NARAD PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has filed this writ petition with two prayers. Firstly, he seeks that for a period of 3 years till his superannuation he was officiating as Incharge Chief Engineer, he should be paid full emoluments as a Chief Engineer and not as Superintending Engineer. Secondly, his prayer is that his retiral dues have to be calculated on basis of his last pay drawn, which, in view of the first relief sought, would be emoluments of Chief Engineer.

(2.) A counter affidavit is on record. In the counter affidavit, it is not disputed that the petitioner was the senior most Superintending Engineer and was fully qualified to be a Chief Engineer. He was thus selected and appointed as Incharge or officiating Chief Engineer. The reason for not making him substantively Chief Engineer was that a writ petition had been filed by one Ramesh Chandra Roy, being C.W.J.C. No.11299 of 1994, seeking promotion to the post of Superintending Engineer and challenging the petitioner's notification appointing the petitioner as Incharge Chief Engineer. But, in the counter affidavit, it is admitted by the State and the Housing Board that the petitioner was senior to Ramesh Chandra Roy. We have Annexure-6 to petitioner's rejoinder, the final order dated 06.01.1997 passed in C.W.J.C. No.11299 of 1994, in which this Court has noticed that petitioner is senior to Ramesh Chandra Roy and they ought to be considered for their substantive promotion accordingly. The writ petition was disposed of on 06.01.1997 but the petitioner superannuated on 28.02.1997. In the rejoinder, petitioner has stated that all along petitioner was senior and when he was substantively posted as Superintending Engineer the post of Chief Engineer in the Bihar State Housing Board fell vacant. He was qualified and was the senior most and, in ordinary course, ought to have been designated as an officiating Chief Engineer on post from which he superannuated. It cannot, thus, be said that petitioner would only be entitled to officiating allowance of 20% in terms of Rule-103 of the Bihar Service Code. In fact, petitioner was fully qualified and liable to be promoted substantively was wrongly made to officiate and, that too, for a period of over three years as Chief Engineer and, thus, he was made to work on a higher post involving higher responsibilities and duties, he could not be denied benefits of that post. In this connection, we may refer to the judgment in the case of Dr. Nitya Gopal Bandyopadhyay Vs. the State of Bihar & Ors., 2008 1 PLJR 245 and in the case of Prafulla Ranjan Shrivastava Vs. the State of Bihar & Ors., 2008 3 PLJR 144.

(3.) Having considered the matter and heard the parties, in my view, the writ petition must succeed on both counts. The contingency where a person is allowed to officiating allowance in terms of Rule-103 of the Bihar Service Code is where for a short period as stop gap arrangement or on ad hoc basis a person is made to work on a senior post, he is then to be paid officiating allowance of 20%. But, where it is not a case of stopgap, temporary or short term arrangement but a person who is substantively entitled to the promotion is made to work at a higher post involving higher duties and responsibilities for a long period, then, in my view Rule-89 of the Bihar Service Code would apply. In such a case, if State is permitted to appoint a person to officiate on a higher post and then get away by saying that he has been only made to officiate that would be rank exploitation and arbitrary. There was no justifiable reason for not giving substantive promotion as Chief Engineer to the petitioner. Petitioner was the senior most and qualified. There was a substantive vacancy. He was thus on these parameters selected but appointed as officiating alone. Thus, in my view, the said nomenclature officiating was a misnomer. It will be deemed that the petitioner was substantively appointed as Chief Engineer and would thus be entitled to full emoluments as such for the period he worked as Chief Engineer up to his superannuation. The consequence would be that his last substantively pay drawn would be that of a Chief Engineer. Accordingly, the second relief also could be to the petitioner, i.e., revision of his pensionary and post retiral dues according to the last pay drawn as a Chief Engineer.