Patna High Court - Orders
Braj Behari Tiwary vs The State Of Bihar & Ors on 4 July, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7800 of 2007
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Braj Behari Tewary
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.12460 of 2007
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Braj Behari Tiwary
.... .... Petitioner/s
Versus
The State of Bihar & Ors
.... .... Respondent/s
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Appearance :
(In CWJC No.7800 of 2007)
For the Petitioner/s : Mr. A.B.Ojha
Mr. Anil Kumar Upadhyay
Mr. Bharat Bhushan
Mr. Sriniwas Jha
Mr. S.K.Mishra
For the Respondent/s : Mr. (Gp3)
(In CWJC No.12460 of 2007)
For the Petitioner/s : Mr. A.B.Ojha
Mr. Anil Kumar Upadhyay
Mr. Bharat Bhushan
For the Respondent/s : Mr. (Sc15)
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CORAM: HONOURABLE MR. JUSTICE SAMARENDRA
PRATAP SINGH
ORAL ORDER
8 04-07-2014In C.W.J.C. No.7800 of 2007 the petitioner prays for the following reliefs:
(i) For grant of benefit of the promotion to the petitioner for the post of General Manager w.e.f.
1.11.1987;
Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 2
(ii) For grant of pay scale and allowances of the post of Director, Electronics Test and Development Centre (in short 'ETDC') to the petitioner with effect from 1989 to 1999;
(iii) For grant of pay scale and other admissible allowances for discharging the responsibility of the post of Managing Director, Beltron Video Systems Limited with effect from 28.12.1999 till the date of his superannuation i.e. 31.3.2004. In C.W.J.C. No.12460 of 2007 the petitioner seeks for the following reliefs:
(i) For quashing the order contained in memo no.770 of 2001 dated 5.5.2001 (Annexure-15) making reduction in pay scale and follow up order recovery vide office order contained in memo no.1249/02, dated 3.8.2002 (Annexure- 15/1), and to re-determine the pay and admissible allowances to the petitioner;
(ii) To declare that the order dated 5.5.2001 contained in memo no. 770/01 by which his pay scale was down graded and the consequential order of recovery contained in memo no.1249/02 Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 3 dated 3.8.2002 are bad in law.
The facts of the case in short is as follows: The petitioner who possessed B.Sc. Engineering degree in Electronics and Communication from B.I.T. Sindri was initially appointed as Assistant Engineer in Akashwani, Patna. Thereafter, in the year 1972 he was appointed as an Assistant Foreman in the Department of Defence Production, New Delhi. In the year 1978, the State of Bihar constituted Bihar State Electronics Development Corporation Limited (in short 'the Corporation), which was registered as Government Company on 21.2.1978. The Corporation advertised a post of Deputy Director, Electronics Testing and Development Centre under the Corporation which was to be selected by a High Power Committee consisting of Technical Expert Member including one Major General K.K. Mehta, Advisor to the Department of Electronics, Government of India. The petitioner was placed at Sl. No.2 of the merit list. One Shri G.L. Labru, who was placed at Serial No.1 initially joined, but subsequently quitted. The petitioner being at Sl. No.2 was offered the said post e.g. in the year 1981 and after working out modalities of deputation, the Board of Directors approved his appointment as Deputy Director on deputation. Consequent to formalities, the petitioner joined Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 4 the post on 4.11.1981 for a period of two years, which was subsequently extended by further two years with consent of Ministry of Defence.
The Board of Directors in its 30th meeting held on 19.11.1985 decided to absorb the petitioner in the Corporation on regular basis in place of continuing him on deputation, which was communicated to him vide order dated 3.1.1986. The pay of the petitioner was fixed at Rs.2150/- per month in the replacement scale of pay of Rs.1575-50-75-2300/- with effect from 1.11.1985. Thereafter, the Board of Directors in its meeting held on 29.6.1988 resolved to promote the petitioner to the post of General Manager in the Beltron Video Systems Limited in the pay scale of Rs.1900-2500/- with effect from 1.11.1987 subject to the approval of the Bureau of Public Enterprises and the State Government. On 2.6.1989 consequent upon decision taken in the 49th meeting of the Board of Directors of the Corporation, the post of Deputy Director was designated as Director, Electronics Test and Development Centre, Patna (in short 'ETDC'). As per order, the petitioner was to continue as General Manager, Beltron Video Systems Limited, Hajipur (in short 'BVS' ) in addition to his own duties. However, it was observed that till clearance of the Bureau of Public Enterprises for promotion of Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 5 petitioner to the post of General Manager, salary admissible will continue to be the same as being drawn. In other words, till such promotion is not approved by the Bureau of Public Enterprises, the salary in pay scale of General Manager would not be admissible to the petitioner.
It appears that on receipt of recommendation, initially, the Bureau made some queries, which was duly addressed by Corporation, but still nothing was heard from the Bureau, either approving or disapproving the promotion. The misery did not end there. The regime changed and the successor Managing Director of the Corporation vide notice dated 4.10.2002 show caused the petitioner, questioning the very legality of his absorption in the year 1985. The reply of the petitioner that he was absorbed after following due procedure i.e. clearance from Central Government, due resolution of the Board of Directors, etc. failed to convince and make any impact and was removed from service vide order dated 7.11.2002 (Anenxure-17 of C.W.J.C No.7800 of 2007).
Being aggrieved, the petitioner filed C.W.J.C. No.12666 of 2002 which was allowed vide order dated 14.3.2007 and the order of termination dated 7.11.2002 was set aside. However, as the petitioner had already superannuated in 2004, the learned Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 6 Judge directed the respondents to pay him his due salary, allowances and all consequential benefits to which he was entitled.
It is relevant to reiterate that the Managing Director of the Corporation vide order dated 5.5.2001 in terms of recommendations of Pay Revision Committee directed revision of pay scale of the petitioner with effect from 1.11.1985 in the scale of 3000-4500 followed by recovery order dated 3.8.2002. All these actions are impugned in C.W.J.C. No.12460 of 2007.
The petitioner has filed C.W.J.C.No.7800 of 2007 seeking pay scale of General Manager w.e.f. 1.11.1987, pay of Director with effect from 1987 and pay of Managing Director with effect from 1999 to 2004.
On the other hand, counsel for the respondents submits that the petitioner was asked to continue as General Manager vide order dated 2.6.1989 (Annexure-8 to C.W.J.C.No.7800 of 2007), but salary drawn would be same pending clearance of promotion by the Bureau of Public Enterprises. So far as grant of higher pay scale of Director from the year 1987 to 1990 is concerned, the prayer of the petitioner is misplaced and cannot be granted as the very office order says that the post of Deputy Director has been designated as Director and as such it was the Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 7 post which was upgraded without corresponding upgradation in pay scale. The claim for higher scale of Director is thus rejected.
So far as grant of pay scale of General Manager is concerned, the submission of the petitioner requires considerations. The resolution of the Board of Directors dated 29.6.1988 states that the petitioner would be promoted to the post of General Manager with effect from 1.11.1987 in the scale of Rs.1900 - 2500 subject to approval of B.P.E. and State Government. However, the office order dated 2.6.1989 stated that the petitioner will continue as General Manager and salary admissible will continue to be the same as being drawn. The petitioner continued to discharge his duties on the post of General Manager till 7.11.2002 on which date he was removed from service.
It is true that neither the State Government nor the Bureau of Public Enterprises concurred with the promotion of the petitioner to the post of General Manager, but it is equally a fact that none of them even disapproved his promotion and the petitioner continued to discharge the function of General Manager for more than 13 years. It appears that the Bureau of Public Enterprises sat over the matter. I agree with the submission of the petitioner that in such circumstances he would Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 8 have legitimate expectation of necessary clearance from the State Government and Bureau of Public Enterprises for the post of General Manager as all queries made by them were duly addressed to by the Corporation.
The law with respect to grant of higher pay scale, if one has continued to discharge in higher post for a long time was subject of consideration before the Hon'ble Apex Court in the case of Arindam Chattopadhyay and Ors vs State of West Bengal & Ors, reported in (2013)4 SCC 152. In the said case, the appellant, before the Apex Court, has discharged the function as C.D.P.O. temporarily for almost 14 years. However, the department refused to grant him pay scale in the said post as he was directed to discharge the function of the said post 'temporarily'. Laying down the law, the Apex Court observed that a person who has continuously been discharging the duty of higher post cannot be denied pay scale of such post, only on the ground that he was temporarily assigned such duties. The Apex Court observed that had the appointment of the petitioner on the post of C.D.P.O. was made for few months, the higher pay scale could have been denied.
In my view the ratio laid down in the case of Arindum Chattopadhyay (supra) would be fully applicable in the facts of Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 9 the present case. The petitioner was promoted to the post of General Manager in the year 1988-89 pending approval to the promotion from Bureau of Public Enterprises. The petitioner finally superannuated in the year 2004 and nothing was heard from Bureau of Public Enterprises either approving or disapproving the promotion of the petitioner to the post of General Manager. In such circumstances, the petitioner who has discharged his function of post of General Manager all these long 13-14 years would be entitled to salary and allowance as applicable then and I direct accordingly.
The petitioner next prays for grant of pay scale of Managing Director of Beltron Video System, in which post he functioned from 28.2.1999 to 7.11.2002. It is relevant to state here that the petitioner has also sought pay scale of General Manager from 1987 onwards which also covers the period 28.2.1999 to 7.11.2002. I further find that the petitioner was assigned only limited responsibility of the post of Incharge Managing Director. Thus, I am of the view that the petitioner would not be entitled to the pay scale of Managing Director of BVS but only the allowances accompanying the said post.
In C.W.J.C.No.12460 of 2007 the petitioner prays for quashing the order dated 5.5.2001 by which his pay scale has Patna High Court CWJC No.7800 of 2007 (8) dt.04-07-2014 10 been reduced and excess payment made has been directed to be recovered under order dated 3.8.2002.
Learned counsel for the respondents submits that though the petitioner was absorbed in service in the year 1986, his salary continued to comprise of deputation allowance which was not permissible after permanent absorption.
I find substance in the submission of learned counsel for the respondents. Once deputationist is regularly absorbed, his deputation ipso facto would come to an end and as such he would no more be entitled to deputation allowance. If salary has wrongly been calculated by adding deputation allowance, it can be rectified and recovered or adjusted, more so if such order of recovery has been made prior to retirement. The challenge to the recovery to aforesaid extent is dismissed.
With the aforesaid observations and directions, these writ applications stands disposed of.
(Samarendra Pratap Singh, J) KHAN/-
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