Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 1191 (JHR)

Bisheshwar Prasad v. State of Jharkhand

2008-10-18

D.G.R.PATNAIK

body2008
JUDGMENT : Petitioner in this writ application has challenged the order dated 4.11.1999 ( annexure 7) whereby and whereunder the provisional fixation of the pay scale of the Instructors which was fixed on giving them the benefit of Junior Selection grade at Rs. 850-1360 has been recalled and revised fixing it, vide Annexure 8, in the pay scale of Rs. 785-1210/-on the ground that the posts of Junior Instructors and Senior Instructors are two different posts . 2. The petitioner’s case, in brief, is that he was initially appointed on 16.6. 1965 as an Instructor at the ITI, Darhanga. Later on 5.9.1969, he was transferred to Ranchi and placed in the scale of pay of Rs. 335-555/-. 3. By a Circular issued by the Secretary, Department Of Labour, Employment and Training vide letter no. 3888 dated 18.12.1973, the posts of Senior Instructor and Junior Instructor were merged into one post. By resolution no. 10770 dated 30.12.1081 issued by the Finance Department, Govt. of Bihar, the employees of ITI were made entitled for two promotions and the scale of pay of Senior Instructors who were appointed before 1.4.1964 was fixed at Rs. 785-1210/-while those who were appointed after the aforesaid cut off date, were given the pay scale of Rs. 730-1080. Subsequently, vide circular issued on 11.12.1990 under memo no. 4543 by the Director, Labour Employment And Training, senior instructors were placed in the pay scale of Rs. 850-1360 which was given as the scale for the first time bound promotion. 4. By Government letter no. 2064 dated 6.8.1992 ( annexure 2) time bound promotion given to the Junior Instructors, who were already posted as Senior Instructors, was confirmed. By subsequent circular dated 27.6.1996 issued by the State Government in the Finance Department, earlier letter dated 6.8.1992 (annexure 2) was cancelled and a decision was taken thereby that the Instructors who were in service on 1.4.1981 and who were placed in the scale of Rs. 730-1080/-shall be entitled to the scale of Rs. 785-1210/-and the Instructors placed under different scales of pay were treated to be of different cadres. Being aggrieved with the aforesaid government circular dated 27.6.1996, under which the earlier scale of Rs. 730-1080/-shall be entitled to the scale of Rs. 785-1210/-and the Instructors placed under different scales of pay were treated to be of different cadres. Being aggrieved with the aforesaid government circular dated 27.6.1996, under which the earlier scale of Rs. 850-1360 which was fixed in respect of Senior Instructors on first time bound promotion was recalled, a writ application being CWJC No. 2379 of 1996R was filed by some of the aggrieved persons namely Indradeo Singh and others before the High Court. While allowing the said writ application, the High Court had directed the respondents to place the petitioners therein in the scale of Rs. 850-1360 on according first time bound promotion in the same terms as given to their counterparts . 5. Against the aforesaid order the respondents filed a review petition No. 12 of 1997 R, which was dismissed by the High Court. When the direction contained in the order passed in the said writ petition was not complied, a contempt proceeding was filed against the respondents. During the pendency of the contempt petition, the State Government issued a circular (annexure 7) dated 4.11.1999 vide memo no. 7253 declaring the post of junior instructors and senior instructors as two different posts. The present writ petition is directed against this Circular, and its corresponding order under which the petitioner’s scale of pay has been reduced. 6 Counter affidavit has been filed on behalf of the respondent State of Jharkhand, wherein the background history of the petitioner’s case has been narrated. It is stated that the petitioner on superannuation had retired from the post of Instructor from ITI, Dhanbad, on 31.1.1999 much prior to the creation of the State of Jharkhand. Earlier, with the same grievance in respect of pay anomaly, the petitioner had filed writ petitions and contempt petitions before the High Court vide CWJC No. 1698 of 2001, WP (S) No. 2854 of 2001, contempt ( C) case no. 866 of 2001, contempt ( C) case no. 670 of 2002, WP(S) no. 5262 of 2003, contempt ( C) case no. 571 of 2004 and Contempt (C) case no.645 of 2002. All the aforesaid petitions have been disposed of on 26.4.2001, 5.7.2001, 15.6.2002, 31.1.2003, 5.11.2003, 10.9.2004 and 4.12.2004 respectively. In the contempt ( C) case no. 866 of 2001, contempt ( C) case no. 670 of 2002, WP(S) no. 5262 of 2003, contempt ( C) case no. 571 of 2004 and Contempt (C) case no.645 of 2002. All the aforesaid petitions have been disposed of on 26.4.2001, 5.7.2001, 15.6.2002, 31.1.2003, 5.11.2003, 10.9.2004 and 4.12.2004 respectively. In the contempt ( C) case no. 670 of 2002, the High Court while disposing of the same on 31.1.2003 passed the following orders : “The petitioner retired from the services on 31st January,1999, i.e. much prior to creation of the State of Jharkhand. Whatever the fixation of pay and consequential benefit thereof could have been made by the competent authority of Labour, Employment and Training Department, Government of Bihar, Patna. There is nothing on the record to suggest that the petitioner moved before the competent authority of Government of Bihar. In the circumstances. I am not inclined to proceed against the authority of the Government of Jharkhand.” The petitioner thereafter filed writ petition no. WP(S) No. 5262 of 2003 which was disposed of on 5.11.2003 by the High Court with the following observations : “In the facts and circumstances, the petitioner is given a liberty to make fresh representation before the competent authority along with a copy of this order and other relevant documents. Thereafter, the competent authority of the Government of Bihar shall dispose of the same and communicate the decision to the petitioner on the address given in the representation within four months from the date of receipt of representation, in the light of the aforesaid judgment of this Court passed in WP(S) no. 2854 of 2001.” The petitioner thereafter filed a contempt Case (C ) no. 645 of 2002 which was disposed of on 4.12.2004 by the High Court with the following observation : “If the petitioner is not satisfied against one or other order or wants any declaration that he was appointed in the year 1965 and thereby entitled for benefit counting the period from 1965 onwards, may move before the appropriate forum” Further stand taken by the respondent State of Jharkhand is that the impugned order(annexure 8) has been passed on the basis of the order (annexure 7) which has not been challenged. It is further contended that in any case, since the petitioner retired in the year 1999 i.e. much prior to the bifurcation of the State of Bihar, and creation of the State of Jharkhand, his grievance, if any, should be confined against the State of Bihar only. From the statement of facts stated by the parties, it appears that the post of Junior Instructor was merged into the cadre of the Senior Instructor and a notification to this effect was issued by the State Government vide circular no. 3888 dated 1.4.1973. However, despite such merger, two different scales of pay under two different cadres continued for the Junior Instructors and Senior instructors under the revised scales of pay pursuant to the recommendations of the fourth Pay Revision Committee. The aggrieved Instructors filed writ petition being CWJC no. 246 of 1993 which was disposed by order dated 22.4.1993 with the direction to the petitioners therein to file representation before the concerned authority. The petitioners of the writ petition filed representation demanding fixation of their scale of pay at Rs. 850-1360 on giving the benefit of the first time bound promotion in accordance with the same terms as extended to their counterparts. The representation was rejected by the respondents. The order of rejection was challenged by the aggrieved Instructors before the High Court vide CWJC No. 2379 of 1996R. While allowing the aforesaid CWJC No. 2379 of 1996R by order dated 29.11.1996, this Court observed that “when two posts of junior instructors and senior instructors were amalgamated then there remained no scope to maintain two different pay sales for the same post when nature of work and qualification of employees of both the categories remained the same. Practically, after 1.4.1973, there was no scope for maintaining two pay scales. After the fourth pay revision commission report also, the same anomaly remained and perhaps the matter was not approached in its proper perspective, as such, two pay scales maintained. The pay anomaly committee also did not cure the same. After 1.4.1981, the petitioners are definitely entitled to get same pay scale as their counter parts are getting.” In view of the above position, while allowing the writ petition, this Court had directed the respondents no. 1 and 2 to give pay scale to the petitioners also equal to their counterparts in the scale of Rs. After 1.4.1981, the petitioners are definitely entitled to get same pay scale as their counter parts are getting.” In view of the above position, while allowing the writ petition, this Court had directed the respondents no. 1 and 2 to give pay scale to the petitioners also equal to their counterparts in the scale of Rs. 785-1210 and if there is revision thereafter, in the revised scale from the date they are entitled to as and when their counter parts were given. 8. In the review petition filed by the respondents the cut off date was fixed as 1.1.1986 for fixing the pay scale and payment of salary on 1.1.1986 which was the date acknowledged to be the date from which the counter parts of the petitioners in the writ petition were paid the scale of Rs. 785-1210/- 9. It appears that subsequent to the above orders, the respondent no. 4, namely the Accountant General, Bihar, Patna, issued an order dated 4.11.1999 declaring that the posts of junior instructors and senior instructors were two different posts of different cadres and as such the Instructors whose pay was fixed at Rs.730-1080 shall be fixed in Rs. 7851210/-. The claim of instructors for fixing their scale of pay Rs. 850-1360/-on getting the first time bound promotion and Rs. 880-1510 on 2nd time bound promotion was rejected. Pursuant to the above orders vide annexure 7, a corresponding letter was issued to the petitioner vide annexure 8 declaring that fixation of his pay in the scale of Rs. 850-1360 was not permissible and that his pay has been confirmed in the pay scale of Rs. 785-1210 from 1.4.1981 on being given the first time bound promotion. 10. It is apparent from the above facts and circumstances that the impugned orders (annexures 7 & 8) are in the teeth of the judgment dated 29.11.1996 passed in CWJC no. 2379 of 1996 whereby it was observed that since the post of Senior Instructors and Junior Instructors were merged into one and the same post, there is no reason for maintaining two different pay scales for the same identical posts when the petitioners’ counter parts have been given first time bound promotion at the higher scale. 11. It appears that no counter affidavit has been filed on behalf of the State of Bihar. 11. It appears that no counter affidavit has been filed on behalf of the State of Bihar. Apparently, no explanation has been filed on behalf of the respondent State of Bihar as to how and under what circumstance, the order impugned ( annexure 7) was passed declaring that the posts of Junior Instructors and Senior Instructors were two different posts under two different cadres with two separate pay scales. In the above background, the impugned orders appear contrary to the observations contained in the judgment dated 29.11.1996 in CWJC No. 2379 of 1996R. It is not explained as to how the respondents could proceed with one pay for one set of Instructors and another pay scale for their counter parts constituting another set, although consequent upon merger of the Junior and Senior instructors into one cadre, a common scale for all, according to the gradation, was earlier fixed. In the light of the inconsistencies and the anomalies exposed by the petitioner in respect of the impugned order ( annexure 7), it is manifest that the impugned order (annexure 7) was passed without taking into consideration the observation and judgment passed in CWJC No. 2379 of 1996 R. As such, the impugned order (annexure 7) cannot be sustained and is therefore hereby quashed. Consequently, the impugned order (annexure 8) which has been passed pursuant to annexure 7, is also quashed. The petitioner is declared entitled to claim and receive pay scale of Rs. 850-1360 from the date he was granted first time bound promotion. 12. It further appears that the petitioner had retired in the year 1999 prior to creation of the state of Jharkhand. The liability in respect of petitioner’s claim therefore rests squarely with the State of Bihar. The petitioner is therefore directed to file a representation before the concerned authority of the State of Bihar along with a copy of this order and within three months from the date of receipt of a copy of the representation, the respondent authority of the State of Bihar shall consider and dispose of the same in the light of the observations contained in this order, and shall effectively communicate the decision to the petitioner. With the above observation, this application is disposed of.