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2014 DIGILAW 1207 (PAT)

Narendra Kumar Dikshit v. State Of Bihar

2014-12-08

AJAY KUMAR TRIPATHI

body2014
ORDER : There are two sets of writ applications. One is by the two petitioners, who have moved the Court individually assailing the order contained in Annexure- 3 passed by the Principal Secretary, Finance, Government of Bihar on 29.8.2013. In the second writ application, besides individual employees, it has been filed in a representative capacity, against the same said impugned decision contained in Anenxure-3. 2. The facts leading to the present writ application is that Narendra Kumar Dikshit and others had moved CWJC No.13211 of 2012 for same set of relief that there is disparity and anomaly leading to violation of Articles 14 and 16 of the Constitution of India in grant of pay scale to them vis- a- vis BCG Technicians. It is their stand that right from the time of their appointment as TB Assistants they have been given the same pay scale as BCG Technicians. That position continued surely till the recommendation of the 4th Pay Revision Committee. When the 5th Pay Revision Committee was constituted persons, who could have represented the TB Assistants as a class, were not available for a historic reason. There were large scale appointments illegally made by the then Director, Dr A.A.Mallick which led to removal of all such appointees. Matter travelled right up to the Apex Court and on the direction of the Apex Court, a special examination for recruitment was conducted limiting such posts to 125. These petitioners are appointees of the exercise done by the BPSC on the direction of the Hon’ble Apex Court as urged by learned senior counsel representing the petitioners. 3. It is stated that during the significant period of consideration of pay revision, they were not available and they could not be represented before the 5th Pay Revision Committee. They got their opportunity when the State Government decided to create what is known as Fitment Appellate Committee headed by a sitting High Court Judge, namely, Justice Aftab Alam, as he then was. 4. Learned senior counsel, to reinforce his argument, has drawn the attention of this Court to paragraph 7 of the rejoinder application which is required to be quoted herein below and is reproduced :- “7. That it is respectfully submitted that pay scale fixed on the recommendation of different Pay Revision Committee reports are placed in a tabular form mentioned below. T. B. Assistant B.C.G. Technician 1. That it is respectfully submitted that pay scale fixed on the recommendation of different Pay Revision Committee reports are placed in a tabular form mentioned below. T. B. Assistant B.C.G. Technician 1. Technical qualification- Microscopy of SPUTAM test Technical qualification- B.C.G. vaccination trained 2. Training period- 3 months Training period- 1 ½ months 3. Scale- 535- 765 (At the time of appointment) Scale- 535-765 (basis of 3rd pay revision) 4. 975-1540 (basis of 4th pay revision) 975- 1540 (basis of 4th pay revision enhanced in the pay scale of 1200- 1800 in February 1996 5. 3200- 4900 (basis of 5th pay revision) 4000- 6000 (basis of 5th pay revision 6. Pay Band- 5200- 20,200 and Grade Pay- 2000 (basis of 6th pay revision) Pay Band 5200- 20,200 and Grade Pay 2400 (basis of 6th pay revision) 7. Work- i. first aid service ii. Medicine distribution iii. SPUTAM test and all the related work of T.B. in hospital Work- B.C.G., vaccination 5. The tabular form, which has been quoted above, has been done with the object and purpose of crystallizing the dispute as well as the period when the anomaly came into play at various stages. In addition to this, it is also noticed from the impugned order itself as to what the Principal Secretary has himself taken note of in paragraph Kha of paragraph 2, which is also reproduced herein below : ¼[k½ ch- lh- th- çkoSf/kd dk in ,oa ;{ek lgk;d dk in analogous in gS ftldh ‘kS{kf.kd ;ksX;rk ,oa çf’k{k.k ,d leku gS] ijUrq osrueku esa fHkUurk dj nh x;h gSA iape osru iqujh{k.k vkQrko vkye dfefV ds çfrosnu ds i`0 215 dh dafMdk 30&40 esa mYys[k fd;k x;k gS fd “The post of T.B. Assistant or School Assistant do not find mention even in earlier F.D. Resolutions No.6021 dated 18/12/89 and 781 dated 08/02/96. The Department of Health, however, have confirmed vide their letter no.106 dated 07/11/2000 from Director (Health Service) to Secretary (Health), copy of which has been endorsed by Secretary (Health) to this Committee, that 125 posts of T. B. Assistants exists in the scale of Rs.4000- 6000. Perhaps, the Department has presumed this scale. The Association has also demanded this scale. Therefore, this scale may be allowed to them” ijUrq ekuuh; U;k;k/kh’k vkQrkc vkye dfefV ds çfrosnu ds vk/kkj ij ;{ek lgk;d ds osrueku esa lq/kkj ugha fd;k x;kA^^ 6. Perhaps, the Department has presumed this scale. The Association has also demanded this scale. Therefore, this scale may be allowed to them” ijUrq ekuuh; U;k;k/kh’k vkQrkc vkye dfefV ds çfrosnu ds vk/kkj ij ;{ek lgk;d ds osrueku esa lq/kkj ugha fd;k x;kA^^ 6. In other words, the discrepancy caused, obviously having implication for the petitioners as a class, was required to be redressed by the State government by implementing the direction and recommendation of the Fitment Appellate Committee. For strange reason this was not done and now a plea is being taken on behalf of the State authorities in support of the impugned order that things were not properly placed before the Fitment Appellate Committee and recommendation for grant of pay scale of 4000- 6000 was made by the Fitment Appellate Committee erroneously. 7. If the Principal Secretary, Finance was more explicit in his reasoned order and in his discussion as to what material was wrongly placed, the Court would have surely tried to appreciate their point of view in rejecting the claim of the petitioners vide Annexure- 3. But a reading of the impugned order does not answer the basic questions. An evasive and non- existent material can never form the basis for an order which has implications for these petitioners. They have rightly alleged even non- application of mind. 8. A significant aspect of the dispute has been pointed out by the learned senior counsel based on past adjudications and judicial pronouncements. The significant contention is whether the State Government or any of its functionaries have a right to sit in appeal over the recommendation of the Fitment Appellate Committee without contesting it by way of a review before the Fitment Appellate Committee or by moving before any other superior forums thereto. The law in this aspect seems to have been answered in the negative in LPA No.859 of 2007 and another analogous case decided by a Division Bench in the order dated 20th April, 2010. The law in this aspect seems to have been answered in the negative in LPA No.859 of 2007 and another analogous case decided by a Division Bench in the order dated 20th April, 2010. Reliance has been placed on some of the paragraphs of the judgment which lays down the law and the principle in this regard and they too are reproduced herein below :- “Once, the State Government made a particular representation to its employees and on which recommendation they called off their strike subsequently reduced to a written agreement in which the State Government promised to act in a particular manner, this Court shall bind the government those standards. An assurance given by the State Government, to its employees carried sanctity and cannot be wished away lightly especially when the employees were persuaded to alter their stand on that basis. There was no compulsion on the State Government to refer the matter to the Appellate Fitment Committee for fixation of pay scales which was otherwise the exclusive prerogative of the State. Once it took a conscious decision to part with its powers and agreed to accept the recommendations of that body the State Government cannot blow hot and old. (emphasis mine) The reasoning given by the writ court in C.W.J.C. No.4522 of 2004 is fully endorsed by this Court. The State Government could have reserved its rights while making the reference to the Committee or imposed limitations. It consciously chose not to do so. If it was of the opinion that any particular recommendation was not appropriate its remedy lay in approaching the Committee itself for review or reconsideration. Its unilateral decision not to accept a recommendation, is now beyond its purview and jurisdiction barred by estoppel by conduct.” (emphasis added) 9. The State counsel, besides supporting the rational and reasoning of the Finance Commissioner, cannot overcome the legal proposition laid down by the Division Bench in this regard. There is no contrary decision made available to this Court which can show that the proposition of law quoted herein above is in any way does not indicate the right legal position. If this is so then obviously the Principal Secretary, Finance has passed the order contained in Annexure- 3 contrary to settled proposition of law as well as principles of law. Annexure- 3, therefore, is required to be interfered with and it is quashed. 10. If this is so then obviously the Principal Secretary, Finance has passed the order contained in Annexure- 3 contrary to settled proposition of law as well as principles of law. Annexure- 3, therefore, is required to be interfered with and it is quashed. 10. A direction is issued upon the respondent authorities, therefore, to provide the same pay scale and grade pay even now to the petitioners as that of BCG Technicians. The Court is not enthused to pass any order for granting any benefit of monetary kind or otherwise for the past by virtue of the order passed today but the benefit of parity with BCG Technicians will accrue from the date of this order and not create any other obligation or liability for the past upon the State. 11. The respondent authorities will take necessary corrective measure preferably within a period of three months from the date of production/ communication of a copy of this order. The Court is satisfied that because there is recommendation in favour of the petitioners by the Fitment Appellate Committee coupled with the reasons for disparity emerging in the subsequent pay revision from Vth pay revision recommendation vis- a- vis BCG Technicians, a parity is required to be restored, if not, it will amount to violation of Articles 14 and 16 of the Constitution of India as well as principles laid down by the Division Bench in the LPA order quoted above. 12. Writs are allowed.