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2023 DIGILAW 1063 (PAT)

State of Bihar v. Biresh Kumar Singh

2023-09-19

K.VINOD CHANDRAN, PARTHA SARTHY

body2023
K. Vinod Chandran, CJ. – The appeals by the State of Bihar challenge the order of the learned Single Judge, which allowed the writ petitions granting parity of pay to Correspondence Clerks as is available to the Accounts Clerks; both appointed on compassionate grounds. The learned Single Judge relied on the judgment dated 21.08.2017 of a Co-ordinate Bench in Binit Kumar and others vs. State of Bihar and others and analogous cases. The learned Single Judge, in the cited decision, relied on a Division Bench judgment in L.P.A. No. 206 of 2014 (The State of Bihar vs. Ram Janam Jha and others). 2. Learned Government Advocate Shri Sarvesh Kumar Singh (AAG-13) argued that the Correspondence Clerks and Accounts Clerks are persons existing in different cadres for which different pay-scales are applicable. It is also contended that the qualifications for appointment in the two posts are different; the Correspondence Clerks were required to possess Matriculation with typing while the Accounts Clerks are required to possess Matriculation with Mathematics. Learned Government Advocate would specifically refer to Annexure-1 produced along with the Interlocutory Application, which is an extract of the recommendation of the Pay Fixation Committee. From the aforesaid document, it is pointed out that the pay fixation was made specifically reckoning the fact that originally Mathematics was not an essential subject in Matriculation. The learned Government Advocate would also rely on a decision of the Hon’ble Supreme Court in S.C. Chandra and others vs. State of Jharkhand and others; (2007) 8 SCC 279 to contend that there is no complete and wholesale identity between the two posts and even if they are doing identical work, they cannot be granted equal pay unless there is such complete and wholesale identity established. 3. Learned Senior Counsel Shri Sanjay Singh & Shri Chitranjan Sinha and learned counsel Shri Subodh Kumar Jha & Shri Abhinav Srivastava argued for the respondents who were the writ-petitioners. 4. It is pointed out that there could have been no Matriculation without Mathematics as is presently understood and as would be applicable to the Matriculation qualification obtained by all the respondents herein. The decision in Binit Kumar squarely applies and there is severe criticism of the Finance Department by the learned Single Judge in the aforesaid judgment for having taken a skewed view of the binding precedent in Ram Janam Jha. The decision in Binit Kumar squarely applies and there is severe criticism of the Finance Department by the learned Single Judge in the aforesaid judgment for having taken a skewed view of the binding precedent in Ram Janam Jha. It is also pointed out that discrimination was meted out only on account of the source of appointment being from families of employees who died in harness; which identity gets effaced as soon as they get appointed to the post. Reliance is also placed on the decision taken by the Finance Department of the Government of Bihar dated 22.06.2022, which is produced across the Bar. 5. We have to briefly look at the history of the litigation. The admitted facts are that the respondents herein were appointed on compassionate ground and were continuing as Correspondence Clerks. The petitioners in Binit Kumar were also persons who were appointed on compassionate ground, but as Accounts Clerks. There is absolutely nothing to substantiate the contention now raised by the State that there were different qualifications prescribed for Accounts Clerks and Correspondence Clerks. We cannot but observe that Annexure- 1, pointed out from the Interlocutory Application of the respondent State, supports the claim raised by the writ-petitioners, the respondents herein. 6. The petitioners, as was the case of Accounts Clerks, were appointed in the pay-scale of Rs. 3050-4590/-, which scale was upgraded by a resolution of the Finance Department bearing No. 3111 dated 25.03.2015; which stood cancelled in the light of a subsequent Advisory issued by the Finance Department bearing No. 5483 dated 11.07.2016. The reasoning in the Advisory cancelling the grant of higher scale of pay was in so far as the upgradation in scale not being applicable to those appointed on compassionate grounds. The learned Single Judge in the cited judgment of Binit Kumar referred to the unification of posts and merger of cadre made in the clerical cadre of the Government employees. The Junior Accounts Clerk and the Senior Accounts Clerk posts were unified and the post was designated as an Accounts Clerk. Likewise, the Lower Division Clerk and the Upper Division Clerk were also unified to be designated as Clerk in the year 1980-81. When such unification was made, the Senior Accounts Clerk had a pay-scale of Rs. 260-408/- while the unified post of Clerk had a pay-scale of Rs. 284-372/-. Likewise, the Lower Division Clerk and the Upper Division Clerk were also unified to be designated as Clerk in the year 1980-81. When such unification was made, the Senior Accounts Clerk had a pay-scale of Rs. 260-408/- while the unified post of Clerk had a pay-scale of Rs. 284-372/-. Again, a decision was taken to unify the accounts clerical cadre as well as normal clerical cadre which was later, in the year 2000, de-merged. It is this process of merger and demerger that led to a chain of litigations on the anomaly arising in the fixation of pay. 7. The State Government in its Finance Department came out with a resolution bearing No. 3111 dated 25.03.2015 referring to another letter dated 28.09.1999 of the very same department which classified the appointments in the Accounts Clerical Cadre in two categories; those appointed between 01.05.1980 to 27.09.1999 and the other after 28.09.1999. Admittedly, the Accounts Clerks who had challenged the cancellation of the upgradation was appointed after 28.09.1999 and so are the respondents herein who are the Correspondence Clerks. Referring to the resolution of 2015, it was held that the persons appointed to the Accounts Clerical Cadre, whether they be appointed initially as a Junior Accounts Clerk, Lower Division Accounts Clerk or a Lower Division Clerk (Accounts), would be entitled to the same scale of pay i.e. Rs. 4000-6000/- with effect from 31.12.2005 and to the scale in Pay Band-1 with Grade Pay of Rs. 2400/- with effect from 01.01.2006. It was categorically found by the learned Single Judge in Binit Kumar that when earlier an attempt was made by the State Government in its Finance Department to deny the scale admissible to similarly placed Clerks in the Accounts Cadre; the litigation initiated, resulted in the decision of the Division Bench in Ram Janam Jha. It was categorically held by the Division Bench that: “Once the distinction between the Junior and Senior Accounts Clerk has been done away with and all Accounts Clerks have been granted pay scale as that of Senior Accounts Clerk, then all Accounts Clerks, whether appointed on compassionate ground or otherwise, are entitled to the same pay-scale i.e., pay-sale meant for the Senior Accounts Clerks’(sic). It is the very same proposition which is urged by the respondents herein to enable identical pay-scales to be granted to them, thus ensuring pay parity between the Correspondence Clerks and Accounts Clerks. It is the very same proposition which is urged by the respondents herein to enable identical pay-scales to be granted to them, thus ensuring pay parity between the Correspondence Clerks and Accounts Clerks. 8. S.C. Chandra was in the context of parity in salary claimed by School Teachers with Clerks working under the Government of Jharkhand or BCCL; in which context it was found that there is no complete and wholesale identity between the two groups. It was declared by the Hon’ble Supreme Court that merely because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of ‘Equal Pay for Equal Work’ cannot apply. We do not find any application of the aforesaid judgment to the facts of the present case. 9. Admittedly, the Correspondence Clerks, the writpetitioners in the present case and the Accounts Clerks who were the petitioners in Binit Kumar, were appointed on compassionate grounds. The State has not produced anything to establish that in granting appointment on compassionate ground the dependents were classified on the basis of their qualification and thus given appointments to the posts of Correspondence Clerks and Accounts Clerks, based on their different qualifications. We would, for argument’s sake, reckon the submission of the learned AAG-13 that as far as Accounts Clerks are concerned, there was an insistence for Matriculation with Mathematics. As was rightly pointed out by the respondents, Matriculation without Mathematics, at least for the past few decades, is not known to have existed. Even Annexure- 1 speaks of ‘originally’, Mathematics being not an essential subject in Matriculation; but does not refer to the period when such Matriculation was in vogue. Having thus said, it has to be emphasized that there is nothing produced to substantiate that there were different qualifications applicable to Correspondence Clerks and Accounts Clerks. It has also to be pertinently noticed that when appointments are made on compassionate grounds, especially to a cadre, there cannot be any discrimination by appointing certain persons to a post with lower scale of pay and others to a post with higher scale of pay; which would have been possible only if there is a requirement of a higher qualification for the post which carries a higher pay-scale. We are conscious of the fact that as of now the Hon’ble Supreme Court has held that appointments on compassionate grounds can only be to the lowest cadre; but the practice was otherwise, earlier. The contention of the State of two different essential qualifications being applicable, is not established and hence fails. 10. We have to emphasize and reiterate that once the dependents are appointed on compassionate grounds in a post where there is also regular recruitment; there can be no discrimination in so far as pay-scale applicable, from those regularly appointed. 11. By Annexure-1 the Commission appointed by the State finds that the division, in so far as Clerks and Accounts Clerks who historically enjoyed different pay-scales are no longer applicable. It has been categorically stated that the functions performed by the holders of these posts are broadly similar. It is also observed that Mathematics is a compulsory subject in Matriculation; which it has not been shown by the State, as not a compulsory subject in Matriculation at the time when the respondents herein acquired the qualification or were appointed; which appointment was after 28.09.1999. 12. In this context, we also notice the Letter No. 3A- 2-V.P.-09/2016-5838/V of the Finance Department of Government of Bihar dated 22.06.2022, the relevant recital in which is extracted hereunder: – “Different designations of regional establishments like Accounts Clerk, Storekeeper, Correspondence Clerk, Lower Division Clerk and Upper Division Clerk will not have separate cadres but all of them will be known as Lower Division Clerk/Upper Division Clerk of General Clerk Cadre. Accounts Clerk will be a dying cadre and no new appointment will be made on this post. Lower Division Clerk will be promoted to the post of Upper Division Clerk after a period of 6 years or from 01.01.2016, whichever is later. For promotion from upper division clerk to the post of head clerk, promotion can be granted considering the total period spent on the posts of lower division clerk and upper division clerk. The concerned department will fix the promotion ratio at 60:40 and the benefit of recommended promotion will be given from the date of issue of the order. For all levels of promotion, the pay matrix level of that post can be determined in place of its grade pay. The concerned department will fix the promotion ratio at 60:40 and the benefit of recommended promotion will be given from the date of issue of the order. For all levels of promotion, the pay matrix level of that post can be determined in place of its grade pay. (Chapter 3.2)” The aforesaid extract reiterates the consistent stand of the Government and we are surprised that an appeal is filed for the purpose of denying pay parity to persons identically situated. The above extract also indicates a complete, absolute and wholesome identity between the Accounts Clerks and the Correspondence Clerks. 13. We hence reject the appeals leaving the parties to suffer their respective costs. 14. Interlocutory Application(s), if any, shall stand closed.