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2012 DIGILAW 1012 (PAT)

Mohmudul Hasan v. State of Bihar

2012-07-24

NAVANITI PRASAD SINGH

body2012
ORDER The petitioner was a diploma holder in Veterinary Science. On 21.1.1960 he was appointed as Touring Veterinary Assistant Surgeon as a diploma holder. In terms of State Government’s resolution dated 21.1.1959 (Annexure-2), it appears that on the same post, i.e., Touring Veterinary Assistant Surgeon another class of appointees are also there, namely, the degree holders. The difference between the two workers is that the degree holders had three advanced increments and, as such, had an upgraded scale of pay. By the said resolution of the year 1959 the State Government has provided that a diploma holder having completed ten years of successful service would become eligible to the upgraded scale of pay that of a degree holder. Accordingly, the petitioner in the year 1971 upon completion of ten years of service in which he had also acquired graduate degree was granted the upgraded pay scale that of a graduate Touring Assistant Veterinary Surgeon. 2. The Fourth Pay Commission submitted its report and the Government accepted the same. In sub-clause 7 of Clause 11 of the resolution of the Government dated 30.12.1981 (Annexure-3) it is inter alia provided that the benefit of the time bound promotion should not be made available to such employees who after joining Government service for any reason are elevated to higher pay scale by promotion, merger or even upgradation. The sub-clause 7 of Clause 11 reads as follows :– “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 into the first or 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 a 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.” 3. The State Government when came to the petitioner’s case considered him to be a freshly appointed in the upgraded pay scale of the graduate with effect from 1971. 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.” 3. The State Government when came to the petitioner’s case considered him to be a freshly appointed in the upgraded pay scale of the graduate with effect from 1971. This fresh appointment being of the year 1970, it gave first time bound promotion in the year 1984 with effect from 1.4.1981 and consequently the second time bound promotion was given in the year 1995. The petitioner is aggrieved by this. 4. Sri Shivendra Kishore, learned counsel for the petitioner, submits that this is wrong. He submits that in the year 1971 he was not appointed rather he was promoted to the upgraded pay scale or higher pay scale. He was appointed in the year 1960. He then placed reliance on the resolution of the Government being numbered 4245 dated 16.7.1985( Annexure-5) to submit that promotion given prior to 1.4.1981 has not to be taken into account and, as such, the promotion he received in the year 1971 is not a promotion within the meaning of the time bound promotion scheme. Thus, having received no promotion since entering the service he would be entitled to first time bound promotion with effect from 1.4.1981 which theoretically could have been due in the year 1970 upon completion of ten years of service. The second time bound promotion would thus be due in the year 1985 after 15 years from 1970 and not in the year 1995 as the State Government has granted to him. The question thus is what is the nature and the consequence of the promotion/upgradation as won by the petitioner in the year 1971 and whether it has to be ignored in terms of the resolution of the year 1985. Mr. Shivendra Kishore, learned counsel for the petitioner, has referred to a Division Bench judgment in the case of State of Bihar Vs. Sanaullah & anr. Since reported in 2010 (2) PLJR 606 . 5. Mr. Shivendra Kishore, learned counsel for the petitioner, has referred to a Division Bench judgment in the case of State of Bihar Vs. Sanaullah & anr. Since reported in 2010 (2) PLJR 606 . 5. On the other hand, learned counsel for the State has sought to justify the action of the State stating that in fact the petitioner was appointed to the post of degree holder Touring Veterinary Assistant Surgeon from the post of diploma holder Touring Veterinary Assistant Surgeon in the year 1971 and that would be the starting point for determining the period of service. 6. Having heard learned counsels for the parties and with their consent this writ petition is disposed of at this stage itself. 7. In my view, both the learned counsels are incorrect in their submission. The arguments are contrary to the statutory provisions. So far the date is concerned, the contention is that the petitioner was appointed to the post of degree Touring Veterinary Assistant Surgeon in the year 1971 after selection. A reference to the Government Resolution of the year 1959 itself shows that upon completion of ten years of satisfactory service by a diploma holder as a Touring Veterinary Assistant Surgeon, he would be entitled to upgraded pay scale that of the graduate which is noted above was nothing but payscale started with three advanced increments. Therefore, when a diploma holder became either a graduate or had completed ten years of successful service, he comes in the category of upgraded pay scale and it is not correct to say as State submits that he is freshly appointed. It is a part of his career progression and not a fresh appointment. That being so, the starting of petitioner’s service career would not be taken from the year 1971 as the State has done but from 1960 the initial date of appointment as a diploma holder. The consequence of this is that the entire calculation of the State in so far as petitioner is concerned, is wrong. The date has to be shifted back. 8. Now coming to the argument of the learned counsel for the petitioner, he submits that this upgradation of pay scale made in the year 1971 has not to be taken into consideration as it is prior to 1.4.1981 in view of the Government resolution no. 4245 dated 16.7.1985 and the judgment of the Division Bench aforesaid. 8. Now coming to the argument of the learned counsel for the petitioner, he submits that this upgradation of pay scale made in the year 1971 has not to be taken into consideration as it is prior to 1.4.1981 in view of the Government resolution no. 4245 dated 16.7.1985 and the judgment of the Division Bench aforesaid. I am unable to accept the contention and the reason is very simple. 9. If we read the notification of the resolution dated 16.7.1985 (Annexure-5) in the first paragraph it points out the difficulty that sub clause 7 of Clause 11 of the Government resolution dated 30.12.1981 was causing. It points out that as per resolution dated 30.12.1981 vide clause II (vii) persons who got promotion or whose pay scale were upgraded as a consequence of unification of posts or merger of posts and, as such, receiving upgraded pay scales were disentitled as these were treated as promotion. The Government thus decided in 1985 (Annexure-5) that where promotion or upgradation of pay scale was made as a consequence of unification or merger or of upgradation of pay scale prior to 1.8.1981, that would not be considered as an effective promotion to deny benefits of time bound promotion scheme. To my understanding, what this notification (Annexure-5) means is where by an act of the Government for merging posts, unifying or upgrading posts, financial benefits accrued, they are not to be taken as promotion provided they are prior to 1.4.1981. But that does not mean, as in the case of the petitioner, where because of his length of service and a major achievement of obtaining a degree of Veterinary Science he became entitled to upgraded pay scale that would not be a promotion. That would surely be a promotion even though prior to 1.4.1981. That could deny him the benefits of the time bound promotion at the first stage. The distinction between the two is that in one by virtue of petitioner’s own efforts he manages to get an upgraded pay scale, that is a promotion. That is contrary to stagnation whereaas when by action of the state there is merger, unification or upgradation that should not disentitle the person because he continues on the post but State action in merging/unifying/upgradation confers some financial benefits. It must be kept in mind that time bound promotion is basically an anti stagnation scheme. 10. That is contrary to stagnation whereaas when by action of the state there is merger, unification or upgradation that should not disentitle the person because he continues on the post but State action in merging/unifying/upgradation confers some financial benefits. It must be kept in mind that time bound promotion is basically an anti stagnation scheme. 10. Now I may consider the judgment of the Division Bench (supra). The fact of that case was that as a consequence of upgradation/merger of the concerned pay scale in the year 1967, the person got a promotion. Learned single Judge and the Division Bench (supra) referring to the notification No.4245 dated 16.7.1985 (Annexure-5) held that this promotion being as a consequence of upgradation/merger of post by State and prior to 1.4.1981 should not be taken as a promotion for the purpose of the time bound promotion scheme. It did not state that any promotion granted prior to 1.4.1981 would not be taken into account, for a simple reason. This would be upgradation on the recommendation as accepted by State Government in its notification dated 30.12.1981. As noted above, the time bound promotion scheme is based on the principle of anti stagnation measure and ignoring a promotion prior to 30.12.1981 and then granting promotion subsequently would be in conflict with the scheme itself. 11. Thus, contention of Mr. Shivendra Kishore that petitioner’s promotion in the year 1971 on account of acquiring degree and 10 years of service being prior to 1.4.1981 must be ignored and cannot be accepted. That was not as a consequence of merger, unification or upgradation and simply stated it was earned and obtained by the petitioner by his own efforts. That being the first promotion, the petitioner would thus be entitled to the second time bound promotion after 25 years from the date of his original appointment and or 15 years from the date of his first promotion in the year 1971. If these principles are kept in mind, the second promotion would be 15 years from the first promotion and that would take it to the year 1986. Therefore, the petitioner would be entitled to his second time bound promotion in the year 1986 and not in the year 1995 as granted by the State. 12. Thus, the writ petition succeeds to the said extent. Therefore, the petitioner would be entitled to his second time bound promotion in the year 1986 and not in the year 1995 as granted by the State. 12. Thus, the writ petition succeeds to the said extent. Let State now works out consequential benefits and grants the same to the petitioner who has already superannuated within a period of three months from the date of receipt/production of a copy of this order before the Principal Secretary, Department of Animal and Husbandry, Government of Bihar, Patna.