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2014 DIGILAW 1097 (PAT)

Shashi Prabha Rai v. State of Bihar

2014-11-05

NAVANITI PRASAD SINGH

body2014
ORDER How the State announces giving benefit by one hand and stealthily and dishonestly takes it away by the other is writ large in this case. How the State does every thing under influence and power to deny the legitimate benefits to its employees is also writ large in this case. I am constrained to observe so. The facts given hereafter would show. 2. There were two cadres known as Bihar Education Service Class II and Bihar Subordinate Education Service. They were two different cadres up to 2006. In the year 2006, after a conscious decision taken by the State Government and approved by the State Cabinet, a decision to merge these two cadres was taken on and that too with retrospective effect i.e. 01.01.1977. Thus, the retrospectivity was of about 30 years. Once this was done and the two cadres stood merged, exercise for preparation of combined seniority list was taken up and completed, but in the meantime some one in the Secretariat had a second thought. They attempted to de-merge the cadres and undo what had been done. They merely set aside the notification of merger issued earlier. This was a subject matter of challenge before this Court and this Court held that once the merger notification had been issued and became effective, the two cadres merged and they could not be de-merged by merely setting aside the earlier merger notification because once the cadre had merged a proper exercise had to be taken up for de-merging the cadre and that having not been done, the de-merger could not be effectuated merely by cancelling the merger notification. State, as usual, being aggrieved by and dissatisfied with any adverse decision filed letters patent appeal without success and then the matter went to the Apex Court. The Apex Court also did not grant any relief to the State. State undertook before the Apex Court to abide by the merger notification. The S.L.P. of the State was, thus, disposed of. 3. As is again usual, State did not carry out its commitment. Contempt proceedings were initiated before the Apex Court. The Apex Court fined the State of Rs.50,000/- and State undertook to give full and due effect to the merger notification within four months. Petitioner is one of the beneficiaries and was one of the writ petitioners in the High Court. 4. Contempt proceedings were initiated before the Apex Court. The Apex Court fined the State of Rs.50,000/- and State undertook to give full and due effect to the merger notification within four months. Petitioner is one of the beneficiaries and was one of the writ petitioners in the High Court. 4. When it came to implementing the order of merger with retrospective effect from 01.01.1977, again problem was created. Petitioner then was again forced to file a writ petition before this Court being C.W.J.C. No. 7386 of 2011. His grievance was simple. He was originally in Bihar Subordinate Education Service. This service having merged with Bihar Education Service Class-II with effect from 01.01.1977, accordingly, it would be deemed that the petitioner became entitled to remunerations as per pay scale available to Bihar Education Service Class-II officers. This was, as usual, being denied by the State. The writ petition was finally taken up and disposed of by judgment and order dated 10.07.2013 in the following terms:- “It is not in dispute that the petitioner had received first Time Bond Promotion and Second Time Bond Promotion. It is not in dispute that the petitioner had received first ACP and second ACP but all those were under Bihar Subordinate Education Service. Upon merger of cadre the pay scale changes. Thus, differential payment became due including revision of pay and pension. As usual having merged the cadre suddenly after one year State back track. In 2007 it took a decision to de-merge and cancel its decision. This Court and the Apex Court disapproved the same. The consequence is that the original order of merger became final. The department prepared a gradation list of Combined Cadre. The petitioner is only interested in monitory benefits as a consequence of merger There is no denial in the counter affidavit that the petitioner is not entitled to the same. The question is will she survive to see the benefit and enjoy that is the question. As no other controversy remains I dispose of this writ petition with a direction to the respondents to ensure that all differential payments in respect of all matters concerning the petitioner as a consequence of merger with retrospective effect be calculated and paid within three months from the date of production of a copy of this order before Principal Secretary, Education Department.” 5. Once the writ petition was disposed of as aforesaid with a clear direction that only thing, that is to be done, was that the two time bound promotions and two A.C.Ps. had to be calculated and effect given on new pay scales but that was not done. The contempt proceeding was then taken up. The first stand taken by the State was that the petitioner was not entitled to the two time bound promotions. The fallacious reason given was that his service would now be counted from 01.01.1977 ignoring his past ten years or so of service prior to merger. When this was disapproved by the Court as mala fide, it was agreed to take into consideration his service from the date he initially joined under Bihar Subordinate Education Service, but while doing so another mischief was created. This time, the mischief done was that while allowing the second time bound promotion his first time bound promotion has been cancelled. Petitioner rightly submits that this is mala fide. The writ court in inter party judgment held clearly that the petitioner had already received the first and second time bound promotions and all what was required was to revise/calculate the first and second A.C.Ps. and give effect on new pay scales as per merger and also to give monetary benefits etc. to the petitioner. This was an inter party judgment. It did not give any authority to the State to deprive or cancel the time bound promotions in any manner. Yet first they deprived the petitioner of the second time bound promotion. Upon protest before this Court, the second time promotion was restored but the first time bound promotion was taken away. 6. Secondly the petitioner has brought on record as Annexure 24 the notification issued by the State Government as recent as on 10.02.2014, showing that the people, who were similarly situated to that of the petitioner, have been granted first time bound promotion, but the petitioner has been deprived of the same. He moved this Court in contempt. I am satisfied that the State has singled out the petitioner by this step brotherly treatment. It is not expected of the State to do so. It is well-established that the State must do what is fair and just and not force litigations upon litigations. 7. He moved this Court in contempt. I am satisfied that the State has singled out the petitioner by this step brotherly treatment. It is not expected of the State to do so. It is well-established that the State must do what is fair and just and not force litigations upon litigations. 7. Learned counsel for the State submits that as per the notification granting time bound promotion, any increase in pay scale as a consequence of promotion, merger or revision in pay scale is taken to be a promotion. Accordingly, when the Bihar Subordinate Education Service was merged with the Bihar Education Service Class II, the pay scale increased. If that was so then it would be deemed that the petitioner had received a promotion with effect from 01.01.1977 and that being so the petitioner would not be entitled to first time bound promotion with effect from 01.01.1981. I am afraid, I cannot accept this contention. The writ order, as quoted above, was an inter party order. State never questioned the same. That order attained its finality and that is binding upon the parties. That order cannot be ignored or modified in any manner in these proceedings. 8. Secondly the notification of the State dated 10.02.2014 (Annexure 24) clearly shows that all other similarly situated persons have been given first time bound promotion. They have not been denied the first time bound promotion. This notification is as recent as dated 10.02.2014. 9. Further I may note that so far as conferring benefits with retrospective effect is concerned, no one can make a grievance. That is exactly what the State took it by merging the two cadres retrospectively, but certainly no one can create liability or a disadvantage or deny a benefit already conferred, retrospectively. That would be clearly unreasonable. A person cannot be put to disadvantage retrospectively. Thus, I find that the action of the State in denying the first time bound promotion to the petitioner is contemptuous. The order of the State is in teeth of the binding and final judgment inter party. I, therefore, find State guilty of wilful contempt. 10. That would be clearly unreasonable. A person cannot be put to disadvantage retrospectively. Thus, I find that the action of the State in denying the first time bound promotion to the petitioner is contemptuous. The order of the State is in teeth of the binding and final judgment inter party. I, therefore, find State guilty of wilful contempt. 10. However, in order to afford one last opportunity to the State to purge the contempt before taking any further action, put up this matter on 03.12.2014 under the same heading retaining its position to show full compliance of order passed by this Court in the writ petition giving both the time bound promotions and both A.C.Ps. to the petitioner. All payments due must be made to the petitioner within the said period if not then the Principal Secretary, Department of Education, Government of Bihar, would be liable to be punished accordingly.