Nand Kishore Roy vs The Bihar State Housing Board and Others

Barin Ghosh and Rekha Kumari, JJ.—Rule 103 of the Bihar Service Code, which also applied to the respondent-Board, provides that the pay of a Government Servant appointed by the State Government to hold substantively, as a temporary measure, or to officiate in, two or more independent post at onetime shall be regulated in the manner as prescribed in the said Rule. Clause (a) of the said Rule suggests payment of the highest pay to which such a Government Servant would be entitled if his appointment to one of the posts stood alone and that he may draw the same during his tenure in that post. Appellant and three others, who were Assistant Engineers and had been appointed as incharge Executive Engineers and, accordingly, were burdened with the responsibilities of discharging the duties of Executive Engineers, approached this court seeking payment of salary in the scale applicable to Executive Engineers on the strength of the said Rule. In paragraph 7 of the counter affidavit it was stated that the appellant and other two writ petitioners were made incharge Executive Engineers in their own pay-scale of Assistant Engineers. It was also contended that so many charges have been levelled against the appellant and another writ petitioners. It was stated that the charges against the appellant is under enquiry and in relation thereto reliance was placed upon Annexure-A to the counter affidavit. Therein it was stated that a letter has been written on 9th May, 1997 requesting to make enquiry in regard to certain allegations against the appellant and until such enquiry is complete it would not be possible to state as to the correctness of the allegations against the appellant. In view of such stand taken by the -Board in its counter affidavit the learned Judge, who dealt with the writ petition by the judgment and order under appeal, refused to accord to the appellant his salaries in the scale of Executive Engineers only because there are certain charges against him.

The fact remains that until the date of delivery of the said judgment and order no charge-sheet was issued against the appellant either in a criminal proceeding or in a departmental proceeding. That suggests that at the time of filing the counter affidavit as well as at the time when the writ petition was decided there was, in law no charge against the appellant.

Rule 89 of the said Rules provides that a Government Servant, who is appointed to officiate in a post, shall not draw pay higher than the substantive pay in respect of the permanent post other than a tenure post, unless the officiating appointment involves the assumption of duties or responsibilities of greater importance than those attaching to the permanent, post (other than a tenure post) on which he holds a lien or would hold a lien had his lien not been suspended. The said rule further provides that officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance in the post to which it is made is in the same scale of pay as that of the permanent post or on a scale of pay identical therewith.

It was not disputed by the Board that assumption of duties and rasponsibilities of the post of Executive Engineer would not be of greater importance than discharging the duties of Assistant Engineer. It was also not in dispute that the pay-scale of Executive Engineer is higher than the pay-scale of Assistant Engineer.

In such situation, on the bare charges allegedly made against the appellant remuneration to which he was entitled to in terms of the Rules made under proviso to Article 309 could not be denied to him. In those circumstances, the appeal is allowed and, accordingly, the order under appeal is modified by directing payment of salary to the appellant in the scale of Executive Engineer from the date he assumed officiating charge of such Executive Engineer as had been granted by and under common order to the writ petitioner No. 2. There shall be no order as to costs.