BHAWESH KUMAR S/O LATE JAGAT NARAIN SINGH RESIDENT OF TARARI, P.O. TARARI, VIA KONCH, P.S. TARARI, DISTRICT Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Md. Khurshid Alam, learned counsel for the petitioner and learned AC to AAG No. 2.

(2.) The petitioner, has approached this court invoking its writ jurisdiction under Art. 226 of the Constitution of India, with a prayer for grant of the following reliefs:-

(3.) It is the case of the petitioner that he was appointed as Assistant Sub-Inspector of Excise in the year 1978, and thereafter even though he was eligible for being considered for promotion as Sub-Inspector of Excise his case was not considered, though there was sanctioned post and vacancy. Instead of considering the case for promotion of the petitioner to the post of Sub-Inspector of Excise, by an order contained in Memo No. 2694 dated 6th June 1989 the petitioner along with other sixteen persons were asked to discharge the duty of Sub-Inspector of Excise (Memo No. 2694 Annexure - '4' to the writ petition). The petitioner thereafter started to discharge the function of Sub-Inspector of Excise to the satisfaction of the Department. Finally, in the year 2004 the petitioner along with others were promoted as Sub-Inspector of Excise in the pay scale of Rs. 4000-6000.00. However, since the petitioner was not paid pay scale of Sub-Inspector of Excise even though he was discharging the duty of Sub-Inspector of Excise in view of Annexure - '4' i.e. order dated 6.6.1989, the petitioner filed a detailed representation before the Commissioner, Excise with a prayer to pay the difference of salary. The representation filed by the petitioner was un-noticed and finally, petitioner superannuated as Sub-Inspector of Excise with effect from 31.1.2010. Learned counsel for the petitioner submits that even thereafter the petitioner filed representations for both the reliefs i.e. for payment of difference of salary of Sub-Inspector of Excise from 1989 to 2004 and for granting benefit under 2nd A.C.P. but since the grievances of the petitioner was never considered and decided in favour of the petitioner, the petitioner was finally constrained to approach this court by filing the present writ petition. Learned counsel for the petitioner at the very outset has placed reliance on an un-reported order dated 18.4.2008 passed in CWJC No. 905 of 2000 (Narsingh Pd. Choudhary Vs. The State of Bihar & Ors.). He submits that in identical situation Sri Narsingh Pd. Choudhary, who was Sub-Inspector of Excise was given charge of Inspector of Excise with effect from 4.4.1989 and he continued. He was given the charge of Inspector of Excise from 4.4.1989 to 5.6.1995. Subsequently he approached this Court for claiming promotion and all the benefit as Inspector of Excise from the date on which he was asked to discharge the duty of Inspector, Excise. A bench of this court allowed the writ petition relying on a judgment of this court reported in 2001 (1) PLJR 241 (Jamal Ahmad Vs. The Administrator, Patna Municipal Corporation & Ors.). Learned counsel for the petitioner has further placed reliance on a single bench judgment of this court reported in 1995 (1) PLJR 362 (Dr. Sachita Kumar Sinha Vs. The State of Bihar and others). He has specifically referred to paragraph no. 3 of the said judgment and relied on (1998) 5 SCC 87 (Secretary-Cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma and Others). He submits that once the petitioner though was Assistant Sub-Inspector of Excise was asked to discharge the duty of Sub-Inspector, Excise even on officiating basis, the petitioner was entitled at least to get salary for the said post. On the aforesaid ground a prayer has been made to direct the respondents to make payment of differential amount of salary as Sub-Inspector, Excise from 6.6.1989 to 20.10.2004 after deducting the salary which has already been paid to the petitioner as Assistant Sub-Inspector, Excise.