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2013 DIGILAW 861 (JHR)

Krishna Deo Tiwari v. State of Jharkhand

2013-07-18

SHREE CHANDRASHEKHAR

body2013
ORDER The petitioner has approached this Court for the following reliefs:- (i) For a direction commanding upon the respondents to suitably modify the fixation of pay as per 5th Pay Revision Committee Report (5th PRC) applicable with effect from 01.01.1996 with respect to the petitioner by treating the effective date, the date of joining, being 01.02.1980 and not 01.08.1993, as has been done by letter no. 5/B.374/20101284 dated 23.12.2011 issued under the pen and signature of the Deputy Secretary to Government, Department of Human Resources Development Higher Education). (ii) To hold and declare that the petitioner is entitled for fixation of his revised pay and all admissible benefits w.e.f. the date of his joining i.e. 01.02.1980 inasmuch as the pay and other emoluments have been paid to the petitioner w.e.f. 01.02.1980 and even the pay of the petitioner was revised w.e.f. 01.01.1981 in the pay scale of 580765 treating the date of joining/appointment of the petitioner on 01.02.1980. (iii) To hold and declare that fixation of pay of the petitioner in 5th revised pay scale treating the date of joining of the petitioner as on 01.08.1993 is absolutely illegal, arbitrary and in colourable exercise of power and in violation of Article 14 of the Constitution of India inasmuch as similarly situated persons like Sri Munna Singh and Sri P. Thakur of the same B.S.K. College have been given all benefits (including fixation of 5th pay revision) w.e.f. date of their joining i.e. 22.01.1979 and 16.01.1978 respectively instead of 01.08.1993 whereas this principle has not been followed in the case of the petitioner. (iv) For any other appropriate relief/reliefs to which the petitioners are found to be entitled in the facts and circumstances of this case. 2. The brief facts of the case as disclosed in the writ petition are that, the petitioner was appointed on 25.01.1980 on sanctioned vacant post, by the Governing Body of BSK College, Maithan, Dhanbad. The appointment of the petitioner was approved by the Governing Body of the College in its meeting dated 07.10.1980 and an intimation was given to the Ranchi University by letter dated 06.06.1980. In view of the recommendation of the 4th Pay Revision Committee, the payscale of the petitioner was revised with effect from 01.04.1981 treating the date of appointment of the petitioner 01.02.1980. In view of the recommendation of the 4th Pay Revision Committee, the payscale of the petitioner was revised with effect from 01.04.1981 treating the date of appointment of the petitioner 01.02.1980. As some of the persons were terminated from service, they approached the Hon'ble Supreme Court in W.P.(C) No. 409 of 1991, which was disposed of on 25.09.1991 with a direction to consider the cases of such employees for absorption. The Vinoba Bhave University came into existence on 17.09.1992. The State of Bihar issued a memo dated 10.05.1991, whereby the benefit of absorption was extended to the employees who were appointed prior to 10.05.1986 and as the petitioner was appointed on a sanctioned vacant post, his service was also regularised. As noticed above, in view of the recommendation of the 4th Pay Revision Committee, the payscale of the petitioner was revised with effect from 01.04.1981 and the name of the petitioner appeared at Sl. No. 23. It is the case of the petitioner that two persons namely, Sri Parmeshwar Thakur and Sri Munna Singh, whose names also appeared at Sl. No. 4 and 8 respectively, have been granted the benefit, treating their date of appointment as the initial date on which they were appointed. However, in the case of the petitioner it has been treated as 01.08.1993. Objections were raised by the employees, however, the authorities refused to pay heed to the claim of the employees. Accordingly, the date of joining of the petitioner was not treated as 01.02.1980, rather it has been treated as 01.08.1993. Under these facts and circumstances, the petitioner has approached this Court by filing the present writ petition, relying on various communications by the University. 3. A counter-affidavit has been filed on behalf of the Respondent No. 1, in which it has been stated that appointment of the petitioner was purely on temporary basis. The petitioner was not appointed against the sanctioned vacant post and the posts were created only on 20.08.1993, in compliance of order passed by the Hon'ble Supreme Court, therefore, the petitioner's service was regularised with effect from 01.08.1993. In paragraph nos. 9, 10, 11 and 26 of the counteraffidavit filed by Respondent No. 1, the following stand has been taken by the respondents: 9. “That it is stated that the petitioner was not appointed against the sanctioned and vacant post. So his initial appointment was not valid and legal. 10. In paragraph nos. 9, 10, 11 and 26 of the counteraffidavit filed by Respondent No. 1, the following stand has been taken by the respondents: 9. “That it is stated that the petitioner was not appointed against the sanctioned and vacant post. So his initial appointment was not valid and legal. 10. That it is stated that the petitioner was absorbed against the posts sanctioned/created by Human Resource Development Department, Govt. of Bihar vide its letter no. 1153 dated 20.08.1993. The posts were created in compliance of the order of the Hon'ble Supreme Court in W.P.(C) No. 409/91. It has been clearly stipulated in the said letter dated 20.08.1993 that these posts are being sanctioned only for the absorption of the petitioners of the case. 11. That it is stated that the service of the petitioner was regularized w.e.f. 01.08.93 by the Vinoba Bhave University, Hazaribagh vide its office order memo no. 2378 dated 14/16.03.1994 (Annexure 8 of the writ petition) in compliance of the order passed by the Hon'ble Supreme Court in W.P.(C) No. 409/91 and contempt petition no. 280 and 404/1993. 26. That with regard to the statements made in para19 and 31 of the writ petition under reply, it is stated and submitted that on the basis of the shifting of date of appointment of Sri Munna Singh, the pay fixation, has not been approved by the respondent stated.” 4. A rejoinder has been filed on behalf of the petitioner bringing on record the documents dated 08.08.2009, 16.09.2010 and 23.12.2011 to fortify the claim of the petitioner that other similarly situated 7 persons have been granted the benefit, for which the petitioner has approached this Court. 5. Heard the learned counsel appearing for the parties and perused the documents on record. 6. A perusal of the office order dated 02.06.1982 issued to all the Universities would disclose that in terms of the recommendation of the 4th Pay Revision Committee, the petitioner along with others were granted the benefit and the date of appointment of the petitioner has been taken as 01.02.1980. 7. 6. A perusal of the office order dated 02.06.1982 issued to all the Universities would disclose that in terms of the recommendation of the 4th Pay Revision Committee, the petitioner along with others were granted the benefit and the date of appointment of the petitioner has been taken as 01.02.1980. 7. The learned counsel appearing for the petitioner has submitted that since in terms of the recommendation of the 4th Pay Revision Committee, the respondents have granted the benefit to the petitioner and as other similarly situated persons have been granted the benefit in terms of the recommendation of the 5th Pay Revision Committee, such benefit cannot be denied to the petitioner. He fortifies his contention relying on the office orders dated 08.08.2009 and 16.09.2010 by which 7 persons have been granted the benefit in terms of the recommendation of the 5th Pay Revision Committee. Relying on the said document which indicates redesignation of the posts for other 7 persons, the learned counsel appearing for the petitioner submits that, the date of redesignation is the date on which the petitioner's service was also treated to have been regularised. Although, in case of others it has been termed as 'redesignation', however, it would make no difference in the case of the petitioner also, as all such other persons are similarly situated and have been appointed prior to the cut off date, i.e., 10.05.1986, as is the case of the petitioner, therefore, the benefit which has been granted to others must be extended to the petitioner also. 8. Per contra, Mr. Saket Upadhyay, learned J.C. to A.A.G., while relying on letter dated 02.06.1982 by the Education Department, Government of Bihar, submits that there was a specific provision made in para10 whereby any pay revision has to be approved by the education department and since this has not been done in the case of the petitioner, the benefit as claimed by the petitioner cannot be granted to him. 9. I find no substance in the contention raised on behalf of the respondents, for the simple reason that the petitioner is similarly situated to the other persons and two such persons were specifically named in the writ petition. 9. I find no substance in the contention raised on behalf of the respondents, for the simple reason that the petitioner is similarly situated to the other persons and two such persons were specifically named in the writ petition. The rejoinder affidavit filed on behalf of the petitioner brings on record the office orders dated 08.08.2009 and 16.09.2010 by which 7 persons have been granted the benefit in terms of the recommendation of the 5th Pay Revision Committee. It is a matter of record that the University sent letters to the Government and thus, intimation with respect to the service of the petitioner has been given to the Government. It was the duty of the Government either to approve or reject the pay fixation made by the University, which admittedly has not been done in the case of the petitioner. In any event, I am inclined to hold that the petitioner is similarly situated to other 7 persons who have been granted benefit of the recommendation of 5th Pay Revision Committee by letters dated 08.08.2009 and 16.09.2010. 10. For the aforesaid reasons, the writ petition is allowed. The petitioner is entitled for the benefit in terms of the recommendation of the 5th pay revision which has been given to the other persons by orders dated 08.08.2009 and 16.09.2010. 11. The writ petition is disposed of in the aforesaid terms.