deputy General Manager Personnel, Bihar State Power Holding
Company Ltd. Patna.
4. The Bihar State Power Transmission Company Ltd., theough its
Managing Director,
5. The Managing Director, Bihar State Powe Transmission Company
Ltd., Patna.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr.Prashant Sinha, Advocate
For the Respondent/s : Mr.Ranjit Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 25-02-2021
Heard Mr. Prashant Sinha, learned counsel for the
petitioners and Mr. Ranjit Sinha, learned counsel for the
respondents.
2. Petitioners in the present case are praying for the
following reliefs:
Patna High Court CWJC No.20478 of 2018 dt.25-02-2021
2/13
"(i) For issuance of writ in the nature of certiorari for
quashing of the letter No. 975 dated 29.08.2018 issued by
the Deputy General Manager (Personnel), Bihar State Power
Holding Company Ltd. whereby the representation made by
the petitioners for grant of officiating allowance for working
on the post of Accounts Officer (Look After) has been
denied to the petitioners.
(ii) For necessary direction upon the respondent authorities
to pay 20% officiating allowance to the Petitioners as the
Petitioners while working on the substantive posts of
Accountant were posted on a higher post of Accounts
Officer in the name of Accounts Officer (Look After)
(Petitioner No.2 was given the additional charge of much
higher post of Deputy Director of Accounts) but the benefit
of 20% officiating allowance has not been paid to the
Petitioners, while a similarly situated employee, namely, Sri
Ganesh Lal has been paid with 20% officiating allowance in
terms of the order passed by this Hon'ble Court in CWJC
No. 3687/2013, which has been affirmed by the Hon'ble
Supreme Court.
(iii) For holding that the respondents cannot discriminate
between the employees while the similarly situated
employee has been paid with 20% officiating allowance, the
Petitioners are being deprived of the same benefit on the
ground that the case of Ganesh Lal does not create a
Precedence.
(iv) For issuance of an alternative direction upon the
respondent authorities to pay the salary and allowances
attached to the post of Accounts Officer to the Petitioners as
the Petitioners holding the post of Accountant were posted to
discharge the duty of Accounts Officer (Look After), which
is a higher post carrying the higher responsibility. Further,
the respondents may be directed to revise the pension and
other retiral benefits of the Petitioners.
(v) For any other direction, which your Lordships may deem
fit and proper in the facts and circumstances of the case."
3. Earlier while hearing the writ application, this Court
Patna High Court CWJC No.20478 of 2018 dt.25-02-2021
3/13
has summarized the facts of the case and the submissions on
behalf of the parties in it's order dated 04.02.2021 which reads as
under:
"Heard Mr. Prashant Sinha, learned counsel for the
petitioners and Mr. Ranjit Sinha, learned counsel representing
the Bihar State Power (Holding) Company Limited
(hereinafter referred to as the 'BSPHCL').
Petitioners in the present case are seeking to challenge
the decision communicated by the Deputy General Manager
(Personnel), 'BSPHCL' vide letter no.975 dated 29.08.2018
by which the representation of the petitioners for grant of
officiating allowance for working on the post of Accounts
Officer (Look After) has been denied to the petitioners. The
petitioners also seek a direction to the respondent authorities
to pay 20% officiating allowance to the petitioners as
according to them while working on the substantive post of
Accountant, they were posted on a higher post of Accounts
Officer in the name of Accounts Officer (Look After).
Petitioner no.2 was given the additional charge of much
higher post of Deputy Director of Accounts. The common
grievance of the petitioners is that while in the case of one of
the employees Sri Ganesh Lal the 'BSPHCL' has paid him
the officiating allowance in terms of the order passed by this
Hon'ble Court in CWJC No.3687/2013, the same has been
refused to the petitioners.
Mr. Sinha, learned counsel representing the petitioners
submits that so far as petitioner no.1 is concerned, he had
officiated during the period 04.05.2010 to 31.03.2013 when
he retired from service. Petitioner no.2 was posted as
Accounts Officer (Look After) on 26.08.2006, thereafter he
was relieved to work as Accounts Officer and he submitted
his joining on the post of Accounts Officer on 06.09.2006,
while working as Accounts Officer, he was given the
additional charge of Deputy Director of Accounts vide
memo no.155 dated 17.09.2009. He retired from
service on 31.01.2015 as Accountant. Petitioner no.3 had
Patna High Court CWJC No.20478 of 2018 dt.25-02-2021
4/13
also served on the post of Accounts Officer (Look After)
since 26.08.2006 till his superannuation on 31.07.2008.
Learned counsel submits that in the case of Ganesh
Lal reported in 2016(2) PLJR 370 the learned writ court has
allowed his writ to the extent that he was found entitled for
20% of the officiating allowance. The said judgment has
been affirmed in the Letters Patent Appeal and the Special
Leave Petition preferred against the same stood dismissed.
Mr. Ranjit Sinha, learned counsel representing the
'BSPHCL' submits that the case of these petitioners are
distinguishable from the case of Ganesh Lal (supra). It is
submitted that in the case of Ganesh Lal it was found that
he had been officiating for 14 years continuous till the date
of his retirement, moreover the most important
distinguishing factor in the case of Ganesh Lal was that he
had raised the issue of officiating charges allowance during
his service period and in fact he had filed the writ
application in the year 2013 itself, prior to his retirement on
31.01.2014. It is submitted that so far as these petitioners are concerned, they had never raised any issue of officiating allowance. No representation at all was ever submitted to the respondent Company and even after their superannuation from service the petitioners did not claim the officiating allowance.
Learned counsel further points out from the clarifications given to Rule 103 of the Bihar Service Code that the additional post, duties of which are combined but should not be in the same Establishment or Office and should not also fall in the line of normal promotion. He has drawn the attention of this Court towards the example rendered under the clarification. For example the post of Under Secretary, Deputy Secretary, Deputy Directors, Deputy Commissioner, accountants, Assistants and Clerks etc. in the same office or establishment are not independent of each other for this purpose. It is thus his submission that the post of Accounts Officer (Look After) was in the same line and in the same establishment, therefore the Rule 103 of the Bihar Service Code read with clarifications does not Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 5/13 provide for the officiating benefits to the petitioners.
Learned counsel further submits that the judgment rendered in the case of Ganesh Lal (supra) cannot give rise to a cause of action to the petitioners and if they have not raised any claim in this regard during their service period or immediately after their retirement, at this stage, they are not entitled for the reliefs prayed in the writ application. According to him, the delay is such that it would make the petitioners disentitle for the reliefs prayed in the writ application.
Mr. Prashant Sinha, learned counsel for the petitioners admits that during their service period or immediately after their retirement the petitioners had not submitted any claim to the respondents and at least to that extent there is no pleading in the writ application. Learned counsel, however, prays for some time just by passing over the matter to enable him to come out with some judicial pronouncement on the subject.
Let this matter be passed over for the day.
List on 11.02.2021."
4. On the next date of hearing, Mr. Prashant Sinha, learned counsel for the petitioners submitted that so far as the case of the present petitioners are concerned, the respondents are deviating from their own stands in the subsequent case of one Ganauri Paswan who had moved this Court for identical reliefs in CWJC No. 16750/2019. This Court having perused the supplementary affidavit filed on behalf of the petitioners and after noticing the judgment passed by the learned Coordinate Bench in CWJC No. 16750/2019 passed the following order on 11.02.2021 which reads as under:
"Although in the present writ application, learned Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 6/13 counsel for the respondents have raised some issues for consideration but learned counsel for the petitioners has brought to the notice of this Court the deviating standard of consideration on the part of the respondents and the inconsistent stand which they are said to be taking in respect of different employees. On record is now a supplementary affidavit of the petitioners in which they have brought on record a copy of the judgment dated 02.09.2019 passed by a learned coordinate Bench of this Court in CWJC No.16750 of 2019. The said writ application was filed by one Ganauri Paswan for identical reliefs and the learned coordinate Bench having noticed the earlier order of this Court in CWJC No.3687 of 2013 affirmed by Hon'ble Division Bench in LPA No.1166 of 2016, set aside the order passed on 07.09.2018 by the Deputy General Manager (Personnel), Bihar State Power (Holding) Company Limited, Patna (hereinafter referred to as 'the BSPHCL') and directed him to write out a fresh order in accordance with law in view of the judgments referred to by the learned coordinate Bench.
It appears that though in the said writ application the pleas which are being taken on behalf of the respondents in this writ application were not taken, the fact remains that the respondents has now allowed the same benefit to Ganauri Paswan, but surprising to this Court is the contents of the office order no.997 dated 08.12.2020 issued under the signature of the Additional Secretary of the BSPHCL, Patna. The said letter is being reproduced hereunder:-
" fcgkj LVsV ikoj ¼gksfYMax½ daiuh fyfeVsM] iVukA dk;kZy; vkns"k la[;k&997 fnukad% 08-12-2020 lekns"k ;kfpdk la[;k 16750@2019 xukSjh ikloku cuke fcgkj LVsV ikoj (gksfYMax) daiuh fyfeVsM esa ekuuh; iVuk mPp U;k;ky;, iVuk }kjk ikfjr vkns"k fnukad 02-09-2019 ds vuqikyu esa Jh xukSjh ikloku lsokfuo`Rr ys[kk inkf/kdkjh ¼ns[k&js[k½ fcgkj LVsV ikoj Vz~kalfe"ku daiuh fyfeVsM dks fnukad 23-05-2006 ls 31-12-2015 rd ys[kk inkf/kdkjh ¼ns[k&js[k½ dk dk;Z fd;k tkus gsrq 20% LFkkiUu HkRrk dh jk"kh #0 5]71]011@& ¼ikWap yk[k bdgRrj gtkj X;kjg #i;s½ ek= ds Hkqxrku dh Lohd`fr iznku dh tkrh gSA blesa l{ke izkf/kdkj dk vuqeksnu izkIr gSA vU; ds ekeys ds fy, bls iokZnkgj.k ds :i esa ugha ekuk tk,xkA vkns"k ls] g0@& ¼lqjsUnz "kekZ½ Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 7/13 vij lfpo fnukad% 08-12-2020"
This Court finds that the order has been issued saying that the payment is being sanctioned in compliance of the order of this Court passed in CWJC No.16750 of 2019. This is not the correct fact, the learned coordinate Bench of this Court had directed the respondent Deputy General Manager (Personnel), BSPHCL, Patna to write out a fresh order in accordance with law, examine the judgments and then in case the claim of the petitioner is found to be tenable, the necessary sequel order providing the admissible amount shall also be passed.
Learned counsel for the respondents submits that he is not aware of any such exercise and the pleas which are being taken before this Court are required to be considered because order if any passed in respect of Ganauri Paswan cannot be taken as in accordance with law and that does not confer negative parity and the plea of negative discrimination cannot give rise to a right in favour of the petitioner.
Let the respondent Deputy General Manager (Personnel), BSPHCL file his affidavit saying as to how Annexure-10 is in compliance of the order of this Court and whether prior to issuance of Annexure-10 a reasoned order has been passed by him as per direction of this Court in CWJC No.16750/2019. Let complete facts be brought on record.
As prayed by Mr. Ranjit Sinha, learned counsel for the respondents, let this matter be listed on 25th February, 2021."
5. Today, Mr. Ranjit Sinha, learned counsel representing the respondents has filed an affidavit sworn by the Deputy General Manager (Personnel), BSPHCL. The order passed by him as contained in Memo No. 313 dated 12.11.2020 has been annexed as Annexure 'A' to the supplementary counter affidavit. This Court would reproduce the same as under:
Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 8/13 "vkns"k ekuuh; mPp U;k;ky;] iVuk }kjk lekns"k ;kfpdk la[;k 16750@2019 xukSjh ikloku cuke fcgkj LVsV ikoj (gksfYMax) dEiuh fyfeVsM ,oa vU; esa fnukad 02-09-2019 dks fuEu vkns"k ikfjr fd;k x;k %& "In such view of the matter, the order impugned is set aside and remitted to the Deputy General Manager (Personnel), Bihar State Power (Holding) Company Ltd. Patna (Respondent no. 03) to write out a fresh order in accordance with law and in view of the judgments referred to above within a period of four weeks of the production of a copy of this order. In case the claim of the petitioner is found to be tenable, necessary sequel order providing the admissible amount shall also be passed. While passing the order, Deputy General Manager (Personnel), Bihar State Power (Holding) Company Ltd., Patna shall also look at the fact whether the case of the petitioner is squarely covered by the judgments which have brought on record."
mi;qZDr vkns"k ds vkyksd esa ;kfpdkdrkZ Jh xukSjh ikloku }kjk fnukad 09-09-2019 dks vkosnu lefiZr djrs gq, ys[kk inkf/kdkjh (ns[k&js[k) ds in ij dk;Zjr vof/k dk 20% LFkkuki+Uu HkRrk] lekns"k ;kfpdk la[;k 3687@2013] x.ks"k yky cuke fcgkj LVsV ikoj (gksfYMax) dEiuh fyfeVsM ,oa vU; esa ikfjr U;k; fu.kZ; ds vkyksd esa nsus dh ekax dh x;hA U;k;kns"k fnukad 02-09-2019 ds vkyksd esa lEiw.kZ ekeys dh leh{kk dh xbZ vkSj ik;k x;k fd Jh x.ks"k yky] lsokfuo`r ys[kkiky ds }kjk muds lsokdky esa ys[kk inkf/kdkjh (ns[k&js[k) ds in ij drZO; fuoZgu ds fy, 20% LFkkuki= HkRrk (Officiating Allowance) ds Hkqxrku gsrq ekuuh; iVuk mPp U;k;ky; esa lekns"k ;kfpdk 3687@2013 nk;j fd;k x;k Fkk] ftlesa ekuuh; U;k;ky; }kjk fnukad 03-02-2016 dks ikfjr vkns"k esa ys[kk inkf/kdkjh (ns[k&js[k) ds in drZO; fuoZgu ds fy, 20% LFkkukiUu HkRrk (Officiating Allowance) ds Hkqxrku gsrq funs"k Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 9/13 fn;k x;kA dEiuh }kjk ekuuh; U;k;ky; ds vkns"k ds fo:/k LPA No- 1166@2016 nk;j fd;k x;k ftls ekuuh; U;k;ky; us fnukad 19-07-2017 dks ikfjr vkns"k ds }kjk [kkfjt dj fn;k x;kA iqu% dEiuh }kjk mDr LPA dks ekuuh; U;k;ky; }kjk [kkfjt fd;s tkus ds mijkar ekuuh; loksZPp U;k;ky; esa SLP nk;j fd;k x;k ftls ekuuh; loksZPp U;k;ky; }kjk [kkfjt dj fn;k x;kA U;k;kns"k ds vkyksd esa Jh yky dks ys[kk inkf/kdkjh (ns[k&js[k) ds :i esa dk;Zjr vof/k dk LFkkukiUu HkRrk Lohd`r fd;k x;kA Jh yky dh Hkkafr ;kfpdkdrkZ Jh xukSjh ikloku dks Hkh iwoZorhZ fcgkj jkT; fo/kqr cksMZ ds vf/klwpuk la[;k 218 fnukad 23- 05-2006 ds }kjk ys[kk inkf/kdkjh (ns[k&js[k) dk dk;ZHkkkj iznku djrs gq, ys[kk inkf/kdkjh] lapj.k vapy] iVuk ds :i esa inLFkkfir fd;k x;kA Jh Ikkloku fnukad 31-12-2015 dks ys[kk inkf/kdkjh (ns[k&js[k) ds :i esa fcgkj LVsV ikoj Vz~kalfe"ku dEiuh fyfeVsM ls lsokfuo`r gq,A U;k;kns"k fnukad 02-09-2019 ds vuqikyu esa dh x;h leh{kk esa ;kfpdkdrkZ Jh xukSjh ikloku dk ekeyk Jh x.ks"k yky] lsokfuo`r ys[kkiky ds ln`"; ikrs gq, l{ke izkf/kdkj ls izkIr vuqeksnu ds vkyksd esa Jh xukSjh ikloku] lsokfuo`r ys[kkiky dks fnukad 23-05- 2006 ls 31-12-2015 rd ys[kk inkf/kdkjh (ns[k&js[k) dk dk;Z lEiUu fd;s tkus gsrq ns; 20% LFkkukiUu HkRrk dh jkf"k :0 5]71]011@& (IkkWap yk[k bdgRrj gtkj X;kjg :i;s) ek= ds Hkqxrku dh Lohd`fr iznku dh tkrh gSA mi;ZqDr LFkkukiUu HkRrk ekuuh; U;k;ky; }kjk ikfjr U;k;kns"k ds vkyksd esa vuqekU; fd;k x;k gSA vr,o iwoksZngkj.k ds :i esa vU; fdlh ekeys esa ekU; ugha gksaxsA Lkquhy dqekj flag mi egkizca/kd (dkfeZd) Kkikad la[;k- 331 fnukad:12/11/2020 izfrfyfi%& Jh xukSjh ikloku ys[kk inkf/kdkjh (ns[k&js[k)] xzke iksLV& yaxjiqj] LVs"ku jksM] Fkkuk& ck<+] ftyk& iVuk] fiu dksM& 803213 dks lwpukFkZ iszf'krA (lqjsUnz "kekZ) voj lfpo"
6. Learned counsel for the respondents submits that Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 10/13 again the case of Ganauri Paswan has been treated as an exception on the ground that he was also given the charge of Accounts Officer while discharging his duties on the post of Accounts Officer (Look After) vide the same notification no. 218 dated 23.05.2006 by which Sri Ganesh Lal had been given the officiation. Sri Ganauri Paswan had also retired from service on 31.12.2015 and during the period from 23.05.2006 to 31.12.2015 he was in officiating charge of the post of Accounts Officer.
7. Learned counsel is, however, categorical in his submission that except the fact that Sri Ganauri Paswan was also given the officiation along with Sri Ganesh Lal, no other ground has been noticed by the competent authority. According to learned counsel, the question of law involved in this case has been left open by the Hon'ble Supreme Court, but, he had no opportunity to look into the matter of Sri Ganauri Paswan when the competent authority granted Ganauri Paswan the similar benefits as had been granted to Sri Ganesh Lal.
8. Learned counsel for the petitioners submits that the case of these petitioners stand on identical footing with that of Sri Ganesh Lal and Sri Ganauri Paswan. According to him, the authorities of the 'BSHPCL' cannot play fast and lose and they cannot be allowed to take one view in respect of one of the employees and another view in respect of another employee. That Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 11/13 would be discrimination.
9. Learned counsel submits that these petitioners have also discharged their duties of the higher post for several years before their retirement. Petitioner no. 1 has served from 04.05.2010 to 31.03.2013 when he retired from service. Petitioner no. 2 had been given additional charge of Deputy Director of Accounts vide Memo No. 155 dated 17.09.2009, while he was working as Accounts Officer w.e.f. 06.09.2006. Similarly the petitioner no. '3' has served on the post of Accounts Officer (look- after) since 26.08.2006 till his superannuation on 31.07.2008.
10. It is submitted that the Corporation is not taking a stand that payments made to Sri Ganesh Lal or Sri Ganauri Paswan is against the law, therefore, there is no occasion for this Court to go into that aspect of the matter. In his submission, if the Corporation is of the view that Sri Ganauri Paswan would be entitled for the same benefit which Sri Ganesh Lal, there is no reason why the petitioners who have rendered service in identical manner on a higher post but by different notifications would not be entitled for the same benefit.
11. It is his submission that the plea which is being taken on behalf of the Corporation/BSPHCL that it will open a Pandora Box was required to be considered while granting benefit to Sri Ganauri Pawan but once the authorities have found that Sri Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 12/13 Ganauri Paswan is entitled for the same benefit, there is no point of distinction in between the case of the Sri Ganauri Paswan and that of these petitioners. The date of issuance of notification would be wholly irrelevant.
12. Having heard learned counsel for the parties and taking into consideration the submissions noticed hereinabove, this Court finds that during pendency of this writ application since the respondents have considered the case of Sri Ganauri Paswan in compliance of the order passed by the learned Coordinate Bench of this Court in CWJC No. 16750/2019 and has found Sri Ganauri Paswan entitled for the benefit of 20% of the officiating allowances for rendering service on the higher post, the respondents are now obliged to consider the case of the petitioners as well for similar benefits in the light of the discussions here-in- above.
13. To be fair to the learned counsel for the respondents, the Court observes, that, had the competent authority of the Corporation while passing the order in the case of Sri Ganauri Paswan acted with caution and in tandem with the stand of learned counsel for the respondents in the pending writ petition for similar reliefs, perhaps all issues could have been taken care of by the concerned authorities and this Court would have benefit of knowing the stand of the authorities on various aspects. In such Patna High Court CWJC No.20478 of 2018 dt.25-02-2021 13/13 circumstance, this Court would have been able to consider all the submissions at this stage itself. Since the respondents have considered the case of Sri Ganauri Paswan and has found him fit for the benefits without looking into any other aspect save and except that he was given officiation vide the same notification with Ganesh Lal, this Court is of the view that the same respondents should now take upon themselves to look into the case of these petitioners.
14. Let such consideration be given within a period of eight weeks from today by passing an appropriate order and for this purpose the pleadings in the writ application shall be considered as the representation of the petitioners.
15. This Court would also make it clear that the competent authority will write an independent order as this Court has not expressed any opinion on the merit of this case.
16. This writ application stands disposed off accordingly.
(Rajeev Ranjan Prasad, J) Rajeev/-
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