Jharkhand High Court
The State Of Jharkhand Through Chief ... vs Jharkhand Abhiyojan Sewa Sangh ... on 20 June, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.136 of 2022
----
1. The State of Jharkhand through Chief Secretary, having
office at Project Building, Dhurwa, P.O & P.s.-Dhurwa,
town & Dist-Ranchi.
2. The Principal Secretary, Planning cum Finance
Deparment, having office at Project Building, Dhurwa,
P.O., P.S.-Dhurwa, Town & Dist-Ranchi.
3. The Additional Chief Secretary, Department of Home,
Prison and Disaster Management Department, having
office at Project Building, Dhurwa P.O. & P.S. Dhurwa,
Town & Dist-Ranchi.
4. The Principal Secretary, Personnel, Administrative
Reforms and Rajbhasha Department, having office at
Project Building, P.O. & P.S.-Dhurwa, Town & Dist-
Ranchi. ... ... Respondent/Appellant
Versus
Jharkhand Abhiyojan Sewa Sangh (Jharkhand
Prosecution Service Association) through its President,
Mrs. Mini Lakra, aged about 53 years W/o Sri Himanshu
Khess, permanent resident of Vill-Basartoli, P.O-Church
Road, P.S.-Lower Bazar, Dist-Ranchi, Jharkhand presently
residing at Lohardagag, P.O. & P.S.-Lohardaga, Dist-
Lohardaga ... ... Petitioner/Respondent
With
L.P.A. No.187 of 2018
----
1. The State of Jharkhand
2. Secretary, Department of Finance, Government of
Jharkhand having its office at Project Bhawan, P.O. &
P.S.-Dhurwa, Town & District-Ranchi.
... ... Respondent/Appellant
Versus
1. Brahma Nath Sharma, S/o Late Ganpati Sharma,
-1- LPA Nos.136 of 2022 with 187/2018
resident of Officer's Flat No.18, Booty Road, Ranchi, P.O.
Ranchi University, P.S. Lalpur, District-Ranchi.
2. Digvijai Mani Tripathi, S/o Late B.N. Mani Tripathi,
resident of 2-D, Abhilasha Tower, Ajanta Para, Hirapur,
P.O. Dhanbad, P.S. and Dist. Dhanbad.
... ... Petitioners/Respondents
3. Secretary, Department of Personnel and Administrative
Reforms, Government of Jharkhand having its office at
Project Bhawan, P.O. & P.S.-Dhurwa, Town & District-
Ranchi.
4. Secretary, Department of Home, Government of
Jharkhand having its office at Project Bhawan, P.O. &
P.S.-Dhurwa, Town & District-Ranchi.
... ... Performa Respondents/Respondents
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
------
For the State : Mr. Rajiv Ranjan, Advocate General
: Mr. Ashutosh Anand, AAG-III
Ms. Rishi Bharti, AC to AAG-III
(In both the cases)
For the Respondents : Mr. Rajiv Ranjan Mishra, Advocate
Mr. Arbind Kumar, Advocate
(In LPA. No.136/2022)
: Mr. Manoj Tandon, Advocate
Mrs. Neha Bhardawaj, Advocate
(In LPA No.187/2018)
--------
C.A.V. on 06.05.2024 Pronounced on 20.06.2024
Per Sujit Narayan Prasad, J.
I.A. No.3462 of 2018 in L.P.A. No.187 of 2018
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 85 days in preferring the Letters Patent Appeal being L.P.A. No.187 of 2018.
-2- LPA Nos.136 of 2022 with 187/2018 2. Heard.
3. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation.
4. Accordingly, I.A.No.3462 of 2018 is allowed and delay of 85 days in preferring the appeal is condoned. L.P.A. No.136 of 2022
With L.P.A. No.187 of 2018
5. Both the appeals are having the common issues, however, the orders impugned have been passed by the two different Single Benches of this Court. Accordingly, both the appeals are being disposed of by this common order.
Prayer
6. The appeal being L.P.A. No.136 of 2022 is against the order dated 07.10.2021 passed by the learned Single Judge relying upon the judgment rendered by the learned Single Judge of this Court in W.P.(S) No.799 of 2009, in which, the judgment was pronounced on 19.12.2017. However, the issue being the same, hence, the coordinate Bench of this Court vide order dated 21.07.2023 has directed to list L.P.A. No.136 of 2022 arising out of W.P.(S) No.2721 of 2020 along with the records of L.P.A. No.187 of 2018, thereby, both the cases are being listed together, as such, both the appeals are being heard
-3- LPA Nos.136 of 2022 with 187/2018 together and are being disposed of by this common order.
7. The appeal being L.P.A. No.187 of 2018 has been preferred against the order passed by the learned Single Judge of this Court in W.P.(S) No.799 of 2009 dated 19.12.2017 which has been allowed relying upon the judgment rendered by this Court in Anand & Ors. Vrs. The State of Jharkhand & Ors., reported in 2016 (4) JLJR 1.
8. The appeal being L.P.A. No.136 of 2022 is against the order/judgment dated 07.10.2021 passed by the learned Single Judge of this Court in W.P.(S) No.2721 of 2020, which has been allowed in terms of the order passed in W.P.(S) No.799 of 2009, which is the subject matter of the instant intra court appeals, as such, this Court is of the view that since the order has been passed by the learned Single Judge of this Court in W.P.(S) No.2721 of 2020 is based upon the order passed in W.P.(S) No.799 of 2009, which is the subject matter of the L.P.A. No.187 of 2018, hence, the intra court appeal being L.P.A. No.187 of 2018 will be heard first, since, the basis of passing the order by this Court in W.P.(S) No.2721 of 2020 is the order passed in W.P.(S) No.799 of 2009, which is the subject matter of the intra court appeal being L.P.A. No.187 of 2018. Facts
9. The brief facts of the case, as per the pleading made in both the writ petitions, i.e., W.P.(S) No.2721 of 2020 & W.P.(S) No.799 of 2009 needs to be referred.
-4- LPA Nos.136 of 2022 with 187/2018 Factual Matrix of W.P.(S) No.2721 of 2020 (LPA No.136/2022)
10. It is the case of the writ petitioner that the petitioner is an Association of the cadre of Jharkhand Prosecution Service (Jharkhand Abhiyojan Sewa Sangh) in the state of Jharkhand and the President of the association, who is representing the Petitioners, is presently holding the post of Public Prosecutor, and members of the Jharkhand Prosecution Service. She joined her service as Assistant Public Prosecutor/Assistant Prosecution Officer on 06.01.1999 and is presently posted at Lohardaga.
11. The members of the Jharkhand Prosecution Service are doing their day-to-day work in the different courts of the state of Jharkhand. The Jharkhand Prosecution Service cadre came into existence after the final cadre division of Bihar Prosecution Service on 31.03.2005, vide letter No. 28/46/2004- S.R(S) dated 14.02.2005 by the Ministry of Personnel, Public Grievances and Pension, Government of India as per the provisions of the Bihar Reorganization Act, 2000.
12. In the unified State of Bihar, a separate cadre of prosecution was declared as the state service known as Bihar Police Service (Prosecution Branch) through notification of Service Rules bearing No. 1876 dated 10.02.1964 by the then Political (Police) Department which was duly notified in the Bihar Gazette on 15.03.1964. The service Rules provided the
-5- LPA Nos.136 of 2022 with 187/2018 procedure for direct recruitment on the post of Senior District Prosecutor on the basis of examination procedure for the Bihar Civil Services (Judicial Branch) which was applied mutatis- mutandis by the Bihar Public Service Commission.
13. In pursuance of the directions of the Hon'ble Patna High Court passed in CWJC No. 5573/1995 to implement the recommendation of the 5th Pay Revision Committee, the Government of Bihar passed resolution no. 10502 on 12.10.1998 for creation of promotional opportunities for the Assistant Public Prosecutor namely District Prosecution officers and Divisional Prosecution officers. The resolution was issued by the order of the Governor by the department of Home (Police), Government of Bihar and in view of provisions of Bihar Reorganization Act, 2000, the same is binding on the State of Jharkhand.
14. The Finance Department, Government of Jharkhand vide resolution no. 3589 dated 17.12.2007 has taken decision that those officers of the state service of basic grade who have been allowed the pay scale of Rs. 6500-10500/- and those having First promotional post of the scale of Rs. 10,000-15200/- or more, were upgraded to the pay scale of Rs. 8000-13500/-. The notional benefit will be allowed from 15.11.2000, but the actual benefit will be allowed from 01.03.2007.
15. The members of the petitioner were allowed the 5th pay revision from their basic pay Scale of Rs. 2200-4000/- to the
-6- LPA Nos.136 of 2022 with 187/2018 pay scale of Rs. 6500-10500/- (along with other class II officers stated above) by virtue of Resolution No. 660 dated 08.02.1999 of Finance Department, Government of Bihar, which finds mention in the aforesaid Resolution of the Government of Jharkhand dated 17.12.2007
16. From the aforesaid resolution of the Jharkhand Government it is evident that for upgrading the Scale of Rs. 6500-10500/- following conditions are required to the fulfilled:-
A. Officer must be of the basic grade of State Service.
B. The unrevised pay scale of basic grade was 2200-4000/- as on 01.01.1996.
C. The pay scale of Rs. 6500-10500 has been sanctioned as revised pay of Rs. 2200-4000/- since 01.01.1996;
D. The first promotional post in the ladder is in the pay scale of Rs. 10,000-15,200/-.
17. The other officers of Class II Cadre of State Services of senior Grade- II, who are similarly situated, have been issued the pay slip by the Finance Department of the Government/Accountant General in the light of the aforesaid resolution of the government dated 17.12.2007.
18. It is further stated that since its inception the State Prosecution Service officer are treated as Senior Class II officers and always have the parity in Entry/basic pay scale and their seniority have been maintained with other State service officers like Deputy Superintendent of Police, Deputy Collectors and Judicial Service.
-7- LPA Nos.136 of 2022 with 187/2018
19. After several representation/request, the Entry Scale of Rs. 8000-13500/- in the light of resolution No. 3589 dated 17.12.2007 was not allowed or Pay Slip in the upgraded scale not issued, thereafter being dissatisfied with acts and action of Resp. No. 2, some of the members of Jharkhand Prosecution service compelled to move before this Court in WP(S) No. 799/2009 and after hearing the parties in length and after perusing the records, the contentions of the Respondents were rejected and vide order dated 19.12.2017 allowed the contention of the petitioners of the said case.
20. It is the further case that after 17.12.2007 on the basis of the notification dated 17.12.2007 the pay slip of the upgraded scale of Rs.8000-13500/- in the 5th Pay Revision and that of Rs. 9300-34800 with the grade pay of Rs.5400/- in the entry level in the 6th Pay Revision has not been issued to all the members of petitioner, except the Petitioners of the W.P.(S) 799/2009 with all consequential benefits, till date as a result of which the Assistant Public Prosecutors, Additional Public Prosecutors and Public Prosecutors of Jharkhand Prosecution Service are drawing less salary (i.e. as a consequential loss due to the anomalous scale of Rs. 6500- 10500/- in the 5th Pay Revision and that of Rs. 9300- 34800 with the grade pay of Rs.4800/- in the 6th Pay Revision), whereas other officers who were earlier in the scale of Rs. 6500-10500/- are allowed the Entry / Basic pay scale of 8000-13500/- to their basic cadre
-8- LPA Nos.136 of 2022 with 187/2018 post.
Factual Matrix of W.P.(S) No.799 of 2009 (LPA No.187/2018)
21. It is the case of the writ petitioners that they were appointed as Assistant Public Prosecutor by the Government of Bihar initially in the pay scale of Rs.1000-1820/. After creation of State of Jharkhand, Jharkhand Prosecution Services came into existence after the cadre division of Bihar Prosecution Services on 31.03.2005. In the Unified State of Bihar, a separate cadre of prosecution was declared as Bihar Police Service (Prosecution Branch). The Government of Bihar passed resolution dated 12.10.1998 for creation of promotional opportunities for Assistant Public Prosecutors, which is binding on the State of Jharkhand vide Annexure-2 to the writ application.
22. The pay scales of District Prosecution Officers and Assistant Director have been revised to Rs.12000-16500/- and that of Divisional Prosecution Officers has been revised to Rs.14,300-18,300/-. Twenty-two posts of Public Prosecutor in the scale of Rs.12,000-16,500/- and 110 posts of Additional Public Prosecutor in the scale of Rs.10,000-15,200/- were created as promotional post for Assistant Public Prosecutor by the Government of Jharkhand as per Annexure-4 to the writ petition.
23. It has been further averred in the writ application that the
-9- LPA Nos.136 of 2022 with 187/2018 post of senior District Prosecutor has been listed as Class-II State Services as I.A in Appendix 16 of Bihar Service Code (now Jharkhand Service Code) with all other State Services. The Government of Jharkhand upgraded those officers to the scale of Rs.8,000-13,500/- who were getting unrevised scale of Rs.2200-4000/- and who have been allowed the pay scale of Rs.6500-10500/- and those having first promotional post in the scale of Rs.10,000-15,200/- or more, as per Annexure-6 to the writ application.
24. Being entitled to get the upgraded scale of Rs.8,000- 13,500/-, the writ petitioners submitted their representations to the concerned authority of the department of Finance, Government of Jharkhand, praying inter alia for revision of their pay scale, at par with of the officers of the State Government, who were in the earlier scale of Rs.6,500-10,500/- have been allowed the pay scale of Rs.8,000-13,500/- vide Annexurre-7 and 7/A to the writ application.
25. Being aggrieved by inaction of the respondents of not granting the appropriate pay scale, the writ petitioners have been constrained to approach this Court, invoking extraordinary jurisdiction under Article 226 of the Constitution of India by way of filing writ petition being W.P.(S) No.799 of 2009 for redressal of their grievances.
26. The learned Single Judge, after taking into consideration all aspects of the matter, has allowed the writ petition by
- 10 - LPA Nos.136 of 2022 with 187/2018 directing the respondents to grant and sanction the pay scale of Rs.8,000-13,500/- like other State Services employees in accordance with the decision of the State Government in resolution dated 17.12.2007 as also directed the respondents to issue the pay slip in the revised scale, which is the subject matter of the instant appeals.
27. It appears from the factual aspects as referred above that the grievance has been raised by the Jharkhand Abhiyojan Sewa Sangh before the State authority to direct the respondents to grant and sanction pay scale of Rs.8000- 13500/- to the member of the petitioner's association as per the 5th Pay Revision like other state service employees in view of the government resolution no.3589 dated 17.12.2007.
28. The ground was taken before the learned Single Judge so far as the writ petition being W.P.(S) No.799 of 2009 that the petitioners were appointed as Assistant Public Prosecutor by the Government of Bihar initially in the pay scale of Rs.1000- 1820/-. After creation of State of Jharkhand, Jharkhand Prosecution Services came into existence after the cadre division of Bihar Prosecution Service on 31.03.2005.
29. In the Unified State of Bihar, a separate cadre of prosecution was declared as Bihar Police Service (Prosecution Branch). The Government of Bihar passed resolution for creation of promotional opportunities for Assistant Public Prosecutors, which is binding on the State of Jharkhand.
- 11 - LPA Nos.136 of 2022 with 187/2018
30. The pay scales of District Prosecution Officers and Assistant Director have been revised to Rs.12000-16500/- and that of Divisional Prosecution Officers have been revised to Rs.14,300-18,300/-. Twenty two posts of Public Prosecutor in the scale of Rs.12,000-16,500/- and 110 posts of Additional Public Prosecutor in the scale of Rs.10,000-15,200/- were created as promotional post for Assistant Public Prosecutor by the Government of Jharkhand as per Annexure-4 to the writ petition.
31. The further contention was raised that the post of senior District Prosecutor has been listed as Class-II State Services as I.A in Appendix 16 of Bihar Service Code (now Jharkhand Service Code) with all other State Services. The Government of Jharkhand upgraded these officers to the scale of Rs.8,000- 13,500/- who were getting unrevised scale of Rs.2200-4000/- and who have been allowed the pay scale of Rs.6500-10500/- and those having first promotional post in the scale of Rs.10,000-15,200/- or more.
32. The writ petitioners claiming to get the upgraded scale of Rs.8,000-13,500/- have submitted their representations to the concerned authority of the department of Finance, Government of Jharkhand, praying therein for revision of their pay scale, at par with of the officers of the State Government, who were in the earlier scale of Rs.6,500-10,500/- have been allowed the pay scale of Rs.8,000-13,500/-. But the respondents have not
- 12 - LPA Nos.136 of 2022 with 187/2018 taken any action, hence, the writ petitioners had preferred writ petition being W.P.(S) No.799 of 2009.
33. The State was called upon and the counter affidavit was filed, wherein, the ground inter-alia was taken by making opposition to the claim, as was raised before the learned Single Judge on behalf of the writ petitioners that four pre-conditions are required to be fulfilled entitling an officer in the pay scale of Rs.6500-10500/- to the higher pay scale of Rs.8000-13500 which are as follows: -
A. The Officer must be an officer of the State Service.
B. Must be in the scale of Rs.6,500-10,500/- w.e.f. 01.01.1996.
C. Prior to 01.01.1996 must be in the scale of Rs.2,200-4,000/-.
D. The first promotional post must be in the scale of Rs.10,000- 15,200 or above.
34. It has further been contended that the Finance Department has denied that the petitioners fall under the State Service and further it has been stated that promotional post of the petitioners is not in the scale of Rs.10,000-15,200/-. The petitioners have brought on record the Jharkhand Prosecution Service Rules, 2011, framed by the State Government in order to demonstrate that the post of Assistant Public Prosecutors are the Group-B Gazetted Officers of the State Cadre, which clearly shows that the petitioners are also in State Service in view of the definition of Gazetted Officers, as defined in Rule 18 of the Jharkhand Service Code.
35. The State has further filed additional affidavit stating inter-
- 13 - LPA Nos.136 of 2022 with 187/2018 alia therein that in the Central Government, the pay scale payable to the Public Prosecutors is that of Pay Band-II with Grade Pay of Rs.4600/- which is the replacement scale of the unrevised scale of Rs.6,500-10,500/-. It has further been stated that the petitioners are not entitled to claim which is higher than the pay scale of its counter-part in the Central Government.
36. The ground has also been agitated that the petitioners may be Group-B Gazetted Officers of the State cadre, however, their services have not been declared as State Service.
37. Learned counsel for the petitioners has relied upon the judgment passed by this Court in the case of Anand and Ors. Vrs. The State of Jharkhand & Ors. (supra).
38. Learned Single Judge, after applying the finding given by this Court in the case of Anand and Ors. Vrs. The State of Jharkhand & Ors. (supra), has allowed the writ petition with a direction upon the respondents to grant and sanction the pay scale of Rs.8,000-13,500/- to the petitioners like other State Services employees in accordance with the decision of the State Government in resolution dated 17.12.2007, whereby, the benefit of pay scale of Rs.8,000-13,500/- was given to the officers of the State services, notionally w.e.f. 15.11.2000 and actual benefits w.e.f. 01.03.2007 with all consequential benefits with retrospective effect from the same dates.
39. The writ petition being W.P.(S) No.2721 of 2020 has been
- 14 - LPA Nos.136 of 2022 with 187/2018 preferred by the Jharkhand Abhiyojan Seva seeking the same relief as was in the writ petition being W.P.(S) No.799 of 2009.
40. The learned Single Judge, on relying upon the order passed by the coordinate Bench in W.P.(S) No.799 of 2009, (Brahma Nath Sharma & Anr. Vrs. State of Jharkhand & Ors.) has allowed the writ petition with the direction holding the members of the petitioner's Sangh entitled to get the pay scale of Rs.8,000-13,500/- like other States Services employees in view of the resolution no.3589 dated 17.12.2007.
41. The State, being aggrieved with both the orders, is before this Court by filing the instant appeals.
Arguments of the appellant-State
42. The ground taken on behalf of the State in assailing the orders passed by the learned Single Judge in both the writ petitions being W.P.(S) No.799 of 2009 and W.P.(S) No.2721 of 2020, i.e.,
(i) The judgment upon which the reliance has been placed by the learned Single Judge rendered in the case of Anand and Ors. Vrs. The State of Jharkhand & Ors. (supra) is not applicable in the facts and circumstances of the case, reason being that, Anand and Others were the members of the State Information Service which is the State Service, as declared under the provision of Rule 18(i) of the Jharkhand Service Code. But, herein, the petitioners
- 15 - LPA Nos.136 of 2022 with 187/2018 or the members of the petitioner's association are not in the State service.
(ii) The ground has been taken that the members of the petitioner's association/writ petitioners herein are holding the post of State cadre which will be said to be notified in view of the power conferred under Rule 18 (ii) of the Bihar Service Code, 1955.
Therefore, the ground has been taken that altogether four conditions are to be complied with as referred in clause-'Gha' of the circular dated 17.12.2007, wherein, it has been provided that:
a. The Officer must be an officer of the
State Service.
b. Must be in the scale of Rs.6,500-
10,500/- w.e.f. 01.01.1996.
c. Prior to 01.01.1996 must be in the
scale of Rs.2,200-4,000/-.
d. The first promotional post must be in
the scale of Rs.10,000-15,200 or above.
Herein, the writ petitioners or the members of the petitioner's association are not the officers of the State service, rather, they are having in the State cadre and as such, the parity which has been drawn by the learned Single Judge by applying the ratio laid down by this Court in the case of Anand and Others
- 16 - LPA Nos.136 of 2022 with 187/2018 (supra) is not applicable at all, hence, the orders passed by the learned Single Judge in both the writ petitions, are not sustainable in the eye of law.
(iii) The requirement as per the government decision as contained in the circular dated 17.12.2007 is mandatorily to be followed and only if one or the other members of the service are fulfilling the condition laid down therein, then only question of consideration of the parity with the members of the State services will be there.
But without examining the aforesaid aspects of the matter, the learned Single Judge even without discussing as to how, the judgment passed in the case of Anand & Ors. (supra) is applicable in the facts and circumstances of the case, has passed the order impugned.
(iv) Further, the ground has been taken that there is difference in between the State service and the State cadre, hence, the petitioners or the members of the petitioner's association if at all aggrieved then they should have challenged the very rule which has been formulated for the purpose of structuring the Abhiyojan cadre as per the rule formulated in this regard under proviso to Article 309 of the Constitution of India on 27.10.2011. Since, if the
- 17 - LPA Nos.136 of 2022 with 187/2018 Rule has been formulated by bringing the Abhiyojan service within the fold of the State cadre, hence, no parity can be obtained by the employees of the Abhiyojan Seva.
(v) The ground has also been taken by making comparison with the rule formulated under proviso to Article 309 of the Constitution for the members of the Information Service which is known as "Jharkhand Suchna Seva Bharti Niyamawali, 2007", wherein, as per the provision of Rule 3, the service was constituted and by virtue of the provision of Rule 18 of the Rule, 1955, the members of the Jharkhand Information Service has been considered to be 'State Service'.
(vi) It would be evident that the Abhiyojan Service has not been constituted under the provision of Rule 18 said to be in sub-rule (i), rather, it is under sub-rule
(ii) and that is the reason, the Abhiyojan Service has been made to be the 'State cadre post' and in that view of the matter, the judgment, upon which, the reliance has been placed which is rendered in the case of The State of Jharkhand & Ors. Vrs.
Anand & Ors (supra) is not applicable.
43. Hence, the order passed by the learned Single Judge particularly in W.P.(S) No.799 of 2009 is not sustainable and in
- 18 - LPA Nos.136 of 2022 with 187/2018 consequence thereof, the order which has been passed in W.P.(S) No.2721 of 2020 decided on 07.10.2021 since is based upon the order passed by the learned Single Judge in W.P.(S) No.799 of 2009, is also not sustainable in the eye of law.
44. Learned Advocate General appearing for the appellants- State has further submitted by referring to the impugned orders that the orders impugned passed by the learned Single Judges are not sustainable in the eye of law.
Arguments of the respondents-writ petitioners in L.P.A. No.187 of 2018
45. Mr. Manoj Tandon, learned counsel appearing for the respondent-writ petitioner in L.P.A. No.187 of 2018 has taken the following grounds in defending the impugned judgment passed by the learned Single Judge so far as it relates to the order passed by the learned Single Judge in W.P.(S) No.799 of 2009, which is the subject matter of the appeals.
(i) The ground has been agitated that it is incorrect on the part of the State to take the ground that while disposing of the writ petition by relying upon the judgment rendered in the case of Anand & Ors. (supra), the proper consideration regarding the claim of the respondents-writ petitioners by applying the finding recorded in the case of Anand & Ors. Vrs. The State of Jharkhand & Ors. (supra), has not been considered, rather, if the factual aspect
- 19 - LPA Nos.136 of 2022 with 187/2018 including the Abhiyojan Rule pertaining to creation of the Abhiyojan Service Rule, 2011 will be taken into consideration, wherein, as per the definition as under
Rule 2(iii), the "service" means the Jharkhand Prosecution Service, since the word "service" has been referred therein, hence, the prosecution service will also be said to be the 'State service' and not the 'State cadre'.
(ii) The ground has been taken that exactly, the case as was decided by this Court in the case of Anand & Ors. Vrs. The State of Jharkhand & Ors. (supra) is same with the facts of the present case, since, therein, also the information service is 'State service' and since, the Jharkhand Prosecution Service is also the 'State service', hence, the order passed in the case of Anand & Ors. Vrs. The State of Jharkhand & Ors., who are the members of the Information Service, if applied in the facts of the present case considering the prosecution service to be the 'State service', it cannot be said that the learned Single Judge has erred in applying the ratio laid down by this Court in the case of Anand & Ors.
Vrs. The State of Jharkhand & Ors. (supra).
(iii) The contention has been raised that it is also incorrect on the part of the State that the condition
- 20 - LPA Nos.136 of 2022 with 187/2018 stipulated in the circular dated 17.12.2007, is not being followed and one of the condition stipulated under clause-Gha, is that the benefit of pay scale of Rs.8,000-13,500/- is only to be given to such members of the service who are under the 'State service'.
Herein also, since the 'prosecution service' is also within the meaning of the State service and hence, all the conditions as stipulated under condition no.Gha of the circular dated 17.12.2007 are fully been fulfilled and in that view of the matter, one or the other members of the petitioner's association/petitioners are entitled to get the benefit of pay scale as per the circular dated 17.12.2007.
46. Learned counsel for the respondents-writ petitioners, on the basis of the aforesaid grounds, has submitted that there is no error in the impugned order.
Arguments of the respondent-writ petitioner in L.P.A. No.136 of 2022
47. Mr. Rajiv Ranjan Mishra, learned counsel for the respondent-writ petitioner in L.P.A. No.136 of 2022 has submitted that he is adopting the argument advanced by Mr. Manoj Tandon, learned counsel.
48. But, in addition to that, it has been argued that prior to bifurcation of the State, there was cadre of the District
- 21 - LPA Nos.136 of 2022 with 187/2018 Prosecutor and if the District Prosecutor Service will be taken together with the definition of "seva" as under Rule 2 (iii) of the Jharkhand Prosecution Service Rule, 2011, it would be evident that one or the other members of the Jharkhand Prosecution Service, will be said to be holding the State service posts. Analysis
49. This Court has heard the learned counsel for the parties, gone across the pleading made in the writ petitions, the pleading made in the memo of appeals, respective affidavits filed on behalf of the parties and the finding recorded by the learned Single Judges in the impugned orders.
50. This Court before entering into the legality and propriety of the case, is required to consider the issue, i.e., "Whether the facts of the judgment passed by the coordinate Bench of this Court in the case of The State of Jharkhand & Ors. Vrs. Anand & Ors. is applicable in the facts of the present case which led the learned Single Judge to allow the writ petitions."
51. This Court, in order to answer the said issue needs to refer herein the provision of Jharkhand Prosecution Service, reason being that, the respondents/petitioners are the members of the Association of the Jharkhand Abhiyojan Seva, the Jharkhand Service, reason being that the parity which is being claimed from the judgment rendered in the case of Anand & Ors., who belongs to the Jharkhand Information Service
- 22 - LPA Nos.136 of 2022 with 187/2018 governed under the Jharkhand Information Service Rules, 2007 as also the judgment rendered by the coordinate Bench of this Court in the case of State of Jharkhand & Ors. Vrs. Anand & Ors.
52. The facts which are not in dispute in these cases are that the writ petitioners and the members of the petitioner's association are working as Assistant Public Prosecutors.
53. There was no specific cadre, since there was no specific rule to govern the recruitment process of the members of the prosecution being in the State.
54. However, in the year, 1998, the post was created said to be the post of Assistant Public Prosecutor, as would be evident from the stipulation made in the circular dated 12.10.1998, which is being referred as under:-
"3. पंचम वेतन पुनरी ण सिमित की vuq"kalk एवं माननीय उ ायालय पटना के त ंबंधी आदे श के आलोक esa रा सरकार ारा स क :i ls िवचारोंपरां त िन ां िकत िनणय िलया गया है :
¼d½ सहायक लोक अिभयोजक संवग म ारं िभक िनयु . 2200- 4000/- के वेतनमान म सहायक लोक अिभयोजन के प म िकया जाएगा ।
¼[k½ रा के 42 िजलों सूची प रिश -1 पर जहां के सहायक लोक अिभयोजक कायरत है म उनके काय के पयवे ण िनिम िजला अिभयोजन पदािधकारी के एक-एक पद का ावधान िकया जा रहा है िजस पर िक 2400- 4150/- वेतनमान से ू पदािधकारी का पद थापन नहीं िकया जाएगा। िजला अिभयोजन पदािधकारी ारा भारी िजला अिभयो पदािधकारी एवं भारी अनुमंडल सहायक लोक अिभयोजक ारा वतमान म िनवाह िकए जा रहे दािय ों को हण िकया जाएगा । िजला अिभयोजन पदािधकारी के पद थान के फल :i भारी िजला सहायक लोक अिभयोजक की व था समा हो जाएगी। तथा भारी अनुमंडल सहायक लोक अिभयोजक ारा िजला
- 23 - LPA Nos.136 of 2022 with 187/2018 अिभयोजन पदािधकारी के पयवे ण एवं िनयं ण म काय िकया जाएगा ।
िजला अिभयोजन पदािधकारी ारा िजला अ गत अिभयोजन कायय के पयवेक्षण के साथ- साथ एक ाियक द ािधकारी के ायालय म सरकार की ओर से अिभयोजन का भी संचालन िकया जाएगा ।
¼x½ रा के तेरह मंडलीय मु ालयों ¼ सूिच प रिश 2 पर½ जहां की सहायक लोक अिभयोजक dk;kZy; के काय के पयवे ण िनिमत एक-एक मंडलीय लोक अिभयोजक का ावधान िकया गया है िजस पर की :i;k 3000/- ¼ तीन हजार ½ ls 4500/- ¼ पतालीस सौ ½ के वेतनमान से अ ून पदािधकारी dk पद थापन नहीं िकया जाएगा। मंडलीय अिभयोजन पदािधकारी मंडलीय मु ालय के िजला के िजला अिभयोजन पदािधकारी के काय के उkिय ों के िनवाह के साथ साथ मंडल अ गत अ िजला के िजला अिभयोजन पदािधकारी के कायों का पयवे ण करगे। मंडलीय अिभयोजन पदािधकारी ारा मंडली; मु ालय के िजला के एक ाियक द ािधकारी के ायालय esa सरकार की ओर से अिभयोजन का भी संचलालन िकया जाएगा ।"
55. The appointments were being made to the post of Assistant Public Prosecutor, based upon the aforesaid rule, as contained in the circular dated 12.10.1998, which was also applicable after bifurcation of the State of Jharkhand.
56. The State of Jharkhand has formulated a Rule as "Jharkhand Prosecution Service Rule, 2011" (Abhiyojan Seva Niyamawali, 2011) under proviso to Article 309 of the Constitution of India.
57. The said rule contains the details about structuring of the services, source of recruitment with the eligibility, mode of promotion and salary etc.
58. The aforesaid rule demonstrates, as under Rule 3 that the structure of service has been decided to be kept under the
- 24 - LPA Nos.136 of 2022 with 187/2018 control of prosecution directorate.
59. It is further evident from the aforesaid rule that the prosecution directorate has been kept under the control of the Home Department of the State.
60. It is further evident from Rule 3 that the post of Assistant Public Prosecutor will be Group-B Gazetted Officer, which will be the basic cadre post under the Jharkhand Prosecution Cadre.
61. The said rule also contains the hierarchy of the post as under Schedule-I, wherein, the basic cadre post starts from the post of Assistant Public Prosecutor, which is to be filled up through the direct mode of appointment.
62. The second hierarchy of the post is the Addl. Public Prosecutor, which is to be filled up by way of promotion and the third hierarchy of the post is the Public Prosecutor, which is also to be filled up by way of promotion.
63. It further appears from the Rule 2 (ii) that 'Directorate' has been defined which means "Jharkhand Prosecution Directorate"
(Jharkhand Abhiyojan Nideshyalay).
64. The "service" has been defined as under Rule 2(iii) which means "Jharkhand Prosecution Service" (Jharkhand Abhiyojan Seva). "Vibhag" has also been defined which means "Home Department of the State of Jharkhand". For ready reference, Rule 2 and Rule 3 are being referred hereinbelow:-
"2. प रभाषाएं - इस िनयमावली म जब तक सं दभ से अ था अपेि त न हो :-
(i) अिभयोजन कायालय से अिभ ेत है - िजला एवं अनुम ल थत सभी
- 25 - LPA Nos.136 of 2022 with 187/2018 अिभयोजन कायालय।
(ii) "िनदे शालय" से अिभ ेत है - झारख अिभयोजन िनदे शालय ।
(iii) "सेवा" से अिभ ेत है - झारख अिभयोजन सेवा ।
(iv) "सरकार" से अिभ ेत है - (v) "अनुसूची" से अिभ ेत है झारख रा की सरकार । इस िनयमावली से संल अनुसूची।
(vi) "रा पाल" से अिभ ेत है झारख रा के रा पाल ।
(vii) "आयोग" से अिभ ेत है झारख लोक सेवा आयोग।
(viii) "रा " से अिभ ेत है - झारख रा ।
(ix) "िवभाग" से अिभ ेत है - झारख सरकार का गृह िवभाग।
(x) "संिहता" से अिभ ेत है - द ि या संिहता 1973 यथा संशोिधत
अिधिनयम 2005.
(xi) अिभयोजन पदािधकारी से अिभ ेत है - सहायक लोक अिभयोजक, अपर लोक अिभयोजक, लोक अिभयोजक, िवशेष लोक अिभयोजक या समक पद ।
3. सेवा की संरचना- यह सेवा अिभयोजन िनदे शालय के अधीन गृह िवभाग के िनयं ण म काय करे गा। सेवा के िविभ रों के पदों का पूण िववरण अनुसूची-1 के अनु प होगा।
रा सरकार समय-समय पर इस सेवा के अिधकृत बल का िनधारण करे गी और ीकृत पदों के अित र इस सेवा के थायी/अ थायी पदों के सृजन की ीकृित दे सकेगी।"
65. It further requires to refer herein one provision as under
Rule 23 which is the repealed clause along with the saving, whereby and whereunder, it has been provided that if the candidates who have been found to be qualified prior to enforcement of the Rule, there will be no requirement to participate in the examination to fulfill the post. But, the candidates who have not found to be qualified, then such candidates will have to be qualified on the basis of the Rule, 2011, for the ready reference, the aforesaid provision is being referred as under: -
- 26 - LPA Nos.136 of 2022 with 187/2018
"23. ावृ ि -
वैसे सहायक लोक अिभयोजक जो इस िनयमावली के वृत होने के पूव लागू परी ा म उ ीणता ा कर चुके ह, उ इस िनयमावली म िविहत परी ा उ ीणता की आव कता नहीं होगी, पर ु जो ऐसी परी ा उिचत र से उ ीण नहीं है उ इस िनयमावली म िविहत परी ा उ ीण होना होगा।"
66. The purpose for referring the Rule 2 and Rule 3 herein is to appreciate the argument advanced on behalf of the parties due to the reason that the respondents-writ petitioners has taken the ground that the Seva (service) means "Jharkhand Abhiyojan Seva" (Jharkhand Prosecution Service), since, the word "service" which impliedly goes to suggests that it is the State Service post and hence, one or the other members of the Jharkhand Prosecution Service is coming under the purview of the circular dated 17.12.2007.
67. The further requirement to refer this rule is that the learned Single Judges, have decided the issue based upon the judgment passed by this Court in the case of Anand & Ors. Vrs. The State of Jharkhand & Ors. (supra). The judgment passed in the case of Anand & Ors. (supra) has been challenged in Letters Patent Appeal being L.P.A. No.406 of 2017 and the said appeal has been dismissed.
68. This Court has gone through the judgment rendered by the coordinate Bench of this Court in the case of The State of Jharkhand & Ors. Vrs. Anand & Ors., passed in L.P.A. No.406 of 2017 decided on 29.11.2017.
69. It is evident from the factual aspect that Anand and
- 27 - LPA Nos.136 of 2022 with 187/2018 Others were working as Assistant Director-cum-District Public Relation Officers and since, the said cadre is created on 12.03.2007 and not declared as State Service and therefore, it was contended that they are not entitled to get the benefit of resolution dated 17.12.2007 issued by the Finance Department of the Govt. of Jharkhand.
70. The State, while, questioning the judgment passed by the learned Single Judge allowing the prayer so made on behalf of the Assistant Director-cum-District Public Relation Officers has relied upon Rule 3 of Jharkhand Information Service Rules, 2007 and has raised the issue that the respondent nos.1 to 3 are not falling under the State service as per Rule 18 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and hence, also as per the resolution dated 17.12.2007, they are not entitled to get the pay scale of Rs.8,000-13,500/-.
71. While on the other hand, the plea was taken on behalf of the private respondent, Anand and Others that they are working as Assistant Director-cum-District Public Relation Officers. They are in the service of the State of Jharkhand, hence, by virtue of the resolution dated 17.12.2007 issued by the Finance Department, Govt. of Jharkhand where specifically clause-4 thereof is applicable to them and as per which, they are entitled to get the pay scale of Rs.8,000-13,500/-.
72. The Division Bench has dealt with the aforesaid issue. The reference of Rule 3 of the Jharkhand Information Recruitment
- 28 - LPA Nos.136 of 2022 with 187/2018 Rules, 2007 has been made, wherein, it has been provided while constituting the cadre that the service shall be constituted in the name of 'Jharkhand Information Service', which shall be construed as State Service for the purpose of Rule 18 of the Rule, 1955.
73. The coordinate Bench has further considered the clause-4 of the resolution dated 17.12.2007, wherein, the condition so stipulated has been noted down, i.e., "thus, the State Government has taken this decision after considering all the aspects of the matter, that on the recommendation of the Fitment Committee by Finance Department Resolution no.660/F-(2), dated 08.02.1999, effective from 01.01.1996, the pay scale in consonance with the Central Government, be upgraded to Rs.8,000-13,500/- of those State Services Officers, whose basic pay scale is (unrevised Rs.2,200-4,000/-) and have been allowed the pay scale of Rs.6,500-10,000/- and whose first ladder of promotion carries the pay scale of Rs.10,000- 15,200/- or more. The notional benefits of upgraded pay scale shall be payable from 15.11.2000 and the actual benefits from 01.03.2007".
74. The coordinate Bench of this Court further has referred the Rule 18 of the Civil Services (Classification, Control and Appeal) Rules, 1930 which is being quoted, as under:-
"18. The Provincial Services shall consist of such services (other than the services included in Schedule I) under the administrative control of the
- 29 - LPA Nos.136 of 2022 with 187/2018 Local Government of Governor's Province as the Local Government may from time to time declare, by notification in the local Official Gazette, to be included in the Provincial Services of the province:
Provided that one of the services so included shall be entitled the General Service."
75. The coordinate Bench has further referred the Rule 18 of the Bihar Service Code, which has been adopted by the State of Jharkhand and hence, known as the "Jharkhand Service Code", for ready reference, Rule 18 is being quoted hereinbelow:-
"18. Gazetted Government servant means:-
(i) a member of any of the State services;
(ii) any other Government servant holding a post which may be specially declared by the State Government to be a Gazetted post."
76. Further it needs to refer herein that the coordinate Bench vide order dated 29.11.2017 passed in L.P.A. No.406 of 2017 has also observed that "Looking to Rule 3 of the Jharkhand Information Service Recruitment Rules, 2007, there was reference of Rule 1955. It appears that this is a typographical error in the original Gazette also.--"
77. The coordinate Bench has further taken into consideration by considering Rule 3 of Jharkhand Information Service Recruitment Rules, 2007, whereby, it has been declared that the Jharkhand Information Service shall be the 'State Service'.
78. Therefore, the coordinate Bench of this Court has come to conclusion that in view of Rule 3 of Rule 2007, there is no need of any further declaration by any Rule, when, it is explicitly
- 30 - LPA Nos.136 of 2022 with 187/2018 clear that the employees working, in the Jharkhand Information Service Cadre are in the 'State Service'.
79. The coordinate Bench, after taking into consideration the Rule particularly the Rule 3 of the Rule, 2007, has dismissed the appeal being L.P.A. No.406 of 2017 (The State of Jharkhand & Ors. Vrs. Anand & Ors.) holding therein that all the four conditions as provided under clause-4 of the circular dated 01.03.2007, is applicable. For ready reference, the relevant part of the judgment is being quoted hereinbelow: -
" .... .....(iii) Looking to Rule 3 of the Jharkhand Information Service Recruitment Rules, 2007, it has been declared by this Rules enacted under 1st Proviso to Article 309 of the Constitution of India that Jharkhand Information Service shall be the State Service. In view of Rule 3, there is no need of any further declaration by any Rule, when, it is explicitly clear that the employees working, in the Jharkhand Information Service Cadre are working in the State Service.
(iv) Looking to Clause 4 of the Resolution issued by the Government of Jharkhand through the Finance Department dated 17th December, 2007, there are four conditions for getting the pay scale of Rs.8,000-
13,500/-, which are as under:
"(i) Prior to 1.1.1996, the pay scale of the basic grade was Rs.2,200-4,000/.
(ii) With effect from 1.1.1996 they were allowed the pay scale of Rs.6,500-10,500/-.
(iii) The first ladder of promotion should be in the pay scale of Rs.10,000- 15,200/- or in higher pay scales.
(iv) They should be the officers basic grade of State Services."
All the aforesaid conditions have been fulfilled by respondent nos. 1 to 3 (original petitioners) and, hence, they are entitled to get the benefit of pay scale lastly finalised by the State of Jharkhand as Rs.8,000-13,500/- which is based upon the report given by the Fitment Committee appointed by the State of Jharkhand.
(v) The arguments canvased by the learned Advocate General appearing on behalf of the appellants that as the Jharkhand Information Service
- 31 - LPA Nos.136 of 2022 with 187/2018 Recruitment Rules, 2007 are applicable from 12th March, 2007, the services of respondent nos. 1 to 3 are not covered under Clause 4 of the Government's Resolution dated 17th December, 2007. We are not agreeing with this contention, mainly for the reason that looking to Clause 4 of the Resolution of the Government of Jharkhand through Finance Department dated 17th December, 2007, there are four conditions as mentioned hereinabove attached with Clause 4 of the said Resolution, all these conditions have been fulfilled by respondent nos. 1 to 3 (original petitioners). This aspect of the matter has been properly appreciated by the learned Single Judge while allowing the writ petition preferred by respondent nos. 1 to 3. The said Clause 4 of the Government's Resolution dated 17th December, 2007 is applicable in rem and not in personam, meaning thereby to that those employees or the Service Cadre of the State Government, who are fulfilling the conditions precedent mentioned in Clause 4 of the Finance Department's Resolution, all are entitled to the pay scale of Rs.8,000-13,500/-, irrespective of the fact that whether such cadre is being created by the State of Jharkhand prior to 1" March, 2007 or subsequent thereof. Similarly, if the conditions precedent mentioned in Clause 4 of the Finance Department's Resolution dated 17th December, 2007 are fulfilled by any of the employee of the State Government, he is entitled to the pay scale of Rs.8,000-13,500/-, irrespective of the fact that he was employed prior to 1st March, 2007 or subsequent to 1st March, 2007. In fact, neither creation of the service nor appointment of any employee with effect from 1"
March, 2007 has anything to do with the applicability of Clause 4 of the Finance Department's Resolution dated 17th December, 2007. In fact, Clause 4 of the aforesaid Resolution has prescribed the conditions precedent, as mentioned categorically hereinabove. Thus, even if, any employee who has already fulfilled all those conditions precedent mentioned in Clause 4 of the Resolution dated 17th December, 2007. In fact, Clause 4 of the aforesaid Resolution has prescribed the conditions precedent, as mentioned categorically hereinabove. Thus, even if, any employee who has already fulfilled all those conditions precedent mentioned in Clause 4 of the Resolution dated 17th December, 2007, and though he is entitled to get the said pay scale of Rs.8,000-13,500/- prior to 1 March, 2007 then also, monetary benefits shall be payable from 1" March, 2007. In fact, those who are employed later on or if any service is created after 1" March, 2007, they are always entitled to get the benefit of pay scale of Rs.8,000-13,500/- from the date on which the service is created or the employee is
- 32 - LPA Nos.136 of 2022 with 187/2018 employed, therefore, contention of the State that as the Jharkhand Information Service is created from 12th March, 2007, benefit of Clause 4 of the Finance Department's Resolution dated 17th December, 2007 cannot apply, is not accepted.
(vi) The cut-off date 15 March, 2007 is only for giving actual financial benefits though the pay scale is being enhanced from earlier date. It is not unknown under service jurisprudence that sometimes notional promotions are given, but, the actual financial benefits will be given from subsequent date. Similarly under the service jurisprudence, it may happen that notionally the pay scale may be increased from retrospective date, but, actual financial benefit shall be paid on or from given cut-off date. It cannot be said that if the employees employed later on i.e. after the cut- off date which is prescribed by the Government for actual financial benefits to be given, such employee cannot get the benefit. This contention is devoid of any merit. The cut-off date in the facts of the present case is 1" March, 2007 and it is only for giving financial benefits. Thus even if the cadre is created later on or even if any employee is employed later on in the Jharkhand Information Service and if such employees are fulfilling all the conditions precedent of Clause 4 of the Finance Department's Resolution to be read with Rule 3 of the Jharkhand Information Service Recruitment Rules, 2007, they shall be entitled to get the benefit of pay scale of Rs.8,000-13,500/-.
(vii) Much has been argued out by the State of Jharkhand that respondent nos. 1 to 3 (original petitioners) are not within the State Service, we are not accepting this contention mainly for the reason that as per Rule 3 of the Jharkhand Information Service Recruitment Rules, 2007 enacted under 1"
Proviso to Article 309 of the Constitution of India, which is annexed at Annexure-3 to the memo of this Letters Patent Appeal, the employees working under this Rules, 2007 are in the State Service.
(viii) Looking to the facts of the present case, it appears that initially respondent nos. 1 to 3 were working in the pay scale of Rs.2,200-4,000/-, which was revised as Rs.6.500-10.500/- and as there was pay anomaly, as per the report given by the Fitment Committee, the pay scale was again revised as Rs.8.000 13.500/-. The details whereof has been given in the Resolution of the State of Jharkhand through Finance Department dated 17 December, 2007. As respondent nos. 1 to 3 are fulfilling all those conditions precedent mentioned in Clause 4 of the aforesaid Resolution, they are entitled to get the benefit of pay scale of Rs.8,000-13,500/-. This aspect of the matter has been properly appreciated by the learned Single Judge. No error has been committed by
- 33 - LPA Nos.136 of 2022 with 187/2018 the learned Single Judge while deciding the writ petition being WP (S) No. 4542 of 2014 vide judgment and order dated 29th June, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. We are in full agreement with the reasons given by the learned Single Judge.
(ix) Looking to Rule 3 of the Jharkhand Information Service Recruitment Rules, 2007, there was reference of Rule 1955. It appears that this is a typographical error in the original Gazette also. Whenever, any law is enacted by the State, it ought to be kept in mind that no such errors may be left out because the Advocate General is reading Civil Services (Classification, Control and Appeal) Rules, 1930 for the reference of Rule 18 thereof, whereas, learned counsel for respondent nos. 1 to 3 is referring Rule 18 of the Bihar Service Code (now adopted by the State of Jharkhand and hence known as Jharkhand Service Code). Legislative drafting is an art. Such work cannot be done so casually by the officers of the State. If the State of Jharkhand has a Law Commission, then it should be made operative and effective and if the post of Chairman of the State Law Commission is vacant since long, then now it is high time for the State of Jharkhand to fill up such post so that assistance may be rendered from the Law Commission of the State for legislative drafting. We have come across such type of errors in several notifications..... ....."
80. Adverting to the factual aspects of the present case, the position which cannot be disputed that Anand and Others who were the writ petitioners and the respondents in the appeal being L.P.A. No.406 of 2017 are the members of the Jharkhand Information Service.
81. It is also admitted fact that the Jharkhand Information Service recruitment Rules, 2007 brought on being under the provision of 1st proviso to Article 309 of the Constitution of India.
82. It appears from the said statutory rule that the service, i.e., the 'Jharkhand Information Service' has been considered to be the 'State Service'.
- 34 - LPA Nos.136 of 2022 with 187/2018
83. It is further evident that under the structural cadre, the same has been kept under the direct control of the Information and the Public Relation Department, whose departmental head has been made to be the Secretary, who will be at the rank of the Indian Administrative Service, while, the post of Director will be the cadre post.
84. Therefore, by taking into consideration the admitted position, the Anand and Ors., who are the members of the Jharkhand Information Service, have been declared to be under the 'State Service', in view of the provision of the Rule 3 of the Rule, 2007.
85. The Anand and Others when have been denied the benefit of pay scale of Rs.8,000-13500/-, have raised their grievance before this Court by filing writ petition, wherein, the State has objected that their services have been declared to be State service only on 12.03.2007 and as such, the benefit which is being asked of the pay scale of Rs.8,000-13,500/- cannot be allowed to be given.
86. But, the aforesaid contention of the State has been rejected by assigning the reason that the Jharkhand Information Service Rules, 2007 will have its retrospective application so far as the issue of pay and applicability of the decision, as contained in the resolution dated 17.12.2007.
87. So far as the case of the present respondents-writ petitioners herein is that they admittedly are under the
- 35 - LPA Nos.136 of 2022 with 187/2018 Jharkahnd Abhiyojan Service for which in the year, 2011, a Rule has been formulated by the State of Jharkhand in exercise of power conferred under proviso to Article 309 of the Constitution of India.
88. The basic differences in between the Jharkhand Information Service Rules, 2007 and Jharkhand Prosecution Service Rules, 2011 are that: -
(i) The Jharkhand Information Service is by virtue of the constitution of a service which will be known as "Jharkhand Information Service" has been considered to be State Service.
(ii) There is no such stipulation in the Jharkhand Abhiyojan Seva Niyamawali, 2011 said to be available as under
Rule 3 of the Jharkhand Information Service Rule, 2007 and while, constituting the Abhiyojan Service, no such stipulation has been made to consider one or the other members of the Abhiyojan Service considered to be under the State Service.
(iii) The Rule 4 of Rule 2007 reflects the structure of the cadre which is under the direct administrative control of the Information and the Public Relation Department, which is to be headed by the Secretary level Officer which will be the member of the Indian Administrative Service having the Director, which will be the cadre post.
(iv) While, in the Jharkhand Abhiyojan service, the structure of service has been made to the effect that the services will be under the control of the Prosecution Directorate
- 36 - LPA Nos.136 of 2022 with 187/2018 which will be under the administrative control of the Home Department. The hierarchy of the post has been given as under Schedule-I.
89. Herein, it needs to refer herein the implication of Rule 18 of the 'Jharkhand Service Code' which is being referred as above, has also been taken note by the coordinate Bench in the order dated 29.11.2017 passed in L.P.A. No.406 of 2017.
90. Further, the fact remains that the Court is to consider the entitlement of one or the other public servants based upon the Rules enacted to govern the service condition of the respective service cadres. It is evident that the Anand's case is on Jharkhand Information Service for which a separate rule is there which contains the Rule 3 holding the Jharkhand Information Service as 'State service', while, the case of the respondent/writ petitioners are to be governed by the 'Jharkhand Abhiyojan Service' but there is no such provision holding the members of the Association of the writ petitioners said to be held the post of 'State Service', for which, detailed discussions have been made hereinabove.
91. Further, it requires to refer herein that the Gazetted Government Servant as per Rule 18 of the Bihar Service Code means that:-
(i) a member of any of the State Services
(ii) Any other government servant holding the post which may be specially declared by the State Government to
- 37 - LPA Nos.136 of 2022 with 187/2018 be a Gazetted Officer.
92. It is, thus, evident that for the purpose of getting declaration for the Gazetted Government Servant if the government servant is in the 'State service', one or the other members of the 'State service' will be the Gazetted Government servant.
93. But, in addition to that, the government may specially declare any other government servant holding a post to be Gazetted post.
94. Rule 18 of the Bihar Service Code, thus, specify that a member of the 'State service' will be the government servant by virtue of holding the state post irrespective of issuance of any notification in this regard by the State Government.
95. While on the other hand, the statute confers power upon the State Government also to declare the other government servant holding a post to be Gazetted post. If the Rule as contained under Rule 3 of the Jharkhand Information Service Rule, will be taken into consideration then the members of the said service has been considered to be the 'State Service' in view of the provision of Rule 18 that will be said to be the provision of Rule 18(i) of the Jharkhand Service Code.
96. While, if the provision of Rule 3(kha) of the Abhiyojan Seva will be taken into consideration, the Assistant Public Prosecutor has been held to be the holder of the Group-B Gazetted Officer which means that even though they are the members of the
- 38 - LPA Nos.136 of 2022 with 187/2018 Abhiyojan Service has not been declared to be the 'State service' but they have been declared to be holder of the Gazetted post in view of the provision of Rule 18(ii) of the Jharkhand Service Code.
97. The argument has been advanced on behalf of the learned counsel for the respondents-writ petitioners that since in the Jharkhand Abhiyojan Seva Rule, 2011, the word 'seva' has been referred as per the definition provided under Rule 2(iii) then 'seva' means that it will be construed to be the 'State service', but the said argument has not impressed this Court due to the following reasons that:-
(i) Merely by making reference of the word 'seva' which will not be said to be the decision of the State Government under Rule 18(i) of the Jharkhand Service Code.
(ii) The members of the Abhiyojan Seva cannot be said to be the holder of the 'State service' post because they are under the directorate which is to be governed by the Home Department and that is the basic difference in between the members of the Information Service and the Abhiyojan Service.
98. But the foremost important thing is that Rule 3 of the Information Service by which the Jharkhand Information Service has been considered to be 'State service' but there is no such stipulation in the Rule, i.e., "Jharkhand Abhiyojan Seva
- 39 - LPA Nos.136 of 2022 with 187/2018 Niyamawali, 2011".
99. It is, thus, evident that there is remarkable difference with respect to the factual aspect of the case of the present respondents/writ petitioners in comparison to that of the case of the Anand & Ors (supra).
100. The case of Anand and Others was under the information service which has been considered to be the 'State Service' by virtue of Rule 3 of the Information Service Rule, 2007 which has also been taken note by the coordinate Bench of this Court.
101. Hence, meeting out four conditions as available under clause-4 of the circular dated 17.12.2007, the conditions of the members of the petitioner or the petitioner's association of being the members of the 'State service', is not available as per the discussion made above.
102. Hence, according to the considered view of this Court, the applicability which has been shown by the learned Single Judge in both the writ petitions with respect to the case of Anand and Others that the fact of the present case, cannot be said to be just and proper.
103. Further, this Court, after going through the order passed by the learned Single Judge, wherein, the reliance has been placed upon the judgment rendered by this Court in the case of Anand and Others but there is no discussion of the factual aspect governing the case of Anand and Others and by applying the facts of the present case.
- 40 - LPA Nos.136 of 2022 with 187/2018
104. The law is well settled that the judgment is having no universal application, rather, the order/judgment passed by the competent court is to be applied governing the facts of each individual case, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Dr. Subramanian Swamy Vrs. State of Tamil Nadu & Ors., reported in (2014) 5 SCC 75, wherein, at paragraph-47, it has been held as under: -
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is 21 only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
105. Further, the Hon'ble Apex Court in the case of Padma Sundara Rao vs. State of T.N., reported in (2002) 3 SCC 533 has also observed that it is to be remembered that judicial utterances are made in the setting of the facts of a particular case and one circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. It has further been observed that disposal of cases by blindly placing reliance on decision is not proper. For ready reference, the relevant paragraph of the aforesaid judgment is being quoted as under:
- 41 - LPA Nos.136 of 2022 with 187/2018
"9. Courts should not place reliance on
decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
106. Likewise, the Hon'ble Apex Court in the case of Ashwani Kumar Singh Vs. U.P. Public Service Commission, reported in AIR 2003 SC 2661 has observed that reliance on a decision cannot be placed without discussing whether it was rendered in the same factual and legal background and judgments of Court cannot be construed as statutes since judges interpret words of statutes. The relevant paragraph is being quoted as under:
"12. Circumstantial flexibility, one additional or different fact may make a world of difference
- 42 - LPA Nos.136 of 2022 with 187/2018 between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
107. Similar view has been taken by the Hon'ble Apex Court in the case of Union of India Vs. Amrit Lal Manchanda, reported in AIR 2004 SC 1625, wherein, at paragraph-17, it has been held as under:-
"17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."
108. Thus, it is evident from the aforesaid settled proposition of law that reliance on a decision cannot be placed without discussing whether it was rendered in the same factual and legal background.
109. Therefore, it is incumbent upon the Court of law that merely by making reference of the judgment rendered in a case, cannot be said to be just and proper in allowing the relief claimed for by the party concerned without assigning any reason therein due to the principle that in absence of any reason, the order passed by the Court of law or even by the Administrative Authority will be said to be improper.
110. Further, it is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is
- 43 - LPA Nos.136 of 2022 with 187/2018 that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Shiv Shakti Coop. Housing Society Vs. Swaraj Developers, reported in (2003) 6 SCC 659, wherein, at paragraph-19, it has been observed that:-
"19. It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse [(1997) 6 SCC 312] .) The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner [(1846) 6 Moo PCC 1] courts cannot aid the legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel [(1998) 3 SCC 234] .) It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See Stock v. Frank Jones (Tipton) Ltd. [(1978) 1 All ER 948 :] ] Rules of interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning.
- 44 - LPA Nos.136 of 2022 with 187/2018 Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself."
111. Similarly, the Hon'ble Apex Court in the case of B. Premanand Vrs. Mohan Koikal, reported in (2011) 4 SCC 266, wherein, at paragraph-16 & 18 to 21, it has been held as under:-
"16. Where the words are unequivocal, there is no scope for importing any rule of interpretation (vide Pandian Chemicals Ltd. v. CIT [(2003) 5 SCC 590] ). It is only where the provisions of a statute are ambiguous that the court can depart from a literal or strict construction (vide Nasiruddin v. Sita Ram Agarwal [(2003) 2 SCC 577 : AIR 2003 SC 1543] ). Where the words of a statute are plain and unambiguous effect must be given to them (vide Bhaiji v. SDO [(2003) 1 SCC 692] ).
18. In Jinia Keotin v. Kumar Sitaram Manjhi [(2003) 1 SCC 730] (SCC p. 733, para 5) this Court observed [Ed.: As observed in Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230, p. 245, para 48.] :
"48. ... The court cannot legislate under the garb of interpretation."
Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
19. In Shiv Shakti Coop. Housing Society v. Swaraj Developers [(2003) 6 SCC 659 : AIR 2003 SC 2434] this Court observed: (SCC p. 669, para 19) "19. It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and
- 45 - LPA Nos.136 of 2022 with 187/2018 unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
20. Where the language is clear, the intention of the legislature has to be gathered from the language used (vide Grasim Industries Ltd. v. Collector of Customs [(2002) 4 SCC 297] and Union of India v. Hansoli Devi [(2002) 7 SCC 273] ).
21. In Union of India v. Hansoli Devi [(2002) 7 SCC 273] this Court observed: (SCC p. 281, para 9) "9. ... It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act."
112. This Court, taking into consideration the reason as aforesaid as also considering the fact that the learned Single Judge has not appreciated the factual aspect of the case of Anand and Others before applying in the present case, even though, the case of Anand and Others is not at all applicable in the case of present respondents/writ petitioners, as per the detailed reason given hereinabove, is of the considered view that the impugned orders need to be interfered with.
113. Accordingly, the order dated 07.10.2021 passed in W.P.(S) No.2721 of 2020 and order dated 19.12.2017 passed in W.P.(S) No.799 of 2009 are hereby quashed and set aside.
114. In the result, the instant appeals stand allowed.
- 46 - LPA Nos.136 of 2022 with 187/2018
115. Consequently, both the writ petitions being W.P.(S) No.2721 of 2020 and W.P.(S) No.799 of 2009 are hereby, dismissed.
116. In consequent to disposal of these appeals, pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) I agree (Arun Kumar Rai, J.) (Arun Kumar Rai, J.) A.F.R. Rohit/
- 47 - LPA Nos.136 of 2022 with 187/2018