ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 22-03-2023 In the instant L.P.A., appellant has assailed the order of the learned Single Judge dated 20.06.2016 passed in C.W.J.C.

No. 240 of 2011.

2. Grievance of the respondent – Shankar Ram in the writ petition is that he is entitled to pay scale (salary) attached to the post of Chief Engineer during the intervening period from 07.10.2004 to 31.07.2007 (the date on which he attained age of superannuation and retired from service). Respondent was holder of the post of Superintending Engineer. He was asked to hold the additional charge of the post of Chief Engineer which is the promotional post to the Superintending Engineer on 07.10.2004 and he continued to hold such post of Chief Engineer in addition to the post of Superintending Engineer till the date on which he attained the age of superannuation and retired from service on 31.07.2007. In the meanwhile, he was subjected to disciplinary proceedings on 15.09.2006. The same was a subject matter of litigation before this Court and disciplinary proceedings were set aside on 26.08.2010. In this backdrop, question for consideration is whether respondent is entitled to pay scale (salary) attached to the post of Chief Engineer or not?

3. Arrangement of incharge in addition to original post to a particular Government servant is governed by Rule 103 of Bihar Service Code. At the same time, method of recruitment to the post of Chief Engineer is by promotion from the cadre of Superintending Engineer.

4. In the light of these facts and circumstances, learned Single Judge has allowed the respondent’s writ petition, hence the State is aggrieved by the order of the learned Single Judge presented this L.P.A.

5. Learned counsel for the appellant State vehemently contended that as long as respondent had not entered into cadre of Chief Engineer post (promotional post to the Superintending Engineer), he is not entitled to pay scale (salary) attached to the post of Chief Engineer. At the best, he is entitled to compensatory allowance in terms of Rule 103 of Bihar Service Code. It is further submitted that the decision cited does not assist the factual aspects of the case in hand. It is also submitted that cause of action accrued to the respondent in the year 2004 to 2007 whereas he has invoked writ jurisdiction in the year 2011, there is a delay and laches. Therefore, order of the learned Single Judge is to be set aside.

6. Per Contra, learned counsel for the respondent resisted the aforesaid contentions and supported the order of the learned Single Judge. He has also relied on decision of this Court in the case of Prafulla Ranjan Shrivastava vs. The State of Bihar & Ors. reported in [2008 (3) PLJR 144 (para 8)] and further relied on two more decision of the Apex Court in the case of State of Punjab vs. B.K. Dhir reported in (2017) 9 SCC 337 and State of Punjab and Another vs. Dharam Pal reported in (2017) 9 SCC 395.

7. Heard learned counsel for the respective parties.

8. It is undisputed fact that respondent was holder of the post of Superintending Engineer, even as on the date of his retirement on 31.07.2007. In other words, he was not appointed on officiating basis to hold the post of Chief Engineer so as to seek relief of pay scale (salary) attached to the post of Chief Engineer. Unless and until, he is promoted on officiating basis and entering into the cadre of Chief Engineer on substantive capacity, he is not entitled to pay scale (salary) attached to the post of Chief Engineer. Further, he had cause of action to seek promotion to the post of Chief Engineer on officiating basis with reference to his service particulars in the cadre of Superintending Engineer read with the seniority in the cadre of Superintending Engineer and rules of recruitment governing the post of Chief Engineer. It is to be noted that post of Chief Engineer is governed by rules of recruitment issued under Article 309 of Constitution and it has statutory force.