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2018 DIGILAW 1500 (JHR)

Satendra Kumar Dubey v. State of Jharkhand

2018-07-11

PRAMATH PATNAIK

body2018
ORDER : 1. Heard Mr. Rajeev Ranjan, learned senior counsel for the petitioner, as well as Mr. Bhavesh Kumar, learned S.C. II appearing for the Respondent-State. 2. In this writ application, the petitioner has sought for issuance of writ of certiorari for quashing the letter dated 01.06.2010 vide Annexure-9 to the writ application, whereby the pay of the petitioner has been directed to be replaced to Rs. 1320-2040 from the pay scale of Rs. 1400-2600/- and for recovery from the excess payment. Further prayer has been made for quashing the letter dated 10.01.2012 vide Annexure-11, whereby the service Book of the petitioner has been returned to the Palamau Treasury, Palamau, Medininagar, by the Joint Secretary, Finance Department, Government of Jharkhand, Ranchi with direction to implement the letter dated 01.06.2010 (Annexure-9). 3. The brief facts, as has been disclosed in the writ application, are that the petitioner was appointed on compassionate ground on the post of Clerk/Assistant in the year 1982 and the name of the petitioner was included in the Gradation list of employees of Treasury in Accounts cadre. The pay-scale of the petitioner of Rs. 580-860/- was revised with effect from 01.01.1986 in the pay-scale of Rs. 1200-1800/- and thereafter to the pay-scale from Rs. 1400-2600/- with effect from 14.04.1992. The Director of Treasury came under the administrative control of the Finance Department, Government of Bihar and the Government of Bihar also framed a rule under Article 309 of the Constitution of India for the employees working under the Treasury. When the pay-scale of employees working in different Treasuries were reduced, a writ petition was filed before the Hon'ble Patna High Court vide C.W.J.C. No. 3063 of 1992, Dhananjay Sharma & Others vs. State of Bihar & Others, which was allowed by the Hon'ble Patna High Court vide judgment dated 26.07.2001 by quashing the letter pertaining to reduction of pay with direction to the respondents to implement the recommendation of the Fitment Appellate Committee and to pay the pay-scale of Rs. 5,000-8,000/- which was revised pay-scale of Rs. 1400-2600/- to the employees of the Treasury. In pursuance to the aforesaid judgment, though the decision was taken to grant pay-scale of Rs. 5,000-8,000/- to the Assistants working in the Treasury office prior to 1979, but, such scale was not applicable to the employees appointed on compassionate ground after 1979, as per the Notification dated 03.09.2002. 1400-2600/- to the employees of the Treasury. In pursuance to the aforesaid judgment, though the decision was taken to grant pay-scale of Rs. 5,000-8,000/- to the Assistants working in the Treasury office prior to 1979, but, such scale was not applicable to the employees appointed on compassionate ground after 1979, as per the Notification dated 03.09.2002. The petitioner, being aggrieved by the aforesaid Notification, challenged the said Notification in W.P. (S) No. 742 of 2004 and the said writ petition was allowed vide judgment dated 22.08.2006 by this Court by quashing the impugned Notification dated 03.09.2002 with direction to the respondents to allow the pay-scale of Rs. 5,000-8,000/- to the petitioner with effect from 01.04.1997, as has been allowed to the Assistants, appointed prior to 1979. The State of Jharkhand, being aggrieved by the judgment dated 22.08.2006, passed in W.P. (S) No. 742 of 2004, preferred L.P.A. No. 515 of 2006, which was dismissed vide judgment dated 23.11.2006 and subsequently, the said judgment was challenged before the Hon'ble Supreme Court, which was also dismissed vide order dated 13.08.2007. In pursuance to the order passed in W.P. (S) No. 742 of 2004, a Resolution dated 19.12.2007 was brought and the petitioner continued to receive the pay-scale of Rs. 5,000-8,000/- but to the utter dismay and consternation of the petitioner, the impugned letter dated 01.06.2010 has been issued by the Principal Secretary, Finance Department with direction to re-fix the pay-scale of the petitioner by replacing the same with pay-scale of Rs. 1320-2040/- and for recovery of the excess payment. Thereafter, the impugned order dated 10.01.2012 has been issued by the Joint Secretary, Finance Department, Government of Jharkhand, Ranchi for implementation of the letter dated 01.06.2010. Being aggrieved by the aforesaid order vide Annexure-9 and 11 to the writ petition, the petitioner, left with no other alternative and efficacious remedy has been constrained to knock the doors of this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. A supplementary affidavit dated-20th February, 2018, has been filed on behalf of the petitioner, wherein, it has been submitted that the pay of the petitioner has been revised and fixed in the pay-scale of Rs. 730-1080/- with effect from 24.04.1982 and subsequently pay was revised and fixed in the pay-scale of Rs. 4. A supplementary affidavit dated-20th February, 2018, has been filed on behalf of the petitioner, wherein, it has been submitted that the pay of the petitioner has been revised and fixed in the pay-scale of Rs. 730-1080/- with effect from 24.04.1982 and subsequently pay was revised and fixed in the pay-scale of Rs. 1400-2300/- which stood approved by the District Accounts Officer of the Finance Department of Palamau, as evident from Annexure-15 and 15/A of the supplementary affidavit. 5. Learned senior counsel on behalf of the petitioner has submitted with vehemence that the impugned orders vide Annexure-9 and 11 to the writ application, has been passed without any cogent and justifiable reason that too without affording any opportunity of being heard to the petitioner after a lapse of more than two decades, which are not legally permissible. The learned senior counsel on behalf of the petitioner submits that the impugned orders are not the outcome of any fraud or misrepresentation on the part of the petitioner, rather the respondents after lawful orders, passed by this Court, in W.P. (S) No. 742 of 2004, which has been confirmed in the Appeal as well as by the order of the Hon'ble Apex Court, in a very cavalier fashion are trying to tinker with the pay-scale of the petitioner in reducing the same and for direction for recovery, which amounts to over-reaching and circumventing the orders, passed by this Hon'ble Court in W.P. (S) No. 742 of 2004. Learned counsel further submits that the impugned action on the part of the respondents, amounts to highhandedness and cavalier exercise of power, which are in breach of Articles 14 and 16 of the Constitution of India. 6. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent nos. 2 and 3. In the counter affidavit, it has been, inter-alia, submitted that the respondents have neither any intention to violate the order of the Hon'ble Court nor have any intention to review the order passed by the Hon'ble Court. In terms of the direction of the Hon'ble Court, the salary of the petitioner has already been fixed in the pay-scale of Rs. 5,000-8,000/-. However, the State is well with its right to rectify the error by which the petitioner had been granted higher pay-scale previously, than to what, he was entitled to. In terms of the direction of the Hon'ble Court, the salary of the petitioner has already been fixed in the pay-scale of Rs. 5,000-8,000/-. However, the State is well with its right to rectify the error by which the petitioner had been granted higher pay-scale previously, than to what, he was entitled to. The State is competent to realize the excess amount. 7. A supplementary counter affidavit, dated 21.02.2018, has been filed by the respondent nos. 2 and 3, wherein, it has been submitted that the scale payable to the clerks of the Treasury on which the petitioner was appointed, was Rs. 580-860/- in the year 1982. In the Pay Revision of 1986, this scale was replaced by the scale of Rs. 1200- 1800/- and eventually in the year 1996, this scale was replaced by the scale of Rs. 4,000-6,000/-. However, in terms of the order of the Hon'ble Court, the petitioner is getting the salary in the pay scale of Rs. 5,000-8,000/- vide Resolution dated 19.12.2007 vide Annexure-A to the supplementary counter affidavit. It has further been submitted that, however, since the petitioner was himself posted in the treasury he got his scale fixed in the pay-scale of Rs. 730-1080/- instead of the scale of pay of Rs. 580-860/- which is the pay-scale payable to the Clerks of the treasury in which scale the petitioner was originally appointed. Therefore, as a rolling effect of wrong fixation in the pay scale of Rs. 730-1080/- the scale of the petitioner was replaced in the pay-scale of Rs. 1400-2300/- whereas, he was in fact entitled to the replacement scale of Rs. 1200-1800/- and as a result of which, the petitioner himself is to blame, he has received excess amount, which is sought to be recovered. It has further been submitted that though now in terms of the order of the Hon'ble Court, the petitioner has become entitled to the pay scale of Rs. 5,000-8,000/- in the year 1996, he cannot be allowed to get away with the wrong fixation of pay-scale in the year 1982 and 1986. 8. It has further been submitted that though now in terms of the order of the Hon'ble Court, the petitioner has become entitled to the pay scale of Rs. 5,000-8,000/- in the year 1996, he cannot be allowed to get away with the wrong fixation of pay-scale in the year 1982 and 1986. 8. Learned counsel for the Respondent-State has tried his level best to justify the action of the respondents vide Annexure-9 and 11 to the writ application, but has fairly submitted that the pay-scale, which has been admissible to the petitioner in pursuance to the order of the Hon'ble Court, cannot be allowed to be replaced at this stage, since the same has attained its finality. 9. After having heard the learned counsel for the respective parties and on perusal of the records, this Court is inclined to interfere in the impugned order in view of the following facts and reasons:- (i) Admittedly, in view of the decision rendered by this Court dated 22.08.2006, passed in W.P. (S) No. 742 of 2004, which has been affirmed by the order dated 23.11.2006, passed in L.P.A. No. 515 of 2006 and also by the order passed by the Hon'ble Apex Court, a Resolution dated 19.12.2007 was brought on record, whereby the employees working in the Treasury has been receiving the pay-scale of Rs. 5,000- 8,000/- and the petitioner has also received the pay-scale of Rs. 5,000-8,000/-. (ii) Once the pay-scale of the petitioner has been fixed in pursuance to the order passed by this Court, the respondents would be bereft of the jurisdiction to tinker with the pay-scale of the petitioner by issuance of the impugned order (Annexure-9), which appears to over-reaching and circumventing the orders passed by this Court, therefore, the impugned order cannot be allowed to be sustained in the eyes of law. Hence, the impugned orders vide Annexure-9 and 11 are liable to be quashed and set aside. It would also be pertinent to mention that the pay-scale, which has been admissible to the petitioner, is sought to be reduced by the impugned order, when there is no misrepresentation or fraud on the part of the petitioner. (iii) The impugned orders are also not legal on the ground that the said orders have been passed without any opportunity or show cause to the petitioner and that too has been passed after long lapse of time. 10. (iii) The impugned orders are also not legal on the ground that the said orders have been passed without any opportunity or show cause to the petitioner and that too has been passed after long lapse of time. 10. In view of the reasons stated in the foregoing paragraphs, the impugned orders vide Annexure-9 and 11 warrants interference by this Court. Accordingly, the same are quashed and set aside. 11. Resultantly, the writ petition stands allowed. Petition allowed.