Rule 96 of the Bihar Service Code: A Jurisprudential Analysis of Suspension and Subsistence Allowance

Rule 96 of the Bihar Service Code: A Jurisprudential Analysis of Suspension and Subsistence Allowance

Introduction

Rule 96 of the Bihar Service Code (―BSC‖) constitutes the primary normative source governing (a) the power of the State to place a public servant under suspension, and (b) the suspended employee’s monetary entitlement during such period, described in the Code as “subsistence grant.” Although linguistically crafted in administrative terms, the provision operates at the intersection of statutory service law, constitutional guarantees of livelihood, and the principles of natural justice. The present article undertakes a systematic examination of Rule 96, mapping its doctrinal contours, statutory context, and the evolving judicial exposition by the Supreme Court of India, the Patna High Court and allied forums.

Background: The Bihar Service Code and the Architecture of Rule 96

Historical Evolution

The BSC traces its lineage to the colonial civil-service framework that was constitutionally continued by virtue of the Governor’s notification dated 15 April 1950 issued under the proviso to Article 309 of the Constitution, whereby all pre-existing service rules were declared to remain in force until altered by competent legislation.[1]

Textual Anatomy of Rule 96

“96.(1) A Government servant under suspension shall be entitled to the following payments, namely:—
  (a) Subsistence grant at an amount equal to the leave salary which the Government servant would have drawn had he been on leave on half average pay … plus the cost-of-living allowance admissible on such leave salary; …
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.”[2]

The provision is structurally binary: sub-rule (1) creates the entitlement, while sub-rule (2) imposes a conditional procedural obligation on the delinquent officer. The Code does not itself define “suspension”, but judicial decisions construe it as a temporary deprivation of employment rights pending disciplinary or criminal proceedings.[3]

Constitutional and Doctrinal Foundations

Although Rule 96 derives statutory force from Article 309, its application must comport with the Constitution’s fundamental rights matrix. The Supreme Court has repeatedly held that the right to livelihood, implicit in Article 21, is infringed when subsistence allowance is withheld to such an extent as to render life “animal-like”.[4] Accordingly, the subsistence grant mandated by Rule 96 acquires the status of a constitutional minimum rather than a mere statutory concession.

Analytical Issues Under Rule 96

(A) Nature of the Entitlement: Automatic or Conditional?

Unlike many other service rules that make subsistence allowance discretionary, Rule 96(1) employs mandatory language (“shall be entitled”). In Anwarun Nisa Khatoon v. State of Bihar, the Supreme Court rejected the State’s contention that payment could be denied for want of a “no-employment” certificate, holding that the obligation to pay is primary and the requirement of certificate is ancillary; non-submission may justify recovery but not non-payment.[5]

(B) Quantum and Periodicity

The quantum is statutorily pegged to “half average pay” plus Dearness Allowance. Courts have clarified that delayed payment defeats the object of the rule. In Pradeep Kumar Goit v. State of Bihar, the Patna High Court directed that subsistence allowance must be released contemporaneously with suspension and be continued “till the proceeding is concluded”, failing which suspension stands revoked by operation of law.[6]

(C) Procedural Obligations of the Employee

The State frequently relies on Rule 96(2) to deny payment where the employee does not mark attendance or furnish the requisite certificate.[7] Yet, jurisprudence holds that such administrative instructions cannot override the statutory mandate. The Patna High Court in Sandhya Kumari v. State of Bihar observed that the master-servant relationship subsists during suspension and the State is bound to tender subsistence irrespective of attendance marking, subject to later verification.[8]

(D) Consequences of Non-Payment: Does It Vitiate the Proceedings?

Non-payment has dual ramifications—

  • Constitutional: violation of Article 21 leading to potential writ of mandamus; and
  • Procedural: vitiation of disciplinary enquiry on the ground of denial of reasonable opportunity.

In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., the Supreme Court held that a proceeding is “vitiated” where subsistence allowance is not paid for a prolonged period, as the delinquent is disabled from mounting an effective defence.[9] The Patna High Court adopted this rationale in Syed Ali Qambar v. State of Bihar, quashing a decade-old proceeding where no subsistence was paid after the first few months of suspension.[10]

(E) Duration of Suspension and Automatic Revocation

Although Rule 96 is silent on maximum duration, judicial policy disfavors indeterminate suspension. In Dr. Raman Kumar Sinha v. State of Jharkhand the Court likened ten-year suspension without pay to “civil death”, ordering payment of arrears and cautioning against abuse of the power.[11]

Interplay with Allied Provisions

Rule 97 of the BSC

Rule 97 addresses the post-facto regularisation of pay where the employee is reinstated after suspension. The Patna High Court in Jagannath Rai v. State of Bihar clarified that Rule 97 is invoked after revocation of suspension, whereas Rule 96 governs the interim period.[12]

CCA Rules, 2005

Rule 10 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 parallels Rule 96 for State cadres outside the BSC. Courts have harmonised the two, holding that the constitutional principle of subsistence applies mutatis mutandis.[13]

Interaction with Criminal Proceedings

In cases of simultaneous criminal trial (e.g., fodder-scam related suspensions), denial of subsistence allowance has been uniformly deprecated. The Jharkhand High Court in Dr. Raman Kumar Sinha emphasised that even conviction in a trial does not retrospectively validate earlier non-payment.[14]

Comparative Perspective

The Central Civil Services (Leave) Rules and Fundamental Rule 53 adopt a graded approach: 50% pay for first 90 days, 75% thereafter unless delay attributable to employee. Rule 96’s fixed half-pay is thus comparatively parsimonious. Scholars have argued for amendment to align with the central model, enhancing financial security and deterring prolonged suspensions.[15]

Critical Appraisal

While Rule 96 ostensibly balances administrative necessity and employee welfare, jurisprudence reveals systemic non-compliance. Persistent defaults suggest the need for structural reform:

  1. Statutory outer limit (e.g., 12 months) for suspension without departmental progress, after which automatic reinstatement or deemed revocation should follow.
  2. Escalating scale of subsistence allowance analogous to FR 53 to mitigate economic destitution.
  3. Incorporation of electronic disbursement mechanisms to obviate “attendance marking” controversies.

Conclusion

Rule 96 remains a pivotal yet often misunderstood component of Bihar’s service jurisprudence. Courts have consistently construed the provision in a welfare-oriented manner, ensuring that subsistence allowance transcends formal symbolism and fulfils its constitutional purpose. The evolving case-law—from Anwarun Nisa Khatoon at the apex level to numerous Patna High Court decisions—demonstrates a clear judicial trajectory: non-payment vitiates disciplinary action and violates fundamental rights. Legislative and administrative stakeholders must now translate this jurisprudential consensus into practical compliance, refining Rule 96 to meet contemporary governance standards while safeguarding the dignity of public servants.

Footnotes

  1. Ram Prasad Singh v. State of Jharkhand, 2005 SCC OnLine Jhar — reference to 1950 notification continuing pre-existing service rules.
  2. Full text reproduced from Anwarun Nisa Khatoon v. State of Bihar, (2002) 6 SCC 703.
  3. R.P. Kapur v. Union of India, AIR 1964 SC 787.
  4. State of Bihar v. Abdul Majid, AIR 1954 SC 245; see also Olga Tellis v. BMC, (1985) 3 SCC 545 (right to livelihood).
  5. Anwarun Nisa Khatoon v. State of Bihar, (2002) 6 SCC 703.
  6. Pradeep Kumar Goit v. State of Bihar, 2020 SCC OnLine Pat 3516.
  7. Syed Ali Qambar v. State of Bihar, 2001 SCC OnLine Pat 699.
  8. Sandhya Kumari v. State of Bihar, Patna HC, 2009 (unreported, noted in 2009 PLJR).
  9. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679.
  10. Syed Ali Qambar v. State of Bihar, supra note 7.
  11. Dr. Raman Kumar Sinha v. State of Jharkhand, 2016 SCC OnLine Jhar 2825.
  12. Jagannath Rai v. State of Bihar, 2014 SCC OnLine Pat 133.
  13. Pradeep Kumar Goit, supra note 6.
  14. Dr. Raman Kumar Sinha, supra note 11.
  15. S. S. Tiwari, “Suspension & Subsistence: Comparative Analysis of FR 53 and State Rules”, (2018) 7 Indian Journal of Service Law 45.