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Jharkhand High Court · body

2009 DIGILAW 1396 (JHR)

Syed Qadir Karim v. State of Bihar

2009-11-07

D.G.R.PATNAIK

body2009
JUDGMENT Heard the learned counsel for the petitioners and learned counsel for the Respondents. 2. The grievance of the petitioners, in this writ application, is that though by a Notification vide Memo No. 34, dated-12.01.2007, issued by the Member Secretary, Bihar State Pollution Control Board, Patna (Respondent No. 3) (hereinafter to be referred in short as ‘B.S.P.C.B.’) the benefits of the grant of first A.C.P. has been extended to the petitioners but the scale has been fixed at a lower rate than what the petitioners had actually deserved. 3. The petitioners have prayed for issuance of a direction to the Respondent Nos. 2 and 3, namely, the Chairman, ‘B.S.P.C.B.’, and the Member Secretary, ‘B.S.P.C.B.’ to grant the benefits of the first A.C.P. to the petitioners in the pay-scale of Rs.5,000-8,000/-and a similar direction to the Respondent Nos. 4 and 5, namely, the Chairman, Jharkhand State Pollution Control Board and the Member Secretary, Jharkhand State Pollution Control Board to grant the benefits of the 02nd A.C.P. to the petitioner No. 1 in the pay-scale of Rs.6500-200-10,500/-. 4. The petitioners were appointed on the post of Typists by the ‘B.S.P.C.B.’ in the year 1980 and 1987 respectively. The petitioner no. 1 is presently working in the regional office of the Jharkhand State Pollution Control Board, Hazaribagh while the petitioner No. 2 is working in the regional office of the Jharkhand State Pollution Control Board, at Tupudana, Ranchi. 5. In absence of any separate Service Rules for the employees of the ‘B.S.P.C.B.’, a decision was taken and a Notification issued by the ‘B.S.P.C.B.’, declaring that the conditions of service as applicable to the employees of the State Secretariat shall be applicable to the employees of the ‘B.S.P.C.B.’ 6. Extending identical benefits, a Notification was issued by the ‘B.S.P.C.B.’, on 12.01.2007 (Annexure-2), declaring thereby that the A.C.P. benefits as declared by the State Government to its employees, would also be extended to the employee of the ‘B.S.P.C.B.’ 7. It is informed that though the petitioners are working within the State of Jharkhand and though the Jharkhand State Pollution Control Board has also been constituted but in absence of a cadre bifurcation by the Central Government under the provisions of Section 72 (2) of the Bihar Re-organization Act, the ‘B.S.P.C.B.’ continues to be the controlling authority of the petitioners and similarly situated other employees of the Board. 8. 8. Learned counsel for the petitioners submits that the scale of pay as has been extended to the Typists working in the State Secretariat, has been fixed at Rs.5,000-8,000/-upon extending the benefits of the first A.C.P. and since the service conditions of the petitioners are guided by the service conditions of the State Government employees, the same scale of pay upon grant of the first A.C.P. benefits, should be extended to the petitioners. Referring to the case of a co-employee, namely, Arjun Prasad Singh, who was also initially appointed under the Respondent-‘B.S.P.C.B.’ as Typist, the petitioners contend that he has been granted promotion to the post of the Section Officer and has been given the benefit of the higher pay-scales of Section Officer. 9. Counter affidavit has been filed on behalf of the Respondent-‘B.S.P.C.B.’ 10. Learned counsel for the ‘B.S.P.C.B.’ would explain that as stated by the learned counsel for the petitioners, the ‘B.S.P.C.B.’ continues to be the controlling authority of the petitioners. Even though, the service conditions applicable to the employees of the State Secretariat have been made applicable to the employees of the ‘B.S.P.C.B.’, but the ‘B.S.P.C.B.’ does not have authority to fix the pay scales of its employees. Learned counsel explains that although the ‘B.S.P.C.B.’ has got the authority to create as many posts as is required but if any post carries a salary of more than Rs.2500/-per month, the prior approval of the State Government is required. The post of Typist though had initially carried a scale below Rs.2500/-and for which no prior approval of the Government was required at the initial stage but in due course, after pay-revision, the amount of salary has considerably increased and it is the State Government, which has now the authority to fix the scales for the Typists and in this view of the matter, the State Government, for extending the benefits of the first A.C.P. has also fixed pay-scales of Typists, which has been mentioned in the Schedule to the Notification, issued by the Finance Department, as stipulated in the Bihar State Employees conditions of service conditions (“ Assured career progression Scheme”) Rules, 2003. Learned counsel explains further that for the ‘B.S.P.C.B.’, the only post of Typist has been created and as many as 16 such posts of Typists have been approved by the State Government. Learned counsel explains further that for the ‘B.S.P.C.B.’, the only post of Typist has been created and as many as 16 such posts of Typists have been approved by the State Government. The State Government has not fixed any hierarchy in the post of Typist with any higher pay-scales other than what has been originally stipulated. Learned counsel explains further that though by virtue of the Finance Department Notification, dated-25.06.2003, the benefits of the Assured Career Progression has been extended to the employees by way of Schedule to the Notification as stipulated in the Bihar State Employees conditions of service conditions (“Assured career progression scheme”) Rules, 2003; but the Scheme as envisaged therein, declares that as per Clause 2, the financial progression shall be sanctioned to the concerned employee into pay-scale of the existing hierarchy prescribed for his cadre and for this purpose, the relevant scales of pay would be the scales of pay sanctioned for various posts vide the Finance Department Resolutions. Wherever the promotional hierarchy is not defined in the recruitment/Service conditions or where the promotional hierarchy consists of less than two regular promotional Grades, the two financial progression shall be given under the A.C.P. Scheme in the higher scales of pay as listed in the Schedule appended to the Rules. Learned counsel explains that since there is no promotional hierarchy in the post of Typists, yet by application of the provisions of the Scheme, the benefits of the first A.C.P. has been extended to the petitioners up to the permissible limit and accordingly, they have been given the scale of Rs.4,500-7,000/-. The benefits of the second A.C.P. would extend up to the scale of Rs.5,000-8,000/-and not any further. The petitioners have been duly given the benefits of the first A.C.P. in the scale of Rs.4,500-7,000/-and amongst the employees who have earned the eligibility for the grant of the second A.C.P. they shall be entitled to the scale of Rs.5,000-8,000/-. Learned counsel submits further, that in absence of any further guideline or direction given by the State Government enhancing or revising the scales of pay of Typists, the Respondents-‘B.S.P.C.B.’ cannot possibly be called upon to pay any higher scale of pay to the petitioners beyond what has been stipulated and limited for them. Learned counsel submits further, that in absence of any further guideline or direction given by the State Government enhancing or revising the scales of pay of Typists, the Respondents-‘B.S.P.C.B.’ cannot possibly be called upon to pay any higher scale of pay to the petitioners beyond what has been stipulated and limited for them. Referring to the instance cited by the petitioners to the case of Arjun Prasad Singh, learned counsel would explain that though the said employee was initially inducted in service as Typist but later, he had opted for the post of Assistant and had appeared at the prescribed tests and proved himself successful for the post and upon being granted the post of Assistant, he had occasion to rise in the hierarchy. The same circumstances are not applicable in the case of the petitioners although, the petitioners also have the privilege of opting for the post of Assistant and competing at the prescribed examinations. 11. Having heard the learned counsel for the parties and considering the facts of the case, I find force in the arguments advanced by the learned counsel for the Respondents-‘B.S.P.C.B.’ In absence of any promotional hierarchy for the post of Typist and in view of the pay-scale fixed for the Typists for the purposes of A.C.P. Scheme, the Respondent-‘B.S.P.C.B.’ has no option but to abide by the scale as prescribed by the State Government. It is true that the service conditions of the employees of the State Secretariat, have been made applicable to the employees of the ‘B.S.P.C.B.’, but at the same time, the petitioners have to reconcile to the fact that having known that there is no promotional hierarchy for the post of Typist, they have opted for the post and have, therefore, to be guided by the Rules made applicable for them. 12. The claim of the petitioners on the basis of some Notification issued by the Jharkhand State Pollution Control Board, fixing a higher scale of salary for the employees of the State Pollution Control Board, upon grant of the first and the second A.C.P. benefits, cannot possibly be held binding upon the ‘B.S.P.C.B.’ in the case of the petitioners, since admittedly, the ‘B.S.P.C.B.’, continues to be the controlling authority of the petitioners. 13. 13. Under the aforesaid circumstances, since the petitioners continue to remain to be governed by the ‘B.S.P.C.B.’, it would be for the State Government of Bihar to reconsider the revision of the pay-scales for the post of Typist for the purposes of implementing the A.C.P. Scheme to the Typists employed under the ‘B.S.P.C.B.’ If in due course, upon the cadre bifurcation, the services of the petitioners are finally allocated to the Jharkhand State Pollution Control Board, then the petitioners would be at liberty to demand all such benefits of enhanced pay-scales as claimed to have been already declared by the Jharkhand State Pollution Control Board for its employees. 14. With these observations, this writ application stands disposed of. 15. The petitioners would be at liberty to submit their representation before the concerned authorities of the State of Bihar for reconsideration of the fixation of the pay-scales for extending the benefits of the first A.C.P. Scheme to them.