Patna High Court - Orders
The State Of Bihar & Ors vs Dwijendra Pati Sharma on 18 August, 2011
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.564 of 2011
In
(CIVIL WRIT JURISDICTION CASE 4279/2006)
1. The State Of Bihar, through the Secretary, Department of
Information and Public Relations, Government of Bihar.
2. The Commissioner-cum-Secretary, Information and Public
Relation Department, Govt. of Bihar, Patna.
3. The Under Secretary, Information and Public Relation
Department, Govt. of Bihar, Patna.
4. The Secretary, Finance Department, Government of Bihar,
Patna.
Versus
Dwijendra Pati Sharma, S/o. late Chandrika Pati Pathak, r/o.
Milind Kuttir, East Boring Canal Road, P.S. Budha Colony,
District- Patna.
----------------------------------
04. 18.08.2011Heard learned counsel for the appellants and learned counsel for the sole respondent, the writ petitioner.
The writ court allowed the writ petition preferred by the respondent bearing C.W.J.C. No. 4279 of 2006 by the order under appeal dated 03.12.2010. The Court accepted the contention of the writ petitioner that the number of posts in the rank of Joint Director was reduced after the writ petitioner had superannuated on 31.05.1998. Writ Court also held that because the pay scale of Senior Selection Grade granted to the writ petitioner from 06.07.1988 was same as the basic scale 2 of Joint Director, the status of the writ petitioner was that of Joint Director. Accordingly, the writ Court quashed Annexure-7 dated 23.08.2004 whereby in the light of recommendations of Pay Revision Committee contained in Annexure-4 dated 8th February 1999 only three posts of Joint Director were identified as need based posts for undivided State of Bihar. The writ Court also quashed Annexure-9 dated 03.12.2005, whereby the writ petitioner along with some others was granted replacement scale from the relevant date i.e. 01.01.1996 in the scale of Rs.10,000/- to 15,200/- prescribed for the post of Deputy Director.
It is not the case of the writ petitioner that he was entitled to be promoted to the post of Joint Director against any of the three posts identified as need based posts with effect from 01.01.1996 on account of recommendations of the Pay Revision Committee doing away with Junior and Senior Selection Grade scales for introducing pay scale on the pattern of Central Pay Scale. His claim is that on account of Annexure-2 to the writ petition read with gradation list contained in Annexure-3 prepared on 3 19.06.1998 after his superannuation, he should be treated to have been regularly promoted to the post of Joint Director.
We have carefully gone through the notification dated 06.07.1988 contained in Annexure-2. That notification mentions the name of nine persons including that of writ petitioner at Serial No.9 and also mentions that they were working in the posts equivalent to Deputy Director level in the Junior Selection Grade scale and that they were being granted ad hoc promotion in the next higher scale i.e. Senior Selection Grade scale. The description of the scales is fully clear after reading paragraph-2 of that notification. The wordings of that notification leave no manner of time that the promotion was only to a particular scale and not to the post of Joint Director. The same factual situation emerges from careful reading of the gradation list which shows promotion only to different pay scales and not to the post of Joint Director. Till the time of his retirement the writ petitioner was shown to be in Senior Selection Grade with effect from 06.07.1988. At best, the grant of 4 selection grade and other relevant facts show that the ad hoc promotion to Senior Selection Grade vide Annexure-2 was subsequently treated as confirmed but we do not find any basis or material to accept the contention of the writ petitioner that he was promoted to the post of Joint Director.
There is no dispute that on account of recommendation of the Pay Revision Committee and introduction of central pay scale, there was necessity of identifying the need based promotional posts. In that process, no doubt, initially a notification was issued on 17.05.1999 contained in Annexure-5 to the writ petition wherein ten posts of Joint Director were identified as need based post but as appears from Annexure-8 to the counter affidavit filed on behalf of the State in the writ proceeding, the Bihar Government informed the Accountant General Bihar on 27th November 2000 that earlier notifications dated 17th May, 1999 and 8th December, 1999 identifying need based posts had been issued without consultation with the Finance Department, hence, the said notifications had been stayed until further orders. Subsequently, after 5 consultation with the finance department the need based posts were identified vide Annexure-7 23.10.2004.
On behalf of writ petitioner it has been argued that Annexure-5 was a notification issued by the state government in the name of Governor and therefore it could not have been stayed by a letter of the Secretary of Information and Public Relationship Department, Government of Bihar through letter dated 27th November 2000 (Annexure-A). Prima facie the statement appears to be attractive but on going through Annexure-8 it is evident that the letter was sent by the Secretary of the department which had issued the earlier notification to inform the Accountant General about defect in procedure and that a fresh decision was likely to be taken. Hence, even if there was some procedural infirmity, there can be no denial that the state government as well as the Accountant General had stayed the proceeding and ultimately fresh decision was taken in the matter after consulting the finance department as appears from Annexure-7.
Even if it is accepted for the sake of 6 arguments that number of need bases posts should have been more or should have been ten as per Annexure-5, it does not improve the case of the writ petitioner unless his contention is accepted that he was promoted to the post of Joint Director in substantive capacity and hence he was entitled for replacement scale provided for the post of Joint Director. On facts we do not find merit in such contention as discussed above.
Hence, in our considered view, there is no illegality committed by the respondents to the writ petition who are the appellants herein in granting replacement scale to the writ petitioner on the post of Deputy Director. Learned counsel for the writ petitioner has placed reliance upon a judgment of the Apex Court in the case of Divisional Superintendent, Eastern Railway, Dinapur and Ors. Versus Sri L.N. Keshri and Ors. And Union of India Versus Vidya Sagar Mishra reported in A.I.R. 1974 SC 1889 to submit that if an employee is to be placed in reduced scale or in a lower post, he must be afforded an opportunity of hearing. There can be no dispute with such basic tenets of law. However, as the facts of the 7 present case show, there was no reduction of scale or post in the case of writ petitioner. The State was required to identify need based posts with effect from 01.01.1996 and grant replacement scale on the pattern of central pay scale after treating the Junior Selection Grade and Senior Selection Grade scales as cancelled in the light of recommendations of the Pay Fixation Committee. Since the writ petitioner was not holding a substantive post of Joint Director, he has been rightly granted replacement scale of Deputy Director.
As a result of the aforesaid discussion, we do not find any merit in the appeal. The appeal is dismissed. No costs.
(Shiva Kirti Singh, J. )
Mkr. (Shivaji Pandey, J.)