Patna High Court
The State Of Bihar And Ors vs Tapan Kumar Awasthi And Ors on 15 January, 2019
Equivalent citations: AIRONLINE 2019 PAT 334
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No. 1357 of 2018
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1. The State of Bihar and Ors
2. The I.G. Registration, Department of Registration, Government of
Bihar, Vikas Bhawan, Bailey Road,
3. The Secretary, Department of Registration, Government of Bihar,
Vikas Bhawan, Bailey Road, Patna.
4. The Secretary, Department of Finance, Government of Bihar, Old
Secretariat, Patna.
5. The Joint Secretary, Department of Finance, Government of Bihar,
Old Secretariat, Patna.
... ... Appellant/s
Versus
1. Tapan Kumar Awasthi, Son of Late Sudhir Kumar Awasthi,
Resident of Ashram Road, Near Mahadev Chowk, Ward No. 15,
District- Araria.
2. Bhola Prasad, Son of Late Motilal, Resident of Mohalla- Tej Tola,
Bengali Para, Near Umang Nursery, District- Katihaar.
3. Narendra Prasad Ambasta, Son of Late Mahendra Prasad Ambasta,
Resident of Ramnagar, Main Road, District- Purnia.
4. Vishnudeo Yadav, Son of Harshan Lal Yadav, Resident of P.O.
Maranya, P.S. K.Hat, District- Purnia.
5. Milan Kumar Roy, Son of Late Prabhat Chandra Roy, Resident of
Ashram Road, Ward No. 15, District- Araria.
6. Ramchandra Sah, Son of Bhothri Sah, Resident of Kusaila, Hawai
Adda College Setu, District- Katihar.
7. Kuwar Kumar Chowdhary, Son of Late Kamleshwar Prasad,
Resident of Village- Parora, P.S. K.Nagar, District- Purnea.
8. Anil Kumar Sinha, Son of Late Kailash Nandan Sinha, Resident of
P.O.- Madhubani, P.S. K.Hat, District- Purnea. District- Katihar.
9. Anil Kumar Bose, Son of Late A.B. Bose, Resident of Bhattha
Mission Para, P.S. K.Hat, District- Purnea.
10.Surendra Kumar, Son of Late Kedar Lal, Resident of Village-
Mohammadpur, P.S.- Sherghati, District- Gaya.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Anil Kumar Sinha, Advocate
: Mr. Kumar Ravish, Advocate
: Mr. Kashyap Kaushal, Advocate
For the Respondent/s: Mr. Kumar Kaushik, Advocate
: Mrs. Namrata Dubey, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA
MISHRA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 15-01-2019
We have heard Mr. Anil Kumar Sinha, Mr. Kumar
Ravish and Mr. Kashyap Kaushal, learned counsels for the
appellants, Mr. Kumar Kaushik and Mrs. Namrata Dubey, learned
counsels for the respondents.
The dispute giving rise to this appeal is by those who
were initially appointed as extra clerks in the Department of
Registration, Govt. of Bihar in the pay-scale of Rs. 975-1540/-.
They were appointed as such in the year 1996-97 as is evident
from the discussion made in the impugned judgment of the learned
Single Judge. It is therefore undisputed that all the respondent-
petitioners were appointed as Extra Clerks and given a temporary
status in the pay-scale of Rs. 975-1540/- in the year 1996-97.
Some of the respondent-petitioners had retired and some
were at the fag end of their service when the writ petition came to
be filed for a direction to grant them the pay-scale of Upper
Division Clerks of the Department of Registration from the date of
initial appointment. The foundation of the entire submission of the
respondent-petitioners was that since the cadre of Lower Division
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Clerk and Upper Division Clerk have already merged into one
cadre of Clerk on 24th of May, 1980 then they were all entitled to
the same scale of pay that was admissible to Upper Division
Clerks as there was no other cadre in existence. The scale of pay as
given to them at the time of initial appointment was erroneously
not revised in the correct pay-scale and the respondent-petitioners
were wrongly given the pay-scale of Lower Division Clerk. The
basic argument was that when merger had already taken place in
the year 1980 then at the time of appointment of the respondent-
petitioners, the Lower Division Clerks became entitled to the pay-
scale of Upper Division Clerk as there was no cadre of that of
Lower Division Clerk in existence. The revised pay-scale,
therefore, of Rs. 4,000-6,000/- to Upper Division Clerk was
admissible to the respondent-petitioners and in spite of the
representations made in the year 2011 no decision had been taken.
It is with this grievance that some other temporary clerks of the
Department of Registration had preferred CWJC No. 6107 of 1992
that was disposed of on 01.01.1997 and pursuant thereto it is
alleged that the State Government decided to treat temporary
clerks equal to Remunerative Copyist in the pay-scale of 4,000-
6,000/- vide a Memo dated 01.09.1998.
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The appellants-State contested the said claim of the
respondent-petitioners on the ground that even though there was a
merger in the year 1980 but the respondent-petitioners had been
appointed as Extra Clerks on daily basis.
In order to accommodate extra clerks and bring them
within the fold of regular appointments one thousand posts were
created that were designated as temporary clerks. These posts were
not included within the cadre of either Lower Division Clerk or
Upper Division Clerk so as to treat them to be governed by the
merger scheme of 24th May, 1980.
Vide a Department Letter dated 5th of January, 1984
Extra Clerks were given the benefit of promotion to the post of
Upper Division Clerk to the extent of 40% of the said cadre. The
rest were to be filled up by direct recruitment. Thus, these Extra
Clerks who had been appointed on temporary basis were in effect
neither appointed as Upper Division Clerks nor were they within
the merged cadre. They had been appointed against the one
thousand posts that had been created for Extra Clerks and
designated as temporary clerks. Later on, these appointees came to
fill up all the posts of the clerks and their pay-scales in the same
grade were revised subsequently from time to time. They were
however not given the higher scale nor their pay-scales had
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merged into the higher pay-scale. In these circumstances, they
were not entitled to any such claim as stated by them and their
demand was not justified as they were appointed against specially
created posts for Extra Clerks with the status of temporary clerks.
It has also been pointed out that they were also confirmed in the
scale of pay of Lower Division Clerks later on which has not been
challenged.
The respondent-petitioners relied on the Circular dated
20th December, 2000 contending that a demerger took place in the
year 1999 and upon this demerger the respondent-petitioners were
entitled to the pay-scale of the Upper Division Clerk. Such
demerger, therefore, gives the benefit to respondent-petitioners and
they cannot be treated differently after having been extended the
benefit of being appointed as Clerks in the same department. The
use of the word temporary clerk does not take away the status of
the respondent-petitioners who after the merger in the year 1980
are entitled to the same status as that of Upper Division Clerks.
After having heard Sri Anil Kumar Sinha, learned
counsel for the appellant and Sri Kumar Kaushik, learned counsel
for the respondent-petitioners, we find that the learned Singe Judge
while proceeding to allow the writ petition of the respondent-
petitioners has held that the post became permanent on 14th
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September, 1990. The respondent-petitioners were given the pay-
scale of Rs. 975-1540/- which was the pay-scale of Lower
Division Clerk which post was not in existence in the cadre when
the respondent-petitioners were appointed much after the merger.
The creating of 1000 post of clerks on temporary basis did not give
the respondents a different status by virtue of having been
appointed against such posts. The learned Single Judge further
held that while issuing the notification in 1981 and merging the
cadres of Lower Division Clerks and Upper Division Clerks into
one, the Government had overlooked the notification creating one
thousand posts of Clerks. According to the learned Single Judge,
posts of Lower Division Clerks was not in existence nor was the
pay-scale of Rs. 220-315/-of Lower Division Clerk admissible.
The learned Single Judge, therefore, held that the pay-scale of the
posts hold by respondent-petitioners ought to have been higher and
subsequently its replacement also ought to have been revised.
Learned Single Judge also came to the conclusion that
the stand of the Government that the posts against which the
petitioners were working were posts of a different status of clerks
is erroneous as the posts were created on regular basis but on a
pay-scale that was not existing on the date it was notified. Neither
the post of Lower Division Clerk was available nor such pay-scale
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was in existence and since there was only one cadre of clerks after
the merger, the respondent-petitioners were entitled to have this
pay-scale. The learned Single Judge ultimately concluded that
there cannot be creation of a post like a temporary clerk with a
wrong pay-scale of Lower Division Clerk which was not in
existence in the department.
It is here that we differ from the learned Single Judge.
The power of the State Government to create posts and to define
cadres is sovereign. It is undisputed that the post of extra clerks
had been created in the year 1978 much before the merger as
distinct from the cadre of Lower Division Clerks and Upper
Division Clerks with a view to cope up with the overloaded work
of the Registration Department and these extra clerks were later on
sought to be absorbed into the stream by creation of one thousand
separate posts. The Government, therefore, created these special
posts in the pay-scale of Lower Division Clerks and from a
combination of the reading of the Letters of appointment of the
respondent-petitioners and their confirmation later on it is
absolutely clear that they had been extended the benefit of pay-
scale of the Lower Division Clerk and not that of the Upper
Division Clerk. These posts were not included in the merger
scheme. The assumption by the learned Single Judge that this was
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overlooked at the time of merger is neither substantiated by any
cogent material. The presumption of overlooking a fact is contrary
to the clear stand of the government that the said posts were of a
different status to accommodate extra clerks. Neither the orders of
appointment or confirmation of the appointees were under-
challenge and nor were ever disputed. It is after a long time that
the respondent-petitioners who were either at the fag end of their
service or had retired raised this claim that in view of the merger
of Lower Division Clerks and Upper Division Clerks into one they
were entitled to the pay-scale of Upper Division Clerk as the
previous cadre of Lower Division Clerk did not exist.
We are unable to accept this submission inasmuch as the
respondent-petitioners with open eyes had accepted their
appointments against such posts that had been created to
accommodate extra clerks. These were separate posts and the
conclusion of the learned Single Judge that such posts could not
have been created and ought to have been in the same pay-scale
does not stand to reason inasmuch as it is for the employer to
decide as to what posts and in what scale it seeks to offer
employment. If the Lower Division Clerks and Upper Division
Clerks had merged into a single cadre of clerks, then the same
cannot be through a presumptuous reasoning be construed to also
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include the post of temporary clerks which was offered to these
extra clerks. This equivalent status of posts that it ought to have
been the same due to non-existence of the post of Lower Division
Clerks, could not have been assumed as the power to create a post
and to assign a particular pay-scale rests with the Government. For
the purpose of granting equivalence, it is the Equivalence
Committee which is authorized to take a decision in the matter. No
such decision appears to have been taken by the State Government
nor was there any challenge raised to the status of these posts
previously. If the State Government chose to extend the pay-scale
of Lower Division Clerks to these extra and temporary clerks, then
in the absence of the cadre of Lower Division Clerk, it cannot be
said that the State Government was denuded of its authority to
make appointments in that pay-scale when the post creation order
of one thousand posts to accommodate these extra clerks was
never under-challenge.
There is one more aspect which deserves to be noticed
namely that there are no allegations of mala fides and, therefore,
the same cannot be inferred. The learned Single Judge has held
that at the time of merger the issue of these posts were overlooked.
It is not the case of the respondent-petitioners that the posts held
by them were deliberately created in a lower pay-scale. This was
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also not possible inasmuch as the posts were created long back
before the appointment of the respondent-petitioners and,
therefore, no intention can be gathered that this was done
deliberately to keep the respondent-petitioners in a lower pay-
scale. Since the respondent-petitioners formed a different class of
appointees the question of attracting Article 14 of the Constitution
of India on the facts of the present case does not arise.
Apart from this the acceptance and confirmation on the
said posts against the said pay-scale is yet another factor which
could not have been lost sight of. The learned Single Judge came
to the conclusion that this ought to have been in the scale of Upper
Division Clerk does not appear to be based on sound reason as it
seeks to undermine the very power of the State Government to
make appointments against posts the creation whereof and the pay-
scale whereof was never under-challenge. The merger of the two
cadres did not prevent the State Government from proceeding to
make appointments in the pay-scale of Lower Division Clerks of
these extra clerks who were designated as temporary clerks against
specially created posts. Merger was only for the cadre posts of
Lower Division Clerk and Upper Division Clerk and not of these
posts which had been created separately. The respondent-
petitioners, therefore, cannot claim parity having accepted their
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appointments, confirmation and having continued as such through
a different source of recruitment as extra clerks designated as
temporary clerks. The State Government therefore had the
authority to place them in the pay-scale as per the post creation
order and consequently the learned Single Judge could not have
extended any such benefit on the basis thereof.
There was no legal impact of the policy of merger which
even though had taken prior in point of time to the appointment of
the respondent-petitioners as the posts against which the
respondent-petitioners came to be appointed were created with a
clear recital that they shall be the posts meant for accommodating
the Extra Clerks. The finding recorded by the learned Single Judge
that the respondent-petitioners ought to have been placed in the
same pay scale proceeds on an erroneous assumption as if there
was a deemed inclusion of these posts after the merger in the same
cadre which had been merged together. On a reading of the
documents referred to hereinabove, the creation and the existence
of these posts remained a separate entity and, therefore, merely
because the respondent-petitioners who have been given the same
pay-scale cannot be a ground to assume that the Government had
intended to make appointments as urged on behalf of the
respondent-petitioners. To the contrary, the appointments were
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clearly made and in the case of the respondent-petitioners in the
year 1996-97, with a clear understanding that they were appointed
against the said posts on the pay-scale referred to therein. This,
therefore, cannot be a ground to find error in the action taken by
the State Government. A mandamus, therefore, as prayed for,
could not have been issued.
Learned counsel for the respondents has cited the
judgment in the case of State of Madhya Pradesh vs. Yogendra
Shrivastava reported in (2010) 12 SCC 538 that has been
followed by a learned Single Judge in the case of Sheo Charan
Paswan vs. The State of Bihar & Ors. Vide order dated
08.08.2011passed in CWJC No. 1102 of 2009. The judgment in the case of State of Madhya Pradesh (supra) was in relation to the extension of the benefit of pay-scales. It was held that the challenge cannot be barred by limitation or the doctrine of lapse as it is a continued benefit if an error was committed at the time of appointment, as such, their claim cannot be denied.
The learned Single Judge in the case of Sheo Charan Paswan (supra) was dealing with a situation of the clerks of Public Health Engineering Department (PHED). It was observed that they were posted as Junior Accounts Clerk consequent to the merger and, therefore, if the fact of merger was not brought to the pay Patna High Court LPA No.1357 of 2018 dt.15-01-2019 13/14 revision committee, the same would not deprive the incumbent of such benefits.
The instant case is clearly distinguishable where it is being assumed that there was no post in existence of a Lower Division Clerk after merger and, therefore, the learned Single Judge came to the conclusion that this error would not enable the appellants to deny the higher pay-scale of Upper Division Clerk to the respondent-petitioners. As is evident from the facts of the present case, there is a separate post creation order of 1000 posts that continued to exist separately and which was not part of the merger. These posts were created separately and they continued to have a separate existence in order to accommodate Extra Clerks. This distinction, therefore, would not attract the ratio of the judgments cited by the learned counsel for the respondent- petitioners.
We are, therefore, satisfied that the impugned judgment deserves reversal.
For the reasons hereinabove, the appeal is, accordingly, allowed and the impugned judgment dated 23.02.2018 passed in CWJC No. 15862 of 2013 is set aside.
Patna High Court LPA No.1357 of 2018 dt.15-01-2019 14/14 (Amreshwar Pratap Sahi, CJ) Vikash/- (Anjana Mishra, J) AFR/NAFR AFR CAV DATE NA Uploading Date 21.01.2019 Transmission Date NA