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2000 DIGILAW 999 (PAT)

Raghu Bansh Singh v. State Of Bihar

2000-08-16

SUDHANSU JYOTI MUKHOPADHAYA

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Judgment S.J.Mukhopadhaya, J. 1. The petitioner who was initially appointed as Steno typist in the Agriculture Department of the State, on selection, he was appointed to the higher post of Personal Assistant (P.A.). His scale of pay was fixed, but in the initial of the scale, without giving any advantage of the earlier service rendered. The representation of petitioner having rejected, vide letter nos. 385 dated 10th June, 1991 and 402 dated 25th August, 1992, those orders are under challenge. 2. The brief fact of the case shows that the petitioner was appointed as Steno-typist in the Agriculture Department in October, 1975, wherein he was allowed Junior Selection Grade scale of Rs. 730- 1080/- with effect from 1-10.1985, by way of first time bound promotion, vide Memo No. 13323 dated 7th October, 1986. On such promotion, the pay of the petitioner was fixed at Rs. 880/-, in the scale of Rs. 730-1080/-. 3. Admittedly, the post of P.A. is a higher post in rank, scale and status. In pursuance of a special examination conducted by the Bihar Public Service Commission in 1980-81, the petitioner took part and on selection was given appointment to the post of P.A- vide Memo No. 6 dated 10th January, 1986. On such appointment to the post of P.A., the petitioner pined the higner -post on 14th January, 1986, whereinafter another order was issued on 25th February, 1988 the said order, while petitioner and others were shown to have been appointed it was mentioned that they will get the min- imum of the scale of Rs. 785-1210/-1 j.e. Rs. 785/- plus allowances. 4. At that stage, the petitioner being not happy had to move this Court in C.W.J.C. No. 4246 of 1990. The said case was disposed of on 16th October, 1990 and the Respondents were directed to decide the representation. 5. The representation was rejected and communicated vide order dated 18th June, 1991. Again at that stage, the petitioner had to move this Court again in C.W.J.C. No. 776 of 1992, when the case was remitted by Division Bench, vide order dated 28th April, 1992. It appears that the Respondents again rejected the claim, without giving specific reasons, vide impugned letter no. 402 dated 25th August, 1992. 6. Again at that stage, the petitioner had to move this Court again in C.W.J.C. No. 776 of 1992, when the case was remitted by Division Bench, vide order dated 28th April, 1992. It appears that the Respondents again rejected the claim, without giving specific reasons, vide impugned letter no. 402 dated 25th August, 1992. 6. In the counter affidavit, the Respondents have taken plea that the petitioner is not entitled for benefit in the light of Rule 78 (a) (i) of Bihar Service Code. It is only those who draw the substantive pay in the old post, on their appointment to higher grade, pay protection in terms with Rule 78 (a) (i) can be given. The stand of the Respondents is that the promotion of petitioner to selection grade scale cannot be stated to be promotion against substantive post, he having now completed three years of continuous service in the Junior Selection Grade Scale of Steno- typist. 7. The aforesaid stand on the part of the Respondents is misconceived and cannot be accepted in view of specific provisions as made under Rule 78 (a) (i), which reads, as follows : "78 (a) (1) : If he holds lien on a permanent post other than a tenure post, or would hold a lien on such a post had his lien not been suspended : (1) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of rule 89) than those attached to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post." 8. The petitioner having lien in the lower post of Steno-typist on his appointment to the higher post of P.A., as it involves assumption of duties/ responsibilities of greater importance, the petitioner was entitled to get initial pay the stage of time scale, next above his substantive pay in respect of the old post. The petitioner having granted Selection Grade scale, the cadre being common, the Respondents cannot distinguish the case on the ground that he had not completed three years in the Junior Selection Grade scale. 9. This apart, the petitioner being in the services of the State and as he was getting pay at the higher rate of Rs. The petitioner having granted Selection Grade scale, the cadre being common, the Respondents cannot distinguish the case on the ground that he had not completed three years in the Junior Selection Grade scale. 9. This apart, the petitioner being in the services of the State and as he was getting pay at the higher rate of Rs. 880/-, on his appointment to higher post, he could not have been deprived of such benefit, but the Respondents were required to grant the pay protection. 10. For the reasons aforesaid, the order of rejection cannot be held to be legal and, accordingly, letters dated 18th June, 1991 and 25th August, 1992 are set aside. 11. The case is remitted to the Respondents with direction to fix the pay of the petitioner in the scale of P.A, w.e.f. 14th January, 1986, the day the petitioner joined the post, in the light of Rule 78 (a) (i) of Bihar Service Code. On such refixa- tion, if any further amount is found due, be paid within a period of three months from the date of receipt/production of a copy of this judgment. 12. The petitioner will be also entitled for consequential benefit in the revised scale/in the promoted scale, if granted. 13. The writ petition is allowed with the aforesaid observations and directions. 14. However, in the facts and circumstances, there shall be no order, as to costs.