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2001 DIGILAW 1120 (PAT)

Zubair Ahmad v. Bihar State Hoursing Board

2001-12-12

P.K.DEB

body2001
JUDGMENT P.K. DEB, J. : - The petitioner was initially appointed as Junior Accounts Clerk on 7.7.1960 in the Housing Board. On creation of Bihar State Housing Board on 1.9.1972, the petitioner's service alongwith others in the State Housing Department were placed at the disposal of the Bihar State Housing Board and accordingly the petitioner also started serving under the Bihar State Housing Board but he remained definitely under the service Roll of the State Government and according to the petitioner, he was entitled for, grant of retrial benefits and pensional benefits as per Bihar Pension Rules. On 23.9.1974 the petitioner was promoted from the post of Junior Accounts Clerk to the post of Senior Accounts Clerk and his pay was fixed under that scale. On 5.3.1996 the petitioner was posted Incharge Accountant at Darbhanga when the petitioner was found to be entitled to first and second time bound promotions of completion of requisite years of service on 23.2.1990 the petitioner was granted time bound promotions with effect from 1.4.1981 and he was further granted second time bound promotions with effect from 7.7.1985. As a consequence of the aforementioned promotions granted vide Annexure-1 to the petitioner, the petitioner started getting salary for the post of Divisional Accountant @ Rs. 2510/- and his last pay scale shows that his basic salary was received as Rs. 2510/-. According to the petitioner vide order dated 30.4.1990. The petitioner was also confirmed and was granted revised pay by the Housing Board. But the Housing Department while fixing the pension of the petitioner had construed the pay of the petitioner as Rs. 900/- per month ignoring altogether the time bound promotions given to the petitioner by the Board. The Under Secretary, Building Construction and Housing Department also issued letter as contained in Annexure-6 informing the Accountant General to the effect that the last pay of the petitioner should be fixed as Rs. 900/- per month. The petitioner vide order dated 304 1990 the petitioner was also informed accordingly vide Annexure-7. The time bound promotions given to the petitioner by the Board had been totally ignored and, as such, the petitioner's grievance is that when similarly situated persons, who had been granted time bound promotions by the Board, pay fixation has been made as per last real pay drawn by them, there cannot be any discrimination in respect of the petitioner. The time bound promotions given to the petitioner by the Board had been totally ignored and, as such, the petitioner's grievance is that when similarly situated persons, who had been granted time bound promotions by the Board, pay fixation has been made as per last real pay drawn by them, there cannot be any discrimination in respect of the petitioner. He has referred to the case of Shea Rani Devi who came up before this Court in C.W.J.C. No. 4302 of 1994 to the effect that her husband Girija Shankar Prasad although was drawing salary as per revised pay and on the basis of the time bound promotions granted, his pay fixation for purposel of pension was determined at a lower rate ignoring the time bound promotions,. This Court vide order dated 20.3.1997 allowed the case of Shea Rani Devi and asked for fixation of the pay of her late husband Girija Shankar Prasad as per the last pay drawn by him. 2. The petitioner's further grievance is that another Hardea Ojha had also, come to this Court in C.W.J.C. No. 82 of 1999 and his case has also been allowed by a Bench of this Court. The State Housing Beard has filed a counter-affidavit stating that already on the basis of last pay drawn, papers have been sent to the Housing Department for fixation of pension and gratuity thereof. But the Respondent Nos. 2 and 3 have submitted that although similarly situated persons cases have been allowed by a Bench of this Court as regard Shea Rani Devi's case in C.W.J.C. No. 4302 of 1994 but the matter had gone to in L.P.A. and L.P.A. had also been dismissed but then the department moved the Apex Court which had disposed of the matter with the following observations : - "In the facts and circumstances, of this case, we are not inclined to interfere with the impugned order. The special leave petition is, therefore, dismissed. We, however do not express any opinion on the question of law." It is further stated that in that way the case of Shea Rani Devi cannot be a binding precedent. It has already been stated that another case being C.W.J.C. No. 1993 of 1997 has been referred to the Full Bench by Relying on the case of Sheo Rani Devi. It has already been stated that another case being C.W.J.C. No. 1993 of 1997 has been referred to the Full Bench by Relying on the case of Sheo Rani Devi. But no details have been given as to on what points the matter had gone to the Full Bench. On factual aspect the petitioner's case totally fits in with the case of Sheo Rani Devi. The petitioner remained a servant of the State of Bihar and although his services have been placed at the disposal of the Board but the lien remains with the State also although no deputation allowance had been granted. The notification dated 20.9.1972 remains clear on this point. The grant of time bound promotions have been issued by the Board whether that has been approved by the State Housing Department or not is a matter between the Board and the State but the petitioner cannot suffer for any irregularity had been caused in grant of such benefit to the petitioner. It has also been held that if no misrepresentation being made by the employee he had been granted time bound promotions and afterwards any irregularity is found then also the employee cannot be deprived of grant of time bound promotions and in that way, the fixation for the purpose of retrial benefits must be made on the basis of last pay drawn. In that way, as the case of Sheo Rani had got approval of the Apex Court judgment and on factual aspect the petitioner's case is totally similarly situated, I do not find that there is any impediment in grant of retrial benefits to the petitioner on the basis of last pay drawn by him and I order accordingly. The respondents-authorities should pass sanction order on the basis of the 1st pay drawn regarding the pension of the petitioner and also other retiral benefits such as gratuity etc. Such sanction should be made within a period of five weeks from the date of presentation of a copy of this order from the side of the petitioner before Respondent No.2. The petitioner shall be entitled to statutory interest on the amounts of arrears. The sanction being received Respondent No.4, the Accountant General shall act or it and pass necessary payment order within a period of four weeks next thereafter.