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Judgment
Date : 07-08-2026 Heard Mr. Tej Narayan Singh, learned counsel appearing on behalf of the petitioner; Mr. Raghawendra Kumar, learned SC-22 for the State and Mrs. Nivedita Nirvikar, learned Senior counsel assisted by Mrs. Riya Raj, learned counsel for the Accountant General, Bihar.
The petitioner in paragraph no. 1 of the present writ petition has sought, inter alia, the following relief(s), which is reproduced hereinafter:-
"I. For issuance of a writ in the nature of mandamus directing and commanding the respondents to pay subsistence allowance from February, 2022 to November, 2022 which has not been paid to the petitioner till date. The petitioner has got the subsistence allowance only for month of December, 2022 out of his suspension period from February, 2022 to December, 2022.
II. For issuance of a writ/writs, order/orders, direction/directions to pay a suitable rate of interest on withholding amount.
III. For grant of any other relief/reliefs for which the petitioner is legally entitled in the facts and circumstances of the case."
The Learned counsel for the petitioner submits that a suspended employee cannot be mechanically compelled to mark his attendance every day as a condition for claiming subsistence allowance.
Per Contra, learned counsel appearing on behalf of the State, referring to paragraphs no. 9, 13 and 15 of the counter affidavit filed on behalf of respondents no. 1 to 7 submits that the petitioner after he was suspended vide Order no, 17 dated 07.02.2022 issued by the office of the Superintendent, District Prison, Biharsharif (Nalanda) physically reported to the Hajipur headquarters only on 03.08.2022. Thus, relying upon the proviso to Rule 10(1) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, he submitted that subsistence allowance is strictly contingent upon the employee marking his daily attendance at the designated headquarters. Because the petitioner only marked his attendance for a cumulative total of 20 days between August and November 2022, the State asserts that its disbursement of Rs. 23,612/- for those specific 20 days was in accordance with the law and as such there is no merit in the writ petition and it is fit to be dismissed.
Considering the aforesaid facts and circumstances, the moot question which arises for deciding the present writ is whether the literal application of the proviso to Rule 10 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 can extinguish an employee’s right to subsistence allowance when the State itself has failed to provide the initial financial support to the employee to sustain himself during the period of suspension and it is in violation of a well-settled maxim of “lex non cogit ad impossibilia” which means that the law does not compel the impossible.
The law in this regard is well settled by the Hon’ble Supreme Court in the case of Jagdamba Prasad Shukla v. State of U.P. and Others reported in 2000 AIR SC 2806, wherein the Apex Court held that subsistence allowance is not a bounty but a right available to a suspended employee, the relevant paragraph has been reproduced hereinafter-
“8.The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension i.e from suspension till removal.” (emphasis supplied)
The apex court in the case State of Bihar v. Arbind, reported in (2013) 16 SCC 615 has emphasized upon the fact that a subsistence allowance is given to a suspended employee for his sustenance. The relevant paragraph is inter alia is reproduced hereinafter-
“11.It is apt to note that the subsistence allowance is governed by the service rules. It is given to a suspended employee for his sustenance. It is in a way making a provision for maintenance and survival. In O.P Gupta v. Union of India (1987) 4 SCC 328, (1987) 5 ATC 14 it has been stated that the very expression “subsistence allowance” has an undeniable penal significance. It basically means—a means of supporting life, especially a minimum livelihood.”
A similar view has been reiterated in the case of Anwarun Nisha Khatoon v. State of Bihar, reported in (2002) 6 SCC 703, wherein, while interpreting Rule 96 of the Bihar Service Code, the Apex Court clarified that a suspended employee cannot be mechanically compelled to mark his attendance every day as a condition for claiming his subsistence allowance.
Further, the assumption that failure to mark attendance equates to "unauthorized absence" is flawed. The Division Bench of this Court clarified this issue in the case of Dr. Arun Kumar Prasad v. State of Bihar passed in LPA No. 752 of 2017, wherein it has been held that the object of placing an employee under suspension is to keep him away from office, so as, to not interfere with records or win over the relevant witnesses. Hence, their failure to sign an attendance register under Rule 10 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 cannot be treated as an unauthorized absence under Rule 76 of the Bihar Service Code, 2005 to deny them their fundamental rights or impose further penalties
It is a well-settled principle of law that subsistence allowance is a minimum payment intended to sustain an employee during the period of suspension, and it is the responsibility of the sovereign to safeguard the livelihood of its servants. Thus, non-payment of subsistence allowance amounts to slowly poisoning the employee and, if such allowance is not paid, may lead to a “civil death” even before the punishment is awarded.
Non-payment of subsistence allowance may render it financially impossible for a suspended employee to sustain himself and continue with the ordinary course of his life, and the same cannot be countenanced. The subsistence allowance is intrinsically connected with the right to life guaranteed under Article 21 of the Constitution. A suspended employee cannot be expected to relocate to a completely new town and sustain himself without such payment, as such a situation would be antithetical to the guarantee embodied under Article 21 of the Constitution.
The respondent concerned is directed to make payment of the subsistence allowance to the petitioner, as prayed for, in the present writ petition in accordance with law and also conclude the departmental proceeding, which is still pending in spite of expiry of the statutory period as contained in Bihar Government Servants (Classification, Control & Appeal) Rules, 2005.
The petitioner, if so advised, may also file his detailed representation for redressal of his grievance before the authority concerned.
Accordingly, the present writ petition stands disposed of.