Bipin Bihari Singh vs State of Jharkhand & Ors

Heard learned counsel for the parties through V.C.

The instant writ application has been preferred by the petitioner praying therein for quashing the order dated 21.07.2010, whereby the application of

the petitioner for payment of salary for the post of Director, Mines has been rejected on the ground that the petitioner has accepted the posting of In-

charge, Director of Mines on his same pay scale.

Facts necessary for consideration are that the petitioner had been working as District Mining Officer in the Department of Mines and Geology,

Government of Bihar since 11.04.1989. Thereafter, vide order dated 31.07.2000, the petitioner took charge on the post of Additional Director of Mines

and vide Notification No. 803/M dated 10.05.2005, the petitioner was authorized to work as In-charge, Directorate of Mines.

Subsequently, vide Resolution No. 260/M dated 28.02.2008, a post of Director of Mines in the pay scale of Rs.16,400-20,000/- has been created in the

Directorate of Mines, Department of Mines and Geology. Pursuant thereto, the petitioner was authorized to perform the duties of the post of Director

of Mines as In-charge in his own pay scale vide Notification No. 603/M dated 31.03.2008 and accordingly, the petitioner took over the charge as

Director of Mines on 31.03.2008.

Mr. Kalyan Roy, learned counsel for the petitioner submits that though regular promotion on the post of Deputy Director of Mines and on the post

of Additional Director of Mines have been given to the petitioner w.e.f. 15.11.2000 and 15.11.2004, respectively but he is not being paid salary for the

post of Director of Mines in spite of the fact that he has been working regularly on the post of Director, Mines w.e.f. 31.03.2008.

In support of his contention with regard to claim for payment of salary on the post of Director Mines, he relied upon the judgment delivered in the

case of Arindam Chattopadhyay and Others Vs. State of West Bengal and Others, reported in (2013) 4 SCC 152, wherein the Hon'ble Apex Court

while dealing similar case has held at para 13 as under.

13......... If this would have been a stopgap arrangement for few months or the appellants had been given additional charge of the posts of CDPO for

a fixed period, they could not have legitimately claimed salary in the scale of the higher post i.e. CDPO. However, the fact of the matter is that as on

the date of filing of the original application before the Tribunal, the appellants had continuously worked as CDPOs for almost 4 years and as on the

date of filing of the writ petition, they had worked on the higher post for about 6 years. By now, they have worked as CDPOs for almost 14 years and

discharged the duties of the higher post. It is neither the pleaded case of the respondents nor has any material been produced before this Court to

show that the appellants have not been discharging the duties of the post of CDPO or the degree of their responsibility is different from the other

CDPOs. Rather, they have tacitly admitted that the appellants are working as full-fledged CDPOs since July, 1999. Therefore, there is no legal or

other justification for denying them salary and allowances of the post of CDPO on the pretext that they have not been promoted in accordance with

the Rules...................

He further relied upon the judgment passed in the case of State of Punjab and Another Vs. Dharam Pal reported in (2017) 9 SCC 395, wherein the

Hon'ble Apex Court in para 20 while referring another judgment of the Hon'ble Apex Court has held that if a person is put to officiate on a higher post

with greater responsibilities, he is normally entitled to salary of that post. The Hon'ble Court has further observed that the Tribunal has noticed that the

respondent has been working on the post of Junior Engineer I since 1990 and promotion for such a long period of time cannot be treated to be a

stopgap arrangement and finally decided the case in favor of the employee.

Per contra, learned counsel for the respondent-State opposes the prayer of the petitioner and submits that admittedly; the petitioner was not given

promotion on the post of Director Mines, but he was given the post in addition to the post of Additional Director of Mines which is his substantial post.

Learned counsel further relied upon Rules 58 and 103 of the Jharkhand Service Code and submits that now it is no more res-integra that the person is

entitled only for the salary in which he has substantially posted.

Learned counsel further relied upon the judgment passed in L.P.A.No. 162 of 2014 [The State of Jharkhand VS Jai Prakash Singh], wherein it has

been held that In-charge arrangement of working on a higher post for long period gives no rights, equities or expectations for the higher post.

Learned counsel for the Respondent State further relied upon another judgment passed by this Court in L.P.A. No. 572 of 2009 [State of Jharkhand

VS Smt. Meera Das Gupta], wherein the Division Bench of this Court has held at para 7 and 8 as under;

In the light of the applicable Rules there is no room of doubt that the writ petitioner, not having been substantially promoted to the higher post, could

not claim pay or allowance of the higher post while discharging his duties of the higher post in In-charge capacity.

Learned counsel for the appellant has rightly relied upon the opinion of the Hon'ble Apex Court rendered in the case of A. Francis (Supra) at para-6

thereof. The impugned order therefore suffers from errors of law. The direction to make payment of salary and other allowances of the higher post of

Deputy Director and Director for the periods in question respectively and also holding the writ petitioner entitled to retiral benefits on the basis of the

pay as Director, Mines and Geology, cannot be sustained in the eye of law.

Having heard learned counsel for the parties and after perusing the judgment in the case of Arindam Chattopadhyay (supra), it appears that the

Hon'ble Apex Court has held that a person if posted on a higher post for stopgap arrangement for few months and had been given additional charge

for a fixed period then certainly he could not legitimately claim salary in the scale of higher post, but when the person is continuously working on the

higher post then certainly he shall be entitled for the salary of the higher post. The same principle was reiterated in the case of Dharam Pal (Supra)

that if a person is put to officiate on any higher post with greater responsibility; he is normally entitled to salary of that post.

On the other hand, this Court in the case of Jai Prakash Singh (supra) and also in the case of Meera Das Gupta (supra) has held that In-charge

arrangement of working on a higher post for long period gives no right for the higher post and in the light of Rule 58 and 103 of the Jharkhand Service

Code that an employee not having substantially promoted to the higher post, could not claim pay or allowance of the higher post while discharging his

duties on the higher post in In-charge capacity.

In view of the aforesaid facts and judgments cited hereinabove, it is apparent that the petitioner was working not for stopgap arrangement or for a

fixed period as In- charge Director; rather he was fully functioning the duties of the Director for a long time. However, in view of the Rule 58 and 103

of the Jharkhand Service Code and also in view of the judgments passed by the Division Bench of this Court, whether the petitioner shall be entitled to

get the salary for the post of Director, Mines with effect from the date of his jointing on the said post.

On careful consideration of the rival contentions and the Judgments referred to herein above this writ application is being referred to the Division

Bench for determination of the following questions of law:

(i) Whether the petitioner is entitled to get the salary for the post of Director, Mines with effect from the date of his jointing on the said post ?

(ii) Whether the respondents are justified in depriving the petitioner from payment of salary for the post of Director, Mines with effect from the date

of his joining on the said post taking the ground that the petitioner has accepted the posting of In charge Director of Mines on his same pay scale in

spite of the fact that it was not a stopgap arrangement for a fixed period ?

(iii) Whether the petitioner is entitled for his claim in view of the observation given by the Hon'ble Apex Court in the case of Arindam Chattopadhyay

(supra) & Dharam Pal (supra) in spite of Rules 58 and 103 of the Jharkhand Service Code and the judgments rendered by Division Bench of this

Court referred to herein above ?

Let this writ application be placed before the Division Bench of this Court after taking permission from the Hon'ble Chief Justice.