Birendra Kumar Giri vs State Of Jharkhand
2021 Latest Caselaw 566 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
            L.P.A. No.48 of 2019
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1. Birendra Kumar Giri, S/o Late Gopal Sharan Giri, R/o: Vill.+P.O: Jalalpur, PS. Shahpur Patori, Dist: Samastipur, Bihar

2. Rajendra Prasad Sharma, S/o Late Mahendra Prasad Singh, R/o: Village Pandoe, P.O+P.S: Paras Bigha, Dist: Jahanabad, Bihar .... .... Appellants Versus

1. State of Jharkhand

2. The Additional Chief Secretary, Department of Home, Govt. of Jharkhand, P.O+P.S: Dhurwa, Dist: Ranchi, Jharkhand

3. The Principal Secretary, Department of Finance, Govt. of Jharkhand, P.O+P.S: Dhurwa, Dist: Ranchi, Jharkhand ...... ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. Rishikesh Giri, Advocate For the Resp.-State : Mr. Piyush Chitresh, A.C to A.G

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ORAL JUDGMENT 12/Dated: 08.02.2021

The matter has been heard with the consent of learned counsel for

the parties through video conferencing. There is no complaint about any

audio and visual quality.

L.P.A. No.48 of 2019

The instant intra-court appeal is directed against the order/judgment

dated 11.10.2018 passed by the learned Single Judge of this Court in

W.P.(S) No.1308 of 2017, by which, the learned Single Judge while

dismissing the writ petition has refused to interfere with the resolution

dated 22.01.2013 issued by the Department of Finance to the extent that

the Grade Pay of Rs.6600/- admissible to the Principal Probation Officers

shall be granted from 01.01.2006 and not from 01.08.2012 as also refused

to pass any direction upon the respondents to pay the arrears of salary for

the intervening period commencing from 01.01.2006 to the respective

date of superannuation of the writ petitioners.

2. The brief facts of the case are required to be referred herein which

reads as hereunder:-

The petitioner no.1 was initially appointed as Probation Officer on

03.10.1983 and joined the said post on 04.10.1983 in the office of

Director, Probation at Patna. The petitioner no.2 was appointed to the said

post in the year 1971 after completing the due procedure of selection.

The petitioner no.1 after rendering unblemished service, has

superannuated from his service on 29.02.2016, while the petitioner no.2

has superannuated from his service on 30.06.2009 as Principal Probation

Officer from the State of Jharkhand.

It is the case of the writ petitioners that the Principal Probation

Officer is the promotional post in the cadre after Probation Officer and

thereafter, no promotional avenue is available in the State of Jharkhand.

These writ petitioners were promoted to the post of Principal

Probation Officers w.e.f. 05.11.2007.

The Fitment Committee has recommended the pay by taking into

consideration the recommendation made by the 6th Pay Revision

Committee, (in short 6th PRC) of the Probation Officers by fixing the pay

scale of Rs.9300-34,800/- with grade pay of Rs.4800/- in the light of the

Government Resolution as contained in Memo No.660/B dated

28.02.2009, thus, the pay scale of the Probation Officer as also the

Principal Probation Officer remains the same, even though, the Principal

Probation Officer is higher in hierarchy being a promotional post of the

post of Probation Officer which is a basic cadre post as per the cadre rule.

It is the further case of the writ petitioners that an anomaly was

detected by the respondents, however belatedly, but was rectified vide

resolution 22.01.2013 and the pay of Principal Probation Officer was fixed

in the pay scale of Rs.15,600-39,100/- with grade pay of Rs.6600/-. Thus,

anomaly in the pay scale to the post of Principal Probation Officer has

been admitted by the respondents and accordingly, the same was rectified

but in a highly arbitrary and illegal manner, the monetary benefit was

decided and directed to be given w.e.f. 01.08.012, which according to the

writ petitioners ought to have been extended w.e.f. 01.01.2006.

The writ petitioners have suffered monetary loss as also deprived

from the pay scale which the other co-employees have been granted as

because, the appointees of the year 1974 and 1990 were getting the

same pay scale after getting the benefit of MACP.

The writ petitioners, however, have ventilated their grievance by

filing the repeated representations before the authority but however to that

no effect, hence, finally came to this Court by filing the writ petition for

redressal of their grievance.

The respondent State has appeared before the Writ Court and

contested the case by filing the counter affidavit inter-alia therein the stand

has been taken that the Principal Probation Officer, became entitled to the

pay scale of Rs.15,600-39,100/- with grade pay of Rs.6600/- by virtue of

promulgation of rules which came into effect from 01.08.2012 and hence,

enhanced pay scale has been granted in favour of the holders of the post

of Principal Probation Officer with effect from the date of promulgation of

rules i.e. w.e.f. 01.08.2012, hence, there is no illegality in the same as

because, the day when the rule came into being, the monetary benefit has

been extended in favour of the writ petitioners.

The writ Court after considering the submission advanced on behalf

of the parties and taking into consideration the fact that the State of

Jharkhand, by way of policy decision, has although rectified the anomaly

by promulgating the rule implemented w.e.f. 01.08.2012, the date from

which the enhanced pay scale has been extended in favour of the holders

of the post of the Principal Probation Officer and hence, there is no reason

to interfere with such policy decision of the State Government and

accordingly, the writ petition has been dismissed, against which, the

present intra-court appeal has been filed.

3. Mr. Rishikesh Giri, learned counsel appearing for the appellants-writ

petitioners has argued that the learned Single Judge has not appreciated

the fact that the writ petitioners became entitled to get the pay scale

attached to the post of Principal Probation Officer after the anomaly

having been rectified on the basis of the recommendation of the 6th PRC

and hence, the said pay scale ought to have been extended with effect

from the adoption of the recommendation of the 6th PRC as because, if

the government has taken a conscious decision with respect to existence

of any anomaly in the pay scale of two posts as has been occurred on due

implementation of the Pay Revision Committee, the benefit after the

anomaly having been rectified is required to be extended from the date of

implementation of the recommendation of the 6th PRC i.e. w.e.f.

01.01.2006.

He further submits that if the government has taken decision

belatedly from 01.01.2006 by coming with a rule on 01.08.2012, it is the

laches committed on the part of the authority, for which, the writ petitioners

cannot be allowed to suffer.

According to the learned counsel, the learned Single Judge has not

appreciated all these facts, hence, the said judgment is not sustainable in

the eyes of law.

4. Per Contra, Mr. Piyush Chitresh, learned AC to AG appearing for the

State of Jharkhand has defended the order passed by the learned Single

Judge inter-alia on the ground that there is no dispute that rectification in

the pay scale has been made due to anomaly having been found in the

pay scale of the basic cadre and the promotional post of the Principal

Probation Officer but that does not mean that the benefit of the enhanced

pay scale would be granted in favour of the writ petitioners w.e.f.

01.01.2006 as because, when the said anomaly has been rectified by

virtue of a rule implemented w.e.f. 01.08.2012, the same is to be given

from the date of promulgation of the rule i.e. w.e.f. 01.08.2012.

According to him, learned Single Judge after appreciating these

aspects of the matter, is correct in dismissing the writ petition which

requires no inference.

5. We have heard the learned counsel for the parties and perused the

documents available on record as also the finding recorded by the learned

Single Judge.

6. This Court before proceeding to examine the legality and propriety

of the impugned order, deem it fit and proper to refer certain admitted

facts.

7. Admittedly herein, as per the cadre rule of State of Jharkhand, the

post of Probation Officer is a basic cadre post having the promotional post

of Principal Probation Officer.

It is the further admitted fact that prior to implementation of the

recommendation of 6th PRC, the pay scale of the post of Probation Officer

and the Principal Probation Officer were Rs.5500-9000/- and Rs.6500-

10500 respectively but when the recommendation of the 6th PRC has

been implemented, the pay scale of both the posts i.e. the post of

Probation Officer and the Principal Probation Officer has been fixed at the

pay scale of 9300-34800 with grade pay of Rs.4800/-.

8. It is not in dispute that the Home Department of the State of

Jharkhand has admitted as would appear from the circular of the Finance

Department as contained in Annexure-4 to the memo of appeal that the

post of Probation Officer and the post of Principal Probation Officer are the

created posts to be known as Probation Service.

It is also admitted fact that the post of Principal Probation Officer is

a promotional post.

It has further been admitted that at the time of accepting the

recommendation of 5th PRC as per the memo no.660/B dated 08.02.1999,

the pay scale of the post of Probation Officer and the Principal Probation

Officer have been sanctioned in favour of the holders of the posts w.e.f.

01.01.1996 i.e., the pay scale of Rs.5500-9000/- and Rs.6500-10500/-

respectively.

It has further been admitted that at the time of issuance of circular

on adoption of recommendation of 6th PRC, the pay scale of the post of

Probation Officer and Principal Probation Officer have been kept in the

same pay scale and grade pay and therefore, the rectification occurred

therein is admitted one, hence, the same has been rectified by granting

the pay scale of Rs.9300-34,800/- with grade pay of Rs.4800/- to the

holders of the post of Probation Officer and the pay scale of Rs.15,600-

39,100/- with grade pay of Rs.6600/- to the holders of the post of Principal

Probation Officer. But the respondent State of Jharkhand has rectified the

aforesaid anomaly by virtue of circular dated 22.01.2013(Annexure-4)

making it applicable w.e.f. 01.08.2012.

The writ petitioners have raised the dispute for implementing the

higher pay scale to the post of Principal Probation Officer not from

01.08.2012 rather from 01.01.2006.

It is further admitted that the petitioner no.1 although has

superannuated from his service on 29.02.2016, while the petitioner no.2

has superannuated from his service on 30.06.2009.

9. The learned Single Judge, however, has dismissed the writ petition

on the ground that there cannot be any inference by the writ Court so far

as it relates to the policy decision of the State Government and since the

State Government has come out with the policy decision implementing the

enhanced pay scale to the post of Principal Probation Officer w.e.f.

01.08.2012, hence, the same being a policy decision cannot be interfered

with in exercise of power of judicial review conferred to the High Court

under Article 226 of the Constitution of India.

The question herein is that the writ petitioners have not been

promoted to the post of Principal Probation Officer rather it is admitted

case of the respondent State that the writ petitioners have been promoted

to the post of Principal Probation Officer w.e.f. 05.11.2007 as would

appear from the service book which has been appended to the writ

petition.

10. There is no dispute about the position of law that when the Pay

Commission makes recommendation for revision in the pay scale, the

same being a decision of the Central Government is to be adopted by the

respective States across the country, for which, the Fitment Committee is

used to be constituted for acceptance of the recommendation made by the

Pay Revision Committee.

The Fitment Committee only used to deliberate upon the issue, so

that, there may not be any anomaly and the principle of parity in the pay

scale with the Central Government employee be maintained as because

in the Pay Revision Committee recommendation, the foremost principle is

to follow that the pay scale of the State Government employee be at par

with the Central Government employee. Therefore, there cannot be any

confusion about the factual aspect so far as the recommendation of the

Pay Revision Committee is concerned.

11. Herein, the issue of anomaly has crept up when the 6th Pay

Revision Committee makes recommendation and the Fitment Committee

constituted by the State of Jharkhand on consideration of the pay scale

attached to one or the other posts has granted the pay scale to the post of

Principal Probation Officer to the scale of Rs.9300-34,800/- with grade pay

of Rs.4800/- but since even by the Fitment Committee, the fact about the

pay scale of basic cadre i.e. the Probation Officer and the promotional

post i.e. Principal Probation Officer which have been fixed to the similar

pay scale and thus, the same has been found to be a mistake and

anomaly has been created while fixing the pay scale of basic cadre post

and promotional post, a decision has been taken by the State authority to

rectify the same as because if a particular pay scale has been attached to

a basic cadre post, the next promotional post cannot have the same pay

scale attached to the basic cadre post, otherwise there will be no meaning

of promotion to the basic cadre post to the promotional post as because

promotion means upgradation in post vis-à-vis the upgradation in the pay

scale and that is the reason the competent authority of the State of

Jharkhand has considered it a serious anomaly occurred in extending the

same pay scale to the post of Probation Officer and the Principal

Probation Officer.

The State of Jharkhand has considered it and rectified the anomaly

by attaching the pay scale of Rs.15,600-39,100/- with grade pay of

Rs.6600/- but implemented it w.e.f. 01.08.2012 from where the dispute

arose.

It requires to refer herein that right course from the statutory rule i.e.

after adoption of the recommendation of 6th PRC w.e.f. 01.01.2006 by way

of policy decision then in that case, it would be unreasonable on the part

of the respondent corporation while removing the anomaly to give effect to

the same from 01.08.2012 as because the recommendation of the Pay

Commission having been accepted by the State Government with a

particular date and all the employees of the State Government have been

extended the benefit and when the anomaly has been removed, the same

has been given effect from the date i.e. 01.01.2006.

Reference in this regard may be made to the judgment rendered in

the case of Rajbir Singh & Ors. Vrs. Haryana State Electricity Board

and Ors., 2009 SCC Online P&H 1230 (Full Bench), wherein the Punjab

and Haryana Full Bench Judgment is not binding upon this Court but so

far as the principle laid down in the said judgment which is being followed,

wherein at paragraph-9, it has been held that if a pay scale wherein the

anomaly had arisen was released from 01.01.1986, it is bound to be

corrected from 01.01.1986, and not with effect from the date when the

anomaly was discovered, or prospectively with effect from a date of the

choice of the employer.

Further in the case of Haryana State Minor Irrigation Tubewells

Corporation and Ors. Vrs. G.S. Uppal & Ors., (2008) 7 SCC 375,

wherein, it has been held that when, after a pay revision, an anomaly is

found in pay scale given to a class of government servants and such

anomaly is rectified, it is not a new pay revision but a correction of original

pay revision, or an amendment to pay scale that has already been

granted.

12. Admittedly, there are no laches on the part of the writ petitioners and

if such anomaly would not have been created, there will be no dispute

about the fact that the writ petitioners would have granted the pay scale of

Rs.15,600-39,100/- with grade pay of Rs.6600/- but it is the State authority

who have committed illegality in attaching the same pay scale to the post

of Principal Probation Officer as was with the post of Probation Officer and

when there is no laches on the part of the employees, they cannot be

made to suffer.

13. The learned Single Judge is right in making an observation that in

the policy decision, the writ Court in exercise of power of judicial review

seldom interferes but that proposition of law is to be tested on the facts

and circumstances of each case.

There is no dispute about this settled position of law that the power

of judicial review is least to be exercised but it is not that, it cannot be

exercised rather in a decision making process, if there is an error, certainly

the same will come under the fold of power of judicial review to be looked

into by the High Court exercising the power under Article 226 of the

Constitution of India.

14. At the risk of repetition, we are reiterating that when there are

laches on the part of the State authority in granting lesser pay scale to the

post of Principal Probation Officer and when it has been rectified, the

same will be effective from the original documents i.e. the original date of

implementation of 6th PRC because the decision of the authority is by way

of rectification in the decision of the Fitment Committee by adopting the

recommendation of the 6th PRC so far as the pay scale of Principal

Probation Officer is concerned and therefore, following the aforesaid

position of law that rectification always goes to the original document, so

far it relates to pay scale. We are of the view that the decision taken by the

authority making applicable the higher pay scale attached to the post of

Principal Probation Officer holding the writ petitioners entitled to get the

same w.e.f. 01.08.2012 cannot be said to be justified one and therefore,

we are of the considered view that the finding and decision of the learned

Single Judge in this regard cannot be said to be proper and sustainable in

the eye of law since without appreciating the issue in entirety as discussed

above and without considering the principle of effect of rectification, if

made, the order has been passed.

15. In view thereof, the order passed by the learned Single Judge is not

sustainable in the eyes of law.

16. Accordingly, the order dated 11.10.2018 is quashed and set aside.

17. In the result, the instant appeal stands allowed.

18. In consequence thereof, writ petition being W.P.(S) No.1308 of 2017

stands allowed with a direction upon the respondents to disburse the

consequential monetary benefit in favour of the writ petitioners within the

period of four months' from the date/receipt of copy of this order.

19. Pending Interlocutory Application(s), if any, stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

A.F.R.