Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 2316 (PAT)

Kumari Kiran Jaiswal v. State of Bihar

2010-10-08

body2010
ORDER I.A. No.5388 of 2009 This I.A. has been filed by one Barun Kumar Singh. He has claimed that he is identically situated vis-a-vis writ petitioners and is also affected by the impugned Annexure-1. Therefore, he prays to allow him to be added as writ petitioner along with the main writ petitioners. The I.A. is allowed and the said Barun Kumar Singh is directed to be treated as one of the writ petitioners in the main writ application. 2. Petitioners have filed this writ application challenging memo no. 68 dated 20.04.2005 (Annexure-1) containing an office order, by which, while correcting the terms and conditions of the appointment of the petitioners, as stipulated in the original appointment letters, the same have been held to be applicable from the date of issuance of the said memo only. They have further prayed for quashing of the letter no. 406 dated 18.04.2008, a follow-up letter of the respondent Director, Secondary Education, annexed along with Annexure-1, and also further order of the Director contained in letter no. 13/06-93 dated 09.03.2009, which has been issued in the light of the first said correction order' contained in memo no.68 dated 20.04.2005. 3. The case of the petitioners, as appears from the records, is that on 24.12.1991 an advertisement was published in the daily newspaper inviting applications for appointment of Instructors as well as Laboratory Assistants in the +2 schools of the State Government under vocational courses. The names of the vocational courses were mentioned in the advertisement itself. The advertisement did not mention that either the appointment was for one year or was to be made on fixed pay of the initial stage of the admissible scale. The advertisement only mentioned that applications are invited for appointments of the said posts. 4. Petitioners applied, were selected and appointed by Annexure-4 series. Although there was nothing in the advertisement, but in the appointment letters of the Instructors it was stipulated that they were being appointed at the initial stage of pay scale of Rs.1500-2750, at Rs.1500 with admissible allowances at that stage for financial year 1993-94 subject to extension of their services. Similarly, in the appointment letter of Laboratory Assistants it was stipulated that they were being appointed at the initial stage of the pay scale of Rs.1400-2600, at Rs.1400/- for financial year 1993-94 only subject to extension of their services. 5. Similarly, in the appointment letter of Laboratory Assistants it was stipulated that they were being appointed at the initial stage of the pay scale of Rs.1400-2600, at Rs.1400/- for financial year 1993-94 only subject to extension of their services. 5. It is not in dispute that thereafter petitioners have continued uninterruptedly. The Headmasters of the respective schools, who were drawing and disbursing authorities, prepared their pay bills in the scale and not at the fixed pay and petitioners got their pay in the scale with increments etc. as admissible. With the introduction 'of revised pay scale, the petitioners were allowed replacement scale also and according to it, their pay was fixed in the replacement scale as appearing from Annexure-16 series. Petitioners were getting their pay in the revised scale with increments etc. as regular employees. However, the said office order of the Director, Secondary Education, as contained in Annexure-1, has been issued by way of correction in the original appointment letters. By this correction order the stipulations made in the appointment letters in respect of the fixed pay at the initial stage of the scale and the appointment only for 1993-94 were removed and replaced by the stipulations that they were being appointed in the admissible scale with allowances as admissible from time to time. The amendments made in the appointment letters by this impugned Annexure-1, may be reproduced herein below:- Deleted <span class="Hfont">^^ izkjfEHkd Lrj 1500@& ds fu;r osru^@izkjfEHkd Lrj 1400@& ds ekfld ^,oa^foR rh; o”kZ1993&94 rd ds fy,^ Substituted <span class="Hfont"> O;kolkf;d f’k{kk varZxr fu;qDr lHkh dfEkZ;ks dks fofgr osrueku ,o le; ≤ ij vuqekU; HkRrs ns; gksxsaA ^ 6. Thus, obviously, by this amendment made in the appointment letters, petitioners were deemed to be appointed in the prescribed pay scale with allowances as admissible from time to time without any time limit. What hurts the petitioners is the stipulation made in paragraph 3 of the said office order, wherein it has been mentioned that this correction will be applicable from the date of issue of this office order. This stipulation in this impugned letter puts the petitioner at the initial stage of the respective scale of pay on 20.04.2005 with admissible allowances. 7. This stipulation in this impugned letter puts the petitioner at the initial stage of the respective scale of pay on 20.04.2005 with admissible allowances. 7. Counter affidavit has been filed and learned counsel for the respondents has made an attempt to defend this condition in the impugned office order on the ground that in the initial appointment letter, the petitioners were clearly appointed on fixed pay at the initial stage of the scale for one year only and, therefore, the Headmasters, of the schools were not authorized or legally empowered to prepare their pay bills in the scale and allow them revision' of scale. Although he concedes that the revision of the scale may be allowed to the petitioners, but he submits that, in view of the fact that the appointment of the petitioners was on fixed pay at the initial stage of scale, they were, in fact, not entitled to revision of the scale also as the same was introduced by the Government for regular employees only, as evident from the Gazette Notification, Annexure-17 itself. 8. If the submission of learned counsel for the State is accepted then in that case the revision of pay scale of the petitioners was also bad. But the question is whether the amendment which is being sought to be made by the impugned office order contained in the said memo dated 20.04.2005 in the appointment letters of the petitioners itself can be held to be validly made applicable from the date of issue of order only and not from the date of issue of appointment letters themselves. Annexure-2 the advertisement issued for appointment clinches the issue. There is no stipulation in the advertisement that the appointment was sought to be made for one year only and at a fixed pay at the initial stage of the prescribed scale. The advertisement simply mentions that applications were sought for appointment on the posts. This clearly gives an impression that the appointments were contemplated to be made on the regular basis in the prescribed pay scale for the posts. Therefore, the stipulation made in the appointment letters that the petitioners had been appointed on fixed pay at the initial stage of the scale and for one year only, was clearly contrary to the terms and conditions of the advertisement. Therefore, this correction was rightly made by the Director by the impugned memo no.68 dated 20.04.2005. Therefore, the stipulation made in the appointment letters that the petitioners had been appointed on fixed pay at the initial stage of the scale and for one year only, was clearly contrary to the terms and conditions of the advertisement. Therefore, this correction was rightly made by the Director by the impugned memo no.68 dated 20.04.2005. Once correction is made in the appointment letters, it clearly shows that the initial stipulation made in the appointment letters itself was accepted as not correct and contrary to the terms and conditions of the advertisement on which the petitioners were sought to be appointed in the process of appointment. If that position is accepted then paragraph 3 of the said impugned office order becomes arbitrary and mala fide. If the initial terms and conditions for appointment is being sought to be amended in the appointment letter itself, obviously the same has to be applied from the date of appointment itself and not from the date of issue of the office order. In the circumstances, this Court finds that the grievances of the petitioners are genuine and justified. 9. In the circumstances, paragraph 3 of the said impugned office order contained in memo no.68 dated 20.04.2005 is hereby quashed. It is held that the corrections made in the appointment letters by the said memo no.68 dated 20.04.2005 shall be applicable from the date of issue of appointment letters themselves. Obviously, the consequences will follow and all orders for recovery of the excess pay etc. pursuant to the said condition put in the said memo no.68 dated 20.04.2005 shall stand quashed. The respondents will take steps for fixation of the pay scales of the petitioners, revise pay scales and increments treating the said corrections to have been made in the appointment letters from the dates of their issue itself. The writ application is allowed.