Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1376 (PAT)

Md. Naimuddin v. State of Bihar

2012-09-26

CHAKRADHARI SHARAN SINGH

body2012
CHAKRADHARI SHARAN SINGH, J.:–Petitioners have challenged the order as contained in notification No.4 dated 4.1.2003 (Annexure-10) issued under the signature of the Joint Secretary, Minor Irrigation Department, Government of Bihar, Patna, whereby, it is alleged that pay scale of the petitioners who were working as Fitter/Mechanics, has been reduced with effect from 1.4.1981 after 22 years and their pay has been fixed in the scale of Rs. 535-765 in place of Rs. 580-860 with a further stipulation that the excess payment made to them be recovered. The grievance of the petitioners is that such notification has been issued without any approval from the Finance Department and without giving them any prior notice/opportunity of hearing. 2. It is to be noted that the petitioner No.1 superannuated on 31.1.2001, whereas petitioner no.2 superannuated on 30.6.2002. 3. There are disputes over certain facts in the present case. As per pleadings in the writ application the petitioner no.1 was appointed as Helper in the year 1959, whereas petitioner no.2 was appointed as Fitter in the year 1967. Petitioner no.1 was promoted to the Post of Fitter in the year 1973 and it is alleged that both the petitioners were promoted to the post of Senior Mechanic. 4. It has been pleaded in the writ application that in the year 1974, under an agreement between the State Government of Bihar and the Bihar Water Development Corporation, (hereinafter referred to as the Corporation), the services of the petitioners were transferred from the Agriculture Department to the Corporation, maintaining all the service condition/benefits like pay, increment, leave, promotion and discipline intact. In the year 1986, vide resolution no. 4649 dated 13.8.1986, their services were taken under the Minor Irrigation Department by the State of Bihar and they were discharging the duties on the post of Mechanic in the department of Irrigation with effect from 13.8.1986. Referring to a letter issued under the signature of the Project Director, Tube well Division, Minor Irrigation Department, Govt. of Bihar issued vide memo no. 1106 dated 30.4.1988 (Annexure-1) addressed to the Chief Engineer (North & South), it is asserted that till final decision was taken in respect of payment of fixation of pay of 178 Mechanics/Fitters, they were required to be paid their salary as per the last pay certificate. It was indicated in the said letter that out of 178 post of Mechanic/Fitters, pay scale of Rs. It was indicated in the said letter that out of 178 post of Mechanic/Fitters, pay scale of Rs. 580-860 had been granted for 112 posts, whereas scale of Rs. 425-605 was granted with respect to rest 66 posts. 5. The case of the petitioners is that vide memo no. 509 dated 26.4.1990 (Annexure-2) they were granted replacement scale of Rs. 1200- 18000 in place of Rs. 580-860 on the basis of report of the Fifth Pay Revision Committee, issued by the Executive Engineer, Tube Well, Workshop and Store Division, Patna. The said office order dated 26.4.1990 (Annexure-2) is said to have been issued on the orders of the Superintending Engineer vide order no.8 dated 30.1.1990. It is their further case that on grant of first and second time bound promotion the petitioners were granted corresponding replacement scale of Rs. 1320-2040 with effect from 1.3.1989 pursuant to the Fifth Pay Revision Committee’s Report. A reference has been made to order No. 611 dated 26.4.1991 issued by the Executive Engineer, Tube Well, Workshop and Store Division, Patna, Government of Bihar pursuant to grant of second time bound promotion, whereby the petitioners are said to have been given the scale of Rs. 1400-2300 revising the earlier fixation of pay and were also granted annual increments with effect from 1989 vide letter no. 524 dated 30.8.1995 (Annexure-5) issued by the office of the concerned Executive Engineer. Name of petitioner no.1 figures at item no.8, whereas name of petitioner no.2 figures at item no.1 in the said letter. 6. In paragraph 16 of the writ application, the petitioners have contended that on the basis of the Fitment Committee Report accepted and implemented by the State Government of Bihar vide Finance Department Resolution dated 8.2.1999, revised pay scale of Rs. 4000-6000 against the post of Mechanic in the old pay scale of Rs. 1400-2300 and 1320-2040 was granted to the petitioners vide office order no. 493 dated 21.7.1999 (Annexure-6) issued by the concerned Executive Engineer. In the said order the name of petitioner no.1 figures at serial no.7 and that of petitioner no.2 at serial no.8. 7. Petitioner nos. 1 and 2 retired with effect from 31.1.2001 and 30.6.2002 respectively, while holding the post of Mechanic Central Workshop Development and Training Institute, Tube well, Division under Minor Irrigation Department, Shekhpura, Patna. In the said order the name of petitioner no.1 figures at serial no.7 and that of petitioner no.2 at serial no.8. 7. Petitioner nos. 1 and 2 retired with effect from 31.1.2001 and 30.6.2002 respectively, while holding the post of Mechanic Central Workshop Development and Training Institute, Tube well, Division under Minor Irrigation Department, Shekhpura, Patna. In view of the above facts the petitioners contend that whatever pay of the petitioners was fixed, the same was done by the officials of the State Government of Bihar. 8. The petitioners contend that the Corporation also issued an order as contained in Memo no. 968 dated 17.12.1992 (Annexure-4) in the light of Fourth and Fifth Pay Revision Committees’ Report granting the employees working under the Corporation, revised pay scale at par with the employees working in the State Government Department. It will appear from the said office order dated 17.12.1992 (Annexure-4) that such employees working on the post of Fitter were granted revised scale of Rs. 580-860 and Rs. 1200 to 1800 with effect from 1.4.1981 (Fourth Pay Revision) and 1.1.1986 ( Fifth Pay Revision) respectively. It will appear from the said office order that it was made clear that the pay was being revised in anticipation of approval from the Finance (Public Enterprise Bureau) Department, Government of Bihar. It was also made clear in the said office order that if the re-fixation in the pay as done thereunder was subsequently found to be incorrect, the excess payment made out of such re-fixation/revision shall be recovered. 9. It is the case of the petitioners that at no point of time their pay fixation was done or governed by any decisions taken by the Corporation. They have asserted that the Executive Engineer had sent the pay fixation done from time to time in respect of petitioner no.1 vide letter No. 159 dated 11.3.2002 addressed to the District Account Officer, Patna for verification and confirmation of the fixation of pay in replacement of scale and it has been asserted that the District Account Officer verified and confirmed on 16.8.2002, the fixation originally done by the Executive Engineer, according to which pay of the petitioner no.1 was fixed at Rs. 6000 with effect from 1.1.1996. 10. It appears from an order dated 31.7.2000 passed in CWJC No. 6113 of 2000 (Mathura Prasad and others Vs. 6000 with effect from 1.1.1996. 10. It appears from an order dated 31.7.2000 passed in CWJC No. 6113 of 2000 (Mathura Prasad and others Vs. State of Bihar and ors) (Annexure-9) by this Court that some Fitter/Electrician/Electric Supervisors in Minor Irrigation Department had approached this Court with a grievance that they were not being paid the appropriate scale of Rs. 4000-6000 which was earlier granted to them and was subsequently dis-allowed by an impugned order dated 29.6.2000. Their grievance was that persons similarly situated, including juniors were being provided revised pay scale of Rs. 4000-6000 but the same was denied to them. This Court by the aforesaid order dated 31.7.2000, while setting aside the impugned decision of disallowing the scale of Rs. 4000-6000, having been issued without any reason contained therein, remitted the matter back to the Secretary, Irrigation Department, Government of Bihar, with a direction to decide as to what replacement scale the petitioners would be entitled to in accordance with their designation/post, in view of the recommendation of the Fitment Committee made vide resolution issued in February, 1989. The Secretary of the Department was directed to take into consideration, whether the similarly situated persons had been paid revised pay scale of Rs. 4000-6000 or not. 11. Pursuant to the said order dated 31.7.2000 (Annexure-9) the order dated 4.1.2003(Annexure-10) has been issued which is under challenge in the present writ application. In the said order dated 4.1.2003 (Annexure-10) of the Minor Irrigation Department, Government of Bihar, it has been mentioned that for the reasons stated therein final decision of the Finance Department could not be obtained with regard to fixation of pay scale of Fitters in the department of Minor Irrigation. The order referred to the recommendation made by Finance (Public Enterprise Bureau) Department, whereby the Fitters were recommended pay scale of Rs. 535 -765 with effect from 1.4.1981; and Rs. 975- 1540 with effect from 1.1.1986. The order further refers to the office order of the Corporation dated 17.12.1992 (Annexure-4), whereby in anticipation of approval from the Finance (Public Enterprise Bureau) Department, the pay scale of Rs. 580 – 860 with effect from 1..4.1981 and Rs. 1200-1800 with effect from 1.1.1986 was granted. 975- 1540 with effect from 1.1.1986. The order further refers to the office order of the Corporation dated 17.12.1992 (Annexure-4), whereby in anticipation of approval from the Finance (Public Enterprise Bureau) Department, the pay scale of Rs. 580 – 860 with effect from 1..4.1981 and Rs. 1200-1800 with effect from 1.1.1986 was granted. The order further points out that vide notification No. 458 dated 13.8.1986 all the assets and liabilities of the Corporation merged with the Irrigation Department and in such circumstance, pay of such employees of the Corporation, whose services stood taken over in the State Government was to be fixed in accordance with the pay scale sanctioned by the Finance Department, Government of Bihar. In that view of the matter, the order of the Corporation dated 17.12.1992 was cancelled with effect from the date of the issuance of the said order, by order dated 4.1.2003 (Annexure-10). 12. The impugned order dated 4.1.2003 (Annexure-10) further refers to the recommendation of the Finance (Public Enterprise Bureau) Department with respect to pay scale of the Fitters and approved as an ad hoc measure the pay scale of the Fitters in the scale of Rs. 535-765 with effect from 1.4.1981; Rs. 975-1540 with effect from 1.1.1986. 13. The impugned order contemplates in paragraph 4 that in the light of the above, the excess payment made to different Fitters in the light of the aforesaid order of the Corporation (dated. 17.12.1992) be recovered by the competent Controlling authority. 14. The plea of the petitioners in the present writ application is that their pay was never fixed on the basis of the order of the Bihar Water Development Corporation and therefore, the application/implementation of the impugned order in their case is not permissible. 15. This is to be noted that even the order dated 4.1.2003 (Annexure-10) is not final and is an ad hoc arrangement, subject to direction from the Finance Department, Government of Bihar, in this regard. 16. A counter affidavit has been filed on behalf of Respondent no.6. It has been specifically denied in the counter affidavit that the petitioners were ever promoted as Mechanic. It has been stated in paragraph 10 of the counter affidavit that the word ‘Mechanic’ against their name was mentioned out of a clerical mistake which the petitioners are trying to use to get undue advantage which they are not entitled to. It has been specifically denied in the counter affidavit that the petitioners were ever promoted as Mechanic. It has been stated in paragraph 10 of the counter affidavit that the word ‘Mechanic’ against their name was mentioned out of a clerical mistake which the petitioners are trying to use to get undue advantage which they are not entitled to. It has also been denied that petitioners were appointed in the Agriculture Department with specific plea that they were appointed in State Tube Well Organization. Referring to the impugned order, it has been asserted that the Secretary, Minor Irrigation Department decided the pay scale in pursuance of the order of this Court passed in CWJC No. 6113 of 2000 with further plea that after the issuance of the said order, all the Fitters of the Tube Well Wing in Bihar have been getting Rs. 3050-4590 and the excess amount paid to the employees are being recovered. It has been asserted in the counter affidavit that there are different types of pay scale of the Fitters in different department and the petitioners can only claim for the scale of Fitter in Tube well Project, Minor Irrigation Department which is Rs. 3050-4590 with effect from 1.1.1996. 17. As regards fixation of pay on the basis of Sixth Pay Revision Committee, paragraphs 6 and 7 of the counter affidavit reads as follows:– “6. That at the very out set it is stated that VIth Pay Revision Committee has decided the pay scales for different categories of employees of Minor Irrigation Department but the pay scale for some of the posts including that of the Fitter was not decided. Pay Scale for the post of Fitter in different department has been declared separately. The pay scale for the post of Fitter has been fixed Rs. 4000-6000 in Agriculture Department, Rs. 3050-4590 in Irrigation Department and Rs. 2650-4000 in some other Departments. Thus, pay scale for the post of Fitter is not similar in different departments. In respect of this some Divisional Officers of Tube Well Wingh, Minor Irrigation Department has sanctioned the pay scale of Fitter as Rs. 4000-6000 at their end without obtaining any approval from competent authority which is quite unjustified. It may be mentioned that the pay scale for any post is decided in consultation with Finance Department Government of Bihar. In respect of this some Divisional Officers of Tube Well Wingh, Minor Irrigation Department has sanctioned the pay scale of Fitter as Rs. 4000-6000 at their end without obtaining any approval from competent authority which is quite unjustified. It may be mentioned that the pay scale for any post is decided in consultation with Finance Department Government of Bihar. The Department has considered the disparity in pay scales for the post in different divisions and has decided following pay scales for the post of Fitter vide order no.4 (read with memo No.60) dated 4.1.2003. W.E.F. Pay Scales 1.4.1981 - Rs. 535-765 1.1.1986 - Rs. 975-1540 1.1.1996 - Rs. 3050-4590 7. That it is relevant to mention here that the pay scale for the post of Fitter was not mentioned in the revised pay scale recommended by Pay Revision Committee. Minor Irrigation Department has sanctioned pay scale of Fitter vide the order no.04 (Annexure-1) dated 4.1.2003. The pay scale of petitioner (who happens to be a fitter) was sanctioned by the Executive Engineer, Central Workshop Development Training Institute, Patna vide his letter no.904 dated 30.12.2000 as Rs. 4000-6000. The same is not justified because it has no rationality. Further, it has not been confirmed by the Minor Irrigation Department as well as Finance Department of Government of Bihar, Minor Irrigation Department as well as Finance Department of Government of Bihar. Minor Irrigation Department has pursued this matter and taken a rational decision which is valid and quite justified. Therefore, there is no reason for quashing the said order as alleged.” 18. In paragraph 8 of the counter affidavit it has been stated that earlier the petitioners and others were granted higher pay scale by the Corporation in anticipation of approval from Bureau of Public Enterprises, Finance Department, which approval was never obtained. 19. I have heard in detail Sri Lalan Kumar Singh appearing on behalf of the petitioners and Mr. Rajiv Roy, learned Government Pleader appearing on behalf of the State as well as Mr. L.P.K. Rajgrihar for the Accountant General of Bihar. This cannot be disputed that whatever pay was fixed with regard to these petitioners from time to time the same was done by the officials of the State Government of Bihar under Minor Irrigation Department. Rajiv Roy, learned Government Pleader appearing on behalf of the State as well as Mr. L.P.K. Rajgrihar for the Accountant General of Bihar. This cannot be disputed that whatever pay was fixed with regard to these petitioners from time to time the same was done by the officials of the State Government of Bihar under Minor Irrigation Department. By the impugned order dated 4.1.2003 (Annexure-10) it has been mentioned that amount received in excess by the persons holding the post of Fitter in the light of the order of the Bihar Water Development Corporation, which is Office order no. 968 dated 17.12.1992 (Annexure-4) is to be recovered in accordance with law by the concerned Controlling Officer. The specific plea of the petitioners in the writ application is that their pay was not fixed on the basis of the said order dated 17.12.1992 (Annexure-4) passed by the Corporation and that their pay was fixed by the officials i.e. concerned Executive Engineer under the Minor Irrigation Department, Tube Well Division. There is no averment in the writ application nor any document has been brought on record to suggest that pursuant to the impugned order dated 4.1.2003 (Annexure-10) any steps have been taken to make recovery of alleged excess payment from these petitioners also. Even during the pendency of the writ application, right from 2003, no material has been brought on record by/ on behalf of the petitioners with regard to the steps, which the respondents proposed to take for recovery of any excess amount paid to the petitioners in the light of the impugned order dated 4.1.2003 (Annexure-10) till this Court by an interim order dated 25.3.2008 stayed the operation of the impugned order dated 4.1.2003 (Annexure-10) in so far as the petitioners were concerned. Secondly, even the said order dated 4.1.2003 (Annexure-10) does not appear to be final and is simply an ad hoc arrangement till final decision in this regard is taken by the Finance Department as will be apparent from paragraph 3 of the impugned order. In such circumstance, fixation of pay on the basis of the order dated 4.1.2003 (Annexure-10) with retrospective effect from 1.4.1981 cannot be enforced to recover amount said to have been paid in excess of the pay indicated in para 3 of the impugned order dated 4.1.2003 from the petitioners more particularly after their superannuation, way back on 31.1.2001 and 30.6.2002. In such circumstance, fixation of pay on the basis of the order dated 4.1.2003 (Annexure-10) with retrospective effect from 1.4.1981 cannot be enforced to recover amount said to have been paid in excess of the pay indicated in para 3 of the impugned order dated 4.1.2003 from the petitioners more particularly after their superannuation, way back on 31.1.2001 and 30.6.2002. In my opinion, the petitioners? apprehension may be justified that in view of the impugned order dated 4.1.2003 (Annexure-10) the respondents may proceed to make recovery from them also but there is no specific pleading whether such decision has in fact adversely affected even the post retrial benefits of these petitioners. 20. In such circumstance, I do not find any reason to interfere with the impugned order dated 4.1.2003 (Annexure-10) so far as the same relates to grievance of the petitioners in the present writ application. In view of the observations as already made hereinabove, however, it is made clear that if in course of time a final decision is taken on the basis of or in the line with the impugned order dated 4.1.2003, (Annexure-10) adversely affecting these petitioners, the same shall not be applied in case of the petitioners without giving them adequate opportunity of being heard. A decision for recovery of any amount from the petitioners on the basis of such final decision of the State Government can be taken only if the respondents come to a conclusion that the fixation of pay in their case was obtained by any mis-representation or playing fraud by these petitioners. 21. With the above observations and directions, this writ application is disposed of. There will be no order as to costs.