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2021 DIGILAW 969 (PAT)

Ravi Shankar Kumar v. State of Bihar

2021-10-01

CHAKRADHARI SHARAN SINGH

body2021
Chakradhari Sharan Singh, J.—This matter has been taken up for hearing online because of COVID-19 pandemic restrictions. 2. Following are the reliefs which the petitioner has claimed in the present writ application :— “(i) For a direction to the respondents to make payment of salary to the petitioner in the same pay scale of Rs. 4000-6000 which is being paid to the other similarly appointed Lower Division Clerks, who entered the service along with petitioner by the same common appointment letter dated 06.09.2001, initially in the pay scale of Rs. 3050- 4500 but are being provided with salary in higher pay scale of 4000-6000, in compliance of the direction contained in the judgment and order dated 11.03.2011 passed in C.W.J.C. No. 15956 of 2006. (ii) For a further direction to the respondents to make payment of arrears of salary to the petitioner in the said pay scale of Rs. 4000-6000 and its corresponding higher pay scale and grade pay, with effect from the date, the other similarly appointed Lower Division Clerks are being paid in such pay scale, in the light of the direction contained in the judgment and order passed in C.W.J.C. No. 15956 of 2006 and further in the light of the judgment and order passed in L.P.A. No. 167 of 2016.” 3. By order No. 23/2001-2002 dated 06.09.2001, issued by the office of the District Magistrate, Nawada, the petitioner along with others was appointed as Lower Division Clerk in the pay-scale of Rs. 3050-4590/- on compassionate basis, being a dependent of a government servant who had died in harness. 4. This is not in dispute that the said scale of Rs. 3050- 4590/- was admissible for the said post of Lower Division Clerk as on the date of appointment of the petitioner. In order to appreciate the controversy involved in the present matter certain basic relevant facts are required to be taken into account. Prior to 07.04.1977 there were two cadres of Clerk, namely, Lower Division Clerk and Upper Division Clerk. The Finance Department of the Government of Bihar came out with a letter No. 3734 dated 07.04.1977 with a decision to merge a number of cadres including the cadres of Lower Division Clerk and Upper Division Clerk and the merged cadre came to be known as Assistants, with a common pay-scale. The Finance Department of the Government of Bihar came out with a letter No. 3734 dated 07.04.1977 with a decision to merge a number of cadres including the cadres of Lower Division Clerk and Upper Division Clerk and the merged cadre came to be known as Assistants, with a common pay-scale. Subsequently, the Finance Department, Government of Bihar came out with a letter dated 20.12.2000 incorporating the decision of the State Government to demerge the cadre of Assistants in three cadres, namely, Lower Division Clerk with pay-scale of Rs. 3050-4590/-, Upper Division Clerk with pay-scale of Rs. 4000-6000/- and Assistants in the pay-scale of Rs. 5500-9000/-. The said exercise was apparently undertaken in the light of recommendation of the Fitment Committee to reconstitute different cadres in tune with the cadres in the Central Government. Clause 5(i) of the said letter of demerger dated 20.12.2000 clearly mentioned that subsequent to issuance of the said letter and till further orders, direct appointment shall be made only on the lowest post, till a classification of posts by the Personnel and Administrative Reforms Department regarding number of posts in each category/cadre is determined according to necessity, with the consent of the Finance Department. Clause 5(ii) of the said letter dated 20.12.2000 further specified in no uncertain terms that all selection processes for filling up the posts with higher scale than the posts with lowest scale should be cancelled with immediate effect, irrespective of the fact that the selection process has been completed. 5. The petitioner’s father had died in harness while working as a Revenue Karmchari in Nawada Collectorate on 19.01.2000. He had made an application seeking appointment on compassionate basis consequent upon the death of his father. He held Intermediate qualification. It is the petitioner’s case that the District Compassionate Appointment Committee had found him fit for appointment against a Class-III post and had, in fact, forwarded its recommendation with other persons but recommendation in case of the petitioner was deferred, awaiting required report from the Circle Office, Govindpur where his father was working at the time of his death. His name was finally recommended on 17.01.2001 by the District Compassionate Appointment Committee, pursuant to which the appointment letter was issued on 06.09.2001, as noted above. 6. His name was finally recommended on 17.01.2001 by the District Compassionate Appointment Committee, pursuant to which the appointment letter was issued on 06.09.2001, as noted above. 6. Before issuance of the said letter of the Finance Department dated 20.12.2000, a selection process had begun with the issuance of an advertisement No. 4/1998 by Bihar Public Service Commission (for short BPSC) for the post of Assistant-cum- Typist in the pay-scale of Rs. 1200-1800/- in the district of Bhojpur. Pay-scale of Rs. 4000-6000/- was admittedly the revised scale of Rs. 1200-1800/- for which the said advertisement was issued. Persons selected pursuant to the said advertisement were, however, appointed in the pay-scale of Rs. 3050-4590/-, which was admissible to Lower Division Clerk. 7. Raising a grievance that they should have been allowed the scale of Rs. 4000-6000/- they had approached this Court by filing a writ petition which came to be registered as CWJC No. 13577 of 2006 (Manish Kumar Pathak and others vs. The State of Bihar and others). A coordinate Bench of this Court, noticing Clause- 5 of the letter of the Finance Department dated 20.12.2000, opined that if the authorities were not inclined to appoint the petitioners of that case in the revised scale of the advertised posts they ought to have cancelled the advertisement and selection process but once they had not chosen to cancel the advertisement and the selection process, then they were obliged to appoint the petitioners of that case in corresponding revised scale of the post advertised. Accordingly, the said writ application was allowed with a direction to the respondents- State of Bihar to grant them pay-scale of Rs. 4000-6000/- though they were appointed after issuance of the Finance Department letter dated 20.12.2000. 8. It is the petitioner’s case that some of the persons, who were appointed on compassionate ground along with him by the same order dated 06.09.2001, had approached this Court by filing a writ application giving rise to CWJC No. 15956 of 2006 (Umesh Prasad and others vs. The State of Bihar and others) seeking pay-scale of Rs. 4000-6000/- instead of Rs. 3050-4590/-. By an order dated 11.03.2011, the said writ application was allowed with a direction to treat the petitioners having been appointed as Upper Division Clerk in the scale of Rs. 4000-6000/- with all consequential benefits. 9. 4000-6000/- instead of Rs. 3050-4590/-. By an order dated 11.03.2011, the said writ application was allowed with a direction to treat the petitioners having been appointed as Upper Division Clerk in the scale of Rs. 4000-6000/- with all consequential benefits. 9. It is further case of the petitioner that he had earlier approached this Court for grant of similar pay-scale of Rs. 4000- 6000/- by filing a writ application registered as CWJC No. 11096 of 2011, which was disposed of by an order dated 08.08.2012 with a direction that if the contention of the petitioners is correct that they were similarly situated as that of the petitioners in CWJC No. 5152 of 2010, which had been disposed of by an order dated 16.11.2010, the respondents shall be guided by the same. 10. It would be apt, at this stage, to notice the order dated 16.11.2010, passed in CWJC No. 5152 of 2010, which is as under :— “The petitioners claimed to be appointed on the post of Lower Division Clerk on compassionate ground but alleged grant of wrong pay scale of Rs. 3050-4590/-. It is submitted that similar matters have been considered by this Court when the pay scale entitlement has been held to be Rs. 4000-6000/- in pursuance of which the respondents have issued a conditional order dated 18.11.2009 granting the latter scale. The petitioners have also represented for the same but the representation remains unconsidered compelling them to file the present application. It is next submitted that persons appointed after the petitioners are getting the higher scale. Let the representation of the petitioners be considered considered and disposed off by a reasoned and speaking order when the conditional order dated 18.11.2009 shall necessarily have to form part of the consideration, within a maximum period of three months from the date of receipt/production of a copy of this order. It is expected that if the respondents find justification in the claim or in any part of the claim, necessary consequential orders shall be issued simultaneously.” 11. In the aforesaid background, it is the petitioner’s case that as the process of consideration for their appointment on compassionate ground had begun before issuance of letter dated 20.12.2000 of the Finance Department, they are entitled to scale of Rs. 4000-6000/- instead of Rs. 3050-4590/-. In the aforesaid background, it is the petitioner’s case that as the process of consideration for their appointment on compassionate ground had begun before issuance of letter dated 20.12.2000 of the Finance Department, they are entitled to scale of Rs. 4000-6000/- instead of Rs. 3050-4590/-. This is the background in which the petitioner is seeking a direction from this Court to the respondents to allow him pay-scale of Rs. 4000- 6000/- as admissible on the date of his initial appointment with all consequential benefits. 12. Counter affidavits and supplementary counter affidavits have been filed in the present proceeding. The petitioner has also filed reply and supplementary affidavit in support of his claim. 13. Mr. Kishore Kumar Thakur, learned counsel appearing on behalf of the petitioner, has submitted that since similarly situated persons have been allowed pay-scale of Rs. 4000-6000/- there is no reason why the petitioner should be denied the said pay-scale of Rs. 4000-6000/-. He has heavily relied on decision rendered by the coordinate Bench of this Court dated 11.03.2011, passed in CWJC No. 15956 of 2006 (Umesh Prasad and others vs. The State of Bihar and others) and Bihar Litigation Policy, 2011 which requires the State Government to take a decision in matters covered by any decision of the Court. He contends that since the petitioner’s case is covered by the decision in case of Umesh Prasad (supra), the petitioner should have been given the same treatment and he should not have been compelled to approach this Court. He has further submitted that this Court in case of Manish Kumar Pathak (supra) allowed payscale of Rs. 4000-6000/- though the appointments were made subsequent to the letter dated 20.12.2000 issued by the Finance Department on the ground that the process of selection had begun before coming into force of the decision of demerger, same view is required to be taken in the petitioner’s case also whose application for appointment on compassionate basis was pending since before the said decision of demerger. He has also placed reliance on a Division Bench decision of this court dated 23.06.2017 in LPA No. 167 of 2016 (Avinash Kumar Chakerworty and others vs. State of Bihar and others), whereby and whereunder the Court held the appellants/ writ petitioners of that case entitled to pay-scale of Rs. 4000-6000/- though they were appointed on compassionate basis after issuance of letter of demerger dated 20.12.2000. 4000-6000/- though they were appointed on compassionate basis after issuance of letter of demerger dated 20.12.2000. The Division Bench of this Court in case of Avinash Kumar Chakerworty (supra) has held as under :— “We have heard learned counsel for the parties at length and we find that all the petitioners in the writ petition and the employees, who were appointed by virtue of the order passed in CWJC No.17566 of 2006 and the employees, who were originally working in the non-formal education scheme and who were given fresh appointment vide Annexure-4 dated 23rd July, 2005 and Annexure-5 dated 20th July, 2006, are all working in the same office, namely the Collectorate at Siwan, all are discharging identical function, but except the five petitioners, the other employees indicated herein above are getting higher pay in the scale of Rs.4000/- - Rs.6000/-. The only reason for giving the benefits are that they were appointed after the circular was issued on 20th December, 2000. However, the fact remains that even in the case of employees, who were petitioners in CWJC No.13755 of 2006, they were appointed after 20th December, 2000, but they have been granted the benefit in the higher scale of pay of Rs.4000/- – Rs.6000/- on account of the fact that the process of appointment initiated in the year 1999 was delayed because of the procedural delay. In the case of the petitioners also, as is evident from the records, their appointment process was also initiated in the year 1999-2000 and in the case of the petitioner Ashok Kumar Sinha, he filed the writ petition claiming compassionate appointment way back in the year 1999 in CWJC No.9934 of 1999 and it was only after the order was passed in the aforesaid MJC in the year 2005 that the appointment order was issued. That being so, we see no much difference between the employees, who were petitioners in CWJC No.13577 of 2006 and the present petitioners. Even if for the sake of argument it may be assumed that the petitioners and the employees, who were petitioners in CWJC No.13577 of 2006 form two different categories, there is no justification in the matter of discrimination between the present petitioners and the retrenched employees who were working in the non formal education scheme. Even if for the sake of argument it may be assumed that the petitioners and the employees, who were petitioners in CWJC No.13577 of 2006 form two different categories, there is no justification in the matter of discrimination between the present petitioners and the retrenched employees who were working in the non formal education scheme. It is clear that the non-formal education scheme came to an end and large number of Class-III and Class IV employees was retrenched and thereafter in the year 2005 and 2006 as is evident from Annexures 4 and 5, they were re-appointed as a fresh appointee in the year 2005 and 2006, that is much after 20th December, 2000 and in their case, they have been granted the higher pay scale of Rs.4000/- – Rs.6000/-. If that be so, there is a discrimination in the matter of granting similar benefit to the petitioners when more than 300 employees have been granted such benefit of higher pay scale in the grade of Rs.4000/- –Rs.6000/- even after they were appointed in the year 2005 and 2006, there is no reason as to why similar benefits should be denied to the petitioners when the petitioners are also doing similar work and were appointed after 20th December, 2000. To that effect, there is discrimination in the matter and the petitioners are entitled to equal treatment. That apart, the petitioners are working in the Collectorate at Siwan and many employees identically situated, like the petitioners, who were appointed after 20th December, 2000, as is indicated hereinabove, are being granted pay in the scale of Rs.4000/- - Rs.6000/- and if that be the factual position, there is no reason why a similar benefit should not be extended to the petitioners.” 14. He has drawn my attention to the statement made in paragraph 15 of the reply filed on behalf of the petitioner to the counter affidavit filed on behalf of the State, wherein it has been stated that the petitioner had approached the Public Grievance Redressal Officer, Nawada constituted under Bihar Government Servant Grievance Redressal Rules on 25.02.2020. The Public Grievance Redressal Officer has, by an order dated 21.03.2020, allowed the petitioner's claim for grant of scale of Rs. 4000- 6000/-. The said order of the Public Grievance Redressal Officer has been brought on record by way of Annexure-P/15. 15. The Public Grievance Redressal Officer has, by an order dated 21.03.2020, allowed the petitioner's claim for grant of scale of Rs. 4000- 6000/-. The said order of the Public Grievance Redressal Officer has been brought on record by way of Annexure-P/15. 15. The Court fails to appreciate as to how, without withdrawing the present writ application and without making any statement in this regard the petitioner approached the Public Grievance Redressal Officer seeking same relief, which the petitioner is seeking in the present writ application. The Court strongly deprecates the conduct of the petitioner in this regard. 16. Mr. Manish Kumar, learned GP-4, assisted by Mr. Ajay Kumar, learned AC to GP-4, has drawn my attention to a coordinate Bench decision of this Court dated 14.02.2012 rendered in CWJC No. 3516 of 2011 (Sriman Narayan Singh and another vs. The State of Bihar and others), wherein the same controversy had arisen as to whether persons appointed on compassionate ground after issuance of letter of demerger dated 20.12.2000 were entitled to pay-scale of Rs. 4000-6000/- or not. He submits that the coordinate Bench has held in case of Sriman Narayan Singh (supra) that there was no error in the decision granting pay-scale of Rs. 3050-4590/- for those appointed on compassionate basis after the date of demerger. Reference has also been made by learned State counsel to another decision of this Court dated 03.11.2011, passed in CWJC No. 10441 of 2010 and other analogous cases (Smt. Mosarat Arra Khanam and others vs. The State of Bihar and others), wherein another coordinate Bench of this Court had held that the petitioners on being appointed on compassionate ground, which is one time exercise, they cannot see compassion upon compassion claiming a higher pay-scale on misconceived sense of parity. The said decision rendered in case of Smt. Mosarat Arra Khanam (supra) has been affirmed by a Division Bench of this Court dated 19.02.2014 in its decision rendered in LPA No. 100 of 2012 (Smt. Mosarat Arra Khanam and others vs. The State of Bihar and others). He has submitted that the Division Bench decision of this Court in case of Smt. Mosarat Arra Khanam (supra) was not brought to the notice of the Division Bench in case of Avinash Kumar Chakerworty (supra). 17. He has submitted that the Division Bench decision of this Court in case of Smt. Mosarat Arra Khanam (supra) was not brought to the notice of the Division Bench in case of Avinash Kumar Chakerworty (supra). 17. The only question which requires determination, in the present matter, is as to whether the persons appointed on compassionate ground as Lower Division Clerks after demerger in the scale of Rs. 3050-4590/- can claim by way of right, a higher pay-scale of Rs. 4000–6000/-. The Division Bench of this Court in case of Smt. Mosarat Arra Khanam (supra) has, in no uncertain terms, held as under :— “The claim of the appellants for parity of pay with those lower division clerks is ex facie unsustainable. It is not in dispute that the appellants were appointed during the years 2001 to 2004 and are placed in the pay-scale approved for the cadre of lower division clerks. Therefore, appellants’ claim to a higher payscale sanctioned for the higher post of Upper Division Clerks cannot be accepted. The petitions are rightly rejected.” 18. The said Division Bench decision in case of Smt. Mosarat Arra Khanam (supra) was evidently not brought to the notice of subsequent Division Bench in case of Avinash Kumar Chakerworty (supra). The Division Bench in case of Avinash Kumar Chakerworty (supra) has allowed the scale of Rs. 4000- 6000/- for persons appointed on compassionate basis after the date of demerger, applying the doctrine of parity in the pay-scale. 19. In my opinion, in view of the conflicting views taken by the Division Benches of this Court in case of Smt. Mosarat Arra Khanam (supra) and Avinash Kumar Chakerworty (supra) on the question as to whether the persons appointed on compassionate basis in the scale of Rs. 3050-4590/- can claim by way of right a higher pay-scale of Rs. 4000-6000/- on the doctrine of parity in pay-scale, the matter needs to be place before Hon’ble the Chief Justice for referring the same to a Larger Bench. 20. Let the matter be placed before Hon’ble the Chief Justice accordingly.