Jharkhand High Court
Hira Devi vs State Of Jharkhand Through The ... on 7 October, 2020
Equivalent citations: AIRONLINE 2020 JHA 994, 2021 (1) AJR 327
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.130 of 2013
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1. Hira Devi
2. Pravin Kumar Singh ... ... Petitioners Versus
1. State of Jharkhand through the Principal Secretary, Drinking Water and Sanitation Department, Government of Jharkhand, Project Building, Ranchi.
2. The Chief Engineer, P.H.E.D, Division, Ranchi.
3. The Superintending Engineer, Ranchi.
4. The Executive Engineer, P.H.E.D Ranchi.
5. The Accountant General, State of Jharkhand, Ranchi.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Amrendra Pradhan, Advocate For the Res. State : Mr. Sreenu Garapati, S.C. For Res. No.5 (A.G) : Mr. Sudarshan Srivastava, Advocate.
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C.A.V On 19.08.2020 Pronounced on 07/10/2020 Heard learned counsel for the parties through V.C.
2. The original petitioner-Ganesh Prasad Singh died during pendency of this writ application on 07.09.2014 and thereafter, a substitution application being I.A. No.5946 of 2014 for substitution of legal heirs of the deceased petitioner had been filed, which was allowed vide order dated 04.12.2014 and original petitioner- Ganesh Prasad Singh has been substituted by Hira Devi and Pravin Kumar Singh accordingly.
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3. The instant application has been preferred by the petitioner for following reliefs:-
(i) For quashing the letter no.1838 dated 26.09.2007, issued by the respondent no.4 (Annexure-3) to the extent it relates to the petitioner wherein it has wrongly indicated the various pay scales and pay revision allotted to the petitioner as well as replacement of pay scales on account of grant of various Time Bound monetary benefits resulting in wrong fixation of pension benefits.
(ii) For a direction to revise and re-fix pay scale of petitioner in the pay scale of Rs.2750-4400 instead of pay scale of Rs.2550-3200 with effect from 1.1.1996 in the light of the pay revision vide Finance Department Resolution NO.660 dated 08.02.1999.
(iii) For a direction to grant the benefits of 1st ACP and 2nd ACP in pay scale of Rs.3050-4590 and Rs.3200- 4900 respectively instead of Rs.2610-4000 and Rs.2750- 4400.
(iv) For a direction that consequent to grant of aforesaid benefits, the post-retirement benefits and the pension of the petitioner. While general fiction that Mitchell pay scale of Rs.3200-4900/-
4. The brief facts of the case relevant for the disposal of the instant application is that the original- petitioner (now deceased) was appointed as Khalasi in Public Health Division Patratu, Hazaribagh under P.H.E.D Department on 15.07.1964. Thereafter, he was granted 1st 3 Time Bound Promotion in the pay scale of Rs.375-480 vide memo no.986 dated 26.10.1988. The pay of the original- petitioner was further revised and fixed in the scale of Rs.800-1150, which is the replacement scale of Rs.375-489 as per Pay revision vide resolution no.6021 dated 18.12.1989. Thereafter the original-petitioner was granted 2nd Time Bound Promotion on 05.08.1991 in the scale of Rs.825-1200 which is the next higher scale of Rs.800-1150 vide memo no.354 dated 05.08.1991. As per the 5th Pay Revision, the replacement scale of Rs.825-1200 is Rs.2750- 4400. The original-petitioner superannuated from the post of Khalasi-I in Drinking Water and Sanitation Department. After superannuation, he filed a writ application being W.P.(S) No.4988 of 2008 for grant of his retiral benefits including grant of ACP benefit of 5th Pay Revision. The said writ application was disposed of on the submission of the respondents that all retiral benefits has been paid to him except GPF. With regard to ACP benefits it was submitted that ACP benefits have been given vide memo no.788 dated 26.05.2008 and after fixation of his pay his service book along with all enclosures have been sent to the Commissioner, Chhotanagpur through Superintending Engineer, D.W.S, Ranchi circle vide its Officer letter no.1210 dated 11.08.2008 which is awaited.
On this submission, the co-ordinate Bench of this Court passed the following order:-
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"On perusal of the papers and upon hearing the learned counsel for the parties it appears that counter affidavit has been filed on 06.05.2009 and thereafter the learned counsel for the petitioner has not received any further instruction about the progress made in the matter. Under the circumstances respondent authorities are required to be directed to process the matter expeditiously, if not processed so far, and to decide about retiral benefits payable to the petitioner in accordance with relevant rules and extend the benefit of retiral dues to the petitioner as early as possible.
Having regard to the facts and circumstances of the case this Court deems it appropriate to direct the respondent authorities to decide the claim of the petitioner about retiral benefits within one month from the date of receipt of copy of this order and shall make the payment without further delay.
With the above observation this petition stands disposed of."
When the grievance of the original-petitioner was not redressed, he filed a contempt application, which was disposed of with a liberty to file fresh petition for redressal of his grievance. The case of the original-petitioner is that the office order which was not served to him has been challenged in this writ whereby the scale has been reduced ignoring the 1st Time Bound Promotion in the scale of 375- 480 and thereafter subsequent replacement which is reflected from the impugned order as hereunder:
Rs.350-425 on 01.04.1981, Rs.775-1025 on 01.01.1986, replaced to Rs.2550-3200 on 01.01.1996, replaced to 2610-4000 on 1st ACP and subsequently to Rs.2750-4400 on 2nd ACP.
It is the specific case of the original-petitioner that he is entitled for the following scale. 5
Rs.375-480 upon 1st Time Bound in 1981, replacement to Rs.800-1150 from 01.01.1986, next higher scale of scale Rs.825-1200 upon 2nd Time Bound in 1989, replacement scale Rs.2750-4400 on 01.01.1996, and then 1st ACP scale Rs.3050-4590, and 2nd ACP scale Rs.3200- 4900/-.
5. Mr. Amrendra Pradhan, learned counsel for the petitioners submits that the original-petitioner was already granted the scale of Rs.375-480 by virtue of 1st Time Bound Promotion and replaced by Rs.800-1150 and then due to grant of Second Time Bound Promotion to Rs.825-1200. He further contended that the resolution of Government of Bihar, Finance Department clearly provides that the replacement scale of Rs.825-1200 is 2750-4400 on 01.01.1996, which the original-petitioner was entitled. He further submits that the action of the respondent in lowering down the pay scale is not correct as the resolution of Government of Bihar, Finance Department provides that the State Government to abolish existing time bound promotion and selection grades and they shall be ceased to be applicable w.e.f. 01.01.1996. It has been categorically submitted by the learned counsel that the said resolution will not operate in the year 1988 and 1991. He further submits that the original-petitioner was granted the Time Bound Promotion prior to 31.12.1995 and considered for grant of scale in the year 1981 or 1986, the pay scale granted under Time Bound Promotion has been counted for 6 by the respondent. As a matter of fact the said resolution specifically mentioned that "while fixing the pay in the revised scales such promotion given after 31.12.1995 will not be taken into consideration. Para 10 of the said resolution clearly provides a cut of date i.e. 01.01.1996 as such, the impugned action of the respondent in wrongly fixing the pension by incorrectly reading the resolution dated 08.02.1999 is arbitrary and has no legs to stand. He concluded his argument by submitting that the impugned office order may be quashed and set aside and the respondents be directed to grant the benefit of ACP to the husband of the petitioner no.1 by considering his scale of pay as Rs.375-480 upon 1st Time Bound in 1981 replacement to Rs.800-1150 from 01.01.1986 and the next higher scale of scale Rs.825-1200 upon 2nd Time Bound Promotion in 1989 replacement scale Rs.2750-4400 on 01.01.1996 and then 1st ACP scale Rs.3050-4590 and 2nd ACP scale Rs.3200-4900 and consequently re-fix and pay the pensionary benefits of the original petitioner and accordingly the family pension as well as arrear of pension be paid to the present petitioners.
6. Mr. S. Garapati, learned counsel for the respondents submits that the pay of original-petitioner was fixed in the pay scale of Rs.2250-3200 due to pay revision with effect from 01.01.1996 as the scale given to the post (Khalasi) of the original-petitioner. He submits that the Department of Finance, Government of Bihar vide 7 resolution no.3M-2-5-VE-PU-01/99-660(F/2) dated 08.02.1999 have accepted the revised pay scales after careful consideration of the recommendation of the Fitment Committee regarding post wise central scales of pay. The existing scale in relation to a government employee means the present scale applicable to the post held by the government employee. He further submits that the State government has decided to abolish the existing facilities of time bound promotion and selection grade and they shall cease to be applicable with effect from 01.01.1996 and thereafter, in the existing pay scales (annexure-5 of the writ petition). The revised pay scale for the post of Khalasi is 2550-55-2660-60-3200. He further submits that the 5th Pay Commission recommended revised scale on the Post working by the employee instead the scale getting by the employee at the time of the revision and the concept was misunderstood and the petitioners are claiming the scale to scale but the pay revised on post to post basis given to Khalasi Post is 2550-55-2660-60-3200. Thereafter, taking Rs.2550-3200 as the present scale /revised scale for the post of Khalasi considering the scheme of Assured Career Progression (ACP) contained in Memo No.5207 dated 14.08.2002 granted next higher pay scale 2610-4000 as 1st ACP w.e.f. 09.08.1999 and 2nd ACP in next high pay scale 2750-4400 w.e.f. 09.08.1999.
In view of the aforesaid facts, the claim of the original-petitioner to replacement scale to the present scale 8 is not permissible as per the Department of Finance resolution no.660 dated 08.02.1999 and the ACP scheme as contained in Memo No.5207 dated 14.08.2002.
He concluded his arguments by submitting that there is no illegality or infirmity in the impugned order as contained in order no.1838 dated 26.09.2007 as the same is passed in accordance with the revised pay scale to the Khalasi post as per the Department of Finance resolution no.660 dated 08.02.1999 and the ACP scheme contained in Memo No.5207 dated 14.08.2002. He further submits that the facts of the present case are regarding the change in the pay scale due to the revision of pay made on the recommendations of the pay commission, an expert body which examined all the issues, various representations and disparities and before making recommendation for pay scales/revised pay scale, the pay commission takes into consideration the existing pay structure, representations of the government servants and various other factors like inter departmental disparities owing to varying promotional hierarchies, the issue of stagnation, efficiency in the functioning of the departments and the task done is not a random exercise which is unilaterally done by the government rather it is based on the opinion of the expert body. The decision of expert bodies like Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various 9 aspects of the post in various services and nature of the duties of the employees.
In order to buttress his argument he relied upon the judgment in the case of Union of India and others Vs. M.V.Mohanan Nair reported in 2020 SCC online SC 302. The relevant paragraphs i.e. 30, 32, 33, 34, and 55 are herein in below:-
"30. The learned Amicus Curiae and the learned counsel appearing for the respondents urged the Court to adopt a "purposive interpretation" that the words "immediate next higher grade pay" to be interpreted as "Grade pay of the next promotional post" in the hierarchy. MACP Scheme envisages merely placement in the immediate next higher grade pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are "placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands". The term "grade pay in the next promotional post" is conspicuously absent in the entire body of the MACP Scheme. The argument of the respondents that the benefit of MACP Scheme is referable to the promotional post, is dehors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme.
32. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote 10 efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 1-9- 2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body -- Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the pay scale/revised pay scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like the Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the Court should not interfere with the recommendations of the expert body. When the Government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the Court would have a serious impact on the public exchequer.
33. Observing that it is the function of the Government which normally acts on the recommendations of the Pay Commission which is the proper authority to decide upon the issues, in Union of India v. P.V. Hariharan [Union of India v. P.V. Hariharan, (1997) 3 SCC 568 : 1997 SCC (L&S) 838] , it was held as under : (SCC pp. 570-71, para 5) "5. ... It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change.
The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of "equal pay for equal work" is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will 11 exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of things if all matters relating to pay scales i.e. matters asking for a higher pay scale or an enhanced pay scale, as the case may be, on one or the other ground, are heard by a Bench comprising at least one Judicial Member."
34. Observing that the decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review, in State of U.P. v. U.P. Sales Tax Officers Grade II Assn. [State of U.P. v. U.P. Sales Tax Officers Grade II Assn., (2003) 6 SCC 250] , the Supreme Court held as under : (SCC p. 253, para 11) "11. There can be no denial of the legal position that decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees."
55. Pursuant to the Joint Committee meeting held on 27-7-2012, a letter dated 4-11-2013 was sent to the staff side making it clear that the solution lies in review of cadre structure in a timebound manner with a view to mitigate the problem of stagnation as the benefit of Modified Assurance Career Progression Scheme have been granted as a fallback option in the event of promotions not taking place in time. With regard to letter dated 4-11-2013 which relates only to Postal Department, it is clarified that in the Department of Posts, the erstwhile ACP Scheme was not operational for postal employees. These employees were covered under Time Bound One Promotion (TBOP)/Biennial Cadre Review (BCR) Schemes. The MACP Scheme for Central Government employees is a continuation of ACP Scheme. Insofar as Department of Posts is concerned, it was decided by the Department of Posts to adopt MACP Scheme in respect of postal employees also w.e.f. 1-9-2008. Accordingly, OM No. 4-7/(Macps)/2009-PCC dated 18-9-2009 was issued by Department of Posts to clarify that TBOP/BCR Schemes stand discontinued w.e.f. 1-9-2008 consequent upon introduction of Macps to postal employees w.e.f. 1-9- 2008. The OM dated 1-20/2008-PCC dated 4-11-2013 was issued to regulate the fixation of pay in respect of postal 12 employees during the period 1-1-2006 to 31-8-2008 i.e. before the switch over to Macps took place. It is stated that the OM dated 4-11-2013 was only in respect of postal employees governed under TBOP/BCR and does not relate to Central Government employees who were covered under erstwhile ACP Scheme. Therefore, this OM has no bearing on the issue in the said SLP pending before Hon'ble Supreme Court of India."
7. Mr. S. Srivastava, learned counsel for the respondent no.5-Accountant General submits that despite the knowledge of Annexure-3, petitioner has not challenged the same in his first writ as such, the instant writ application should be dismissed on that score alone as it is well settled principle that the points which were available to a person should be agitated at once and should not wait for another litigation.
8. To the aforesaid contention of learned counsel for the respondent no.5-Accountant General, learned counsel for the petitioners submits that the office order which was not served on the original-petitioner has been challenged in this writ whereby the scale of the petitioner has been reduced ignoring the 1st Time Bound Promotion in the scale of 375-480 and thereafter subsequent replacement which is reflected from the impugned order as mentioned herein above.
9. Having heard learned counsel for the petitioner and after going through the materials available on record, it appears that the petitioner was granted the scale of Rs.375-480 by virtue of First Time Bound Promotion and 13 replaced by Rs.800-1150 and then due to grant of 2nd Time Bound Promotion to Rs.825-1200. After critically examining paragraph 11 of the resolution no.660 dated 08.02.1999 (Annexure-5), the Finance Department, Government of Bihar, has decided to abolish the existing facilities of Time Bound Promotion and Selection Grades and they shall cease to be applicable with effect from 1.1.1996. For better appreciation, paragraph 11 of the said resolution is quoted herein below.
"11. The State Government have decide to abolish the existing facilities of time Bound Promotions and Selection Grades, discussed in paras10 and 12 of F.D. Resolution no.6021dated 18.12.1989 and they shall cease to be applicable with effect from 1.1.1996 and thereafter in the existing pay scales. If any such promotion, however, is due under the Rules before 1.1.1996, 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 31.12.1995 will not be taken into consideration. If such promotions have been given after 31.12.1995, 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 14 admissible. The procedure for identification of such need based posts has been set out in paragraph12".
From bare perusal of the aforesaid portion of the resolution of 1999, it appears that it has been specifically mentioned that while fixing the pay in the revised scale such promotion given after 31.12.1995 will not be taken into consideration. Para-10 of the said resolution also provides a cut of date from 1.1.1996.
10. In this view of the matter, it can be said that the system of time bound promotion stand abolished from 1.1.1996 and any such promotion granted after 31.12.1995 shall not be counted for replacement scale. In the case in hand, the original-petitioner was granted Time Bound Promotion prior to 31.12.1995 and while considering the grant of replacement scale in the year 1991 or 1996 pay scale granted upon Time Bound Promotion has been counted by the respondents.
11. The contention of the respondents that the pay revision effective from 01.01.1996 is post based and the replacement of the basic grade is to be allowed and in a case an employee is drawing more than the basic scale of a post, he/she shall be granted pay protection is erroneous on two counts. Firstly, the respondent has not demonstrated in the case of the original-petitioner; how his pay has been protected while applying the replacement scale from 01.01.1996 and secondly pay protection can at best be made within the upper limit/range of the pay scale 15 and not beyond. In the case of the original-petitioner, the contention of the respondents cannot be applied as he was entitled for Rs.2750-4400 from 01.01.1996 which is the replacement scale of Rs.825-1200 accrued vide 2nd time bound promotion and scale being granted by the respondent is Rs.2550-3200. If contention of the respondent is accepted for the sake of argument, the differential amount for Personal Pay Protection (which otherwise falls in the next higher scale) is not possible to be adjusted or accommodated as because it falls beyond the range of Pay scale of Rs.2550-3200. Last but not the least, petitioner was granted the time bound promotion prior to 31.12.1995 and while considering grant of replacement scale in the year 1981 or 1986, the pay scale granted under Time Bound Promotion has been counted for by the respondents. Further, the salary or pension is property under Article 300A of the constitution of India. Hence, a constitutional right accrued and vested in a person cannot be taken away without procedure established and accepted under law. The scale of pay which was granted to the original-petitioner several years ago has been unilaterally reduced illegally while considering grant of ACP and is akin to major punishment.
12. At the cost of the repetition it is once again mentioned that the original-petitioner was granted 1st Time Bound Promotion in the year 1988 and the 2nd time Bound Promotion was granted to him on 5.8.1991 and thereafter 16 he was getting the same scale/ replaced scale. However, after his retirement vide impugned order dated 26.09.2007, his pension has been fixed by relying upon the resolution of 1999. No opportunity was given to the petitioner and unilaterally, the pension has been fixed on the basis of the said resolution. Admittedly, the said resolution came in the year 1999 and was made effective from 1996. As such, from 1999 till the date of retirement of the original-petitioner, no whisper was made by the respondent regarding re-fixation of scale and all of sudden while fixing the pension they have re-fixed the scale of the petitioner, which is not in accordance with law and as such, the impugned order as contained in letter no.1838 dated 26.09.2007, issued by the respondent no.4 (Annexure-3) to the extent it relates to the original- petitioner is hereby quashed and set aside and the respondents are directed to re-fix the pay scale of the original-petitioner in the pay scale of the Rs. 2750-4400 instead of pay scale of Rs.2550-3200 with effect from 01.01.1996. The respondents are further directed to extend all consequential benefits which will accrue from re-fixation of pension of the original-petitioner to the petitioners.
13. With the aforesaid observations and directions, the instant writ application stands allowed and disposed of.
(Deepak Roshan, J.) Fahim/-