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2013 DIGILAW 544 (PAT)

Saraswati Kumari v. State of Bihar

2013-04-24

S.N.HUSSAIN

body2013
ORDER This writ petition has been filed by the petitioners challenging memo no. 1247 dated 06.06.2008 issued under the signature of the Deputy Secretary, Department of Human Resources Development (Higher Education), Government of Bihar, by which promotion granted to the petitioners pursuant to re-designation of their posts from Laboratory Assistants to Demonstrators have been cancelled and also challenging any other consequential order passed by the authorities concerned and further for directing respondent-authorities to allow the petitioners to discharge their duties on promotional post and also to allow them all the benefits attached with the said promotional posts. 2. I.A. No. 5797 of 2008 was filed by the petitioner for addition of a relief challenging letter no. 342 dated 08.08.2008 (Annexure 14), issued by the Accountant General, Bihar, Patna, directing the Treasury Officer, Patna to stop the salary and allowances of the petitioners and to recover the amount paid as salary giving reference to impugned order dated 06.06.2008. A further prayer was made for directing respondent-authorities to continue payment of salary and allowances as before and not to make any recovery of the amount paid as salary till date. Subsequently Principal of the College also issued office order dated 08.10.2009 reducing the salary of the petitioners to the basic minimum in the scale of Laboratory Assistant. All these orders of the authorities have been challenged in the instant writ petition. 3. I.A. No. 3815 of 2010 was filed by the petitioners bringing subsequent events on record and also seeking addition of a further relief of quashing office order no. 395 dated 08.10.2009, issued under the signature of the Principal of Government Womens’ College, Gulzarbagh, Patna, by which the salary of the petitioners had been reduced to the basic minimum in the scale of Laboratory Assistant and salary was directed to be paid since August, 2009 in the said scale and also for directing respondent-authorities to grant to the petitioners their current salary and the arrears of salary in the scale of Lecturer in the light of the impugned orders being stayed by this Court and also in view of the said impugned order being arbitrary for the reason that it reduced the salary of the petitioners to the basic minimum without taking into account their unblemished service records of three decades. 4. 4. This writ petition was earlier heard on 08.01.2010 when an interim order was passed that pending disposal of the writ petition the impugned order dated 06.06.2008 (Annexure 11) shall remain stayed in so far as the aspect of recovery was concerned and consequential letter dated 08.08.2008 (Annexure 14), issued by the Accounts Officer to the Treasury Officer, was directed to be read in context of Annexure 11 as there could be no complete stoppage of salary. 5. Learned counsel for the petitioners stated that at the instance of the Principal, Government Womens College, Gulzarbagh, Patna, applications were invited from eligible female candidates possessing requisite qualification of B.Sc. for appointment on the post of Laboratory Assistant in Science subjects and since both the petitioners had the requisite qualifications and were otherwise also fully qualified for the said posts they applied and their cases were considered by the Selection Committee, which, after finding them fit and eligible for the posts, issued appointment letters dated 04.07.1975 appointing petitioner no.1 as Laboratory Assistant for Chemistry and petitioner no.2 as Laboratory Assistant for Botany. Thereafter, the petitioners continued discharging their duties to the satisfaction of all concerned. 6. Learned counsel for the petitioners submitted that on 28.04.1976 the post of Demonstrator was superseded as Laboratory Assistant for U.G.C. scale as is apparent from letter dated 28.04.1976 sent by the Joint Secretary of the Department to the Accountant General, Bihar. Subsequently the posts of the petitioners were re-designated from Laboratory Assistant to Demonstrator with effect from their dates of appointment and they were promoted from the posts of Demonstrator to the posts of Lecturer by the Department, which is quite apparent from letter dated 18.01.1990 sent by the Department to the Accountant General. The reason for such conversion of the post is quite apparent from letter dated 19.11.1981, issued by the Department to the Accountant General. 7. Learned counsel for the petitioners averred that although they were appointed as Laboratory Assistants, which post was later on re-designated as Demonstrators, but the work of Lecturer was taken from the petitioners since 08.09.1982 as per office order dated 08.09.1982 issued by the Director, Higher Education, Bihar. Thereafter, the Department further wrote to the Accountant General, Bihar vide letter dated 16.12.1998 for issuance of pay slip for payment of salary to the petitioners and since then they received their salary as Lecturer continuously. 8. Thereafter, the Department further wrote to the Accountant General, Bihar vide letter dated 16.12.1998 for issuance of pay slip for payment of salary to the petitioners and since then they received their salary as Lecturer continuously. 8. Learned counsel for the petitioners claimed that all of a sudden a show cause notice dated 11.05.2002 was issued by the Joint Secretary of the Department asking the petitioners why their promotions be not cancelled and why they be not reverted to their previous posts. Thereafter, the petitioners gave their written reply on 24.05.2002 explaining that their promotion was legal and valid and there was no occasion for interference therewith. However, notification dated 06.06.2008 was issued by the Department reverting the petitioners to the posts of Laboratory Assistant holding their promotions to be not legal. 9. Learned counsel for the petitioners asserted that this writ petition was filed on 04.07.2008 against order dated 06.06.2008 and it was only thereafter that on 08.08.2008 a letter was issued by the Accountant General reducing the salary of the petitioners to the basic one, which was brought into challenge by way of interlocutory application. 10. Learned counsel for the petitioners argued that petitioner no.1 retired on 31.10.2010 and petitioner no.2 retired on 31.05.2010 after they worked continuously as Lecturers from 1982 till their respective dates of superannuation, which fact has not been challenged by the respondents. 11. Learned counsel for the petitioners also relied upon two decisions of this Court; one in case of Binod Mishra Vs. State of Bihar & Ors., reported in 2006(2) P.L.J.R. 60 and the other in case of Birendra Kumar Singh & Ors. Vs. State of Bihar & Ors., reported in 2010(1)P.L.J.R. 102. 12. A similarly situated person, namely, Kumkum Lata Sinha filed C.W.J.C. No. 10544 of 2004 for the same reliefs and a Bench of this Court vide order dated 15.09.2006, allowed her writ petition referring the names of these petitioners also and holding that the writ petitioner of that case was not at fault as she was working on the post of Lecturer since 01.10.1982 and hence she was entitled for the consequential benefits. The petitioners of this writ petition also seek similar relief. 13. The petitioners of this writ petition also seek similar relief. 13. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioners and stated that both the petitioners were appointed in Girls College governed by the State and hence University Statute has no role to play in the service condition of the employees. The petitioners’ initial appointments were as Laboratory Assistants by the State as per the Government Rules and hence the grant of promotion to the petitioners was due to wrong reliance upon the University Statute and hence when the authorities of the Department detected their mistakes, they issued the impugned order dated 06.06.2008, by which the irregular promotions of the petitioners from the posts of Laboratory Assistant after its re-designation as Demonstrator from the relevant date i.e. 14.07.1975, to the posts of Lecturer vide memo dated 18.01.1990 was cancelled on the reasoned grounds. 14. Learned counsel for the respondents submitted that the two petitioners were initially appointed on the posts of Laboratory Assistant in the Department of Chemistry and Botany respectively in Government Women’s College, Gulzarbagh and they joined the post on 14.07.1975. However, only the posts of Principal and Lecturer of the said College were declared ex-cadre from the date of its creation vide Government letter no. 1391 dated 19.11.1981, but the post of Laboratory Assistant was not declared ex-cadre. 15. Learned counsel for the respondents asserted that the order of the High Court dated 15.09.2006 passed in C.W.J.C. No. 10544 of 2004 filed by Kumkum Lata Sinha was with respect to different context as in that case a proposal for grant of benefit of salary for holding the post of Demonstrator/Lecturer was sent by the concerned department of the Finance Department for approval, but the Finance Department disagreed on the ground that since the claim of Saraswati Kumari and Meenakshi Rai (petitioners of this writ petition) were found illegal and ultimately cancelled by the impugned order dated 06.06.2008, then Kumkum Lata Sinha cannot be granted any relief for that post. Furthermore, the respondents have filed M.J.C. No. 2494 of 2008 for modification of the said order dated 15.09.2006 passed in C.W.J.C. No. 10544 of 2004 and the said M.J.C. is still pending for consideration. 16. Furthermore, the respondents have filed M.J.C. No. 2494 of 2008 for modification of the said order dated 15.09.2006 passed in C.W.J.C. No. 10544 of 2004 and the said M.J.C. is still pending for consideration. 16. Learned counsel for the respondents argued that since promotion of the petitioners was not in accordance with law, they were not entitled to any promotion and it was rightly cancelled and, thus, the petitioners were also not entitled to any consequential promotional salary. The services of the petitioners fell under the Bihar Education Service Class-II and it was governed by the Bihar Service Code and not by the University Statute. 17. Considering the arguments of learned counsel for the parties and the materials on record, it is undisputed fact that both the writ petitioners were appointed as Laboratory Assistants in Chemistry and Botany, respectively, vide appointment letters dated 04.07.1975 by the prescribed authority after following due procedure of law and since then they had been discharging their duties to the satisfaction of all concerned. It is also not in dispute that the post of Demonstrator was superseded by Laboratory Assistant for the purpose of U.G.C. scale vide letter dated 28.04.1976 sent by the Department to the Accountant General, Bihar. 18. It is further not in dispute that order dated 08.09.1982 was issued by the Director, Higher Education, according to which the works of Lecturer were taken from the petitioners since 08.09.1982 and, accordingly, the Department wrote to the Accountant General, Bihar, vide letter dated 16.12.1998, for issuance of pay slips for payment of salary to the petitioners and since then the petitioners also received their salary as Lecturer. 19. Now the bone of contention between the parties is letter dated 18.01.1990, which was sent by the Department to the Accountant General, by which the posts of the petitioners were re-designated from Laboratory Assistants to Demonstrators with effect from the date of their appointments and they were promoted from the posts of Demonstrator to the posts of Lecturer by the Department. 20. The reason for such conversion of the post has been explained by the Department vide its letter dated 19.11.1981 sent to the Accountant General. 20. The reason for such conversion of the post has been explained by the Department vide its letter dated 19.11.1981 sent to the Accountant General. The petitioners relied upon the said decisions of the Department, whereas, the respondents contested the matter claiming that the said promotions, given to the petitioners, were not in accordance with law as the petitioners were not entitled to any promotion and hence they were rightly cancelled by the authorities vide impugned letter dated 06.06.2008 and the excess salaries paid to the petitioners were directed to be recovered vide impugned letter dated 08.08.2008 and their salaries were reduced to the basic minimum in the pay scale of Laboratory Assistant vide impugned order dated 08.10.2009. 21. Although learned counsel for the respondents had claimed that the services of the petitioners were not governed by the University Statute rather they were governed by the Service Code as the petitioners were appointed in Girls College governed by the State, but learned counsel for the respondents failed to show any provision of the Service Code, which could legally deny promotions to the petitioners from the posts of Demonstrator to the posts of Lecturer or even the change of nomenclature from Laboratory Assistant to Demonstrator. 22. Learned counsel for the respondents either by his pleadings or by materials on record failed to controvert the specific claim of the petitioners that they had been working on the posts of Lecturer from 01.10.1982 as per office order dated 08.09.1982, issued by none else than the Director, Higher Education, Government of Bihar and they continued working on the posts of Lecturer till their retirement in the year 2010. Hence, it is quite apparent that respondent-authorities had throughout taken the works of Lecturer from the petitioners, who served satisfactorily on the promoted posts since decades. This shows callousness on the part of the State authorities in dealing with such matters and passing the impugned orders at the fag end of the petitioners’ career without any legal necessity. Reference in this regard may be made to a decision of a Bench of this Court in case of Binod Mishra (supra). 23. This shows callousness on the part of the State authorities in dealing with such matters and passing the impugned orders at the fag end of the petitioners’ career without any legal necessity. Reference in this regard may be made to a decision of a Bench of this Court in case of Binod Mishra (supra). 23. Furthermore, the source of power was present for such promotions and if in view of the authorities, the procedure prescribed for it was not strictly followed, it can at best be an irregularity, which had to be considered in the backdrop of the passage of several decades, specially when it is not the case of the respondents that the petitioners were not qualified for the promotional posts and, accordingly, they had worked on the said promotional posts and received salaries for decades. The respondents have also failed to show that the promotions granted to the petitioners were absolutely contrary to law. In this connection, reference may be made to a decision of a Bench of this Court in case of Birendra Kumar Singh (supra). 24. Exactly similar is the case of one Kumkum Lata Sinha, who was also appointed as Laboratory Assistant in the same Government Womens’ College, Gulzarbagh, Patna and the nomenclature of the said post was changed from Laboratory Assistant to Demonstrator and she was promoted to the post of Lecturer. However, when the said benefits were subsequently taken away by the authorities concerned, the said Kumkum Lata Sinha moved this Court vide C.W.J.C. No. 10544 2004, which was contested by respondent-authorities and vide order dated 15.09.2006 a Bench of this Court allowed the said writ petition holding that the said petitioner was not at all at fault and she had been given her due claims for the post of Demonstrator/Lecturer by the authority after considerable delay without any contributing factor of the petitioner and hence it was held that the said petitioner was entitled for consequential benefits in accordance with law and if any further amount as arrears of salary for holding the post of Demonstrator/Lecturer from due date was found due, such payment should be made to her after calculation in accordance with law within a period of three months from the date of production/communication of a copy of the said order before the authority concerned. In the said order, reference had also been made to the two petitioners of this writ petition, whose cases were found to be similar to the case of the said Kumkum Lata Sinha as they were entitled to the change of nomenclature of their posts from the posts of Laboratory Assistant to the posts of Demonstrator from the due date and further for their promotion to the posts of Lecturer. 25. In the said circumstances, this Court finds merit in the claims of the petitioners and also finds that the impugned orders of the authorities concerned are illegal, arbitrary and perverse and, accordingly, the impugned orders of the concerned authorities, issued vide letters dated 06.06.2008, 08.08.2008 and 08.10.2009, are hereby quashed and the petitioners are found to be entitled to the salary and emoluments of the posts of Lecturer including all consequential benefits since the date of their promotion as per letter of the Department dated 18.01.1990 sent to the Accountant General. 26. Accordingly, respondent-authorities are directed to calculate all the arrears of salary, emoluments and other consequential benefits available to the petitioners on that basis till the dates of their respective retirement in the year 2010 and to pay it to the respective petitioners within a period of four months from the date of production/communication of a copy of this order before the concerned authorities. 27. With aforesaid directions and to the aforesaid extent, this writ petition is allowed.