Chandramauli Kr.Prasad, J.

1. This application has been filed for issuance of a writ in the nature of certiorari tor quashing the order dated 30th September, 1999 (Annexure-6) passed by the Director, Primary Education, Bihar, Patna whereby he has directed that the petitioner shall not be entitled to the benefit of grant of B. Sc. trained scale from retrospective effect i.e. from the date it was granted. Petitioner claims monetary benefits right from the date of such grant and accordingly prays for issuance of an appropriate mandamus for that relief.

2. Facts lie in a narrow compass.

3. In the light of the order passed by this Court in CWJC No. 4170 of 1991 and CWJC No. 661 of 1990, the case of the petitioner besides other persons were considered for grant of B.Sc. trained scale and by order dated 3rd of April, 1992 (Annexure-2) petitioner was granted B.Sc. trained scale, hereinafter referred to as the trained scale with effect from 12.2.1982 but while doing so it was directed that petitioner shall get the benefit of grant of trained scale with effect from 1.4.1992. As regards, the arrears of salary on account of promotion, it was observed that the same shaft be paid after sanction by the Director.

Petitioner, alongwith other persons aggrieved by the same, preferred CWJC No. 5902 of 1997 before this Court, inter alia, praying for grant of consequential benefits on account of grant of trained scale with retrospective effect. This Court by order dated 7.9.1998 (Annexure-5) directed the Director of Primary Education to take decision in regard to the grant of trained scale with effect from the date of promotion. In the light of the direction given by this Court the Director of Primary Education considered the prayer of the petitioner for payment of arrears of salary and relying on letter no. 2074 dated 4.4.1985 of the Finance Department observed that petitioner shall not be entitled for the arrears of salary on account of his promotion with retrospective effect and accordingly rejected the prayer of the petitioner.

4. Mr. Arun Kumar Tiwari appears on behalf of the petitioner. Respondents are represented by Mr. A.K. Choudhary, Government Pleader no. 8.

5. The question in the present case is as to whether on account of promotion of an employee with retrospective effect, he is entitled for arrears of salary from the date of promotion or shall be entitled for the higher scale of pay from the date such public servant assumes the office of the higher grade. Petitioner contends that in case, in which an employee has not been allowed to assume the responsibility of higher post on account of fault on the part of the employer he shall be entitled for the benefit thereof right from the date of promotion; whereas the respondents contend that in view of Rule 58 of the Bihar Service Code, Rule 74 of the Bihar Financial Rules and the clarification made by the State Government in its letter dated 4.4.1985, an employee shall be entitled for the benefit of promotion from the date from which he starts performing the responsibility of the higher grade. The question, therefore, is as to whether petitioner having not assumed the duties of the higher post can he be denied the salary for the said grade from the date the same was granted.

6. The rival stand necessitates examination of the provisions of the Bihar Service Code, Bihar Financial Rules and the letter of the Finance Department and I will examine the same one by one. Rule 58 of the Bihar Service Code which is relevant for the purpose reads as follows:

"58. (a) Subject to any exception specifically made in these rules and to the provisions of clause (b) of this rule, 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.

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7. From a plain reading of Rule 58(a) of the Code it is evident that a Gov