Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6602 of 2011 ====================================================== 1. Rai Sudhir Prasad S/O Late Rai Udai Narain Prasad Permanent Resident At 242 Patliputra Colony, P.S. Patliputra, Distrit - Patna - 800013 .... .... Petitioner/s Versus 1. The State Of Bihar , Through Secretary to Govt. Of Bihar, Health, Medical Education-Cum-Family Welfare Department, Vikas Bhawan, Patna 2. Secretary to Govt. Of Bihar, Health Medical Education-Cum-Family Welfare Department, Vikas Bhawan, Patna 3. Secretary to Govt. Of Bihar, Finance Department, Main Secretariat, Patna 4. Accountant General , Bir Chand Patel Path, Patna - 800001 5. Joint Secretary, Health (Medical Education & Deshi Chikitsa) Department, Govt. Of Bihar, Patna. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amit Shrivastava For the Respondent/s : Mr. Tej Bahadur Singh, A.A.G.-7. ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 8 31-10-2013 In this writ application filed under Article 226 of the Constitution of India, the petitioner seeks declaration that additional pay granted to him under Rule 103 of the Bihar Service Code, 1952 (for short “the Code”) be declared not as the Special Pay or Personal Pay but the pay as defined under Rule 34(a)(i) of the Code and emoluments under Rule 26(a)(i) of the Bihar Pension Rules, 1950 (for short “the Rules”). Having declared so, appropriate order/direction be issued to the respondents to grant him Non-practising Allowance (NPA) and Dearness Allowance (DA) on the additional pay paid/authorised to the petitioner in the same manner as is being granted on pay or emoluments. The petitioner further seeks declaration that Clause 7 of the Finance Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 2 Department Resolution dated 17.2.2001 (Annexure-1) and the Accountant General letter dated 25.8.2004 (Annexure-1/A) are not applicable in the matter of grant of such relief on additional pay. The petitioner has also prayed for consequential revision of his pension. Facts and circumstances culminating in filing of the present writ application, in short, are that the petitioner joined the Bihar State Health Service Class-II in the year 1966. Between the period 17.12.1982 to 30.9.2000 while he held the substantive post of Professor, Forensic Medicine Department in Patliputra Medical College, Dhanbad, he was made to officiate continuously for 44 months either as Principal or the Medical Superintendent or in both capacities between the period 1.2.1997 to 30.9.2000 in addition to his own duties of the substantive post of Professor. Having discharged the duties of those posts in addition to the substantive post held by him, he superannuated from service w.e.f. 30.9.2000. The petitioner having been asked to officiate on the posts other than the substantive post held by him claimed additional pay under Rule 103 of the Code for the period 1.2.1997 to 30.9.2000. Since no relief was given to him by the State respondents, he filed a writ petition being C.W.J.C. No. 1513 of 2001 which was disposed of by order dated 17.01.2002 with a direction to the Respondent No. 2 to dispose of his representation.
Legal Reasoning
Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 3 The said representation was rejected by the respondents. Aggrieved thereby, the petitioner filed C.W.J.C. No. 8742 of 2002 which was rejected. Assailing the said order, the petitioner filed writ appeal being L.P.A. No. 1181 of 2002 which was also dismissed by order dated 02.12.2002. Not satisfied with the said order, the petitioner filed a Civil Appeal No. 5119 of 2003 (arising from S.L.P.(C) No. 1719 of 2003). The Hon’ble Apex Court allowed the claim of the petitioner by order dated 15.07.2003 since reported in (2004) 13 SCC 25. In compliance of the said judgment, the Government in the Department of Medical Education issued an order dated 02.07.2004 (Annexure-3) sanctioning 20 % additional pay to the petitioner for the period 1.2.1997 to 30.9.2000. In the light of the said order of the Government dated 2.7.2004, the respondent Accountant General issued pay slip authorizing the petitioner to draw the additional amount of 20 % of the post but without NPA and Dearness Allowance thereon. The matter was represented by the petitioner before the respondent Accountant General in response whereof the petitioner by the communication contained in Annexure-1/A was informed that NPA and D.A. was/were not admissible on the additional/special pay. The petitioner thereafter submitted a representation dated 15.04.2005 (Annexure-4) to the Principal Secretary to the Government (respondent No. 2) ventilating Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 4 therein that additional pay under Rule 103 of the Code is neither special pay nor personal pay but pay under Rule 34(a)(i) of the Code read with the emoluments as defined under Rule 26(a)(i) of the Rules and, as such, he was entitled to grant of NPA and D.A. on the additional pay which would call for revision of pensionary benefits. Since the said representation was not considered, the petitioner filed another writ petition being C.W.J.C. No. 13842 of 2005 on 19.10.2005 raising the grievance(s) raised in this application. Said writ petition was disposed of on 12.9.2006 (Annexure-2) with liberty to represent afresh before the Secretary, Department of Health and Medical Education of the respondent State who was directed to dispose of the same in accordance with law. The petitioner presented a fresh representation dated 11.11.2006 before Respondent No. 2. The respondent by an order dated 3.4.2007 rejected the said representation filed by the petitioner. The said order was assailed by the petitioner in another writ petition being C.W.J.C. No. 10639 of 2007. This Court by order dated 25.3.2009 (Annexure-2/A) quashed and set aside the said order and the matter was remanded back to the Respondent No. 2 with a direction to consider applicability of Rule 34(a)(i) and to decide the matter afresh in consultation with the Finance Department of the Government. The petitioner submitted a representation dated 29.5.2010 (Annexure-8) enabling the said Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 5 respondent to consider afresh the claim of the petitioner in the light of the order dated 25.3.2009. While the said matter remained
Decision
pending and could not be disposed of, the present writ petition was filed by the petitioner. During the pendency of the application, the Principal Secretary of the Government in the Department of Medical Education passed an order contained in Memo No. 728(17) dated 14.7.2011 (Annexure-9) rejecting the claim of the petitioner for the reasons stated therein. The said order has also now been impugned in the present writ petition by filing interlocutory application being I.A. No. 7325 of 2011. Heard Mr. Amit Srivastava in support of the writ application and Mr. Tej Bahadur Singh learned A.A.G.-7 for the State. Counter affidavit/supplementary counter affidavit have been filed on behalf of the State respondents. The petitioner has filed rejoinder thereto. Counsel for the petitioner has contended that additional pay will not constitute special pay or personal pay as provided under the Code. On a claim raised by the petitioner, the Hon’ble Apex Court having found the said claim supported by law directed for payment of additional pay in the sum of 20% of the presumptive pay of the post whose duty the petitioner performed. The same would constitute part of the pay of the petitioner as defined under Rule 34(a)(i) of the Code. If the additional pay Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 6 allowed in favour of the petitioner would constitute part of the pay of the petitioner different and distinct from the personal pay and/or special pay admissible to a particular incumbent in terms of the provisions contained in Rules 39 and 42 of the Code respectively then the petitioner is entitled to get D.A. and NPA on the said sum/amount. He has, in this regard, relied on diverse provisions contained in the Code as well as the Rules. Referring to Clause 7 of the Resolution of the Government dated 17.2.2001 (Annexure- 1), it has been contended that the pay admissible to an employee under Rule 34(a)(i) has been declared to be the amount on which the employee will draw D.A. and NPA. The later part of the said clause only excludes entitlement of D.A. and NPA on special pay and personal pay. The expression “etc.” included in the concluding part of the said clause cannot be invoked to deny the claim of the petitioner if the entire clause is read as a whole. Mr. Tej Bahadur Singh, learned counsel for the State has supported the order passed by the respondent Principal Secretary. It has been submitted that by virtue of the provisions contained in Rule 103 and in the light of order of Hon’ble Apex Court, the petitioner was sanctioned 20 % of the presumptive pay of the post held by him on officiating basis by way of extra remuneration admissible under Clause (b) of Rule 103 of the Code. Grant of such remuneratioion could not be considered for Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 7 grant of NPA or D.A. Referring to Rule 34(a)(i) of the Code, it has been submitted that the pay of an employee will exclude special pay or pay granted in terms of his personal qualification or for having worked in officiating capacity. The petitioner had already been drawing D.A. and NPA on the pay payable to him for the substantive post held by him. Grant of D.A. and NPA on the extra remuneration in the sum of 20 % of the presumptive pay of the post held by the petitioner on officiating basis will amount to unjust enrichment and/or duplication of the benefits. Considering the rival submissions of the parties, this Court would first notice the relevant provisions of the Code which have been referred by the petitioner and the respondents. Chapter II of the Code contains definitions of diverse expression(s)/terminology used in the Code. Rule 34 defines pay as the amount drawn monthly by a government servant. Rule 34(a)(i) is relevant in the case which reads thus:- “34(a) (i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reasons of his position in a cadre;” Rule 39 defines personal pay which reads thus:- “39. Personal pay means pay granted to a Government servant:- (a) to save him loss of substantive pay in respect of a permanent post other than a tenure post due to revision of pay or to any reduction of such substantive pay otherwise than as a from a Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 8 disciplinary measure, or (b) in exceptional circumstances, on other personal considerations. Rule 42 spells out grant of Special Pay which means an addition of the nature of pay to the emoluments of a pay or of an government servant granted in consideration of the three circumstances appended thereto. Rule 42 is extracted hereunder:- “42.Special pay means an addition of the nature of pay, to the emolument of a post or of a Government servant, granted in consideration of- (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility; or (c) the unhealthiness of the locality in which the work is performed.” Rule 89 provides for grant of officiating pay. The said rule in its relevant part is extracted hereinbelow:- “89(1) Subject to the provisions of rule 103 and to any orders regulating acting promotion from grade to grade at the time when these rules came is into force, a Government servant who appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post other than a tenure post, unless the officiating the appointment 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.” involves Rule 90 of the Code provides that subject to the Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 9 provisions of Rule 85(c), 89 and 92, a government servant officiating on a post will draw the presumptive pay of that post. Under the Head Miscellaneous, Rule 103 of the Code has been incorporated. The relevant part of the Rule on which reliance has been placed by the parties would only be noticed. Rule 103(b) reads thus:- “103(b)for each other post he may draw such reasonable pay, in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the State Government may fix;” Notes have been appended to the said Rule. Note (4) thereof reads thus:- “NOTE 4- The extra remuneration admissible under clause (b) of this rule should not ordinarily exceed 20 per cent of the presumptive pay of the post, whose duties the Government servant is performing.” On a conspectus of the provisions contained in the Code, it is more than explicit that additional pay, as such, has not been contemplated and defined in the Code. The contention of the petitioner is that the additional pay having been allowed by the Hon’ble Apex Court and authorised by the respondents will constitute pay of the petitioner and, as such, in the light of rule/provision and the decision of the Government (Annexure-A), he would be entitled to draw D.A. and NPA thereon. The said Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 10 stand has been taken on the premises that the Code only provides for pay, special pay and personal pay. Anything admissible to the employee other than the special pay or personal pay will necessarily form part of the pay, be it called additional pay or remuneration. Rule 34(a)(i) states that the pay, other than special pay or pay granted in view of his personal qualification, which have been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre. Rule 103 of the Code provides for grant of pay in the nature of extra remuneration which has been by virtue of Note 4 appended thereto limited to 20 % of the presumptive pay for the post whose duty the government servant has performed. The said provision read with Rule 40 of the Code further clarifies that presumptive pay of a post would not include special pay. On the issue(s) raised in this application, Rule 104 of the Code appearing in Chapter V (Additions to Pay) of the Code becomes relevant. The provisions contained thereunder provide for grant of additional allowances and the regulations thereof. Rule 104 of the Code states that the amount of compensatory allowance shall be so regulated that it is not on the whole source of profit to the recipient. What the petitioner was sanctioned in terms of Rule 103 of the Code was the extra remuneration for compensating him for having discharged duties of two different posts, the one held by Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 11 him substantively and the another held on temporary/officiating basis. Even otherwise, the contention of the petitioner appears to be misplaced when he relies on Rule 34(a)(i) in order to buttress his contention that the pay payable to the petitioner would only exclude special pay or personal pay as defined under the Code. I have already noticed hereinabove that pay sanctioned for a post held by him in officiating capacity which is limited to 20 % of the presumptive pay of the post whose duties the petitioner performed has also been excluded from the pay. What was granted to the petitioner under Rule 103 of the Code was the compensatory allowance or the remuneration which would not constitute the pay payable to the petitioner. By virtue of the provisions contained in the resolution of the Government dated 17.2.2001 (Annexure-1), the D.A. and NPA have been made admissible on the basic pay of the employee. Clause (7) thereof clearly excludes payment of D.A./NPA on special pay, personal pay etc. The said provision appears to be illustrative which would include the compensatory allowance by way of extra remuneration paid to an employee for having discharged on the post on officiating basis in addition to the post substantively held by him. Learned counsel for the petitioner in the course of his submissions highlighted that the post held by him in substantive capacity and the posts on which he officiated in addition to his substantive post were carrying similar Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 12 scale of pay. The D.A./NPA is only payable on the basic pay of the employee. In the order dated 14.7.2011 (Annexure-9) passed by the Principal Secretary, reference has been made to another resolution of the Government issued in the Department of Finance contained in letter No. 4215 dated 18.3.2009 in order to reject the claim of the petitioner in the light of the order passed by this Court in C.W.J.C. No. 10639 of 2007 (Annexure-2/A). The petitioner has not placed the said resolution of the Government on record. This Court would only say that if there is any such resolution of the Government which has not been placed on record and impugned by the petitioner then the same would also be a relevant fact for non-suiting the claim of the petitioner raised in this application. Mr. Tej Bahadur Singh has relied on an order passed by the Hon’ble Apex Court in the case of Union of India versus G. Basudev (1995) 2 SCC 32 (paragraphs 8 and 10) in order to submit that claim of D.A. and NPA on the additional pay and/or the remuneration paid to the employee in terms of Rule 103 of the Code would amount to duplication of the grant of privileges/benefits. The petitioner has countered the said submission on the ground that the said order of the Apex Court was rendered in entirely different factual background. This Court is not delving into the said submissions of the parties in view of Patna High Court CWJC No.6602 of 2011 (8) dt.31-10-2013 13 the conclusions already recorded hereinabove. For the reasons noted above, this Court is unable to accept the contention of the petitioner as raised in this application for grant of the relief(s) prayed for by him. The application is of no merit and is accordingly dismissed. There shall be no order as to costs. Pankaj/- (Kishore Kumar Mandal, J)