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2014 DIGILAW 351 (PAT)

Brajeshwar Sahay v. State Of Bihar

2014-03-14

HEMANT KUMAR SRIVASTAVA

body2014
ORDER 1. This writ petition under Section 226 of the Constitution of India has been filed by the petitioner for issuance of appropriate writ giving direction to the respondents to fix the petitioner’s pension corresponding with the scale of pay from which he was retired and pay him the arrears along with the interest thereon with effect from the date of his retirement along with differential amount of gratuity and leave encashment. 2. The petitioner was appointed and joined on the post of cartographer in the Planning and Development Department, Government of Bihar on 24.01.1972. In the year 1976, a post of cartographer with higher scale in Class II Junior was created in the Planning and Development Department, Government of Bihar under the scheme Pilot Research Project in Growth Centre and an advertisement was made by the above stated department in respect of the above stated post. The petitioner applied for the above stated post. A Departmental Promotion Committee was constituted by the Planning and Development Department, Government of Bihar and the aforesaid committee found the petitioner suitable for the promotion to the above stated post and accordingly, his name was proposed. After recommendation of Departmental Promotion Committee, the name of petitioner was notified for the above stated post by the Planning and Development Department, Government of Bihar vide notification no. 1208 dated 08.04.1978. While petitioner was working on the aforesaid post, 4th Pay Revision Committee upgraded the pay scale of cartographer posted in the Planning and Development Department, Government of Bihar to the pay scale of Section Officer but 5th Pay Revision Committee reduced the pay scale against which the petitioner preferred CWJC No. 11319 of 1996 before this Court and in the above stated CWJC No. 11319 of 1996, this Court vide order dated 07.09.1998 directed the Chief Secretary, Government of Bihar, Patna to consider the representation of the petitioner and take final decision in the matter. In pursuance of order dated 07.09.1998, the Chief Secretary, Government of Bihar considered the grievance of the petitioner and by reasoned order took decision to give the petitioner pay scale of Rs. 2000-3500/- equivalent to the pay scale of Section Officer. The aforesaid decision was placed before the State government and the State Government approved the decision of Chief Secretary, Govt. 2000-3500/- equivalent to the pay scale of Section Officer. The aforesaid decision was placed before the State government and the State Government approved the decision of Chief Secretary, Govt. of Bihar treating the case of petitioner as special case subject to condition that after retirement/resignation of the petitioner, the post of cartographer in Planning and Development Department, Government of Bihar shall remain be treated in pay scale of Rs. 1640-2900/- in the light of decision/approval of the State Government. The Joint Secretary, Planning and Development Department, Government of Bihar vide his letter no. 3135 dated 07.12.1998 gave information to the Accountant General, Bihar, Patna in respect of the above stated decision of the State Government and also gave information that the petitioner was entitled to get pay scale of Rs. 2000-3500 from the date of implementation of 5th Pay Revision. Furthermore, in the above stated letter, it was mentioned that the above stated pay scale of Rs. 2000-3500 had been sanctioned to the petitioner only with a view to regularize his pay during his service period and after his retirement for determining his pension benefit. The petitioner superannuated from the service on 31.07.2003 and after his retirement his pension was fixed at reduced pay scale of Rs. 1640-2900. The petitioner filed a modification in CWJC No. 11319 of 1996. 3. It is pertinent to note here that CWJC No. 11319 of 1996 was dismissed by a bench of this Court taking note of this fact that petitioner has been enjoying the post retiral benefits on the special pay scale given to him by the Chief Secretary, Govt. of Bihar. The Bench of this Court in CWJC No. 11319 of 1996 rejected the claim of the petitioner for parity with cartographer working in the agriculture department. It is also pertinent to note here that petitioner filed MJC No. 933 of 2011 for modification of above stated order dated 16.11.2010 passed in CWJC No. 11319 of 1996 but the aforesaid MJC No. 933 of 2011 was dismissed by a Bench of this Court giving liberty to the petitioner to re-agitate his claim in a separate writ, if he is not getting retirement benefit of special pay which was fixed by the Chief Secretary, Govt. of Bihar. In the light of above stated order dated 27.04.2011 passed in MJC No. 933 of 2011, the petitioner has filed present writ petition. 4. of Bihar. In the light of above stated order dated 27.04.2011 passed in MJC No. 933 of 2011, the petitioner has filed present writ petition. 4. Counter affidavit has been filed on behalf of the respondents and the stand of the respondents is that the petitioner was appointed on the post of cartographer in the Planning and Development Department, Government of Bihar in the pay scale of Rs. 160-208/- and subsequently, the pay scale of petitioner was revised under the 3rd Pay Revision Commission Recommendation with effect from 01.01.1971. Subsequently, a post of cartographer in the higher scale of Rs. 455-840 was sanctioned in the Planning and Development Department, Government of Bihar initially up to December 1979 on which the petitioner was promoted. The pay scale of post of cartographer was revised under the 4th Pay Revision and accordingly, the pay scale of Rs. 880-1510 was granted with effect from 01.04.1981 under 4th Pay Revision. The pay scale of cartographer of the Planning and Development Department, Government of Bihar was fixed in the pay scale of Rs. 1640-2900 in 5th Pay Revision and the same pay scale was also granted to the petitioner but petitioner being dissatisfied with the aforesaid fixation approached the Pay Anomaly Committee but the Pay Anomaly Committee also rejected the claim of the petitioner and then petitioner filed CWJC No. 11319 of 1996 and under the interim order dated 07.09.1998 of this Court, the representation of the petitioner was considered by the Chief Secretary, Govt. of Bihar and treating the case of petitioner as special case, the pay scale of Rs. 2000-3500 was allowed to the petitioner. After retirement from the service, the pay scale of petitioner was provisionally fixed on the basis of last pay drawn by him but when the matter was sent before the finance department, it was pointed out that the pay scale admissible to the petitioner was the pay scale of Rs. 5500-9000/- and accordingly, the pay scale of petitioner was fixed in the pay scale of Rs. 5500-9000/- with effect from 01.01.1996 and the aforesaid re-fixation was approved by the Chief Secretary, Govt. of Bihar vide letter no. 1255 dated 01.06.2004 which has been annexed as Annexure-A to the main counter affidavit. 5. Learned counsel for the petitioner submits that admittedly, petitioner was upgraded in the pay scale of Rs. 5500-9000/- with effect from 01.01.1996 and the aforesaid re-fixation was approved by the Chief Secretary, Govt. of Bihar vide letter no. 1255 dated 01.06.2004 which has been annexed as Annexure-A to the main counter affidavit. 5. Learned counsel for the petitioner submits that admittedly, petitioner was upgraded in the pay scale of Rs. 455-840/- in the year 1976 and when petitioner filed CWJC No. 11319 of 1996, a Bench of this Court directed the Chief Secretary, Govt. of Bihar to consider the grievance of the petitioner and accordingly, the Chief Secretary, Govt. of Bihar found the grievance of the petitioner genuine and accordingly, fixed his pay at pay scale of Rs. 2000-3500/- treating the case of the petitioner as special case which is evident from perusal of Annexure-5 to the main writ petition and subsequently, the State Government approved the above stated proposal of Chief Secretary, Govt. of Bihar and the then Joint Secretary, Planning and Development Department, Government of Bihar issued letter to Accountant General, Bihar, Patna informing that pay scale of Rs. 2000-3500 of the petitioner has been accepted from the date of implementation of 5th Pay Revision treating the case of the petitioner as special case and it was also informed to the Accountant General, Bihar, Patna that after retirement/resignation of the petitioner the post of cartographer under Planning and Development Department, Government of Bihar shall carry the pay scale of Rs. 1640-2900/-. It is further contended on behalf of the petitioner that the respondents accepted the aforesaid fact in CWJC No. 11319 of 1996 but subsequently on the basis of recommendation of Fitment Committee, the pay scale of petitioner was reduced vide office order no. 1255 dated 01.06.2004 which was not in accordance with law. It is further contended by him that no doubt, a Bench of this Court dismissed the CWJC No. 11319 of 1996 vide order dated 16.11.2010 but admittedly, the said Bench of this court dismissed the CWJC No. 11319 of 1996 keeping in mind that petitioner has already been granted the pay scale of Rs. 2000-3500 as special case. It is further contended by him that as a matter of fact, prior to passing order dated 16.11.2010, the office order no. 2000-3500 as special case. It is further contended by him that as a matter of fact, prior to passing order dated 16.11.2010, the office order no. 1255 dated 01.06.2004 had already been issued and the pay scale of petitioner had already been reduced but the aforesaid fact could not be brought to the notice of this Court and when MJC No. 933 of 2011 was filed before this Court for modification, this court dismissed the MJC No. 933 of 2011 giving liberty to the petitioner to raise his grievance in a separate writ and, therefore, the present writ is not barred by Principle of res judicata. It is further contended by him that when the petitioner’s pay scale was fixed by the State Government treating the case of petitioner as special case, then the Chief Secretary, Govt. of Bihar had got no authority to reduce the pay scale of petitioner without prior consent of State Government and, therefore, Annexure-A to the counter affidavit is liable to be quashed and respondents be directed to fix pension of petitioner on the basis of last pay scale drawn by him and furthermore, the respondents be directed to make payment of all consequential benefits. 6. On the other hand, learned counsel appearing for the respondents submits that no doubt, earlier the then Chief Secretary, Govt. of Bihar in the light of direction of this Court passed in CJWC No. 11319 of 1996 recommended the upgraded pay scale of Rs. 2000-3500/- to the petitioner and the aforesaid pay scale was approved by the State Government and accordingly, a letter no. 3135 dated 07.12.1998 was issued but at the time of issuance of letter no. 3135 dated 07.12.1998, recommendation of Fitment Committee, which had been constituted to fix the pay scale of employees of the State Government at par with pay scale of employees of Central Government, had not been notified and the recommendation of Fitment committee was notified on 18.02.1999. It is further contended by him that Fitment Committee had recommended two pay scales i.e. Rs. 5000-8000/- and Rs. 5500-9000/- for the post of cartographer and according to recommendation of Fitment Committee, the pay scale of Rs. 5500-9000/- was fixed for the cartographer of Planning and Development Department and in the light of aforesaid facts, the Chief Secretary, Govt. of Bihar issued office order no. 1255 dated 01.06.2004 reducing the pay scale of the petitioner. 5000-8000/- and Rs. 5500-9000/- for the post of cartographer and according to recommendation of Fitment Committee, the pay scale of Rs. 5500-9000/- was fixed for the cartographer of Planning and Development Department and in the light of aforesaid facts, the Chief Secretary, Govt. of Bihar issued office order no. 1255 dated 01.06.2004 reducing the pay scale of the petitioner. 7. It is an admitted position that initially, petitioner was appointed on the post of cartographer on 24.01.1972 in the Planning and Development Department, Government of Bihar in pay scale of Rs. 160-208/- but in the year 1976, he was promoted by Departmental Promotion Committee to the post of cartographer Class II Junior with higher scale of Rs. 455-840/- which had been created for certain period. The 4th Pay Revision Committee upgraded the pay scale of cartographer post in the Planning and Development Department, Government of Bihar to the pay scale of Section Officer but subsequently, 5th Pay Revision Committee reduced the above stated pay scale of cartographer and thereafter, the aforesaid reduction by the 5th Pay Revision Committee was challenged by the petitioner before a Bench of this Court filing CWJC No. 11319 of 1996 in which a Bench of this Court directed the Chief Secretary, Govt. of Bihar to consider the grievance of the petitioner. It is also an admitted position that the then Chief Secretary, Govt. of Bihar considered the grievance of the petitioner and recommended the pay scale of the petitioner of Rs. 2000-3500/- vide his office order dated 26.09.1998. Furthermore, the State Government accepted the proposal of Chief Secretary, Govt. of Bihar treating the case of petitioner as special case and a letter was written to the Accountant General, Bihar Patna for issuance of pay slip to the petitioner in the pay scale of Rs. 2000-3500 and the aforesaid letter was issued for regularization of salary as well as for fixation of pension after retirement of the petitioner. In the aforesaid letter, it was also mentioned that after retirement/resignation of the petitioner the post of cartographer in Planning and Development Department, Government of Bihar shall carry its previous scale i.e. Rs. 1640-2900/-. Therefore, it is apparent from the aforesaid fact that the case of petitioner was treated as special case by the State government. In the aforesaid letter, it was also mentioned that after retirement/resignation of the petitioner the post of cartographer in Planning and Development Department, Government of Bihar shall carry its previous scale i.e. Rs. 1640-2900/-. Therefore, it is apparent from the aforesaid fact that the case of petitioner was treated as special case by the State government. Furthermore, it is stand of the respondents that Fitment Committee was constituted to fix the pay scale of employees of State government at par with the employees of Central Government and the aforesaid Fitment Committee fixed two pay scales for cartographer i.e. Rs. 5000-8000/- and Rs. 5500-9000/-. After recommendation of Fitment Committee, it was found that the petitioner was entitled to get pay scale of Rs.5000-8000/-. There is nothing on the record to show that the case of the petitioner was placed before the Fitment Committee as special case and it is obvious from the aforesaid fact that the Fitment Committee considered the pay scale of cartographer of Planning and Development Department, Government of Bihar equivalent to the post of cartographer of Central Government but admittedly, the petitioner was getting upgraded pay scale as special case and if the aforesaid fact had been brought to the notice of Fitment Committee, the matter would have been different. No doubt, the grievance of the petitioner has been considered by expert bodies such as Pay Revision Committee and Pay Anomaly Committee but in the aforesaid special circumstance, in my view, the Chief Secretary, Govt. of Bihar had got no authority to reduce the pay scale of petitioner in the light of recommendation of Fitment Committee i.e. too without taking prior approval of the State Government. 8. In CWJC No. 11319 of 1996, the petitioner had claimed his pay scale at par with cartographer working in the agriculture department and a Bench of this Court rejected the aforesaid prayer of the petitioner vide order dated 16.11.2010 but did not disturb the pay scale of the petitioner and also took note of this fact that the State Government granted pay scale of Rs. 2000-3500 to the petitioner treating his case as special case. Admittedly, at the time of passing order dated 16.11.2010 in CWJC No. 11319 of 1996, it was not brought to the notice of the court that the pay scale of the petitioner had already been reduced. 2000-3500 to the petitioner treating his case as special case. Admittedly, at the time of passing order dated 16.11.2010 in CWJC No. 11319 of 1996, it was not brought to the notice of the court that the pay scale of the petitioner had already been reduced. Therefore, in the aforesaid circumstance, it cannot be said that the present writ petition is barred by principle of res judicata. Furthermore, Annexure-9 to the second rejoinder to the supplementary counter affidavit reveals that the post of cartographer in Planning and Development Department, Government of Bihar was upgraded by the order dated 01.06.1982 and petitioner remained on the aforesaid post till his superannuation. Therefore, it is apparent that the petitioner was absorbed in the higher pay scale on the post of cartographer in the Planning and Development Department, Government of Bihar. By filing second rejoinder to the supplementary counter affidavit, petitioner has prayed for quashing officer order no. 1255 dated 01.06.2004 issued under the signature of Chief Secretary, Govt. of Bihar. 9. On the basis of aforesaid discussions, I am of the opinion that this writ petition is liable to be allowed and accordingly, this writ petition is allowed and office order no. 1255 dated 01.06.2004 (annexed in the counter affidavit as Annexure-A) is hereby quashed. The respondents are directed to fix the pension of the petitioner on the basis of last pay drawn by him with all consequential benefits to him and ensure his payment within three months from the date of receipt/production of a copy of this order.