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Jharkhand High Court · body

2018 DIGILAW 162 (JHR)

Sanjay Kumar v. State of Jharkhand

2018-01-18

S.N.PATHAK

body2018
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the parties. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to grant him benefits of promotion as has been given to the other similarly situated persons who were appointed along with the petitioner on the post of Bill Clerk vide Letter No. 6020, dated 12.12.1995 and have been promoted and working on much higher pay scale of Rs. 9,300-34,800 but the petitioner is still working on a pay scale of Rs. 5,200-20,200. Petitioner further prays for a direction upon the respondents to grant benefits of post and emoluments to the petitioner as given to the similarly situated persons. Petitioner further prays for a direction upon the respondents to grant him all the benefits and admitted dues which the petitioner has suffered after being shifted to the post of Storekeeper. Petitioner has further prayed for quashing the letter as contained in Memo No. 5503, dated 25.10.2015, whereby the respondent No. 3 without taking prior approval of the Department of Personnel and Administrative Reforms, Government of Jharkhand, has erroneously and arbitrarily rejected application of the petitioner in which petitioner had requested to reinstate him on the post of Bill Clerk from retrospective I effect and to grant promotion and other monetary benefits which has been denied to the petitioner after being shifted from the post of Bill Clerk to Storekeeper. 3. The facts in short giving rise to the instant writ petition is that petitioner and 15 other employees were appointed on compassionate basis on the post of Bill Clerk in the pay scale of Rs. 1,200-30-800 vide Letter No. 6020, dated 12.12.1995, which was issued under the signature of Secretary, Water Resources Department, Government of Bihar, Patna in light of Letter No. 10375, dated 15.11.1995, issued by Personnel and Administrative Reforms Department, Government of Bihar, Patna. After his appointment, petitioner joined his service on 12.12.1995 on the post of Bill Clerk in Secretariat of Bihar, Patna. But after 81 days of his joining, petitioner and six others were shifted to the post of Storekeeper vide Letter No. 1138, dated 28.2.1996, issued under the signature of the Secretary, Water Resources Department, Bihar without taking prior approval of the Department of Personnel and Administrative Reforms. However, other nine persons continued to work on the post of Bill Clerk. But after 81 days of his joining, petitioner and six others were shifted to the post of Storekeeper vide Letter No. 1138, dated 28.2.1996, issued under the signature of the Secretary, Water Resources Department, Bihar without taking prior approval of the Department of Personnel and Administrative Reforms. However, other nine persons continued to work on the post of Bill Clerk. In compliance of letter dated 28.2.1996, petitioner joined in the office of Chief Engineer, Water Resource Department, Deoghar on 2.3.1996. Again vide letter No. 1067, dated 27.3.1996, petitioner was transferred to the Department Aayojan-cum-Niyantran and Monitoring Pramandal, Deoghar as Storekeeper and subsequently, in compliance of the said order, petitioner joined as Store Keeper on 27.3.1996 and till now he is working as Store Keeper in the said Department. It is further case of the petitioner that similarly situated persons who remained to work on the post of Bill Clerk, have been promoted on a much higher pay scale of Rs. 9.300-34,800 but petitioner is still working on the pay scale of Rs. 5,200-20,200 which is much less in comparison to the pay scale of similarly situated persons. Being aggrieved petitioner made several representations before the Department and further made complaint, but to no effect. It is further case of the petitioner that a condition has been imposed by the respondents that a Store Keeper has to clear departmental accounts examination for getting the benefits of ACP but such conditions are not applicable with respect to promotion of Bill Clerks. Grievance of the petitioner is that similarly situated persons who remained on the post of Bill Clerk. got their first ACP in the year 2007 and were promoted from the pay scale of Rs. 4,000-6.000 to Rs. 6.500-10,500 but arbitrarily petitioner has been denied similar benefits. Petitioner was granted first MACP in the year 2012 and was promoted from the pay scale of Rs. 4,000-6,000 to Rs. 5,200-20,200 after he Cleared his departmental accounts examination conducted by. the concerned department whereas in the year 2012, the similarly situated persons who remained on the post of Bill Clerk, have been promoted on a much higher pay scale of Rs. 9.300-34,800. 4,000-6,000 to Rs. 5,200-20,200 after he Cleared his departmental accounts examination conducted by. the concerned department whereas in the year 2012, the similarly situated persons who remained on the post of Bill Clerk, have been promoted on a much higher pay scale of Rs. 9.300-34,800. Being aggrieved petitioner made an application on 9.2.2012 to the Department and requested to reinstate him on his original post of Bill Clerk and further grant him promotion and other monetary benefits from retrospective effect, but after keeping it pending for three years, without taking prior approval of the Personnel and Administrative Department, Government of Jharkhand, the respondent No.3 has rejected the said claim of the petitioner vide his letter No. 5503, dated 29.10.2015. 4. Mr. Jai Prakash Jha, learned senior counsel for the petitioner assisted by Mr. Vineet Prakash, strenuously urges that action of the respondents in passing impugned order rejecting claim of the petitioner is not tenable in the eyes of law. The respondents-authorities, without adhering to principles of natural justice, have passed the impugned order. Learned senior counsel further submits that the respondents have illegally and arbitrarily made partial amendment in Letter No. 6020 dated 12.12.1995 and shifted petitioner and six others from the post of Bill Clerk to Store Keeper. Learned senior counsel further submits that respondent No.3, without taking prior approval of Personnel and Administrative Department. Government of Jharkhand, has passed illegal order whereby claim of the petitioner is rejected on a frivolous ground that matter is 19 years old and service of the petitioner relates to Muffassil appointment whereas correct fact is that petitioner became aggrieved by salary discrimination from the year 2007 onwards when similarly situated persons had been granted their first ACP but petitioner was denied the same though he was appointed along with similarly situated persons on the post of Bill Clerk. Learned senior counsel strenuously urges that the respondents have further erred in coming to the conclusion that appointment of the petitioner has been made on Muffassil cadre whereas the real fad is that he had been appointed by recommendation of the Central Compassionate Committee of Personnel and Administrative Department, Bihar as a Secretariat Staff and not as a Muffasil Staff. Learned senior counsel strenuously urges that the respondents have further erred in coming to the conclusion that appointment of the petitioner has been made on Muffassil cadre whereas the real fad is that he had been appointed by recommendation of the Central Compassionate Committee of Personnel and Administrative Department, Bihar as a Secretariat Staff and not as a Muffasil Staff. Learned counsel further draws attention of this Court towards Annexure-14 Series and submits that salary statement of the petitioner clearly states that he has received his salary of 81 days for the work done as Bill Clerk from the Government of Bihar. Learned senior counsel further submits that letter No. 3/C2-2067/90 Ka. 13293, dated 5.10.1991 was issued by the Personnel and Administrative Department, Government of Bihar, in which said Department had issued certain guidelines in para 9'K' of said letter with respect 'to the employees who had been appointed on compassionate grounds, but the respondents have acted in violation thereof and shifted the petitioner from the post of Bill Clerk Store Keeper. To buttress his arguments, learned senior counsel has placed reliance on the order passed by Hon'ble Division Bench of this Court in L.P.A. No. 441 of 2016 wherein it has been held at para 8 that : "8. ..... ... There is no reason with the Government, not to appoint the present appellant in the Government office by giving equal treatment to this appellant, which were given to other compassionate appointees, as per Annexure-2 to the memo of this Letters Patent Appeal, which is the minutes of the District Establishment Committee." Learned senior counsel further submitted that the ground of delay taken by the respondents is also not sustainable as has been held in the case of State of Bihar & Ors. v. Kameshwar Prasad Singh and another analogous case, reported in 2000 (3) PLJR (SC) 81, wherein it has been held as under : "11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag & Anr. v. Mst. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., 1987 (2) SCR 387 , held that the expression 'sufficient cause' employed by the Legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that : "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pilled against each other. cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that, delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by reasoning to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." Learned senior counsel has further placed reliance in the case of Dr. Paras Nath Prasad v. The State of Bihar and others, reported in 1990 (2) BLJ 68 and further drew attention towards para 19 thereof, which is quoted hereunder : "19. Paras Nath Prasad v. The State of Bihar and others, reported in 1990 (2) BLJ 68 and further drew attention towards para 19 thereof, which is quoted hereunder : "19. The other contentions of the learned counsel for the respondents that Rule 58 of the Bihar Service Code shall prohibits any grant of pay and allowances to the petitioner on a fictional and notional promotion granted to him in my view misconceived. A notional promotion has to be as it, for service benefits, he had been given due promotion. A person, who is entitled to promotion and is not promoted, can always invoke the jurisdiction of this Court under Article 226 of the Constitution for a mandamus to the employer State to consider his case for such promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and the service contract of the employee concerned. In the case of Alappat Narayan Menon v. State of Kerala, 1977 (11) SLR 656, the Supreme Court has stated : "The foregoing discussion with reference to the pronouncement of the Supreme Court and the Gujarat, Allahabad and Mysore High Courts clearly establish that a Government servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his, the Government's plea that the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and its wrong to call this promotion as 'notional' in the context of the peculiar facts and circumstances of this case. The concept of notional promotion cannot enter the remain of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears of salary and other material benefits cannot be denied to him on the plea that what was given to him as only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioner's claim. I, therefore, hold that the petitioner is entitled to succeed." 20. It is no argument to say that many have been promoted ignoring the petitioner's claim. I, therefore, hold that the petitioner is entitled to succeed." 20. The proposition of law in the above case of the Supreme Court in my view fully applies in the instant case. I have already noticed that the respondents never considered the case of the petitioner for promotion. While his juniors were considered and promoted, he was at every time superseded without there being any disqualification ever found. He has been entitled to be considered for promotion is, therefore, not in issue. He cannot be refused consideration promotion, for the reasons that many of those who had superseded him have superannuated. A direction to consider the case of the petitioner's promotion in such a situation, shall only mean to take at each level of promotion for consideration whether the petitioner, at the relevant time, by dint of seniority, was fit to be promoted or not. The respondents have nowhere pleaded that they would consider the case of the petitioner at each level and decide whether to promote him or not. The respondents have also alleged that there was disqualification of any kind other than the mistake of giving him the proper place in the gradation list for which the petitioner would. have been denied his promotion. That being the position this by himself is a fit case in which a direction may be issued to the respondents to promote the petitioner with effect from due date and, accordingly, fix his salary, allowances and other benefit and finally fix his position in the service at the end of the service tenure so that the consequential retirement benefit may also be given to him. It is obvious that on a consequence of a re-fixation of emoluments of the petitioner at each stage of the promotion in the service, pension, gratuity and other benefits to which the petitioner may be entitled after his retirement shall be paid. The respondents shall, accordingly, be liable to pay such amount of the differences of pay etc. It is obvious that on a consequence of a re-fixation of emoluments of the petitioner at each stage of the promotion in the service, pension, gratuity and other benefits to which the petitioner may be entitled after his retirement shall be paid. The respondents shall, accordingly, be liable to pay such amount of the differences of pay etc. to the petitioner including the difference in the gratuity amount, pension and other allowances payable to him." Learned senior counsel has further placed reliance in the case of Vinod Kumar Sharma v. State of U.P. and another and another analogous case, reported in (2001) 4 SCC 675 and submits that illegality cannot be allowed to perpetuate even at the hands of the respondents. Para 11 of the said judgment reads as under :- "11. Further, the High Court materially erred in holding that the ratio of Shrotriya case, was not applicable to the facts of the present case for the reason that it was not the case of the appellants that they were selected by the Public Service Commission in the combined test. It appears that the High Court overlooked the documents produced on record which establishes that the Combined Competitive Examination was conducted by the Public Service Commission, V.P. In 1968 and 1971 for recruitment to Government Engineering Services for the post of Assistant Engineers in various departments. Similarly, the letter by which the appellants were posted in the Irrigation Department, specifically reveals that their past services will be counted towards their service in the Irrigation Department. The High Court also materially erred in not referring to the ratio laid down by this Court in Shrotriya case wherein it is held that : "As person even appointed on a substantive vacancy on a temporary post after due approval by the Public Service Commission if fulfils all other essential criteria as prescribed he shall be deemed to be borne in service from such date of his appointment. In other words his entire length of service from that date should be reckoned in computing seniority." Thereafter, this Court held that the services tendered by the appellant in that case should be counted from the year 1962, that is, on the date when he was appointed on a temporary basis. In other words his entire length of service from that date should be reckoned in computing seniority." Thereafter, this Court held that the services tendered by the appellant in that case should be counted from the year 1962, that is, on the date when he was appointed on a temporary basis. Further, the High Court ought to have considered the GO dated 19.10.1968 entirely, which specifically provides that "such officers are deemed to have been transferred from one department to another after the reallocation in accordance with the aforesaid GO". Thereafter it also provides for fixation of pay in identical scale of pay in that department. It appears that the High Court has overlooked the first part which provides that such officers are transferred from one department to another. If the High Court had referred to para 13 of Shrotriya case, it would have been clear that the stand and the policy of the State Government was also to the effect that the appellants' services were required to be counted for the purpose of seniority." Learned senior counsel submits that in the facts and circumstances, petitioner has a good case and has a right to get equal treatment similar to those who have been appointed on similar grounds and vide similar appointment letters. 5. Per contra counter-affidavit has been filed. Mr. Anshuman Kumar, JC to learned Advocate General submits that initial appointment letter dated 12.12.1995 was modified by the order as contained in Memo No. 1138, dated 28.2.1996 and thereafter, petitioner joined as a Storekeeper without any objection and he was confirmed on the post of Storekeeper on completion of three years of continuous service. After clearing Accounts Examination on 25.8.2011, petitioner was granted benefits of 1st MACP. Without any objection petitioner has put his signature at the time of opening of his Service Book which is token of acceptance on his part. Petitioner cannot be allowed to raise his grievance after 19 long years and he has already been confirmed on the post of Storekeeper and claim of the petitioner to convert his service as Bill Clerk with retrospective effect of previous 20 years is frivolous and liable to be rejected. Petitioner cannot be allowed to raise his grievance after 19 long years and he has already been confirmed on the post of Storekeeper and claim of the petitioner to convert his service as Bill Clerk with retrospective effect of previous 20 years is frivolous and liable to be rejected. Learned counsel further submits that service of Storekeeper is covered under the Muffassil establishment whereas the post of Bill Clerk is covered under the Secretariat Establishment and as such, there is no illegality or infirmity in rejecting representation of the petitioner. 6. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioner needs consideration. Rights of the petitioner cannot be brushed aside merely on the ground of delay. Appointment of the petitioner was done by the District Establishment Committee. There cannot be any discrimination in such types of appointment. Petitioner was appointed by the recommendations of the Central Compassionate Committee of Personnel, Administrative Reforms and Rajbhasha Department, Government of Bihar as a Secretariat Staff and not as a Muffassil Staff. Contention of learned counsel for the respondents that the petitioner was appointed as a Muffassil Staff, is not tenable as it is contrary to the documents (Annexure-14 series). From Annexure-14 of the writ petition, it is crystal clear that the petitioner got salary of 81 days for the works done as a Bill Clerk from the Government of Bihar. Letter No. 3/C2-2067/90 Ka. 13293, dated 5.10.1991 was issued by the Personnel and Administrative Department, Government of Bihar, in which said Department had issued certain guidelines in para 9'K' of said letter with respect to the employees who has been appointed on compassionate grounds. Admittedly, the respondents have acted in complete defiance of the guidelines in para 9K and shifted the petitioner from the post of Bill Clerk to Storekeeper, that too without his consent. The other similarly situated persons are working on the post of Bill Clerk and enjoying fruits of enhanced salary. Petitioner cannot be discriminated. Even the grounds taken by the respondents is not tenable in the eyes of law. Petitioner was aggrieved by the anomaly in the pay scale in the year 2007 onwards when the other similarly situated persons were considered and were getting the pay scale of Rs. 9,300-34,800 whereas petitioner was working on the pay scale of Rs. 5,200-20,200. Even the grounds taken by the respondents is not tenable in the eyes of law. Petitioner was aggrieved by the anomaly in the pay scale in the year 2007 onwards when the other similarly situated persons were considered and were getting the pay scale of Rs. 9,300-34,800 whereas petitioner was working on the pay scale of Rs. 5,200-20,200. All the persons were appointed by the Central Compassionate Committee of Personnel and Administrative Reforms Department, Bihar as a Secretariat Staff. Petitioner and six others were shifted in Muffassil Cadre without assigning any reason and without taking their consent. It was the respondents who were sitting tight over representation of the petitioner and no decision had been taken and it was only in the year 2012 that an order had been passed rejecting claim of the petitioner on frivolous grounds. Even approval of the Personnel and Administrative Reforms Department, Government of Jharkhand was not taken before making partial amendment in the Letter No. 6020, dated 12.12.1995. It is apparent from the impugned order itself that petitioner had to be paid salary of Bill Clerk from 12.12.1995 to 1.3.1996 by the order of the Water Resources Department, Bihar, Patna, as contained in letter No. 1926, dated 26.9.2008 and letter of the Executive Engineer, Water Resources Department. Deoghar under Memo No. 96, dated 19.1.2009 and finds place in the Service Book also but whether payment was done or not has not been mentioned. 7. As similarly situated persons have been given benefits of pay scale of Rs. 9.300-34.800 who were appointed by the recommendations of the Central Compassionate Committee of the Personnel, Administrative Reforms and Rajbhasha Department, Bihar as a Secretariat Staff, petitioner is also entitled for the same benefits. Without taking prior approval of Personnel and Administrative Reforms Department, Government of Jharkhand, shifting petitioner to the post of Storekeeper and considering him as an employee of Muffassil Cadre, is not tenable to the eyes of law and by no stretch of imagination, can be termed as an employee of Muffassil Cadre. There has to be rational classification and there cannot be class amongst class. Discrimination cannot be routed out in the instant case. The employees of the same cadre appointed by one stroke of pen by the Central Compassionate Committee of Personnel and Administrative Reforms Department, cannot be treated in different ways. There has to be rational classification and there cannot be class amongst class. Discrimination cannot be routed out in the instant case. The employees of the same cadre appointed by one stroke of pen by the Central Compassionate Committee of Personnel and Administrative Reforms Department, cannot be treated in different ways. Classification has to be donee in the touch stone of Article 14 of the Constitution of India. Wherever there is discrimination, there is violation of Article 14 of the Constitution of India. Petitioner was given compassionate appointment and his cadre was changed to the Storekeeper where there is difference in pay scale and other perks attached with the salary which itself shows discrimination. Petitioner is working honestly, sincerely, diligently and to the satisfaction of the respondents. As petitioner had no bargaining power at all vis-a-vis respondents-State, he was discriminated from the other candidates. The ratio of the judgment passed in L.P.A. No. 441 of 2016 [Sheela Kumari v. State of Jharkhand and others] is fully applicable in the facts and circumstances of the instant case and as such, petitioner herein is also entitled for the benefits which is being given to the other similarly situated employees of Secretariat Cadre. 8. As a cumulative effect of the aforesaid rules guidelines, judicial pronouncements, I, hereby quash and set aside part of the order at Annexure-12 whereby respondents have rejected claim of the petitioner for considering him as an employee of Secretariat Cadre. Petitioner is entitled for the perks and salary which other similarly situated persons appointed along with the petitioner have been given i.e. scale of Rs. 9,300-34,800. Let the entire exercise be completed within a period of eight weeks from the date of receipt/production of a copy of this order. 9. With the aforesaid observations and directions, this writ petition stands disposed of. Petition disposed of.