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2013 DIGILAW 961 (PAT)

Sudama Prasad v. State of Bihar

2013-08-07

AJAY KUMAR TRIPATHI

body2013
ORDER 1. All the petitioners of the present writ application are working as Lecturer in what is known as Government Rai Bahadur Homeopathic Medical College and Hospital at Muzaffarpur. They have a grievance against the respondents, because they have issued an order dated 22.4.2010, contained in Annexure-5, by virtue of which the benefit of pay-scale given to them in the Assured Career Progression Scheme (hereinafter referred to as the A.C.P. for short), by virtue of Annexure-4, has been modified. They want quashing of Annexure-5, because according to the petitioners it not only reduces the pay-scale given to them earlier by way of Annexure-4 but the withdrawal is also totally arbitrary and shows non-application of mind. 2. No doubt, when Annexure-4 was issued on 20th of August, 2008, the petitioners were given a particular pay-scale of Rs. 10,000-15,200/- as the 1st A.C.P. and pay-scale of Rs. 12,000-16,500/- under 2nd A.C.P. However, on an objection raised by the Finance Department and on review of the provisions of the A.C.P. scheme of 2003, especially clause 3, sub-clause 2, the pay-scales have been reduced to Rs. 7,500-12,000/- as 1st A.C.P. and Rs. 8,000-13,500/- under 2nd A.C.P. 3. The College in question was taken over by the State Government and the petitioners, therefore, are government servants, were entitled to benefits, which are available to other government servants under the A.C.P. Rules of 2003, which guarantees benefit of promotion of 1st A.C.P. after 12 years and 2nd A.C.P. after 24 years of service. According to the petitioners since there was some confusion with regard to sub-rule 2 of rule 3 of the 2003 Rules, an amendment was made by the State Government in the year 2007 and Notification No. 769, dated 28.01.2008 came to be issued, which is Annexure- 2. The 2003 ACP Rules as well as the amended Rule became applicable w.e.f. 9th of August, 1999. 4. The 2003 ACP Rules as well as the amended Rule became applicable w.e.f. 9th of August, 1999. 4. It is the case of the petitioners that as per the amended A.C.P. Rules, sub-rule 2 of rule 3 was supplemented and it was declared that if the next cadre of promotion is available to a service, the minimum pay-scale of next promotional cadre would be granted to the concerned employees in the shape of benefit under A.C.P. When the State Government took over the college, in question, the services of the petitioners were confirmed as government servants w.e.f. 1.4.1981, despite variable dates of appointment made by the governing body of the college before it was taken over by the State. The long period of service entitled the petitioners to the benefit of the 1st and 2nd A.C.P. 5. The State Government granted benefit of a pay-scale indicated in Annexure-4, while extending the benefit of 1st and 2nd A.C.P. This notification is dated 20th of August, 2008. Despite the above notification, having taken effect and after more than a year and a half, Annexure-5, which is under challenge, came to be issued reducing the pay-scale under A.C.P. scheme. This is the main challenge or bone of contention in the present writ application. 6. Counsel representing the petitioner submits that clause 3 of the Scheme has to be read along with the amended provision, contained in Annexure-2. They should be read in harmony and if that is done, the decision taken in terms of Annexure-4 would be held to be in order and there was no necessity of taking away the benefit by issuing Annexure-5. 7. There have been many rounds of exchange of pleadings between the parties. Initially when the matter was taken up, some startling facts came to be revealed in the sense that for the last 30 years the persons working in the institution in question despite becoming a government servant have no regular service including cadre rules or conditions, which could govern them. One of the reasons according to the petitioner for issuance of notification, contained in Annexure-5 is because of prevalent adhocism, which is practiced by the department, while extending benefits to them. 8. The State Government has not denied the fact that no service condition has been formulated by the State Government in relation to the employees of the college in question. The process is on. 8. The State Government has not denied the fact that no service condition has been formulated by the State Government in relation to the employees of the college in question. The process is on. However, they do rebut the fact that there is no rule as such which govern them. As per the stand of the State, emerging from the supplementary counter affidavit, petitioners are being governed by the Central Council of Homeopathy Regulation, 1983 and amended Homeopathic (Minimum Standard of Education and Amendment Regulation), 2002. Promotions etc. are being granted in terms of the provision 17 of the Homeopathic (Minimum Standard of Education and Amendment Regulation), 2002, as notified in the Gazette, dated 11.09.2002. In addition to that the A.C.P. Scheme notified by the State Government is applicable to the petitioners. But an employee cannot claim anything greater than what the concerned Rule lays down. Since promotion under A.C.P. is not a substantive promotion, but is a measure against stagnation, clause 3, sub-clause 2 governs the case of these petitioners. After the issuance of Annexure- 4, which was conditional, as would be evident from reading of the same, the matter was examined by the Finance Department, which opined that since there is absence of cadre rule, governing the service condition of these petitioners, therefore, there case will come under sub-rule 2, of rule 3 of the A.C.P. Scheme. The corresponding amendment which the petitioners are harping on in terms of Annexure-2, does not apply to the case of these petitioners, because though the said rule has also been made retrospective, but in practice the applicability of the same in the given case of these petitioners, does not alter the state of affairs that they will be entitled to a pay-scale prescribed under the schedule, for such persons, where there are no cadre promotion rules. The benefit which was granted by virtue of Annexure-4 was granted under mistaken understanding that the minimum pay-scale of the next higher post would be available to these petitioners. The Finance Department had rightly objected and pointed out the infirmity. The matter was considered by a High Power Committee and they too have come to the opinion that Annexure-4 was required to be recalled and a modified notification in terms of Annexure-5 was the need of the hour. 9. The Finance Department had rightly objected and pointed out the infirmity. The matter was considered by a High Power Committee and they too have come to the opinion that Annexure-4 was required to be recalled and a modified notification in terms of Annexure-5 was the need of the hour. 9. To fortify the stand of the respondents, they have also brought on record the decision, which was taken by the Promotion/Screening Committee, dated 23.11.2009. The recommendation of the Committee, which consist of 06 Members, who are very senior officers of their department is Annexure-A to the supplementary counter affidavit, filed on behalf of the Joint Secretary, Health Department (Respondent No. 5). 10. No doubt, in Annexure-5, a wrong writ number relating to Yogeshwar Sahu was provided, as the reason, for reconsideration. However, it has been clarified in the subsequent affidavit that there was a typographical error. The actual number of C.W.J.C. No. of Yogeshwar Sahu was 2313 of 2010 and not 2310 of 2010. However, no order had been passed by the Court in the case of Yogeshwar Sahu. The writ application was still pending, which had created all the confusion in the mind of the petitioners and is being set to rest by way of affidavits and pleadings, exchanged between the parties now. 11. Admitted position is that there is no cadre Rule in position with regard to these petitioners, despite their services, having been taken over more than 30 years ago. It is an unfortunate situation, for which remedial measures are required to be taken forthwith. However, since the benefit under the A.C.P. Scheme is a measure against stagnation and does not amount to any substantive promotion from the post, but only upgradation of a pay-scale, the petitioners would be entitled to the benefit in terms of sub-clause 2 of clause 3 of the A.C.P. 2003 Scheme. Since specific pay-scale has been indicated in the appendix, annexed with the said Rule, the petitioners are entitled to only that pay-scale, which also is an upgradation. The minimum pay-scale of the next higher post which came to be issued to them by a wrong understanding or misunderstanding of the provision or omission on the part of the concerned authorities which in any case was provisional. 12. The minimum pay-scale of the next higher post which came to be issued to them by a wrong understanding or misunderstanding of the provision or omission on the part of the concerned authorities which in any case was provisional. 12. The case of these petitioners have to be considered within the provision of sub-clause 2 of clause 3, as there is no cadre rule in existence. As a pay-scale has already been provided for such persons under A.C.P. Scheme, the benefit in terms of the stagnation scheme would accrue to a government employee, including these petitioners, in accordance with the said schedule only. 13. After hearing the parties, the Court does come to a considered opinion that the entire battle being fought by the petitioners is to hang on to a benefit which has accrued to them mistakenly by virtue of Annexure-4 and obviously they would not like to give up that benefit, especially when a downward revision is the effect, by issuance of Annexure-5. 14. Since benefit of promotions under the A.C.P. Scheme has to be extended in terms of the Scheme, the Court finally does come to a conclusion that there was an occasion on the part of the respondents to revisit Annexure-4 and correct the position by virtue of Annexure-5, which is in order. Whatever misgivings there was with regard to the conduct of the respondents, the same stands clarified by supplementary and additional affidavits, which came to be filed since the first affidavit was rather cryptic and did not give a complete picture of the dispute. 15. The writ application, therefore, has no merit, it is dismissed.