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PATNA HIGH COURT
Barin Ghosh and Navaniti Prasad Singh JJ.
Dr.Nitya Gopal Bandyopadhyay
Versus
State Of Bihar
Letters Patent Appeal No. 517 of 1998 ;
Decided On : MAY 15, 2007
Appointment - Principal of Ayurvedic College - 89, 103 - The court discussed the provisions of Rule 89 and Rule 103 of the Bihar Service Code, which govern the entitlement of a government servant to draw higher pay when appointed to officiate in a post involving greater responsibilities. The court held that the appellant, who had officiated as the Principal of the college, was entitled to the pay attached to the post of Principal from the date of his appointment until his retirement, along with pension and other terminal benefits.
Fact of the Case:
The appellant, who had been appointed as Incharge Principal of an Ayurvedic College, sought recognition of his status as Principal from 1984 to 1993. The State Government had failed to fill the post of Principal on a regular basis despite a court directive in 1991.
Finding of the Court:
The court found that the appellant, while working as Incharge Principal, had officiated as the Principal of the college from 1984 to 1993. The court also held that the appellant was entitled to the emoluments and benefits of the Principal's post for that period.
Issues: The issues involved the appellant's entitlement to the status and emoluments of the Principal's post during his period of officiating as the Principal of the college.
Ratio Decidendi: The court applied Rule 89 and Rule 103 of the Bihar Service Code to determine the appellant's entitlement to higher pay and benefits while officiating as the Principal.
Final Decision: The court allowed the appeal and directed the State to pay the appellant the emoluments attached to the post of Principal, along with recalculating pension and other terminal dues, within six months.
1. The admitted facts of this case are that in 1966 when the appellant acquired Masters degree in Ayurvedic he was occupying a teaching post though not in the Ayurvedic College, Patna. On 30th January, 1970 the appellant was appointed as Lecturer in the Government Ayurvedic College, Patna. On 1st July, 1970 an advertisement was published inviting applications for filling up the post of Principal of the said College. This advertisement was followed by yet another advertisement published on 16th December, 1972. These advertisements required postraduation in Ayurvedic, ten years teaching experience and five years administrative experience as basic qualifications for being eligible to respond to the said advertisement. It appears that on 2nd June, 1973 recommendation was made in favour of seven persons for being selected for the post of Principal of the said College. Appellant was one of those recommendees. It appears that one Sri Shrikant Sharma was qne of those recommendees. It also appears that Sri Shrikant Sharma was appointed as Principal of the said College. Sri Shrikant Sharma was to attain his age of superannuation on 31st January, 1984. It further appears that by a letter dated 31st January, 1984 Joint Secretary to the Government of Bihar in its Health Department informed Sri Shrikant Sharma that on the eve of his retirement on 31st January, 1984 he shall handover charge of the Office of the Principal of the said College to the appellant who has been appointed as Incharge Principal of the said College until further orders. A copy of the said letter was marked, amongst others, to the appellant.
2. Appellant continued to discharge the duties and functions attached to the post of Principal of the said College from 1st April, 1984. The appellant was to superannuate on 31st December, 1993. It appears that the appellant in 1991 filed a writ petition which was registered as CWJC No. 3003 of 1991 and which was disposed of by Division Bench of this Court by an order dated 18th December, 1991 whereby and under the Court found, as a fact, that in none of the Government Ayurvedic Colleges, the posts of Principal have been filled up on regular basis and different persons including the appellant are holding charge of the post of Principal in different Colleges since several years. The Court, accordingly, directed the State Government, to take steps for filling up of those posts without any delay. Although the said judgment and order was rendered by this Court on 18th December, 1991 but until the date of superannuation of the appellant on 31st December. 1993, i.e., for about little more than two years the State Government took no steps for filling up those posts, including the post of Principal of the said College.
3. In the meantime, on 27th January, 1993 the appellant was sought to be reverted to his original post for the purpose of appointing another person as Incharge Principal of the said College. This action was assailed by the appellant by filing yet another writ petition registered as CWJC No. 1103 of 1993. A Division Bench of this Court, which dealt with the said writ petition, by its judgment and order dated 17th February. 1994 held principally that when the appellant was appointed as Incharge Principal of the said College an ad hoc arrangement had been made and on the principle that an ad hoc employee cannot be replaced by another ad hoc employee, the Court quashed the order dated 27th January, 1993 and once again directed the State Government to take early step but not later than six months from the date of receipt on production of a copy of the said judgment and order to fill up the cost of Principal in the said College in accordance with law keeping in view the observations made in the said judgment and order of this Court.
4. It appears that in view of the said judgment and order of this Court dated 17th February, 1994, steps were taken to fill up the post of Principal of the said College but by that time the appe
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