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2005 DIGILAW 284 (PAT)

Krishnamohan Prasad Asthana v. State Of Bihar

2005-03-11

MRIDULA MISHRA

body2005
Judgment 1. This application has been filed by the petitioner for quashing the order dated 23.5.2001 passed by the Director, Agriculture, Bihar, whereby he has refused to revise the pension, gratuity and leave encashment of the petitioner on the ground that the petitioner has failed to produce the relevant documents in support of his claim that he has passed departmental examination or in support that he was exempted from passing the examinations during his service career. 2. Petitioner being agriculture graduate was appointed on 23.5.1960 to the nongazetted post of Agriculture Inspector in the pay scale of Rs. 75-140. He was promoted in the year 1.962 as Agriculture Extension Supervisor. In the year 1961-63 he passed Hindi noting and drafting examination. He passed departmental and lower accounts examination and accordingly, was allowed to cross efficiency bar, annual increment and promotion to higher post. In the year 1968 designation of Agriculture Extension Supervisor was changed to Block Agriculture Officer. As-such, the designation of the petitioner was also changed as Block Agriculture Officer. The pay scale of Block Agriculture Officer was Rs. 230-450 and the pay of the petitioner was fixed on 20.1.1973 in the pay scale of Rs. 400-650 at a basic pay of Rs. 615/- in terms of recommendation of Third Pay Revision Committee. In the year 1975 the petitioner reached top of the pay scale of Rs. 400- 650. On 12.2.1977 he was deputed to State Bank of India and remained there still 31.5.1982. While on deputation he was promoted in Bihar Agriculture Subordinate Service Category-l (Agronomy) in the pay scale of Rs. 415-745 with effect from 13.8.1977. On this promotion the service book of the petitioner was sent to the Agriculture Department for fixation of his pay in the scale of Rs. 415-745 but it could not be done as service book of the petitioner was destroyed/burnt in an incident of fire. Petitioner continued to receive his salary in the pay scale of Rs. 400-660 was deprived of the benefit of his promotion throughout, given thereafter. In spite of repeated requests the service book of the petitioner was not reconstructed and his pay fixation was also not done. Petitioner was given promotion to the post of Bihar Agriculture Service Class II in the pay scale of Rs. 400-660 was deprived of the benefit of his promotion throughout, given thereafter. In spite of repeated requests the service book of the petitioner was not reconstructed and his pay fixation was also not done. Petitioner was given promotion to the post of Bihar Agriculture Service Class II in the pay scale of Rs. 510-1155 (Annexure-6) but in absence of service book the pay of the petitioner again could not be fixed in its scale and he continued to receive salary in the scale of Rs. 400-660. On the basis of Fourth Pay Revision with effect from 1.4.1981 the pay scale of the petitioner- was revised to Rs. 1000-1820. But again the benefit of this revision in the pay scale was not given to the petitioner. In March, 1982 the service of the petitioner was repatriated to parent department wherefrom he was again deputed to Rural Development and Panchayati Raj Department, Govt. of Bihar. On 10.4.1982 he was posted as Block Development Officer, Mahaddinagar, Samastipur. In the year 1984 again his service was repatriated to his parent department i.e. Agriculture Department. In the year 1986 he was posted as Project Executive Officer, Piro. Petitioner requested the Agriculture Department to issue his pay slip in the pay scale of Rs. 1000-1820 with effect from 1.10.1980. The Agriculture Department ignored the request of the petitioner. The Finance Department issued pay slip by fixing petitioners pay at the initial basic pay of Rs. 1000 from 1.10.1980. In the meantime, by Fifth Pay Revision Committee pay scale of Rs. 1,000-1820 was revised to Rs. 2200-4000. Accordingly, pay of the petitioner was fixed at initial basic pay of Rs. 2200 ignoring the non-fixation of his pay in the pay scale of Rs. 415-745 and 510-1155 on account of promotion in the pay scale of Rs. 1000- 1820 and 2200-4000 on the basis of pay revision. However, petitioner was granted annual increment for the year 1986 to 1989 and his pay was fixed at a basic pay of Rs. 2500/- with effect from 23.5.1989. The annual increment of the petitioner was illegally withheld from May, 1990 and he was allowed to draw his salary at the basic pay of Rs. 2500 up to May, 1995. Petitioner was again repatriated to Agriculture Department. From the month of June, 1995 till December, 1995 he was waiting for posting. 2500/- with effect from 23.5.1989. The annual increment of the petitioner was illegally withheld from May, 1990 and he was allowed to draw his salary at the basic pay of Rs. 2500 up to May, 1995. Petitioner was again repatriated to Agriculture Department. From the month of June, 1995 till December, 1995 he was waiting for posting. He was not paid his salary from June, 1995 to December, 1995. Petitioner retired on 31.12.1999. 3 When after several representations the grievance of the petitioner regarding non-fixation of his pay on account of promotion/pay revision, arrears of difference of salary thereof, arrears of salary from June, 1995 to December, 1995 and retiral dues were not paid then he filed C.W.J.C. no. 3306 of 1998. This writ application was disposed of by order dated 18.8.1993 with a direction to the respondents to decide and dispose of the representation of the petitioner dated 25.2.1998 and the amount found due should be paid to him within one month from the date of disposal of the representation. By order dated 17.6.1999 the period for waiting for posting was regularised. Pension and gratuity of the petitioner was sanctioned without fixation of salary. Thereafter, petitioner filed M.J.C. no. 2584 of 1999 which was disposed of by order dated 6.4.2000 with a direction to ensure payment of arrears of salary, leave encashment, group insurance amount immediately and for fixation of pension/gratuity, leave encashment a mount, G.P.F. by 30.5.2000 with penal interest @ 5% p.a. Thereafter, pension of the petitioner was fixed on the basis of basic pay of Rs. 2500/- but gratuity was fixed at a reduced basic pay of Rs. 2200/- and leave encashment at a basic pay of Rs. 2200/-. which was paid to the petitioner. Arrears of salary was also fixed at basic pay of Rs. 2200/- Group Insurance amount was paid. G.P.F. amount was paid for a certain period. Since the order was not complied in its true spirit, as such, petitioner filed M.J.C. no. 2270 of 2000. In this M.J.C. application show cause has been filed by the Joint Commissioner, Provident Fund, and admitted that G.P.F. amount from May, 1960 to October, 1962, May, 1964 to July, 1967 and September, 1972 to August, 1976 has not been paid for want of TV. numbers. 2270 of 2000. In this M.J.C. application show cause has been filed by the Joint Commissioner, Provident Fund, and admitted that G.P.F. amount from May, 1960 to October, 1962, May, 1964 to July, 1967 and September, 1972 to August, 1976 has not been paid for want of TV. numbers. The Accountant General, Bihar, had informed the Agriculture Department that in absence of service book pension/gratuity of the petitioner has not been revised. The Director, Provident Fund, informed the Agriculture Department that in absence of T.V. numbers G.P.F. for the said period cannot be released. The Accountant General, Bihar, accepted that only 90% provisional pension and final pension have been fixed on the basis of basic pay of Rs. 2500/- and due to nonavailability of service book, the pay of the petitioner could not be fixed. The Agriculture Production Commissioner also filed a show cause annexing therein the order dated 23.5.2001 (Annexure-1) stating that pension, gratuity and leave encashment of the petitioner cannot be revised on the ground that the petitioner in his representation dated 15.5.2000 has informed that he is not in possession of relevant documents with regard to passing of departmental examination and exemption from examination. This order has been challenged by the petitioner in the present writ application. 4. Counter-affidavit has been filed by Director, G.P.F., Pant Bhawan, Patna, (Respondent no. 5). In the counter-affidavit it has been admitted that since the deduction statement of G.P.F. for the month May, 1960, October, 1962, May, 1964, July, 1967, November, 1972 and August, 1976 have not been made available even after correspondences, as such, his office is not in a position to authorize the petitioner to take payment of the G.P.F. claim for the referred period. It has further been stated that as soon as the statement of deduction for this period is received, petitioner will be paid his G.P.F. claim without any delay. It has been stated that unless the account for the period is prepared on the strength of duly certified statement of accounts, respondents are not in a position to make payment to the petitioner. From this counter-affidavit it is apparent that though petitioner has retired in the year 1995, still his G.P.F. amount for some specified period remains unpaid. 5. Secretary, Finance Department, Govt. of Bihar, Patna, (Respondent no. From this counter-affidavit it is apparent that though petitioner has retired in the year 1995, still his G.P.F. amount for some specified period remains unpaid. 5. Secretary, Finance Department, Govt. of Bihar, Patna, (Respondent no. 4) has also filed a counter-affidavit wherein it has been stated that the service book and service records of the petitioner are not available with Administrative Department which is apparent from the letter no. 2193 dated 27.2.1988 (Annexure-A). Petitioner did not submit requisite papers and documents, as such, the matter regarding fixation of pay was pending with the Administrative Department. So far personal claim fixation cell is concerned, it has nothing to do with the petitioners scale. 6. Agriculture Department, which is the parent department of the petitioner, has also filed a counter-affidavit wherein it has been stated that the request regarding the claim of the petitioner with regard to refixation of salary, in pursuance of the direction of the Hon ble Court, was made to the Finance Department for issuance of revised pay slip in favour of the petitioner. The said request was replied by the Finance Department stating that increments are payable only after passing the departmental examination by the petitioner. The finance department asked for the relevant certificate from the department of agriculture. Thereafter, petitioner was requested to furnish relevant certificate regarding passing of departmental examinations repeatedly for fixation of pay of the petitioner but it was not made available. As per provision laid down in the circular regarding exemption from departmental examination issued by the Personnel and Administrative Department, the order of exemption will be effective from the date of issuance of the order. Thus, only those who are in service will be granted exemption. Petitioners case cannot be considered for exemption as he has already retired. Since the petitioner has failed to produce any document showing that either he was exempted torn passing examination or he had already passed departmental examination as well as Hindi Noting and Drafting examination, he is not entitled for increment. So for claim for promotion of the petitioner to the post of Bihar Agriculture Subordinate Service Category-I (Agronomy) as well as ClassII are concerned, these were paper promotions and were granted to the petitioner provisionally on ad hoc basis for six months only. Once the petitioner was not found entitled for annual increment, the question of promotion does not arise automatically. 7. Once the petitioner was not found entitled for annual increment, the question of promotion does not arise automatically. 7. Petitioner has filed reply to the counter-affidavit filed by respondent nos. 1, 2 and 3 i.e. Agriculture Department wherein it has been stated that in earlier writ application as well as in the M.J.C. no. 2584 of 1999 the then Agriculture Director, Sri Amir Subhani, had accepted before this Court that pension, gratuity and leave encashment of the petitioner is to be revised on the basis of refixation of pay and on refixation, appropriate revised sanction order will be issued. On this submission, the Hon ble Court disposed of M.J.C. no. 2584 of 1999 vide order dated 6.4.2000 and direction was issued to the Director, Agriculture, to ensure payment of arrears of salary, leave encashment amount and group insurance amount immediately which had already been sanctioned and to take steps for revision of pension, gratuity and leave encashment and to issue necessary sanction order. Now the Agriculture Department has changed its stand that the promotion given to the petitioner was only a paper transactions. It was only for provisional basis for six months and since the petitioner has not cleared the departmental examination, as such, he is not entitled to all these. This statement made by the respondents is against the record. The ground of non-passing of the departmental examination was not taken by the respondents. Now the respondents have come out with a new case though the petitioner has stated in specific terms in the writ application that while functioning on the post of Agriculture Extension Supervisor, he has passed Hindi Noting and Drafting examination, Lower Accounts examination and Agronomy examination which was recorded in his service book. Petitioner was granted increment and allowed to cross efficiency bar as well as granted promotion on the basis of his passing examination. In the year 1968 he was given promotion, time to time his pay scale was also revised but only for want of service book of the petitioner his fixation of pay in the promotional scale was not done and now after so many years the respondents just to cover laches on their part trying to deprive the petitioner from getting his legal dues. They are refusing to revise his scale, pension gratuity, leave encashment and arrears of salary, This is highly arbitrary on the part of the respondents. 8. They are refusing to revise his scale, pension gratuity, leave encashment and arrears of salary, This is highly arbitrary on the part of the respondents. 8. Considering the counter-affidavit filed by different respondents, statement made by the petitioner in the writ application as well as rejoinder and also the submissions advanced by the parties, I find that in para 4 of the writ application, petitioner stated in specific words that he has passed all necessary departmental examinations. This statement made by the petitioner has not been denied by respondent nos. 1 to 3 i.e. Agriculture Department or by respondent no. 4 i.e. the Finance Department. Simply they have stated that the petitioner failed to produce any certificate snowing that either he has passed the departmental examination or that he was exempted from passing the departmental examination. Considering the fact that the petitioner has already cleared all departmental examinations, there is no question of any exemption from appearing in the examination. This fact was admitted by respondents that service book of the petitioner was burnt in an incident of fire. If the petitioner had passed and cleared Hindi Noting and Drafting Examination and other Departmental Examinations in the year 1963 itself, and thereafter, different increments and promotions have been given to him, it must have been entered in his service book. It has been admitted by the respondents that petitioner was given promotion but now after so many years respondents have stated that it was only a paper promotion and it was on provisional basis. They have not annexed any document showing that the promotion which was given to the petitioner was either cancelled or held to be illegally given to him. Respondents in their counter-affidavit have also not stated that the petitioner was not given different promotions in different scales. If the statement made by respondents are admitted, in that case also, in the entire service career petitioner is at least entitled for two promotions i.e. first time bound promotion after completion of ten years of his service and second time bound promotion after completion of 25 years of service. 9. If the statement made by respondents are admitted, in that case also, in the entire service career petitioner is at least entitled for two promotions i.e. first time bound promotion after completion of ten years of his service and second time bound promotion after completion of 25 years of service. 9. Considering the fact that respondents have admitted that the service book of the petitioner was burnt, I am unable to accept the statement made by respondents in their counter-affidavit and refusing the claim of the petitioner simply on the ground that the petitioner could not produce any document in support of his claim that he has passed his departmental examinations. This is for respondents to show that he has not passed departmental examinations. Respondents are liable to maintain the service records of its employees as they are the custodians of the records. Petitioner cannot be denied earnings of his whole service on account of negligence and laches on the part of the respondents. 10. Considering all these facts, order dated 23.5.2001 contained in Memo no. 1702 (Annexure-1) issued under the signature of Director, Agriculture, Bihar, Patna, whereby petitioners case with regard to the revision in pension, gratuity and leave encashment after fixation of his pay on different promotional posts by granting annual increments has been rejected, is quashed. Respondents are directed to allow the benefits to the petitioner as the petitioner has stated in specific terms that he has passed departmental examinations which have not been denied by the respondents. Respondents are further directed to make entire payment to the petitioner within a period of three months from the date of production/ communication of a copy of this order. They are also directed to fix the pension, gratuity and leave encashment of the petitioner in the revised scale after fixation of pay scale of the petitioner in different promotional posts as well as granting annual increments. 11. With this observation/direction this application is disposed of.