Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 368 (PAT)

Md. Habibur Rahman Quraishi v. State Of Bihar

2007-02-19

S.K.KATRIAR

body2007
Judgment S.K.Katriar, J. 1. Both the writ, petitions have been preferred by the same petitioner. Disposal of C.W.J.C. No. 6773 of 2000 depends on the result of C.W.J.C. No. 2709 of 2000. The two writ petitions are, therefore, being disposed of by a common judgment. 2. We shall first of all deal with C.W.J.C. No. 2709 of 2000. This writ petition has been preferred with the prayer to set aside the following orders: (i) The notification dated 21.9.1999 (Annexure-2), issued under the signature of the Deputy Secretary, Department of Animal Husbandry and Fisheries, Government of Bihar, Patna, whereby the first time-bound promotion granted to the petitioner has been cancelled and payment of excess salary has been directed to be recovered; (ii) The order dated 21.12.1999 (Annexure-3), issued under the signature of the Deputy Secretary, Department of Animal Husbandry and Fisheries, Government of Bihar, Patna, rejecting the petitioners representation filed in view of the order on the petitioners earlier writ petition; (iii) The order dated 28.7.1999 (Annexure-4), from the Department of Animal Husbandry and Fisheries, to the Accountant General, for recovery of the differential amount of salary amounting to Rs. 44,997.50P. 3. According to the writ petition, the petitioner had joined the services of the Bihar Government on 16.9.1958, on a Class-Ill post of Animal Husbandry Extension Supervisor. The posts in Class-III of Block Animal Husbandry Extension Officer/Touring Veterinary Officer were declared gazetted Class II (Junior), vide notification dated 15.10.1981, in the pay-scale of Rs. 455-840/-. The cadres of Class-II (Junior), and Class-II (Senior), were merged and the superior pay-scale of the latter was made admissible to the entire combined cadre with effect from 1.1.1980, vide notification No. 958, dated 5.2.1983. The petitioner, who was a Class II (Junior) employee, started receiving the higher pay scale of Class-II (Senior) after merger. It is further stated in the writ petition that the pay-scales of all the Government servants were revised with effect from 1.4.1981, and the petitioner was also benefited. It is further stated that the first time-bound promotion was granted to the petitioner with effect from 1.4.1981, in the pay-scale of Rs. 1350-2000/- (old), which was revised to Rs. 2400-4150/-, vide notification dated 11.2.1994 (Annexure-1). The order stipulated that the promotion was provisional and was subject to modification. The pay-scale of Rs. 2400-4150/- was revised to Rs. 3000-4500/- with effect from 1.1.1996, vide Resolution No. 1153(2). dated 21.3.1991. 1350-2000/- (old), which was revised to Rs. 2400-4150/-, vide notification dated 11.2.1994 (Annexure-1). The order stipulated that the promotion was provisional and was subject to modification. The pay-scale of Rs. 2400-4150/- was revised to Rs. 3000-4500/- with effect from 1.1.1996, vide Resolution No. 1153(2). dated 21.3.1991. 3.1) The petitioner superannuated from the services of the Bihar Government, with effect from 31.12.1993, while he was posted as Touring Veterinary Officer. He preferred C.W.J.C. No. 8485 of 1995 for payment of his dues including the post-retirement benefits, which was disposed of by order dated 1.3.1996 (Annexure-5) with certain directions regarding payment of the dues of the petitioner. This was followed by the impugned notification dated 21.9.1999 (Annexure-2), issued by the Department of Animal Husbandry and Fisheries, whereby the first time-bound promotion granted to the petitioner was cancelled on the ground that he was not entitled to the same because of the merger of Class-II (Junior) and Class-ll (Senior) cadres into one. 3.2) This was followed by M.J.C. No. 2321 of 1998, which was disposed of by order dated 26.3.1999 (Annexure-6(1)], whereby the petitioner was given liberty to submit a representation before the Commissioner-cum-Secretary, Animal Husbandry Department, to be disposed of by a reasoned order. The petitioner submitted his representation which has been rejected by the impugned order dated 21.12.1999 (Annexure-3). This led to M.J.C. No. 2093 of 1999, which was disposed of by order dated 13.1.2006 [Annexure-6(ii)], whereby the petitioner was permitted to withdraw the same with the liberty to challenge the same before the competent authority/court of law leading to the present writ petition. As stated hereinabove, rejection of the representation has led to the impugned order dated 28.7.1999 (Annexure-4) to recover the amount of Rs. 44,997.50P., consequent upon cancellation of first time-bound promotion and rejection of the representation. Hence this writ petition. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submitted that the first time-bound promotion was cancelled by the order dated 21.9.1999 (Annexure-2) because of the bar created by the policy decision contained in resolulation dated 30.12.1981 (Annexure-1 to C.W.J.C. No. 6773 of 2000), which was removed by Resolution No. 4245, dated 16.7.1985 (Annexure-8), and has been overlooked by the authorities. He next submitted that the order rejecting the representation assigns a new and illegal ground in support of the impugned action, namely, the petitioner had not passed the departmental examination. He next submitted that the order rejecting the representation assigns a new and illegal ground in support of the impugned action, namely, the petitioner had not passed the departmental examination. He relies on the following reported judgments: (i) Maheshwar Prasad Singh V/s. The State of Bihar & Others, 2000 4 PLJR 262 (F.B.). (ii) Mohinder Singh Gill V/s. The Chief Election Commissioner, AIR 1978 8 SC 851. He further submitted in reply that grant of selection grade is not promotion for the purpose of time-bound promotion. He relies on the following reported judgments: (1)Lal Mani Prasad V/s. The Chairman, Bihar Public Service Commission & Others, 1998 2 PLJR 200. (ii)Dayaram Asanand Gursahani V/s. State of Maharashtra and Others, 1984 3 SCC 36 (para-17). He also submitted that the objection has been taken six years after the retirement and cannot be recovered, particularly in a situation where no fraud, misrepresentation of the like is attributable to the petitioner. He relies on the following reported judgments: (i)Gupteshwar V/s. State of Bihar, 1999 3 PLJR 572. (ii)Bhagwan Shukla V/s. Union of India, 1995 1 PLJR 6(S.C.). 5. Learned Government Pleader No. III has supported the impugned action. He submitted that the petitioner had got two superior pay-scales including that of Class-II (Senior), not being replacement pay-scales, between his initial appointment and 1.1.1980. He next submitted that the aforesaid order dated 16.7.1985 (Annexure-8) removes the bar in receiving the first time-bound promotion in a limited sense, i.e., if anomaly takes place in a given case. He submitted that, by virtue of the amalgamation/merger of the two cadres, the petitioner had already got the superior pay-scales of Class-II (Senior) cadre with effect from 1.1.1980. In his submission, no such anomaly has occurred in the present case. He has relied on the Government Circular No. 920, dated 6.3.1990, particularly Clause-3. He has also relied on the judgment reported in Sidhnath Prasad V/s. State of Bihar, 2000 4 PLJR 111 . 6. I have perused the materials on record and considered the submissions of learned counsel for the parties. It is essential to appreciate and keep in mind the features of the scheme of time-bound promotions sanctioned by the Government of Bihar for its employees with its amendments. The modification brought about by subsequent notifications would really determine the decision of this case. It is essential to appreciate and keep in mind the features of the scheme of time-bound promotions sanctioned by the Government of Bihar for its employees with its amendments. The modification brought about by subsequent notifications would really determine the decision of this case. The scheme of time-bound promotions has been introduced by the State Government to give spurt to the pay-scale enjoyed by the employee at two different stages of his career provided he has not, for example, got a promotion or a superior pay-scale (other than a replacement pay-scale). It is not applicable to an employee after he reaches a particular level of salary. The first time-bound promotion is granted after completion of ten years of service, and the second time-bound promotion is granted after completion of total of 25 years of service. It is relevant to state that it cannot be granted earlier than 1.4.1981, even if 10 years were completed prior thereto, and the money benefit would not flow earlier than 1.4.1984. The other conditions, the rules & procedures meant for usual provision should be followed in case of the time-bound system also. It is further relevant to state that, consequent upon the grant of a time-bound promotion, the employee starts enjoying the money benefits of a higher pay-scale but doesnt start discharging the duties of a superior post. It is, therefore, not a promotion in the real sense of the term and is only an enhanced monetary benefit for the stagnation that has occurred in his career. 7. It is further relevant to state that the scheme was introduced initially, and modified subsequently, by departmental instructions, and has no statutory flavour. It was initially introduced by resolution No. 10770, Patna, dated 30.12.1981 (Annexure-1 to C.W.J.C. No. 6773 of 2000), issued by the Government of Bihar in the Department of Finance, the relevant portion of which is set out hereinbelow for the facility of quick reference: "1. With regard to time-bound promotion, the Fourth Pay Revision Committee have made the following recommendations: (i) Personnel management should envisage providing at least two promotions to each and every employee in Government service, the first by the end of ten years of service and the second by the end of 25 years of service. With regard to time-bound promotion, the Fourth Pay Revision Committee have made the following recommendations: (i) Personnel management should envisage providing at least two promotions to each and every employee in Government service, the first by the end of ten years of service and the second by the end of 25 years of service. (ii) If an employee who is otherwise fit for promotion and has not been able to get a single promotion by 10 years of service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the junior selection grade at the end of the tenth year. (iii) If an employee, although otherwise found fit for a second promotion, has not been able to secure a second promotion by the 25th year of his service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the senior selection grade at the end of the 25th year. (iv) The aforesaid facilities should be extended to all employees whether they belong to any formally constituted service or cadre, or not and including employees holding isolated posts. In their case, the pay scale immediately higher than the pay scale prescribed for the basic post should be considered as the pay scale for the junior selection grade, and the pay scale immediately higher to that of the aforesaid junior selection grade should be deemed to be the pay scale for the senior selection grade. (v) The aforesaid scheme of time-bound promotion will not be applicable to services, cadre and posts of which the maximum of the pay scale of the basic grade exceed Rs. 2,000. (vi) The other canditions, the rules and procedures meant for usual promotion should be followed in case of the aforesaid time-bound system also. (vii) Since the aforesaid scheme is meant as an anti-stagnation measure, it should be applicable in case of only such employees who have not been able to get the first or the second promotion, as the case may be. In other words, the benefit of the time-bound system should be extended to those who are stagnating in the same pay scale to which they were appointed or its corresponding revised pay scale. In other words, the benefit of the time-bound system should be extended to those who are stagnating in the same pay scale to which they were appointed or its corresponding revised pay scale. The benefit should not be made applicable to such employees who, after once joining Government service have, for any reason, been elevated to higher pay scale by promotion, merger or even upgradation. This should require issue of specific orders in case of every employee which should obviously be done only after a careful examination of his service records. (viii) The aforesaid scheme is obviously not intended to deny any employee earlier promotion that comes in his favour in the usual course. 8. In view of the position that C.W.J.C. No. 2709 of 2000 sets up the claim for first time-bound promotion, we shall confine ourselves to the issues relating to the same. The scheme for the time-bound promotion was modified by the State Government by resolution No. 4245, dated 16.7.1985 (Annexure-8), which is set out hereinbelow for the facility of quick reference: Local Language In substance, it states that the State Government was finding it difficult to grant the benefit of time-bound promotion to employees who have, by any reason, been elevated to higher pay scale by promotion, merger or upgradation. Therefore, the State Government decided to remove the barrier caused by unification/merger from getting the benefit of first time-bound promotion, if anomaly does not arise. Generally speaking, the benefit of first time-bound promotion will not be denied on the ground of receipt of a superior pay-scale resulting from unification/merger of cadres, provided the first time-bound promotion was given prior to the unification/ merger, and it does not result in merger. Annexure-5 in its operation is confined to grant of first time-bound promotion. 8.1) In other words, the benefit of first time-bound promotion shall be denied to an employee who has got the benefit of a higher pay-scale consequent upon the unification/merger of cadres earlier than his entitlement, to the first time-bound promotion. 9. In the present case, the petitioner had joined the services of the Bihar Government on 16.9.1958, as a Veterinary doctor, being a Class III post. He was given the selection grade in the pay-scale of Rs. 455-840/- with effect from 1.1.1976, vide notification No. 2467, dated 22.8.1977. 9. In the present case, the petitioner had joined the services of the Bihar Government on 16.9.1958, as a Veterinary doctor, being a Class III post. He was given the selection grade in the pay-scale of Rs. 455-840/- with effect from 1.1.1976, vide notification No. 2467, dated 22.8.1977. The posts in Class-Ill of Block Animal Husbandry Extension Supervisors/Touring Veterinary Officers were declared gazetted Animal Husbandry Service, Class-ll (Junior), vide notification dated 15.10.1981. He was granted Bihar Animal Husbandry Class-ll (Junior branch) with effect from 25.4.1978. The cadres of Class-ll (Junior) and Class-ll (Senior) were merged and the entire cadre was given the pay-scale of Class-ll (Senior) of Rs. 510-1155/- with effect from 1.1.1980, vide notifcation No, 958, dated 5.2.1983. Neither replacement pay scales, nor selection grade in the same post, will come in the way of the petitioner. In so far as the latter is concerned, reference may be made to the judgment of the Full Bench in Maheshwar Prasad Singh V/s. State of Bihar (supra), that of the Division Bench in Lal Mani Prasad V/s. Chairman, B.P.S.C. (supra), and in Dayaram Asanand Gursahani V/s. State of Maharashtra (supra). However, two circumstances will come in the way of the petitioner in getting the first time-bound promotion, namely, the promotion to Bihar Animal Husbandry Class-ll (Junior branch) with effect from 25.4.1978. The second impediment is that the unification/merger of cadres had taken place with effect from 1.1.1980, prior to his entitlement to the first time-bound promotion. It is thus manifest that the petitioner was given the benefit of superior pay-scales on two occasions, between entry into service and his alleged entitlement of first time-bound promotion. It thus appears to me that the petitioner was wrongly given the benefit of first time-bound promotion by notification No. 1048, Patna, dated 11.2.1994 (Annexure-1), which also clearly stated that the promotion was provisional and could be modified at any time. Taking note of the erroneous decision, the State Government rightly modified the notification dated 11.2.1994 (Annexure-1), and recalled the benefit of first time bound promotion, vide impugned order dated 21st of September 1999 (Annexure-2 ). 10. The impugned order recalling the grant of first time-bound promotion, rejection of representation, and the consequential order for recovery of the excess payment made to the petitioner, cannot be faulted. There is no merit in C.W.J.C. No. 2709 of 2000 and is accordingly dismissed. 10. The impugned order recalling the grant of first time-bound promotion, rejection of representation, and the consequential order for recovery of the excess payment made to the petitioner, cannot be faulted. There is no merit in C.W.J.C. No. 2709 of 2000 and is accordingly dismissed. There shall, however, be no orders as to costs. 11. We shall now take up C.W.J.C. No. 6773 of 2000, which has been preferred for grant of second time-bound promotion. Learned counsel for the petitioner fairly submitted that this writ petition can succeed only if C.W.J.C. No. 2709 of 2000 is allowed, and dismissal of the latter can only result in rejection of the former. In that view of the matter, C.W.J.C. No. 6773 of 2000 is dismissed. There shall, however, be no order as to costs.