Patna High Court
The State Of Bihar & Ors vs Satyendra Sharma on 13 July, 2016
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1959 of 2012
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1. The State of Bihar, through the Principal Secretary, Road
Construction Department, Bihar, Patna
2. The Deputy Secretary, Road Construction Department, Bihar, Patna
3. The Chief Engineer, (Mechanical) Mechanical Up-Bhag, Road
Construction Department, Bihar, Patna
4. The Superintending Engineer (Mechanical), Mechanical Circle, Road
Construction Department, Darbhanga
5. The Executive Engineer, (Mechanical Division, Road Construction
Department, Khagaria
.... .... Appellants
Versus
Satyendra Sharma, son of Late Ramadhin Sharma, resident of village -
Chandra Nagar (Rako), P.S. - Mofassil Khagaria, District - Khagaria.
.... .... Respondent
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Appearance :
For the Appellants : Mr. P.K. Verma, AAG-5
Mr. Suman Kumari Jha, AC to AAG-5
Dr. Mankeshwar Tiwary, AC to AAG-5
Mr. Dilip Kumar Tiwari, Advocate
For the Respondents : Mr. Raj Dular Sah, Advocate
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
And
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 13-07-2016
State is in Intra-Court Appeal against the judgment
and order dated 21.11.2011, passed in C.W.J.C. No. 9829 of
2010 (Satyendra Sharma Vs. The State of Bihar and another).
As pleadings are complete, with consent of learned
counsels for the appellant, the State and the private
contesting respondent, who was writ petitioner, we have
heard this matter at length for its final disposal at this stage
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itself.
There are no disputes with regard to the facts.
The dispute is essentially with regard to the revised pay
which the writ petitioner/respondent would be entitled
consequent to pay revision w.e.f. 01.01.1996. The learned
Single Judge was of the view that as the writ
petitioner/respondent had been promoted to the post of Fitter
Grade - II in the year 1981, he was in the pay scale of Rs.
975 - 1540/-, he thereafter got the second Time Bound
Promotion. As per the scheme of the Time Bound Promotion
invoked, he became entitled to the next higher pay scale. The
first thing to notice is, it is not a promotion. The second thing
is that he would be entitled to only pecuniary benefits of the
next higher pay scale. Accordingly, the writ
petitioner/respondent was put in a pay scale of Rs. 1200 -
1800/-. This was the position on 31.12.1995. In the year
1999, by resolution dated 08th February, 1999, the State
Government accepted the recommendation of the Pay
Revision Commission as well as various recommendations of
the Fitment Committee, and the same was notified. This is
Annexure- B to the counter affidavit of the State in the writ
proceedings. This Pay Revision was made effective
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retrospectively with effect from 01.01.1996.
We have perused the said Government
Resolution in detail. The first thing noticeable is that the Pay
Revision has been done corresponding to the posts. There is
no replacement scales of pay provided which was earlier the
concepts, from reading, the scheme as a whole. What we find
is that, the intention was that for a post, the pay scales were
revised and a person holding a post would get the revised pay
scale alone. But there was a problem. The problem was that,
in some cases, because of Time Bound Promotions, the
persons were in receipt of pay on the scale above the pay
scale for the post. This would have created an anomaly. As
noted above, the concept at that time was that a person would
get the revised pay scale for the post he was holding. Time
Bound Promotion was not a promotion. In fact, it was
payments of remuneration of the next higher pay scale.
To meet this contingency, Clause 11 of the
Resolution gives a guideline. Clause 11 of the Resolution
dated 08th February 1999, as published in the Gazette on 13th
February, 1999 which is quoted hereinunder:
"11. The State Government have decided to
abolish the existing facilities of Time
Bound Promotions and Selection Grades,
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discussed in paras 10 and 12 of F.D.
resolution no. 6021 dt. 18th December,
1989 and they shall cease to be applicable
with effect from 1st January, 1996 and
thereafter in the excising pay scales. If any
such promotion, however, is due under the
Rules before 1st January 1996, it shall be
given and the payment of arrears in the
existing scale shall be made only upto 31st
December, 1995 after which the promotion
would be deemed to have been
automatically terminated. While fixing pay
in the revised scales, such promotions
given after 31st December, 1995 will not be
taken into consideration. If such
promotions have been given after 31st
December, 1995 then the question of
adjustment of such additional emoluments
obtained in the process, will be decided
after the Fitment Committee submits its
recommendations on promotion Policy.
Promotion to any vacancy of a post
identified as need based post would be
admissible. The procedure for
identification of such need based posts has
been set out in paragraph 12."
The whole dispute is what would be the effect of
the Pay Revision in respect of the writ
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petitioner/respondent and what is the import of Clause 11 of
the notified resolution dated 8th February, 1999.
On behalf of the writ petitioner/respondent, it is
submitted that as he was in the pay scale of Rs. 1200 -
1800/-, he would be entitled to the equivalent of the said pay
scale upon revision, which would be Rs. 4000 - 6000/-.
Instead, what has been done is, his revised pay has been
fixed in the pay scale of Rs. 3050 - 4590/-, which is the
revised pay scale of Rs. 975 - 1540/- in respect of the post.
Prima facie, this argument appears logical and
the learned Single Judge accepted the same. Accordingly, the
learned Single Judge directed that the writ
petitioner/respondent herein would be entitled to the pay
scale of Rs. 4000 - 6000/- on revised basis.
On the other hand, Sri P.K. Verma, learned
Additional Advocate General - V, submitted that there is a
basic fallacy in the judgment and order of the learned Single
Judge as well as the contention of the writ
petitioner/respondent. He pointed out that from the
government resolution and in particular Schedule III thereof
shows that writ petitioner/respondent was admittedly Fitter
Grade - II, his unrevised pay scale was Rs. 975 - 1540/- and
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the revised pay scale would be Rs. 3050 - 4590/-. This could
be apparent from serial no. 105 of Schedule - III of the said
notification. If, what the writ petitioner/respondent submitted
is to be accepted as was accepted by the learned Single
Judge, then, the pay scale claimed by the writ
petitioner/respondent would be Rs. 1200 - 1800/- being the
next higher pay scale pre 01.01.1996. If we now refer to
Schedule - III again that is not the pay scale of Fitter Grade -
II, but is the pay scale of Excavator Operator, serial no. 102,
which the writ petitioner/respondent is not. The whole
concept of this revision was that the pay revision was vis-a-
vis the post and not replacement pay scale. He further
pointed out that if we refer to Clause 11 of the said
notification, the validity of which was never challenged, it
clearly contemplates that on and w.e.f. 01.01.1996, the
notional promotions granted earlier would come to an end.
The expression used is "would be deemed to have been
automatically terminated". The effect would be that the
monetary benefit which persons like the writ
petitioner/respondent enjoyed by way of time bound
promotion would come to an end. Meaning thereby, the writ
petitioner/respondent or their like would revert to their
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original pay scale and get the revised pay scale for the said
post. But this will not make any difference, because, there is
a pay protection provided in case of the writ
petitioner/respondent. The calculation sheet (Statement A)
has been annexed as Annexure - C to the counter affidavit of
the State in the writ proceedings, and a reference to that
would show that writ petitioner/respondent does not suffer
any pecuniary disadvantage. It would be his submission that
the writ petitioner/respondent and the learned Single Judge
proceeded on the concept of pay revision by providing of
replacement scales, which, in fact, was not at all there. This
pay revision is in respect of a post in the Grade of the post.
This is the error to which the learned Single Judge fell.
We have examined the matter in detail. In our
view, the learned Additional Advocate General - V is
correct. Firstly, there is a conceptual difference between
what used to be the practice earlier i.e. upon pay revision
replacement scales were provided. Therefore, if a person was
in a particular scale irrespective of the post he would be
entitled to the replacement pay scale. That was given a go-
bye in the present pay revision. First, as evident from
Schedule II thereof, the number of pay scales was restricted.
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Then, in Schedule III, in respect of each post, the basic pay
scale and the revised pay scale for the said post was
provided. This abundantly makes clear that the concept of
replacement pay scale has not been adopted in this pay
revision. Therefore, as the writ petitioner/respondent was
Fitter Grade - II in the pay scale of Rs. 975 - 1540/- , his
revised pay scale being revised pay scale of Fitter Grade - II
would be 3050 - 4590/-, irrespective of the higher scale of
pay granted by virtue of the time bound promotion which
stands terminated by virtue of Clause 11 of the resolution, as
quoted above, the validity of which has not been challenged
nor could be challenged as it is an attempt to bring everyone
to a post at par. Apparently, it seems shocking that a person
who was in the pay scale of 1200 - 1800/-, the revised pay
scale whereof was 4000 - 6000/-, he is brought down to the
revised pay scale of Rs. 3050 - 4590/-. On the face of it, it is
a drastic reduction. It is this probably what persuaded the
learned Single Judge to agree with the writ
petitioner/respondent but in fact it not so. If we look to the
calculation chart, Statement-A, in respect of the writ
petitioner/respondent himself, the situation is explained. On
the upgraded pay scale of Rs. 1200 - 1800/- as he was
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receiving by virtue of time bound promotion as on
31.12.1995, his basic pay came to Rs. 1740/-. With dearness allowance and other allowances, his total pay came to Rs. 5285/- upon pay revision being Fitter Grade - II. He would now be in the revised pay scale of Rs. 3050 - 4590/-. Thus, the maximum he would get as basic pay would be 4590/- which sure is less than 5285/- by Rs. 695/-. When we go further and come to his pay fixation upon revision, we find that he was given the maximum of the revised pay scale of Fitter Grade II i.e. Rs. 4590/- plus Rs. 695/-, which was the difference as noticed above, total being Rs. 5285/-. Thus there is no loss.
To the contrary, this amount of Rs. 5285/- now became his basic pay over which he would be now entitled to dearness allowance and in addition thereto other allowances. As and when the basic pay would increase upon yearly increments, this Revised Pay Protection (RPP) of Rs. 695/- would go on reducing but his basic pay would never be less than what he was receiving as a pay, pre-revision. The calculation, as per Statement A, is correct application of the government resolution.
Thus, in our view, the contention of the writ Patna High Court LPA No.1959 of 2012 dt.13-07-2016 10/10 petitioner/respondent as accepted by the learned Single Judge that he would be entitled to the replacement pay scale to the pay scale he was last getting is in the face of it, is erroneous and cannot be accepted, that would put the entire Clause 11 as also Clause 13 of the resolution redundant. As noticed above, Clause 11 had a purpose. It cannot be rendered as an otiose. It is well established that no provision could be rendered by interpretation or otherwise an otiose and when the legislature or executive have formulated any provision, one has to look to the purpose thereof, there cannot be redundancy in statutes or resolution, having force of statute.
Thus, we are unable to affirm the judgment of the learned Single Judge. We would, accordingly, set it aside and allow the appeal and dismiss the writ petition.
(Navaniti Prasad Singh, J.) (Nilu Agrawal, J.) Rajeev/A.F.R. U