The entitlement of a public servant to the salary attached to higher posts when directed to discharge duties on those posts, and the applicability of relevant service rules and judicial precedents in determining such entitlement.

JUDGMENT :

1. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 14.05.2018 passed by the learned Single Judge of this Court in W.P.(S) No. 5750 of 2010, whereby and whereunder, direction has been passed upon the respondent-State of Jharkhand to make payment of salary and other allowances in favour of the writ-petitioner from the date he was discharging his official duties on the post of the Deputy Director, Additional Director and the Director till the date of his superannuation after deducting the salary already paid to the writ petitioner and the writ petitioner had been held entitled for the pensionary benefits on the basis of the pay of the Director, the post on which on attaining the age of superannuation, the writ petitioner was retired. The respondents have further been directed to make payment of arrears of salary within a period of four months from the date of receipt/communication of the order.

2. The brief facts as per the pleading made in the writ petition which require to be enumerated, read as hereunder:

It is the case of the writ-petitioner that he was appointed on the post of Geologist in the basic grade in the year 1976 and was given the senior Grade of Geologist w.e.f. 11.05.1990 and worked on the said post of the senior Geologist. Thereafter, the writ-petitioner was directed to discharge his duties as the Deputy Director, Geology vide notification dated 31.12.1996, accordingly, the writ-petitioner took charge on 28.02.1997 and worked to the said post of the Deputy Director, Geology. The writ-petitioner was not given regular promotion, however, he was given acting In-charge of the said post of Deputy Director. Thereafter, in the year 2001, the writ-petitioner was given charge of the Additional Director, Geology, Hazaribagh vide Notification dated 29.06.2001. Subsequent thereto, the writ-petitioner was made Director, In-charge of the Geology vide Notification dated 07.07.2003, whereupon the writ-petitioner took over the charge and worked till his superannuation i.e., till 31.03.2007. The writ-petitioner, in the backdrop of the aforesaid decision of the State authority by which the writ-petitioner was directed to discharge the duties of higher post, has made representation requesting therein to release the difference of arrears of salary but having not been acceded to, the writ-petitioner being aggrieved with the same, approached to this Court by filing writ petition being W.P.(S) No.5750 of 2010.

3. The writ-petitioner took the ground therein that since he has been directed to discharge the duties on the higher post, as such, he is entitled to get the pay-scale attached to the post of the higher post, i.e., Deputy Director, Additional Director and Director.

4. Counter affidavit has been filed on behalf respondent-State of Jharkhand before the learned Single Judge disputing the aforesaid claim by taking the plea that the writ-petitioner since has not been granted regular promotion, as such, he is not entitled to get the difference of arrears of salary. The respondent-State of Jharkhand has taken aid of the Rule 58 of the Bihar (Jharkhand) Service Code and memo dated 14.04.1985 (Clause-V) of the Finance Department.

5. The learned Single Judge has considered the rival submissions made on behalf of the parties and allowed the writ petition holding the writ-petitioner entitled for the salary attached to the higher posts with a direction upon the respondents to release the difference of arrears of salary as also the pensionary benefits on the basis of the pay attached to the post of Director, the post on which the writ-petitioner has superannuated on attaining the age of superannuation, the same is the subject matter of the instant intra-court appeal.

6. Mr. Sachin Kumar, learned AAG-II appearing on behalf of the State of Jharkhand has submitted that the order passed by the learned Single Judge suffers from material irregularity since the same has be