DR.RAI SUDHIR PRASAD v. THE STATE OF BIHAR

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10639 of 2007 DR.RAI SUDHIR PRASAD Versus THE STATE OF BIHAR & ORS ----------- 5. Heard counsel for the petitioner

25.3.2009 and the counsel for the State. In this writ application the prayer of the petitioner can be found in relevant portion of paragraph no. 1 whereof reads as follows : - direction "That this is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of a Certitiorari, or such quashing the order dated 03.04.2007 as contained in memo no. 358(17) issued by the respondent no. 5 whereby and whereunder he has rejected the representation of the petitioner dated 11.11.2006 for grant of D.A. on 20 percent additional pay. (A) That the petitioner further prays for issuance of a writ of Mandamus or such other writ/order/direction for a declaration that additional pay granted under rule 103 of Bihar Service Code 1952 is not special pay or personal pay but ’pay’ under rule 34(a)(i) of Bihar Service Code and ’emoluments’ 26(a)(i) of Bihar Pension Rules 1950. That (B) petitioner further prays for issuance of an appropriate writ, order or direction to respondents to practicing dearness additional pay in the same petitioner allowance allowance 2 Accountant manner as is being granted on pay or emoluments, and for a declaration that para 7 of Department’s Finance resolution dated 17.02.2001 General’s 25.08.2004 letter whereby personal excluded from the definition of pay is not applicable in the matter of grant of such relief on additional pay and for consequential revision of his pension." special The grievance of the petitioner having been virtually decided by the Apex Court itself in the order dated 15.7.2003 in Civil Appeal arising out of SLP(C) No. 1719/2003 in the case of Rai Sudhir Prasad vs. State of Bihar & ors., reported in (2004) 13 SCC 25, all that was required to be done was that paragraph 18 thereof had to be followed in letter and sprit. Paragraph 18 of the order of the Apex Court reads as follows: “18. The decision of the Division Bench cannot in any event be sustained. We, accordingly, dispose of the appeal by setting aside the order of the Division Bench and allowing this appeal by directing the respondents to grant the appellant 20 per cent of the substantive pay scale of the post of Professor, Forensic Medicine as additional pay for the period during which he officiated as Principal Medical Superintendent. There will be no order as to costs.” and/or 3 It is not in dispute that the respondents according to them have already carried out the aforementioned direction of the Apex Court by granting the petitioner payment of 20 per cent of the substantive pay. Normally that should have the end of the matter but then as they say there is no end to hopes and expectations and that is how this life goes on and on. Here the petitioner still has a grievance that when he was given 20 per cent of the substantive pay in terms of the order of the Apex Court he ought to have been also given dearness allowance on his additional 20% pay as also on the amount of non- practicing allowance, in terms of his service conditions. The representation filed by the petitioner to this effect having been considered by the controlling department seems to have been disposed by an order dated 3.4.2007 while complying the another order of this Court dated 12.9.2006 in C.W.J.C. No. 13842/2005 wherein the reasons for refusal of dearness allowance on 20 per cent on additional pay as also NPA was as follows: 4 ^^Mk0 jk; }kjk mDr vfrfjDr osru ij eagxkbZ HkRrk dh ekax ds laca/k esa izkIr vH;kosnu ij lE;d~ fopkjksijkUr foRr foHkkx ds ijke’kZkuqlkj vuqekU; vfrfjDr osru ij eagxkbZ HkRrk ,oa xSj O;olkf;d HkRrk dk izko/kku ugha jgus ds dkj.k og vuqekU; ugha gSA vr% bls vLohd‘r fd;k tkrk gSA** The said order to say the least is quite cryptic and does not take into consideration the main issue raised by the petitioner as with regard to applicability of the Rule 34(a)(i) of the Bihar Service Code which defines pay to include everything except special pay and/or personal pay. Counsel for the petitioner, therefore, is quite emphatic that the Finance Department or the controlling department of the petitioner, namely, Health Department had to consider the conjoint effect of Rule 34, Rule 39, Rule 42 before coming to a terse and cryptic decision that there is no provision in the Bihar Service Code for payment of dearness allowance on the amount of additional pay or Non practicing allowance. It is true that when this Court had in the order dated 12.9.2006 issued a direction for considering the representation of the petitioner and disposing it of in 5 accordance with law, it had definitely expected that the authorities of the Government will apply their mind to the facts raised in the representation dated

11.11.2006 and deal with the contention raised by the petitioner. As noted above, the order which has been passed is not a speaking order and therefore, this Court is constrained to quash it and remit the matter back to the Secretary of the Health Department to reconsider the issue strictly in terms of the provisions made in the Bihar Service Code and the circulars issued for fixation of pay/ grant of dearness allowance issued by the State Government from time to time. It would be open for the Government to take any view by taking into account as to how till date it has dealing the similar cases because a precedent which has been carried for long time by itself be a good source of law, especially when such issue of payment of additional pay on account of holding more than one post or the payment of additional pay to a person on deputation in terms of the provisions made under Rule 103 and Rule 267 of the Bihar Service Code 6 respectively has been invoked times without number for a long period of time enabling the Government bynow to evolve and take a conscious decision as with regard to payment of dearness allowance on such additional pay/NPA. With the aforementioned observation this application is disposed of with a direction to the Secretary of the Health Department decide matter consultation with the Secretary of Finance Department and if necessary after also obtaining approval of the State Government within a period of six months from the date of receipt/production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/