Eligibility for higher pay under Rule 103 of the Bihar Service Code requires substantive holding of the post, which the appellants lacked, and claims made post-retirement are not valid.

JUDGMENT :

(K. Vinod Chandran, CJ.)

The appellants are aggrieved with the judgment of the learned Single Judge which denied them the claim of officiating allowances in the promotion post of Accounts Officer, in which promotion post the appellants, who were Accountants, were continuing temporarily on a charge basis from 2006 till their retirement.

2. The learned Single Judge found that Rule 103 of the Bihar Service Code (for brevity, the Code) specifically provided for the higher pay in the post held as a temporarily measure, only if he is entitled to hold the post substantively. The appellants were all persons who did not have the eligibility to be promoted to the post of Accounts Officer; which is admitted.

3. The learned Counsel for the appellants relied on a number of decisions as relied on before the learned Single Judge. Rule 103 of the Code was first considered by a learned Single Judge in Dr. Sachita Kumar Sinha v. The State of Bihar & Ors.; 1995 (1) PLJR 362; then by a Division Bench in Prafulla Ranjan Shrivastava v. The State of Bihar & Ors.; 2008 (3) PLJR 144; followed by a learned Single Judge in Ganesh Lal v. The Chairman, Bihar State Power Holding Company Ltd. & Ors.; 2016 (2) PLJR 370, approved by a Division Bench in The Chairman, Bihar State Power Holding Company Ltd. & Ors. v. Ganesh Lal.; 2017 (4) PLJR 282. The learned Counsel for the petitioner would further urge that Ganesh Lal stood identical to the petitioners; being not eligible to occupy the promotion post for reason of having not passed the ‘Lekha Pravin’ Examination, which was essential to enable promotion. The SLP filed against the Division Bench judgment in Ganesh Lal (supra) was dismissed as evident from Annexure-4 (in the writ petition) order of the Hon'ble Supreme Court.

4. The learned Government Advocate on the other hand, pointed out that the Hon'ble Supreme Court had left the question of law open, and in the case of the appellants herein, they are mere fence-sitters who approached this Court long after their retirement, hoping to get the same benefits as were given to Ganesh Lal in the cited decision.

5. We have seen the various judgments placed before us. Dr. Sachita Kumar Sinha (supra) was posted as a Deputy Director of Education when he was appointed as Additional Director of Secondary Education for about two years. Again, he was asked to discharge the duties of the Director (Secondary Education) in addition to his own work of Additional Director. He claimed the higher pay applicable to the post of Additional Director and Director. The contention of the Government was that the petitioner was never promoted to the post, and he had agreed to work on the scale of pay of the Deputy Director in the higher post. The learned Single Judge relied on the judgment of the Hon'ble Supreme Court, which emphasized the requirement of the State, being a welfare State, to act as a model employer, in which circumstance, it was held the denial of payment of a higher salary to the post in which an employee worked as an in-charge cannot be justified. Prafulla Ranjan Shrivastava (supra) relied on the aforesaid decision and therein; the petitioner, being the senior-most Town Planner, was given the additional charge of the Chief Town Planner, which was found to have entitled him to higher pay. The eligibility to be substantively appointed to the higher post, was never in question, in the cited decisions.

6. Now we come to Ganesh Lal (supra), in which the learned Counsel for the petitioner specifically pointed to paragraph no. 6, wherein the petitioner therein, as contended by the State, was not entitled to the promotion post because of his having not obtained the essential qualification. However, we notice from paragraph no. 3 that Ganesh Lal had retired on 31.01.2014 and he had approached the Court by C.W.J.C. No. 3687 of 2013; when he was in employment.

7. Be that as it may, the Special Leave Petition from the Division Bench judgment in Ganesh Lal (supra) was dismissed;