Patna High Court - Orders
Binda Ray vs The State Of Bihar &Amp; Ors on 1 December, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No 8828 of 2006
Binda Ray, son of late Rajendra Ray, resident of Village - Sheikhpura,
P O - Bishanpursaid, P S - Rajapakar, District - Vaishali, presently
Posted at the office of Executive Engineer, P W D, Road Division No
1, Muzaffarpur - Petitioner
Versus
1 The State of Bihar through the Chief Secretary, Government of Bihar, Patna
2 The Commissioner -cum- Secretary, Department of Finance, Government of
Bihar, Patna
3 The Secretary, Road Construction Department, Government of Bihar,
Vishveshwaraiya Bhawan, Patna
4 The Superintending Engineer, Road Construction Department, North Bihar
Circle, Muzaffarpur
5 The Executive Engineer, Road Construction Department, Road Construction
Division No - 1, Muzaffarpur
6 The District Accounts Officer, Pay Fixation Section, Muzaffarpur
- Respondents
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For the petitioner : Mr Vivek Prasad, Advocate
For the S t a t e : M/s S K Mandal (SC 15) &
Arjun Prasad, AC to SC 15
***
3 01.12.2010The petitioner was initially appointed as a Road Roller Khalasi but was then appointed as Accounts Clerk with effect from 09.06.1993 in the North Bihar Road Division, Muzaffarpur. The order of appointment and its confirmation is Annexure-1/A to the writ petition. The dispute, in the present case, is with regard to the period 01.04.1997 to 01.10.2002 with regard to the scale at which the salary has to be paid and thereafter.
Counter affidavit and rejoinder having been filed, with consent of parties, the writ petition has been heard for disposal at this stage itself.
In my view, the controversy has been set at rest by repeated 2 judgments and orders of this Court. Briefly stated, the controversy is thus:
It appears that till 1981, there were two posts, namely Junior Accounts Clerk and Senior Accounts Clerk with their respective pay scales. With effect from 18.02.1981, by orders of the State Government, they were merged into one cadre of Accounts Clerk. The distinction in pay scale and distinction in post of Junior Accounts Clerk and Senior Accounts Clerk were removed. In 1993, as noted above, petitioner was appointed, thus, as an Accounts Clerk. Statement, in paragraph-6 of the counter affidavit to the contrary cannot, thus, be accepted that petitioner was appointed as a Junior Accounts Clerk especially in view of Annexure-1/A to the writ petition. It appears in 1986 when the 04th Pay Revision Committee took up its work and made its recommendation, it lost sight of the merger and, as such, with effect from 01.01.1986, the Pay Revision Committee's recommendations were for separate enhanced pay scale of Senior Accounts Clerk and Junior Accounts Clerk which post in fact did not exist. Immediately thereafter, there were controversies as to what payment would be made to the Accounts Clerk. The Division Bench and Single Judge's judgments on this count are clear. They held that till the cadre is demerged, they would be known as Accounts Clerk of one single cadre and would draw remuneration of the higher position as fixed by the Pay Revision Committee. Those being the decisions when in 1993, the petitioner was promoted as Accounts Clerk, the remuneration was, accordingly, fixed. With effect from 01.01.1986 came the 05th Pay Revision Commission where again the same mistakes were carried on. 3 They also fixed pay bands for Junior Accounts Clerk and Senior Accounts Clerk without noticing that the two posts had been merged into Accounts Clerk. Accordingly, in view of Division Bench judgment and Single Bench judgments rendered earlier, petitioner was paid the remuneration on basis of the pay scale of Rs 4,500 - 7,000/- which was the pay scale for Senior Accounts Clerk. As this Court has been repeatedly saying that the distinction having been obliterated by merger, it could only be put into use after demerger. State took a decision to demerge the post with effect from 28.09.1999 (Annexure-5). In this demerger notification itself, it is clearly stated that people, who were receiving remuneration at a higher scale prior to merger, would not be prejudiced in any manner meaning thereby they would continue to receive the higher pay scale. This was also the view of the High Court in several judgments. Thus, petitioner continued to receive the same but then comes the impugned order dated 31.10.2002 whereby the basic pay of petitioner is reduced from Rs 4,500/-
to Rs 4,000/-. By subsequent order, it is ordered that for the period 01.04.1997 to 01.10.2002, any excess amount, paid contrary to the pay scale now fixed, has to be recovered from the petitioner. These actions are challenged. Again, in my view, these questions are not open for debate as identical question has been decided in the case of Deo Narayan Verma and others -Versus- State of Bihar and others being CWJC No 8227 of 2006 on 05.11.2007 and in the case of Smt Chandra Prabha Kumari and others -Versus- State of Bihar and others being CWJC No 12697 of 2009 decided on 07.10.2009, this Court held that the pay scales earlier received by the petitioner were carried and the revised lowered pay 4 scale would not be applicable to them. It further held that the order for recovery was equally bad. The Court, dealing with the said cases, imposed heavy cost on the State as well for these actions. There is yet another case of Harendra Narayan Singh and others -Versus- State of Bihar and others being CWJC No 12616 of 2006 which was disposed of on 26.02.2007 on similar terms. The Letters Patent Appeal against which being LPA No 832 of 2007 was dismissed in limine on 22.05.2008.
Thus, in my view, the impugned order of refixing the pay scale of petitioner and lowering it as well as recovery cannot be sustained. Both are set aside. Petitioner, with effect from 01.01.1986, would be deemed to be on the scale of Rs 4,500 - 7,000/- and he would be entitled to receive payment on that basis thereafter.
The writ petition, with these observations and directions, stands disposed of.
M.E.H./ (Navaniti Prasad Singh)