Patna High Court - Orders
Sunil Kumar & Ors vs The State Of Bihar & Ors on 14 September, 2012
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5875 of 2006
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1. Sunil Kumar, S/o-Sri Ram Sakal Singh, R/o-Banu Chapra, P.S.-Bettiah
Mufassil, District-West Champaran, Bettiah.
2. Ashwini Kant Choudhary, S/o-Late Kali Kant Chaudhary, R/o-Banu
Chapra, P.S.-Bettiah Mufassil, District-West Champaran, Bettiah.
3. Vinod Kumar, S/o-Sri K.D. Singh, R/o-New Colony, Dak Bunglow
Road, Bettiah, P.S.-Town, District-West Champaran.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. The Law Secretary cum Legal Remembrancer, Department of Law,
Government of Bihar, Patna.
3. The Registrar General, Patna High Court, Patna.
4. The District & Sessions Judge, West Champaran, Bettiah.
5. The Judge Incharge (Administration), Civil Court, Bettiah.
.... .... Respondents.
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Appearance :
For the Petitioners : Mr. Ram Kishore Singh
For the High Court : Mr. Piyush Lall
For the State : Mr. D.K. Sinha, AAG-II.
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
ORAL ORDER
07 14-09-2012The three petitioners are the employees of the Civil Court, West Champaran at Bettiah. They are aggrieved by the Appointment Order No.11 of 2006 issued by the District & Sessions Judge, West Champaran at Bettiah dated 17.04.2006, as contained in Annexure-1 to the writ petition.
By the aforesaid order, it has been stated that the pay-scale of Rs.4000-6000, on which they had been appointed, be reduced to the pay-scale of Rs.3050-4590 since the time of their appointment and the appointment letter be deemed to be amended accordingly. It is further ordered that the excess payments made should be recovered from them in forty equal monthly installments.
A counter affidavit and a supplementary counter affidavit have been filed on behalf of the High Court but there is no counter affidavit on Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -2- behalf of the State. Having heard the learned counsel for the petitioners, High Court and the State, with their consent, this writ petition is being disposed of at this stage itself.
The three petitioners were Class-IV employees of the Civil Court, Bettiah. Under the Bihar Civil Court Staff (Class-III & Class-IV) Rules, 1998, being statutory Rules framed under Article-309 of the Constitution of India, in terms of Rule-7(2) 20% of the vacant Class-III posts are to be reserved and to be filled up from eligible Class-IV employees. Accordingly, the selection process for appointment by way of promotion of Class-IV employees of Civil Court, Bettiah to Class-III employees of Civil Court, Bettiah was taken up. The post in question was Clerk, which is Class- III post in the Civil Court. The petitioners were selected and by appointment order dated 30.03.2001 they were all appointed on Class-III posts in the basic pay-scale of Rs.4000-6000 from the date of their joining.
In the year 2003 a report was made by the Judge Incharge (Administration) of Civil Court, Bettiah to the District & Sessions Judge, Bettiah for reduction of the basic pay-scale of the petitioners. Petitioners, on coming to know of the same, represented. They also represented to this Court. It appears that the District Judge considered the matter and sought clarification from this Court. He stayed the implementation of his order reducing the basic pay. It appears that this was made on administrative side. A clarification was also sought for by this Court from the Finance and Personnel Departments of the Government. On clarification being received, it was forwarded to the District Judge on administrative side and, accordingly, the impugned order as contained in Annexure-1 was issued by the District & Sessions Judge, West Champaran at Bettiah on 17.04.2006. Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -3- The effect of this impugned order was that the petitioners who were appointed as Clerk in the Civil Court, Bettiah on promotion in the pay-scale of Rs.4000-6000, their pay-scale got reduced to Rs.3050-4590. As they had received the higher pay-scale since 2001 recovery was ordered for the excess amount and as apparent from the impugned order, forty monthly installments had been fixed for recovery.
The reason is apparent for this reduction in the pay-scale right from inception from various correspondences which has been annexed is as follows.
The last pay revision that was made by the State Government relevant to the said appointment was with effect from 01.01.1996. The main feature of this pay revision was that the State Government adopted the pay- scale of the Central Government. The pay revision having accordingly been accepted by the State Government, in the year 2000 it was realized by the State Government that though by the said pay revision effective from 01.01.1996 Central Government pay-scale were adopted, a lacuna was left. So far as Clerk is concerned, under the Central Government it is not a single post. There was Upper Division Clerk (U.D.C.) and Lower Division Clerk (L.D.C.) with different pay-scales. Thus, the State Government decided to de-merge the post of Clerk. They provided for U.D.C. with the pay-scale of Rs.4000-6000, which was earlier the pay-scale for clerk and the L.D.C. in the pay-scale of Rs.3050-4590. This is found in the circular of the State Government in the Department of Finance dated 20thof December, 2000 (Annexure-C to the counter affidavit of the High Court), which relates to Collectorate and other Muffasils establishments. This clearly stipulated that all posts of Clerk have to be accordingly de-merged. All persons working on Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -4- the post of Clerk as on the said date of de-merger would continue to get higher pay-scale of the U.D.C. But, all fresh recruitments to the post of Clerk would now be made on the post of L.D.C. with the lower pay-scale. This circular further stipulated that all recruitment process which was pending should be cancelled, obviously because of reduction in pay-scale and could be started again. It is this circular which started the whole problem for the petitioners. Even though, when they were appointed in the year 2001 no one had taken cognizance of the said circular.
The submission on behalf of the petitioners is that so far as the Civil Court and its staffs are concerned, they are separate and distinct from other State staff and establishments. It was never intended that this de- merger of post of Clerk be effected in the Civil Court as well. I shall presently deal with this aspect of the matter in greater detail.
Unlike, State Government staffs including of the Secretariat Cadre so far as Civil Court staffs are concerned, they have their own service rules known as Bihar Civil Court Staff (Class-III & Class-IV) Rules, 1998, being Rules made with reference to Article-309 of the Constitution. If we refer to these rules we find that so far as Clerk is concerned, there is no post as such. There are different posts like, Head Clerk, Bench Clerk, Comparing Clerk, Session Clerk etc. All parties are agreed that in fact what we are concerned is designation of Office Clerk because the petitioners did not even intended to join as Bench Clerk or Comparing Clerk but Office Clerk.
We then have the aforesaid decision of the State Government dated 20th December, 2000 (Annexure-C to the counter affidavit of the High Court) with regard to de-merger of the posts of Clerks. I can only note that neither at the level of the High Court nor at the level of the State any step was Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -5- taken to amend these service rules of the Civil Court staffs. The post remained Office Clerk. It may be noted that in the year 2001 extensive amendments were made by the State Government in the Bihar Civil Court Staff (Class-III & Class-IV) Rules by the Bihar Civil Court Staff (Class-III & Class-IV) ( Amendment) Rules, 2001 which came into effect on 11.07.2001. Here again, no effort was made by the State to bifurcate or de-merge the post of Office Clerk notwithstanding their decision as contained in circular dated 20th December, 2000.
At this stage, I may now refer to the various resolutions of the State Government with regard to pay revision. The first is of 30 thof December, 1981. This would clearly show that so far as Civil Court staffs are concerned, they were treated separately. Again we come to the next resolution dated 18th of December, 1989, again we find the same. Similar is the case when the pay revision is made effective from 1996, where again the Civil Court staffs are treated as a separate class. One thing I may note here is so far as the Clerks in the common category of Muffasils establishments are concerned, they are at a lower pay-scale than Clerks of Civil Court staffs under respective pay revision resolutions.
Here, I may also note that petitioners have brought on record as Annexure-8, the letter of the State Government in the Department of Law with the concurrence of the Finance Department being Letter No.2778 dated 18th of August, 2001, whereby in view of the recommendation of 11th Finance Commission of the Government of India 183 additional Courts were created. In those Courts 183 posts of Clerks were also created. This appertains to what is commonly referred to as the Fast Track Courts. The pay-scale sanctioned by the State Government in the year 2001 in which Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -6- aforesaid posts of Clerk was Rs.4000-6000. The pay-scale or the post was not fixed upon de-merger of the post of Clerk. Thereafter, petitioners have also annexed as Annexure-9, again a letter of the Law Department dated 18.06.2004, wherein six additional posts were sanctioned for the Additional District & Sessions Judge, Bagha. In this letter also post of Clerk was sanctioned in the pay-scale of Rs.4000-6000. There was no bifurcation or any indication of any L.D.C. or U.D.C. I may in this connection refer to the Bihar Civil Court Staff (Class-III & Class-IV) Rules, 2009 which replaced the earlier 1998 Rules. If we look to the post, we have Class-III employees in category III the post of Office Clerk. There is nothing to show that even as late as in 2009 any effort to de-merge the post was made. There was no L.D.C. or U.D.C. post.
At this juncture, I may also refer to the recommendations of Hon'ble Mr. Justice K. Jagarnatha Shetty (commonly referred to as the Shetty Commission) who had made recommendation in regards service conditions of inter alia, non-judicial staffs in Subordinate Courts in State of Bihar, which was approved by the Apex Court for its implementation in the State. This report was submitted in March, 2003, pursuant whereto, it appears that the High Court on the administrative side had formed a Sub-committee which gave its recommendation in respect of implementation of the said Shetty Commission report. That was sent to the State Government on or about 25.08.2007 and is Annexure-H/1 to the Supplementary counter affidavit of the High Court. Here again, if we see no distinction between L.D.C. or U.D.C. has been made. If we refer to the Shetty Commission report itself in respect of the State of Bihar, which is Annexure-H to the supplementary counter affidavit of the High Court, we would find two things. Firstly, the Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -7- Commission is very clear in its recommendation that the staffs of the Civil Court cannot be compared with the staffs of the State Government. They have more onerous duties. Then, if we come to the pay-scale recommended as on 2003, we find that so far as Clerk is concerned, the pay-scale recommended is Rs.4000-6000. This was based upon the recommendation as made by the High Court before the Shetty Commission which report is of the year 2003 long after the decision of the State Government to bifurcate the post of Clerk.
These facts, in my view, undisputedly show that neither the State nor the High Court ever intended, at least at that point of time, to bifurcate the post of Clerk into U.D.C. or L.D.C. That may be a policy decision by the State. But, it was implemented so far as State Government staff is concerned. It was never sought to be implemented to the Civil Court staff. Thus, in view of the aforesaid facts, the impugned order of the District & Sessions Judge, Bettiah reducing the pay-scale of the petitioners at the time of appointment cannot be sustained.
In fairness to the learned counsel for the State and of the High Court, I must refer to the resolution of the State Government dated 21st of January, 2010, which is Annexure-G to the supplementary counter affidavit of the High Court. This resolution is with reference to the 6thCentral Pay Commission recommendation wherein the pay structures have been revised in the State. The relevant would be Schedule-1 for our purposes. There clearly it is shown that for the existing pay-scale of Rs.4000-6000, the revised pay structure within P.B.-1 would be Rs.5200-20200 with corresponding Grade Pay of Rs.2400. As noted earlier, so far as L.D.C. is concerned, the pay-scale of Rs.3050-4590, for it the revised pay structure P.B.-1 Rs.5200-20200, but Patna High Court CWJC No.5875 of 2006 (07) dt.14-09-2012 -8- the Grade Pay is Rs.1900, less by Rs.500.
I may also notice that the High Court has agreed to the request of the State Government that henceforth all recruitments to the post of Clerk would be at the equivalent pay of L.D.C. Accordingly, when employment notice was recently issued in 2011 for appointment of Clerk to the Civil Court the pay-scale as notified in the said notice is that of the L.D.C. as noted above, though for the Stenographer it corresponds to the U.D.C. But, these are all prospective in application.
In view of the aforesaid facts as indicated above, the impugned order of the District & Sessions Judge, West Champaran at Bettiah reducing the pay-scale of the petitioners at the time of their initial appointment cannot be sustained. It is, accordingly, quashed. If any recovery pursuant to the aforesaid order has been made they shall be refunded to the petitioners.
This writ application is allowed.
(Navaniti Prasad Singh, J.) Trivedi/-AFR