This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent State of Bihar against the judgment and order dated 13th December 2010 passed by a learned Single Judge in CWJC No. 7725 of 2003.

2. The respondent writ petitioner has approached this Court under Article 226 of the Constitution of India in CWJC No. 7725 of 2003 for two fold prayers. The petitioner has claimed that although he was appointed as Junior Engineer, under order dated 26th February 1980, he was called upon to be Incharge of the Sub-division (Mechanical) for monthly allowance of Rs.30/-. The said arrangement was continued till he retired from service in the year 2003. The petitioner has, therefore, prayed for salary as an Assistant Engineer from 28th February 1980 till the date he retired from service. He has also prayed for promotion as Assistant Engineer (Mechanical) with effect from 17th June 1986. It appears that in 2003 the State Government has prepared a list of Junior Engineers indicating the dates they became eligible for consideration for promotion as Assistant Engineer. Against the name of the petitioner the date 17th June 1986 has been recorded. The petitioner has accepted the said date as the date he was due for promotion.

3. There is no dispute that the petitioner was appointed as Junior Engineer. While working as Junior Engineer [Diploma in Engineering (Mechanical)] he was placed in charge of Sub-division (Mechanical) under order dated 26th February, 1980 made by the Chief Engineer. The order clearly stipulated that the petitioner would be entitled to a monthly allowance of Rs.30/-.

4. The petition was contested by the State Government. The learned Single Judge has allowed the Writ Petition. According to the learned Single Judge, the petitioner having held the charge of the post of Assistant Engineer for long 23 years, it cannot be said to be a temporary arrangement. The petitioner is, therefore, entitled to regular pay and allowances of that of an Assistant Engineer from the date he was allowed to hold the charge as Assistant Engineer. In respect of his promotion as an Assistant Engineer, the learned Single Judge has observed that the question of promotion be considered in accordance with law and the petitioner be granted consequential benefits. Therefore, this Appeal.

5. Learned advocate Mr. Piyus Lal appears for the appellant State of Bihar. He submits that the direction issued by the learned Single Judge is in contravention of Rule 7 of the Bihar Public Works Department Code (hereinafter referred to as the PWD Code). He submits that Rule 7 of the PWD Code clearly postulates that Overseers (now re-designated as Junior Engineers) placed in charge of a Sub Division are entitled to a special pay of Rs.30/- per month. That was the condition mentioned in the order dated 26th February 1980. Now, the petitioner cannot be allowed to claim pay and allowances of an Assistant Engineer contrary to Rule 7 of the PWD Code and contrary to the terms and conditions of his appointment under order dated 26th February 1980. He has also relied upon Rules 103 and 89 of the Bihar Service Code.

6. The appeal is contested by learned advocate Mr. Bipin Kumar Sinha appearing on behalf of the respondent writ petitioner. He has relied on the counter affidavit filed in the present Appeal and the order of this Court annexed thereto. He has also relied upon the judgment of the Hon’ble Supreme Court in the matter of Arindam Chattopadhyay Vs. State of West Bengal [AIR 2013 SC 1535] and the judgments of this Court in the matters of Prafulla Ranjan Shrivastava Vs. State of Bihar [2008(3) PLJR 144] and of The Bihar Engineering Services Association Vs. State of Bihar [2013(1) PLJR 410].

7. We have considered the above referred Rule 7 of the PWD Code, and Rules 103 and 89 of the Bihar Service Code. Note 3 below Rule 7 of the PWD Code specifically provides that Overseers when placed in charge of a sub-division would be entitled to a special pay of Rs.30/- p