Patna High Court - Orders
Pawan Kumar Sah And Ors vs The State Of Bihar And Ors on 3 April, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3658 of 2016
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1. Pawan Kumar Sah, son of Late Kuldip Sah, resident of Mohalla- Chitkohra
Bazar, Sabjimandi, P.O. Anisabad, P.S.- Gardanibag, District- Patna.
2. Rakesh Kumar, son of Late Raghunath Prasad, resident of Village- Kothian,
P.O. and P.S. Sheohar, District Sheohar.
3. Vikrama Singh, son of Ramishwar Singh, resident of Village- Srirampur,
P.O. Kasaup, P.S. Udwantnagar, District- Bhojpur.
4. Shivjatan Sah, son of Late Nagina Sah, resident of Village- Nauwapali, P.O.
Chakra, P.S. Muffasil Siwan, District- Siwan.
5. Satish Kumar, son of Sri Ramsharan Prasad, resident of Mohalla- Manpur
Kumhar Toli, P.O. Buniadganj, P.S. Muffasil, District Gaya.
6. Shravan Kumar Rajak, Rambichh Rajak, resident of Mohalla Dakshin
Mandiri, P.O. G.P.O., P.S. Budha Colony, Patna, District- Patna.
7. Ram Sohan Thakur, son of Late Asharfi Thakur, resident of Village-
Basudeva, P.O. and P.S. Sidhiya, District- Samastipur.
8. Ashok Kumar Rai, son of Late Harisharan Rai, resident of Village and P.O.
Chitrawalia, P.S. Ekma, District Saran Chara
9. Munna Kumar, son of Late Ramanand Sah, resident of Village Harnichak
near State Boring, P.O. Anisabad, P.S. Phulwarisharif, District- Patna.
10. Shiv Shankar Prasad, son of Late Ramkripal Lal, resident of Village P.O. and
P.S. Guraru, District- Gaya.
11. Jai Prakash Narayan, son of Late Shyamdeo Bhagat, resident of Village and
P.O.- Kako Mali Tola, District Jehanabad.
12. Ravindra Singh, son of Late Ramrup Singh, resident of Village Nawada,
P.O. Welbaai, P.S. Karakat, District Rohtas.
13. Rajesh Kumar, son of Late Birju Prasad, resident of Mohalla Professor
Colony, Shahganj, P.O. Mahendru, P.S. Sultanganj, District- Patna.
14. Nagina Ram, son of Sidheshwar Ram, resident of Village Nayatola,
Bhikhachak Vishunupuri, near Premkunj Chitkohkohra Bazar, P.O. Aisabad,
P.S. Gardanibagh, District- Patna.
15. Abhay Kumar Srivastava, son of Late Sahdeo Prasad, resident of Village and
P.O. Ruphara, Via. Dhaka, P.S. Dhaka, District East Champaran.
16. Indradeo Rai, son of Late Shital Rai, resident of Village- Painal, P.O. Painal,
P.S. Bihta, District- Patna.
17. Uma Shankar Ram, son of Late Sudhram Prasad, resident of Village-
Bandhawa, P.O. Barkagaon, P.S. Tarari, District- Bhojpur.
... ... Petitioners
Versus
1. The State of Bihar through the Chief Secretary, Bihar, Patna
2. The Chief Secretary, Govt. of Bihar, Patna.
3. The Secretary, Department of General Administration, Govt. of Bihar, Patna.
Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023
2/14
4. The Secretary, Department of Finance, Govt. of Bihar, Patna.
5. The Commissioner, Patna Division, Patna.
6. The District Magistrate, Patna.
7. The Bihar Public Service Commission, Bailey Road, Patna through its
Secretary.
8. The Secretary, Bihar Public Service Commission, Bailey Raod, Patna
9. The Bihar Staff Selection Commission, Bihar, Patna through its Secretary.
10. The Secretary, Bihar Staff Selection Commission, Bihar, Patna.
... ... Respondents
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with
Civil Writ Jurisdiction Case No. 23092 of 2018
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1. Sonalal Prasad, son of Shri Munilal Prasad, resident of Village- Pipra
(Matiyariya), P.S. -Sidhi,District- East Champaran.
2. Sanjay Kumar, son of Late Arjun Prasad Sah, resident of Village- Motipur
(Purani Bazar), P.S. -Motipur, District- Muzaffarpur.
3. Pradip Kumar Singh, son of Late Tej Narayan Singh , resident of Village-
Kotwa, P.S.- Kptwa, District-East Champaran.
... ... Petitioners
Versus
1. The State of Bihar through the Chief Secretary, Main Secretariat, Patna
2. Principal Secretary,General Administration Department, Government of
Bihar, Main Secretariat.
3. District Magistrate, East Champaran at Motihari.
4. District Magistrate, Siwan.
5. District Magistrate, Rohtas (Sasaram).
... ... Respondents
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with
Civil Writ Jurisdiction Case No. 8819 of 2020
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Dharmveer Chaudhary, Son of Ramadhar Chaudhary, Resident of Village-
Bara Bariarpur, P.S.- Chatauni, District- East Champaran, Motihari.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Main
Secretariat, Patna.
2. Additional Chief Secretary, Department of Finance, Government of Bihar,
Main Secretariat, Patna.
3. Additional Chief Secretary, General Administration Department,
Government of Bihar, Main Secretariat, Patna.
4. Under Secretary, General Administration Department, Government of Bihar,
Main Secretariat, Patna.
Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023
3/14
5. District Magistrate, East Champaran, Motihari.
... ... Respondents
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Appearance :
(In Civil Writ Jurisdiction Case No. 3658 of 2016)
For the Petitioners : Mr. Kishore Kumar Thakur, Advocate
For the State : Mr. W.A. Khan, AC to SC-25
For the BPSC : Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
For the BSSC : Mr. S.S. Sundaram, Advocate
(In Civil Writ Jurisdiction Case No. 23092 of 2018)
For the Petitioners : Mr. Kishore Kumar Thakur, Advocate
For the State : Mr. Rajat Kumar Tiwary, AC to AAG-13
(In Civil Writ Jurisdiction Case No. 8819 of 2020)
For the Petitioner : Mr. Kishore Kumar Thakur, Advocate
For the State : Ms. Smriti Singh, AC to AAG-13
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
9 03-04-2023Heard Mr. K.K. Thakur, learned counsel for the petitioners in these writ applications, Mr. W.A. Khan, learned AC to SC-25 and Mr. Rajat Kumar Tiwary, learned AC to AAG- 13 as also Ms. Smriti Singh, Learned AC to AAG-13 for the State.
2. With the consent of the parties, these writ applications have been taken up together for consideration.
3. Mr. Thakur, learned counsel for the petitioners has, at the outset, submitted that he is contesting these writ applications on the solitary ground that the petitioners who are placed above the direct recruits in the seniority list cannot get lesser pay scale than what has been allowed to the direct recruits. Learned counsel submits that though, in the pleadings he has relied upon the judgment of the Hon'ble Division Bench Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 4/14 of this Court in LPA No. 167 of 2016 but at this stage, he would not go into that issue and would not rely upon the said judgment, therefore, this matter need not be tagged with those cases which have been referred to larger Bench.
4. Learned counsel for the State has no objection to the same.
Brief Facts of the Case
5. In these writ applications, the petitioners are praying for a direction to the respondents to grant pay scale of Rs. 4,000-6,000/- to the petitioners in place of Rs. 3,050/- to 4590/- w.e.f. the date of their appointment as Lower Division Clerk (in short 'LDC').
6. All these petitioners were working against Class IV posts in different offices of Patna Collectorate and other Collectorate in the State of Bihar. It is stated that the General Administration Department issued one Resolution bearing No. 11243 dated 06.12.1995 for making appointment against Class III posts in the Regional Offices. 50% of the vacant seats were to be filled up from amongst the direct recruits whereas the remaining 50% seats were to be filled up by conducting Limited Competitive Examination for the Class IV employees. This examination was to be conducted by the Bihar Public Service Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 5/14 Commission (hereinafter referred to as the 'BPSC'). Later on, Bihar Staff Selection Commission (hereinafter referred to as the 'BSSC') was constituted vide Notification No. 3606 dated 31.05.2003 by the General Administration Department and the Department amended Resolution no. 2135 dated 05.10.2005 stipulating that all the group III posts will be filled up upon the recommendation of the BSSC.
7. Learned counsel for the petitioners has drawn the attention of this Court towards the background in which at the first instance steps were taken to fill up 50% of the total 166 vacant posts. It is his submission that the District Magistrate sent letter as contained in Annexure '6' to the writ application (CWJC No. 3658 of 2016) for filling up the posts of Clerk/LDC mentioning the qualification as matriculation or equivalent and the pay scale of Rs. 3,050/- 4,590/- showing 83 vacant posts. Based on Annexure '6', the BPSC recommended the names of 35 candidates by letters as contained in Annexure '7 series' and accordingly, the appointment letters were issued to them under the direct recruitment quota.
8. As regards the limited examination for the petitioners, it is stated that the Divisional Commissioner cleared the rosters and then step was taken by the District Magistrate for Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 6/14 filling up 83 posts through limited examination. For this purpose, the District Magistrate sent letter no. 856 dated 13.03.2006 to the BPSC seeking requisition for filling up the posts of Clerk under Limited Competitive Examination. Thereafter, the BPSC sent its recommendation for appointment of the petitioners. The District Magistrate issued order as contained in Memo no. 2214 dated 10.08.2006 for appointment of the petitioners (Annexure '9' to CWJC No. 3658 of 2016).
Submissions of the Petitioners
9. Learned counsel for the petitioners submits that the persons who had got appointment by the letters as contained in Annexure '7 series' as LDC got benefit of the pay scale of Rs. 4,000-6,000/- by virtue of the order dated 09.07.2009 passed by this Court in CWJC No. 7730 of 2009. The letter as contained in Memo No. 2390 dated 23.11.2009 (Annexure '10') has been brought on record. Annexure '10' shows that it has been issued in compliance of the order of this Court passed in CWJC No. 13577 of 2006 and CWJC No. 7730 of 2009.
10. Learned counsel submits that the appointment of all these petitioners have been made by order as contained in Memo No. 2214 dated 10.08.2006 (Annexure '9') earlier to some persons who got appointment vide Annexure '7 series' Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 7/14 under direct recruitment. The bone of contention is that those who have been appointed after the petitioners have been allowed the pay scale of Rs. 4,000-6,000/- and they are getting higher pay scale by virtue of Annexure '10' to the writ application.
11. Learned counsel has further relied upon a policy decision of the Government as contained in Annexure 'P-16' to CWJC No. 8819 of 2020. Clause (4) thereof has been relied upon. It is submitted that this policy decision is based on Note- 2 under paragraph '7' of the Resolution of the Finance Department dated 21st January, 2010 (Annexure 'E' to the counter affidavit of CWJC No. 8819 of 2020). It is his submission that in terms of Note-2 of the Resolution of the Finance Department, the pay band of the petitioners is liable to be stepped up so as to bring them at par with the direct recruits who were inducted in service as LDC but were allowed the benefit of pay scale of Rs. 4,000-6,000/- of the UDC. To put the record straight, it is mentioned that de-merger of the LDC and UDC took place on 20.12.2000.
Submissions of the State
12. Learned counsel for the State has opposed the writ application. A counter affidavit has been filed on behalf of Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 8/14 Respondent No. 4 which has been sworn by the Under Secretary in the Department of Finance, Government of Bihar. In paragraph '9' of the counter affidavit, it is stated that in CWJC No. 13577 of 2006, the selection process was initiated with the publication of the advertisement in the year 1998 and the pay scale was specified at Rs. 1200-1800/- for the post of Assistant- cum-Typist (the post of Assistant being the erstwhile merger and unified post). In that background, this Court in CWJC No. 13577 of 2006 had been pleased to direct the State Authorities to grant the pay scale of Rs. 4,000-6,000/- as the replacement scale of Rs. 1200-1800/-. This Court has held that the appointees in 1998 advertisement will be governed by the pay scale fixed before the date of de-merger i.e. 20.12.2000. It is on the said date that the common cadre was de-merged in the LDC and UDC.
13. Learned Counsel for the State has also drawn the attention of this Court towards the statements made in the supplementary counter affidavit filed on behalf of Respondent No. 6. It is sworn by the Senior Deputy Collector, Patna. He has reiterated the stand taken in the counter affidavit of Respondent No. 4.
Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 9/14 Consideration
14. Having heard learned counsel for the petitioners and the State in all these writ applications as also on perusal of the records, this Court finds that there is no dispute with the fact that an advertisement bearing No. 01 of 2003 was published by the BSSC for filling up the Class III posts through limited competitive examination for the Class IV employees. A copy of the Advertisement is available on the record of CWJC No. 23092 of 2018 as Annexure 'P-1' to the writ application. A perusal of the advertisement would show that it has been issued in compliance of the order of this Court in MJC No. 181 of 1998, CWJC No. 16072 of 2001 and CWJC No. 2409 of 1996. Altogether 125 posts were advertised. The advertisement clearly provides that these appointments are to be made on the post of LDC in the scale of Rs.3050-4590/-.
15. Admittedly, these petitioners appeared in the limited competitive examination pursuant to Annexure 'P-1' advertisement and they were appointed after their selection. Their appointment letters also speak of the same post and the pay scale for which the advertisement was issued.
16. So far as the direct recruits are concerned, again it is the admitted position that in their case, the advertisement was Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 10/14 issued in the year 1998 but the selection process continued even after de-merger on 20.12.2000. They were appointed on the post of LDC but by virtue of judgment of this Court in CWJC No. 13577 of 2006 and CWJC No. 7730 of 2009, they were found entitled to the pay scale of Rs.4,000-6,000/-. The petitioners in the present case agitated the issue of parity in the pay scale after about 12 years. Learned counsel for the petitioners submits that Annexure '11 series' in CWJC No. 3658 of 2016 are the copies of the joint representation made before the District Magistrate on 04.08.2015 and its reminder on 20.08.2015. It is, thus, evident from the records that for about 12 years after Advertisement No. 01/2003, the petitioners did not raise any issue on this score.
17. So far as the submissions of learned counsel for the petitioners based on resolution of the Finance Department as contained in Annexure 'E' to the counter affidavit filed in CWJC No. 8819 of 2020 is concerned, this Court would reproduce Note-2 under Paragraph '7' of the Resolution of the Finance Department as under:-
"Note-2 Where in the fixation of pay under this provision, the pay of a Government servant, who, in the existing scale was drawing immediately before the 1st day of January, 2006 more pay than another Government servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped up Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 11/14 to the same stage in the revised pay band as that of the junior."
18. Learned counsel has placed reliance upon Annexure 'P-16' of CWJC No. 8819 of 2020. Emphasis has been given on clause (4) which is being reproduced hereinbelow:-
"4- lE;d~ fopkjksijkUr fu.kZ; fy;k tkrk gS fd jkT; ljdkj ds ,sls deZpkfj;ksa dk osru ftudh ,sls in ij fu;qfDr fnukad & 01@01@2006 ls igys dh xbZ Fkh vkSj ftudk foÙk foHkkxh; ladYi la[;k&630] fnukad & 21@01@2010 dh dafMdk&7 ds rgr iqujhf{kr osru lajpuk esa ;Fkk fu/kkZfjr osru] ml in ij lh/kh HkÙkhZ ds vk/kkj ij fu;qDr deZpkjh ds fy, fu/kkZfjr izkjafHkd osru ¼f"kM~;qy&II ds vuqlkj½ ls de gksrk gS] rks og fnukad& 01@01@2006 ds f"kM~;qy&II }kjk fu;r izkjafHkd osru ls de ugha gksxk blh izdkj jkT; ljdkj ds ,sls deZpkfj;ksa dk osru] tks izksUufr ds i"pkr~ fnukad& 01@01@2006 dks ;k mlds ckn ,sls inksa ij fu;qDr fd, x;s Fks vkSj ftudk foÙk foHkkxh; ladYi la[;k &630] fnukad & 21@01@2010 dh dafMdk&12 ds rgr ;Fkk fu/kkZfjr osru mDr f"kM~;qy&II ds izkjafHkd osru ls de gksrk gS] Hkh fnukad 01@01@2006 ;k mlds ckn gqbZ mudh izksUufr ¼dk;kZRed izksUufr ds lanHkZ esa ;ksxnku dh frfFk ,oa vdk;kZRed izksUufr ds lanHkZ esa ns; frfFk½ dh rkjh[k ls f"kM~;qy &II }kjk fu;r izkjafHkd osru ls de ugha gksxkA"
19. This Court is of the view that paragraph '4' intends to remove the anomalies which may have cropped up during the revision of the pay scale. In the present case, there are no anomalies arising by virtue of revision of the pay scale. The fight is of getting the pay scale of the UDC even though the petitioners were appointed as LDC under the Advertisement No. 01 of 2003 which duly mentions the pay scale attached to the said post. Thus, paragraph '4' would also not come to the rescue of the petitioner.
Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 12/14
20. To this Court, it appears that the case of the petitioners would not be covered under Note-2 for the simple reason that the facts which are required to be there for applicability of Note-2 are not present in the case of the petitioners. It is not their case that the petitioners were at any point of time drawing more pay than the another Government servant junior to him in the same cadre.
21. Again, it is not their case that by virtue of revision of pay, their pay band got fixed at a stage lower than that of stage of junior. The facts of the case are rather converse. In this case, the direct recruits who joined the service after the petitioners were given higher pay by virtue of the judgments of this Court in CWJC No. 13577 of 2006 and CWJC No. 7730 of 2009. The reason being that in their case the selection process had started in the year 1998 itself which was prior to de-merger whereas in the case of the petitioners, they participated in the selection process by virtue of Advertisement No. 01 of 2003 after the de-merger of the post of LDC and UDC.
22. To this Court, it appears that the case of the petitioners are clearly distinguishable and Note-2 of the Resolution of the Finance Department read with Annexure 'P- 16' attached to CWJC No. 8819 of 2020 would not be Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 13/14 applicable.
23. In fact in CWJC No. 8819 of 2020, the petitioner had earlier moved this Court in CWJC No. 17982 of 2017. This Court had directed the respondent authorities to consider the representation of the petitioner. His representation was considered and the respondent authority has communicated the petitioner of the said case vide Memo No. 722 dated 23.06.2020 which is being reproduced hereunder for a ready reference:-
"i= la[;k&20@fofo/k&1¼iw0p0½&32@2019 lk0iz0 4820 fcgkj ljdkj lkekU; iz"kklu foHkkx izs'kd] dUgS;k yky lkg] ljdkj ds voj lfpoA lsok esa] ftyk inkf/kdkjh] iwohZ pEikj.k] eksfrgkjhA iVuk&15] fnuakd 21-05-20 fo'k; %& Jh /keZohj pkS/kjh] fyfid] ftyk LFkkiuk "kk[kk] iwohZ pEikj.k ds }kjk ekuuh; mPp U;k;ky;] iVuk esa nk;j lh0MCY;w0ts0lh0 la0& 17982@2017 esa ikfjr vkns"k ds vuqikyu gsrq ekxZn"kZu ds laca/k esaA izlax %& Hkonh; i=kad & 25/ iz0 fnukad & 08-02-2020 egk"k;] funs"kkuqlkj mi;qZDr fo'k;d izlaxk/khu i= ds laca/k esa foÙk foHkkx] fcgkj] iVuk }kjk ijke"kZ lalwfpr fd;k x;k gS fd foÙk foHkkxh; ladYi la0& 630 fnukad & 21-01-2010 dh dafMdk&07 ¼ch½ ¼lsV & 2½ esa fuEu mYys[k gS%& Where in the fixation of pay under this provision, the pay of a Government servant, who in the existing scale was drawing immediately before the 1 st day of January 2006 more pay than another Government Servant junior to him in the same cadre, gets fixed in the revised pay band at a stage lower than that of such junior, his pay shall be stepped up to the same stage in the revised pay band as that of the junior.
mi;qZDr izko/kku ls ;g Li'V gS fd osru iqujh{k.k ds Øe esa osru fu/kkZj.k djrs le; ;fn fdlh ojh; dk duh; dh rqyuk esa osru de gks tkus dh fLFkfr esa duh; dh gn rd ojh; dk osru LVsi&vi fd;k tkuk gSa oknhx.kksa dh fu;qfDr fnukad&01-01-2006 ds ckn Patna High Court CWJC No.3658 of 2016(9) dt.03-04-2023 14/14 iqujhf{kr osru lajpuk esa gqbZ gS lkFk gh o'kZ 1998 ds foKkiu ds vk/kkj ij i= esa mYysf[kr vH;fFkZ;ksa dh fu;qfDr Hkh fnukad & 01-01-2006 ds ckn iqujhf{kr osrueku esa gqbZ gSA Qyr% osru folaxfr dk fLFkfr ugha gS rFkk LVsi &vi ds izko/kku ls Hkh vkPNkfnr izrhr ugha gksrk gSA lwpukFkZ izsf'kr fo"oklHkktu g0@& 15-05-2020 ¼dUgS;k yky lkg½ ljdkj ds voj lfpo"
24. In the light of the discussions made hereinabove, this Court finds no reason to interfere with the said decision as contained in Annexure 'P-1' which is under challenge in CWJC No. 8819 of 2020. No reliefs may be granted to the petitioners in these writ applications.
25. These writ applications stand dismissed.
(Rajeev Ranjan Prasad, J) SUSHMA2/-
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