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2009 DIGILAW 1387 (JHR)

Bahadur Ram v. State of Jharkhand

2009-11-06

D.G.R.PATNAIK

body2009
JUDGMENT : Heard counsel for the parties. 2. Petitioner Bahadur Ram was appointed on Class-IV post as a Gardner on 01.07.1974 in the scale of Rs. 155-160/-in the Zila Parishad, Dumka and was assigned the jobs of Peon, Gardner and Office Orderly. Subsequently his services were transferred to Deoghar. 3. It appears that considering the fact that he possesses a Light Motor Vehicle/Medium Vehicle/Heavy Goods Vehicle/Road Roller Driving Licence, his services were engaged initially as a Roller Khalasi and later, from 20.11.1990 as a Roller Driver. Such services used to be taken from time to time by the orders of his superior in office at different places in course of road construction work. 4. The petitioner thereafter requested his superiors in office to grant him promotion to the post of Roller Driver. 5. The petitioner was subsequently given the benefits of junior selection grade with effect from 01.07.1984 on the scale of Rs. 375 – 480/-but he was not given senior selection grade even after more than 20 yeas of service. The petitioner submitted his representation on 11.12.2004 and subsequently, on 27.09.2004 from granting him the senior selection grade and also for his promotion to the post of Roller Driver and further, for extending the benefits of the 6th Pay Revision Committee recommendations on the ground that under the provisions of Rule 8(3) and Rule 9 of the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964, the Class-IV employees of Zila Parishad/District Board are entitled to and are governed by the same service conditions as is applicable to the other Class-IV employees of the State Government. The petitioner’s several representations having not yielded any positive result, he has filed the present writ application with a prayer to direct the respondents to grant him the benefits of the 6th Pay Revision Committee recommendations, the benefits of senior selection grade, promotion to the post of Roller Driver and arrears of salary in the scale of Roller Driver. 6. The reliefs claimed by the petitioner are based primarily on the following grounds :- (i) That under the provisions of Rule 8(3) and Rule 9 of the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964, the petitioner is governed by the same service conditions as applicable to Class-IV employees of the State Government, including the benefits of pay revision and promotions in the higher grades. (ii) Since he was engaged to perform the job of Roller Driver ever since 1990 on various occasions, he is not only entitled to the scale of pay of Roller Driver, but he is also entitled to his promotion on the post of Roller Driver, on the basis of the requisite qualifications which he possesses. 7. A counter affidavit has been filed on behalf of the respondents. While admitting the fact that the petitioner was appointed as a Gardner by the order of the Assistant Development Commissioner-cum-Deputy Chief Executive Officer, District Board, Dumka on 01.07.1974, the respondents seek to explain that such appointment of the petitioner was made on compassionate grounds in view of the fact that his brother Bhushan Ram, who was also employed under the respondents, had died in the year 1973 and the widow namely Sudama Devya, of the deceased had submitted an application praying to appoint her brother-in-law namely present petitioner, on compassionate grounds since her son was a minor at that point of time. The appointment was made however, on the condition that the petitioner would maintain both the widow and her minor son. After obtaining his appointment, the petitioner had though abided by the condition of maintaining his widowed sister-in-law and minor nephew, but later, he stopped offering any maintenance to them. Consequently, the widow had submitted her complaint and upon receipt of such complaint and observing that the petitioner did not fulfill the conditions of his appointment, he was put under suspension by the order of the Deputy Development Commissioner on 22.12.1991 and a departmental proceeding was initiated. It is further explained that the very appointment of the petitioner on compassionate ground was found to be irregular in view of the instructions contained in State Government’s circular issued in the Department of Personnel and Administrative Reforms vide Circular dated 05.10.1991, which had superseded all the previous notifications in this regard. The circular categorically mentions that the appointment on compassionate ground shall be offered to one of the following heirs of deceased public servants namely :- (i) Wife of deceased Government Servant. (ii) Son (iii) Unmarried daughter (iv) Widow wife of the son of the deceased Government Servant. It is stated that as the petitioner did not fall in any of the above mentioned categories of legal heirs of the deceased Government Servant, his very appointment was irregular and contrary to the Government Notification. (ii) Son (iii) Unmarried daughter (iv) Widow wife of the son of the deceased Government Servant. It is stated that as the petitioner did not fall in any of the above mentioned categories of legal heirs of the deceased Government Servant, his very appointment was irregular and contrary to the Government Notification. 8. The further stand of the respondents is that the Zila Parishad is an autonomous body and as such, none of its employees can claim the same benefits equivalent to the benefits granted to the State Government employees. It is further stated that as per the circular issued by the Panchayati Raj Directorate vide Memo dated 15.03.1991, no appointment on Class-III and Class-IV posts can be made without prior approval of the Government and further, in absence of any allotment of fund and other resources to pay the salary to the Zila Parishad employees of Deoghar, the petitioner could not be sanctioned the benefits of selection grade promotion. As regards the petitioner’s claim that his services are being engaged as Roller Driver, such engagement, made purportedly by the then District engineer, is not binding upon the respondents as because no such power was vested with the District Engineer by the competent authority namely the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Deoghar. As regards the petitioner’s claim of purported right on the basis of the order of his engagement as Roller Driver passed by the Junior Engineer, District Board, Deoghar (annexure-5), it is stated that no such order of engagement of the Junior Engineer can be binding upon the respondents since the Junior Engineer, who was himself a daily wager, was not vested with any authority to issue any such order for engaging the petitioner as a Roller Driver and likewise, even a purported similar order of the District Engineer, District Board Deoghar (Annexure-6) or the Director, District Rural Engineering Organization, Deoghar (Annexure-7) are also not binding upon the respondents on the same grounds. As regards the petitioner’s claim for his promotion to the post of Roller Driver, it is stated that no post of Roller Driver has been sanctioned nor has any order been passed by any competent authority in favour of the petitioner to work as Roller Driver. As such, the question of payment of salary meant for Roller Driver or for his promotion to the post of Roller Driver does not arise. As such, the question of payment of salary meant for Roller Driver or for his promotion to the post of Roller Driver does not arise. As regards the petitioner’s claim for the grant of selection grade and for revision of his pay scale on the basis of the recommendations of the 6th Pay Revision Committee, it is stated that the petitioner cannot claim the same benefits at par with the Government servants and it is the State Government which would not only have to take a decision on the same but would also have to allot funds for payment of salary on the proposed revised pay scales. If, as claimed by the petitioner, the Deputy Development Commissioner-cum-Chief Executive Officer of any district, has been making payment to its employees as per the revised pay scales beyond the limits prescribed under the norms of Zila Parishad, then such payments are illegal and such Deputy Development Commissioners shall be liable to offer explanations for exceeding their authority. 9. The salient features which emerge from rival submissions appear to be as follows : (i) Petitioner was appointed on compassionate ground though such compassionate appointment, as per the respondents, was irregular in view of the fact that he did not fall under any of the categories of the legal heirs of the deceased Government Servant who can be entitled for appointment on compassionate ground as per Government Circular. (ii) The petitioner was appointed in Class-IV post though initially as Gardner, but his services used to be engaged for different nature of jobs including the job of Peon, Office Orderly, Roller Khalasi, and occasionally as Roller Driver. (iii) The petitioner was never formally appointed as Roller Driver by the order of the competent authority namely the Deputy Development Commissioner-cum-Chief Executive Officer. 10. As noted above, the reliefs claimed by the petitioner revolves around the issue as to whether he being an employee of the Zila Parishad, is entitled to claim parity with the service conditions of Class-IV employees of the State Government. Such claim is based on the provisions of Rule 8(3) and Rule 9 of the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964. 11. A similar issue came up for consideration before a Single Bench of this Court in the case of Raghunath Purty Vs. State of Jharkhand & Others vide W.P.(S) No. 6466 of 2005 and analogous cases. 11. A similar issue came up for consideration before a Single Bench of this Court in the case of Raghunath Purty Vs. State of Jharkhand & Others vide W.P.(S) No. 6466 of 2005 and analogous cases. The issues involved in the aforementioned cases were the same namely whether the service conditions of the employees of Zila Parishad shall be guided by the Rule in force for class-IV employees of the State Government and in this context, whether the enhancement of age of superannuation of the Government employees shall also apply to the Class-IV employees of Zila Parishads. 12. The findings of the Single Judge on the above issue is that the Class-IV employees of the Zila Parishad are entitled to the same benefits of the service condition applicable to the State Government employees. This finding was arrived at on the basis of the provisions of Rule 8(3) and Rule 9 of the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964 and the above finding of the Single Judge was affirmed by the Division Bench of this Court in the case of Raghunath Purty and Another Vs. State of Jharkhand & Others, 2007(2) JLJR 471 . 13. Admittedly the petitioner, being an employee of Zila Parishad, is guided by the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964 which governs the service conditions of Class-IV employees including that of a Peon and similar other employees. 14. The ratio as decided in the case of Raghunath Purty (supra) would squarely apply to the facts of the present case also in the light of the provisions of Sub Rule 3 of Rule 8 and Rule 9 of the Bihar Panchayat Samittee and Zila Parishad (Service Condition) Rule, 1964. 15. Under such circumstances, the petitioner being in regular service ever since the date of his appointment in the Class-IV post, would be entitled to all benefits of promotion to higher grades and the same cannot be denied to him by the respondents. Infact, it is in apparent recognition of this right that the petitioner was admittedly granted the Junior Selection Grade with effect from 01.07.1984 after ten years of his service from the date of his appointment. He would therefore be entitled to the grant of senior Selection Grade in accordance with the Rules which guide his service conditions. 16. Infact, it is in apparent recognition of this right that the petitioner was admittedly granted the Junior Selection Grade with effect from 01.07.1984 after ten years of his service from the date of his appointment. He would therefore be entitled to the grant of senior Selection Grade in accordance with the Rules which guide his service conditions. 16. As regards the contention of the respondents that the petitioner’s initial appointment was itself irregular, it is to be noted that the respondents have not pointed out any such notification/circular corresponding to the purported circular of 1991 whereby the eligibility for compassionate appointment has been limited to only specific class of legal heirs of deceased Government Servants. Furthermore, notwithstanding such purported irregularity, the respondents have not taken any action to disengage him from service by way of his termination. It has to be deemed therefore that notwithstanding the purported irregularity, the petitioner has been treated to be a permanent employee of the Zila Parishad and therefore entitled to all the benefits of a permanent employee. 17. As regards the petitioner’s claim for salary on the scale of Roller Driver and the arrears of salary on such scale, it is to be noted that though the petitioner’s service was occasionally engaged as Roller Driver, but his basic appointment continued to remain in Class-IV post and he was never appointed on the post of Roller Driver. Furthermore, in absence of any sanctioned post of Roller Driver, as contended by the respondents, and without complying with the procedure for appointment to the post of Roller Driver as laid down by the State Government vide its circular dated 16.03.1991 (Annexure-C), the petitioner cannot possibly claim his promotion/appointment to be post of Roller Driver nor can the respondents be directed to grant such benefits to the petitioner. 18. As regards the petitioner’s claim for revised pay scales on the basis of the 6th Pay Revision Committee recommendations, the contention of the respondents that it being an autonomous body, it has limited resources since limited funds are sanctioned and allotted by the State Government and the Zila Parishads are obliged to generate its own funds for payments to its employees. Furthermore, a portion of the funds on the basis of the annual budget of the Zila Parishad are to be borne by the State Government, the decision to implement the 6th Pay Revision Committee recommendation in respect of the employees of the Zila Parishad and the allotment of additional funds for payment of salary to the employees on the basis of the revised pay scales, has to be decided by the State Government in the same manner as earlier taken by the State Government with reference to the implementation of the recommendations of the 4th and 5th Pay Revision Committee, as indicated in Annexure-C to the counter affidavit. 19. Considering the above submissions and in the light of the above discussions, this writ application is disposed of with the following observations :- .(i) The respondents shall consider the petitioner’s claim for grant of senior selection grade and decide upon the same in the light of the Rules relating to the service condition of the petitioner, within two months from the date of this order. .(ii) Since the work of Roller Driver pertains to a higher post with higher pay scale, the respondents shall pay to the petitioner the officiating pay for the period his services are engaged as Roller Driver, in addition to his salary on his present regular scale of pay. Such payment shall however be with prospective effect. (iii) The respondent State Government shall consider the claim of the petitioner and other employees of the respondent Zila Parishad for extending the benefits of the 6th Pay Revision Committee recommendations and take an appropriate decision upon the same possibly within four months from the date of this order. Let a copy of this order be given to the learned counsel for the respondents.