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2017 DIGILAW 2195 (JHR)

Brahma Nath Sharma v. State of Jharkhand

2017-12-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. The petitioners, who were members of the State Cadre known as Jharkhand Prosecution Services being appointed as Assistant Public Prosecutor in the State of Jharkhand, have filed the instant writ application, praying inter alia for direction upon the respondents for grant and sanction of pay scale of Rs. 8,000-13,500/- at par with State Services employees similarly situated as per notification no.3589 dated 17.12.2007. The petitioners have further prayed that the action of the respondent no.2 in not allowing the aforesaid pay scale is completely arbitrary, illegal and discriminatory in nature. 2. The facts, leading to filing of the writ application, in a nut shell is that petitioners were appointed as Assistant Public Prosecutor by the Government of Bihar initially in the pay scale of Rs. 1000-1820/-. After creation of State of Jharkhand, Jharkhand Prosecution Services came into existence after the cadre division of Bihar Prosecution Services on 31.03.2005. In the Unified State of Bihar, a separate cadre of prosecution was declared as Bihar Police Service (Prosecution Branch). The Government of Bihar passed resolution for creation of promotional opportunities for Assistant Public Prosecutors, which is binding on the State of Jharkhand vide Annexure-2 to the writ application. The pay scales of District Prosecution Officers and Assistant Director have been revised to Rs. 12000-16500/- and that of Divisional Prosecution Officers has been revised to Rs. 14,300-18,300/-. Twenty two posts of Public Prosecutor in the scale of Rs. 12,000-16,500/- and 110 posts of Additional Public Prosecutor in the scale of Rs. 10,000-15,200/- were created as promotional post for Assistant Public Prosecutor by the Government of Jharkhand as per Annexure-4 to the writ petition. It has been further averred in the writ application that the post of senior District Prosecutor has been listed as Class-II State Services as I.A. in Appendix 16 of Bihar Service Code (now Jharkhand Service Code) with all other State Services. The Government of Jharkhand upgraded those officers to the scale of Rs. 8,000-13,500/- who were getting unrevised scale of Rs. 2200-4000/- and who have been allowed the pay scale of Rs. 6500-10500/- and those having first promotional post in the scale of Rs. 10,000-15,200/- or more, as per Annexure-6 to the writ application. Being entitled to get the upgraded scale of Rs. 8,000-13,500/- who were getting unrevised scale of Rs. 2200-4000/- and who have been allowed the pay scale of Rs. 6500-10500/- and those having first promotional post in the scale of Rs. 10,000-15,200/- or more, as per Annexure-6 to the writ application. Being entitled to get the upgraded scale of Rs. 8,000-13,500/- the petitioners submitted their representations to the concerned authority of the department of Finance, Government of Jharkhand, praying inter alia for revision of their pay scale, at par with of the officers of the State Government, who were in the earlier scale of Rs. 6,500-10,500/- have been allowed the pay scale of Rs. 8,000-13,500/- vide Annexurre-7 and 7/A to the writ application. Being aggrieved by inaction of the respondents, not granting the appropriate pay scale, the petitioners have been constrained to approach this Court, invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of their grievances. 3. A supplementary counter affidavit dated 22.08.2012 has been filed on behalf of State of Jharkhand, in which, in paragraph 9 it is specifically stated that four pre-conditions are required to be fulfilled entitling an officer in the pay scale of Rs. 6,500-10,500/- to the higher pay scale of Rs. 8,000-13,500/-, which are as follows: (a) The officer must be an officer of the State Service. (b) Must be in the scale of Rs. 6,500-10,500/- with effect from 01.01.1996. (c) Prior to 01.01.1996 must be in the scale of Rs. 2,200-4,000/-. (d) The first promotional post must be in the scale of Rs. 10,000-15,200/- or above. 4. In the counter affidavit filed on behalf of Finance Department it is denied that the petitioners fall under the State Service and further it has been stated that promotional post of the petitioners is not in the scale of Rs. 10,000-15,200/-. 5. The petitioners have brought on record the Jharkhand Prosecution Service Rules, 2011, framed by the State Government as Annexure-13 to the supplementary affidavit, which shows that the post of Assistant Public Prosecutors are the Group-B Gazetted Officers of the State Cadre, which clearly shows that the petitioners are also in State Service in view of the definition of Gazetted Officers, as defined in Rule 18 of the Jharkhand Service Code. The Jharkhand Prosecution Service Rules, 2011, also clearly shows that the recruitment to the post of Assistant Public Prosecutor are made through the Jharkhand Public Service Commission and their next promotional post is Additional Public Prosecutor, which is presently in Pay Band-III of Rs. 15,600-39,100/- with Grade Pay of Rs. 6,600/-. There is no dispute to the fact that in the 5th Pay Revision the Additional Public Prosecutor carried the pay scale of Rs. 10,000-15,200/-. 6. In pursuance to Order No. 10 dated 19.09.2016 a supplementary counter affidavit on behalf of respondent no.4 has been filed. In the said affidavit, the circular contained in resolution dated 17.12.2007 has been referred to and it has been stated that as per the recommendation of 5th Pay Revision Committee, the petitioners are entitled to pay scale of Rs. 6,500- 10,500/- which is the replacement scale of Rs. 2200-4000/- and this pay scale of Rs. 6,500-10,500/- was given to the Assistant Public Prosecutors with effect from 01.01.1996 (notionally) and 01.04.1997 (actual benefits). 7. Second supplementary counter affidavit dated 18.10.2016 on behalf of respondent no.2 has been filed, wherein it has been submitted that in the Central Government the pay scale payable to the Public Prosecutors is that of Pay Band-II with Grade Pay of Rs. 4600/- which is the replacement scale of the unrevised scale of Rs. 6,500-10,500/-. It has further been submitted that the petitioners are not entitled to claim, which is higher than the pay scale of its counter-part in the Central Government. It has further been submitted that though the petitioners may be Group-B Gazetted Officers of the State cadre, however, their Services have not been declared as State Service. It may be true that every officer of the State Service is a Gazetted Officer of the State cadre, however the reverse is not true. There may be Gazetted Government Officers but it is not necessary that their Services have been declared as State Service. The name of the State Prosecution Service does not find place in the State Service and hence, the petitioners are not entitled to the scale of Rs. 8,000-13,500/-. It has further been submitted that after the 6th Pay Revision the Gazetted Officers in the scale of Rs. 6,500-10,500/- were placed in the three Grade Pay of Rs. 4,600/-, 4800 and 5400/-. 8,000-13,500/-. It has further been submitted that after the 6th Pay Revision the Gazetted Officers in the scale of Rs. 6,500-10,500/- were placed in the three Grade Pay of Rs. 4,600/-, 4800 and 5400/-. It has further been submitted that after the 5th Pay Revision the first promotional post of Assistant Public Prosecutors carried the pay scale of Rs. 8,000-13,500/- and not the scale of Rs. 10,000-15,200/- as is being claimed by the petitioners. It has further been submitted that the Jharkhand Prosecution Service Rules have been come into effect from 2012 and the petitioners cannot claim benefit on the said basis. 8. Another supplementary counter affidavit on behalf of respondent no.2 has been filed on 25.01.2017 wherein it has been submitted that the resolution dated 17.12.2007, vide Annexure-6 to the writ petition, the same is applicable only to those Services which have been declared as State Service prior to the notification of resolution and not to all the Services of the State Government. Since the Services of the petitioners have not been declared as State Service till date and hence the question of allowing them the benefit of the resolution dated 17.12.2007 does not arise. It has further been submitted that by a specific order dated 07.11.2003 State Government has recognized some Services as State Services. The other Gazetted Services, which do not appear in the list of the State Services declared by the State Government, are however Gazetted but not State Services as per the resolution vide Annexure-D to the said affidavit. Therefore, the Services of the petitioners though Gazetted but not a State service. 9. Learned counsel for the petitioners during course of hearing submitted with vehemence that case of the petitioner is squarely covered by the decision of this Court rendered in case of Anand and Ors. v. The State of Jharkhand & Ors. reported in 2016 (4) JLJR 1 and hence, petitioners are entitled to the benefit extended to the petitioner in the aforesaid case. 10. Mr. v. The State of Jharkhand & Ors. reported in 2016 (4) JLJR 1 and hence, petitioners are entitled to the benefit extended to the petitioner in the aforesaid case. 10. Mr. H.K. Mehta, learned AAG appearing for the State on the other hand has opposed the prayer of the petitioners and has assiduously submitted that the benefit of pay enhancement of scale could not be given to the petitioners for the reason that petitioners are not officers belonging to State Services as mentioned in the list of State Services issued by the Department of Personnel, Administrative and Reforms and Rajbhasha and the grant of pay scale falls within the exclusive domain of the Fitment Committee. It is the settled position of law that the grant of pay scale ought to be left to the discretion of the Pay Anomaly Committee and it is not for the Court to tinker with the pay scale unless it is shown to be arbitrary. 11. After hearing the respective parties at length and giving my anxious consideration to the documents on record and upon going through the decision rendered by this Court reported in 2016 (4) JLJR 1 (Anand and Ors. v. The State of Jharkhand & Ors.), I am of the considered view that the petitioners are entitled to the benefit as has been extended in the decision reported supra. Accordingly, the respondent authorities are directed to grant and sanction the pay scale of Rs. 8,000-13,500/- to the petitioners like other State Services employees in accordance with the decision of the State Government in resolution dated 17.12.2007 as contained in Annexure-6 to the writ petition, whereby the benefit of pay scale of Rs. 8,000-13,500/- was given to the officers of the State Services, notionally with effect from 15.11.2000 and actual benefits with effect from 01.03.2007 with all consequential benefits with retrospective effect from the same dates. The respondents are further directed to issue the pay slip in the revised scale to the petitioners. The aforesaid exercise be implemented positively within a period of three months from the date of communication of the order. 12. The writ petition is accordingly allowed, with the aforesaid direction. Petition allowed.