The State of Bihar and Another vs Sidheshwar Chaudhary

The delay in filing the appeal is condoned.

This letters patent appeal has been filed against the order of 23 April, 2003 on CWJC No. 159 of 2003 : Sidheshwar Chaudhary v. The State of Bihar and Ors.

The State of Bihar has filed this letters patent appeal challenging the decision of the learned judge on the ground that the decision may not be understood to be certifying a situation that the incumbent Sidheshwar Chaudhary be deemed to have been discharging functions as a Head Clerk and, thus, entitled to the salary on this post.

Upon hearing learned Counsel for the State Mr. A.K. Singh, S.C. 3, having perused the record of the writ petition as well as the letters patent appeal and also having carefully gone through the order of the learned judge, this Court is of the opinion that it is not persuaded to take another view. There is no illegality in the order.

The contention is that the learned judge ought to have taken note of Rule 103 of the Bihar Service Code and instead of requiring the payment of salary on the higher post ought to have given a direction that emoluments be paid modulated to Rule 103. In so far as the theory is concerned, learned Counsel for the State is not incorrect.

In so far as the Rule 103 is concerned there are premises and conditions under which it works. If an arrangement is to be made that a government servant appointed by the State government, who holds a substantive post, is required to officiate in two or more independent posts at one time then he becomes entitled to certain extra emoluments as the rule indicates. But the essential condition of working this rule is that such a situation takes care of circumstances which the rule itself says "as a temporary measure".

The learned judge says that in other cases incumbents, who discharged duties on a higher post, had done so for the last 10 years and were paid a salary of a higher post. There was another of an incumbent having worked for 9 years.

In so far as the Petitioner-Appellant is concerned, learned judge has placed on record that he had worked for 5 years without any objection or complaint or resistance from the department implying thereby that the department itself placed this incumbent to work for 5 long years to discharge work on a higher post.

It is very difficult for the High Court to certify that 5 years is a temporary measure. The only indication the rule gives is that resort to the rule may not be had to short term leave vacancies. Between this and temporary, the High Court is not about to spell out that 5 years was temporary.

There is no error in the order of the learned judge.

Dismissed.