The State Of Jharkhand Through ... vs Arun Kumar Sinha
2021 Latest Caselaw 2587 Jhar

                               1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  L.P.A. No. 622 of 2018
                         With
                  I.A. No. 4963 of 2020
                         With
                  I.A. No. 5802 of 2020

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1.The State of Jharkhand through Secretary, Department of Revenue and Land Reforms, Government of Jharkhand, Project Building, P.O & P.S. Dhurwa, District

- Ranchi.

2.The Deputy Commissioner, Deoghar, P.O & P.S. and District - Deoghar.

3.The Sub Divisional Officer, Deoghar, P.O & P.S. and District - Deoghar.

4.The Circle Officer, Deoghar, P.O & P.S. and District - Deoghar ... ... Respondents/Appellants

Versus

1.Arun Kumar Sinha, S/o Late Laxmi Narayan Prasad, resident of Village and P.O. Rohini, P.S. Jasidih, District - Deoghar.

2.Mithilesh Kumar Singh, S/o Bholanath Singh, resident of Hansimalahi, P.O Hansikewal, P.S. Vaishali, P.S. and District- Vaishali, Bihar, present residing at Mahavir Colony, P.O. Satsang, P.S. Deoghar, District - Deoghar.

3.Anant Narayan Tiwari, S/o Radheyshyam Tiwari, resident of Village - Koridih, P.O.: Lakhoriya, P.S. Sarwan, District - Deoghar.

4.(A)Chhavi Pandey @ Chabi Pandey @ Chhabi Pandey, widow of Resp. no. 4 (B)Krishna Dubey, (Married) (C)Chandan Pandey @ Chandan Kumar Pandey, Son (D)Nandan Pandey @ Nandan Kumar Pande, Son

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

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For the Appellants : Ms. Vandana Singh, Sr. S.C. III For the Respondents : Mr. Rupesh Singh, Advocate.

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C.A.V on 09.02.2021 Pronounced on 28/07/2021 Per Sujit Narayan Prasad, J.:

With consent of the parties, hearing of the matter

was done through video conferencing and there was no

complaint whatsoever regarding audio and visual quality.

I.A. No. 4963 of 2020

2. This Interlocutory Application has been filed on

behalf of the respondents for substitution of respondent

no. 4-Vyas Deo Pandey @ Vyas Dev Pandey who is stated

to have died on 03.07.2019 during pendency of the

instant appeal.

3. From perusal of record, it appears for the self-same

prayer, earlier I.A. No. 4889 of 2020 was filed by the

respondents, which was allowed vide order 21.09.2020

and the name of respondent no. 4- Vyas Deo Pandey @

Vyas Dev Pandey was directed to be expunged from the

array of respondents and his heirs and legal

representatives, as described in paragraph 6 of the

substitution petition, were directed to be substituted in

his place.

4. In compliance thereof, name of respondent no. 4

has been expunged and in his place his legal heirs have

been substituted, as such the present Interlocutory

Application has become infructuous.

5. Accordingly, I.A. No. 4963 of 2020 stands disposed

of.

I.A. No. 5802 of 2020

6. This Interlocutory Application has been filed on

behalf of the appellants-State seeking leave of this Court

to file supplementary affidavit bringing on record certain

documents.

7. Learned counsel for the appellants-State submitted

that certain resolutions, letters and orders related to the

pay-scales, revised pay-scales, time bound promotion and

Assured Career Progression of the respondents-writ

petitioners are required to be brought on record for better

appreciation of the case at hand as the same are

corresponding rules, regulations related to the service

condition of the respondents-writ petitioners.

8. Learned counsel for the respondents-writ

petitioners though have filed reply to the supplementary

affidavit filed by the respondents-appellants but does not

raised serious objection to the prayer made by learned

counsel for the respondents-appellants.

9. In view of the submissions advanced by learned

counsel for the parties and to meet the ends of justice,

the instant Interlocutory Application is allowed and the

supplementary affidavit filed on behalf of the appellants-

State, annexing therewith certain documents, is

permitted to be part of memo of appeal.

10. Accordingly, I.A. No. 5802 of 2020 stands allowed.

L.P.A. No. 622 of 2018

11. This intra-court appeal is preferred against the

order/judgment dated 14.05.2018 passed by learned

Single Judge in W.P. (S) No. 2191 of 2007, whereby and

whereunder the writ Court while allowing the writ petition

quashed the decision of the authority, as contained in

Memo No. 297 dated 01.04.2005, pertaining to wrong

fixation of pay-scale and grant of benefits of up-gradation

in pay-scale by way of Assured Career Progression (in

short 'ACP') Scheme on the reduced pay-scale; and

respondents-authorities were directed to pass appropriate

order for placing the writ petitioners in the pay-scale of

Rs. 4000- 6000 w.e.f. 01.01.1996 and accordingly grant

Time Bound Promotion/Assured Career Progression

within a stipulated period of time.

12. The brief facts of the case, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

Writ petitioners were appointed as Copying

Clerk/Remunerative Nakal Navis/Pratilipik Lipik under

the respondents-State. The services of the writ petitioner

nos.1 to 3 were absorbed w.e.f. 08.07.1980 vide Memo

No. 1381 dated 08.07.1980, whereby it was resolved that

after taking over the services of the writ petitioners they

will be governed by the same service condition as those of

Class III employees of the State Government whereas writ

petitioner no. 4 was appointed as Copying Clerk under

Deoghar Collectorate on 03.05.1982 i.e. after the State

government had taken over the services of the Copying

Clerk vide Memo No. 1381 dated 08.07.1980 and were

granted pay-scale of Rs. 535-765 under 4th Pay Revision.

Thereafter, all the writ petitioners were granted pay-scale

of Rs. 975-1540 under 5th Pay Revision, however, the

Government in order to remove/rectify certain anomalies

in the 5th Pay Revision constituted a Pay Anomaly

Removal Committee, which gave its

report/recommendation for up-gradation of the pay-scale

of the writ petitioner from Rs. 975-1540 to Rs. 1200-

1800, as alleged by the writ petitioners, but the same was

not extended to them.

It is the case of the writ petitioners that though the

writ petitioners were entitled to get higher pay-scale of Rs.

1200-1800 under 5th Pay Revision in the light of

recommendation of Pay Anomaly Removal Committee, but

they were wrongly given pay-scale of Rs. 3200-4900

under 6th pay revision, being replacement of pay-scale of

Rs. 975-1540, w.e.f. 01.01.1996.

It is further the case of the writ petitioner that the

respondent no. 2 further reduced the pay-scale of the writ

petitioners from 3200-4900 to 3050 to 4590, while

granting benefits under Assured Career Progression

Scheme vide Memo No. 297 dated 01.04.2005.

It is further case of the writ petitioners that

respondents-authorities had not granted Time Bound

Promotions to the writ petitioners from the date of their

entitlement rather from the later date and further wrongly

fixed their pay-scales in spite of replacement of their pay-

scale from 975-1540 to 1200-1800 by the Pay Revision

Anomaly Removal Committee.

Being aggrieved by the decision of the authorities of

wrong fixation of pay-scale, the writ petitioners submitted

representation before the respondents-authorities but

having no effect, they filed writ petition invoking the writ

jurisdiction of this Court under Article 226 of the

Constitution of India.

The claim the writ petitioners before the writ Court

was that they are entitled to get pay-scale of Rs. 4000-

6000 under 6th pay revision in the light of

recommendation of the Pay Revision Anomaly Removal

Committee. It was further submitted that in the light of

recommendation of Pay Revision Anomaly Removal

Committee, the writ petitioners were entitled to get pay-

scale of Rs. 1200-1800 w.e.f. 01.03.1989, being up-

graded pay-scale of Rs. 975-1540 granted under 5th pay

revision.

The respondents-State appeared and contested the

case by filing counter affidavit taking inter alia the plea

that the writ petitioners were working on remuneration

basis before 08.07.1980 and prior to that they were not

the Government servant. They were declared Government

servant vide Memo No. 1381 dated 08.07.1980 of

Revenue and Land Reforms Department, Government of

Bihar and after 08.07.1980 they were taken under

regular government establishment and pursuant thereto

they were made entitled to get all the benefits granted to

the Government employees.

It has further been submitted that in the light of

Sankalp as contained Memo No. 2714 dated 21.09.2007,

the pay of the writ petitioners were revised and they were

given all benefits to which they were entitled to. It was

further averred that services of the writ petitioners is

counted from 08.07.1980, the date when they were taken

under regular Government establishment and prior to the

said period they were working as commission holder

employee and not as regular Government employee, as

such the claim of the writ petitioners to treat them

regular government employee before 08.07.1980 is

against the decision of the Government as contained in

Memo No. 1381 dated 08.07.1980.

The writ Court, after taking into consideration the

factual aspect and submission advanced on behalf of

parties allowed the writ petition by holding the writ

petitioners entitle to get pay-scale of Rs. 4000-6000 w.e.f.

01.01.1996 and directed the State-authorities to pass

appropriate order for grant of benefit under Time Bound

Promotion/Assured Career Progression in accordance

with law, which is the subject matter of instant intra-

court appeal.

13. Ms. Vandana Singh, learned Sr. S.C. III, appearing

for the appellants-State has submitted that there is no

illegality in the pay-scale of the writ petitioners as they

were getting the pay-scale of Rs. 975-1540 i.e. the pay-

scale attached to the post of Remunerative Copyist, which

was subsequently revised by pay-scale of Rs. 3200-

4900/-, therefore, it is not a case of anomaly occurred in

the pay-scale, but the learned Single Judge without

appreciating these aspects of the matter has directed to

fix the pay-scale of the writ petitioners in the pay-scale of

Rs. 4000-6000/- (pre-revised pay scale of Rs. 1200-

1800), considering the writ petitioners to be the holder of

post of Lower Division Clerk (in short 'LDC') but actually

the writ petitioners were holders of the post of

Remunerative Copyist.

14. Mr. Rupesh Singh, learned counsel for the

respondents-writ petitioners has submitted by referring to

Annexure 1 to the writ petition that vide Memo No. 1381

dated 08.07.1980, the writ petitioners were directed to be

absorbed under regular establishment by granting them

the pay-scale at par with the LDC working under Muffasil

Office in the pay-scale of Rs. 220-315, therefore, whatever

pay-scale which was fixed for the cadre of Lower Division

Clerk, the writ petitioners are entitled to and by virtue of

same, the replacement scale of Rs. 220-315 will be Rs.

1200-1800/-, corresponding to Rs. 4000-6000/- w.e.f.

01.01.1996, which the learned Single Judge has directed

to extend to the writ petitioners, hence, the order passed

by the learned Single Judge suffers from no infirmity.

15. In response to such submission, Ms. Vandana

Singh, learned Sr. S.C. III, learned counsel appearing for

the appellants-State, drawing attention of this Court

towards Annexure A/4 to the supplementary counter

affidavit dated 07.11.2020 has submitted that by virtue of

Resolution No. 660 dated 08.02.1999, by which

recommendation of 4th pay revision was extended, the

writ petitioners were entitled to get the existing pay-scale

i.e. the pay-scale of Rs. 975-1540 and since according to

her, the writ petitioners, vide Memo No. 1381 dated

08.07.1980 were granted pay-scale attached to the post of

LDC working in the Muffasil office, they were rightly

granted pay-scale of Rs. 975-1540. It has further been

submitted that it would be evident from Memo No. 1381

dated 08.07.1980 that the writ petitioners were working

as Typists and Copyists and granted pay-scale attached

to LDC working in Muffasil Office, therefore, according to

her they were treated to be working as Copyist and typist

and only pay-scale attached to the post LDC working in

Muffasil Office was made admissible to them i.e. in the

pay-scale of Rs. 220-315 but that does not mean that for

all time they would be entitled to get the pay-scale of LDC

rather as per resolution dated 08.02.1999, which

contains the pay-scale of Rs. 975-1540, the pay-scale of

Remunerative Clerk will be admissible to them.

According to her, the pay-scale which the writ

petitioners were getting on the basis of Resolution dated

08.02.1999 has been taken care of in Resolution No.

3435 dated 08.06.1999 issued by the Finance

Department, Government of Bihar, wherein also existing

pay-scale for the post of Remunerative Copyist at serial

no. 6(i) of the Schedule 1 has been mentioned as 975-

1540/- and revised pay-scale has been mentioned as Rs.

3050-4590 and since Resolution dated 08.06.1999 has

taken care of Resolution dated 08.02.1999, and further

Resolution dated 08.06.1999 being subsequent to the

Resolution dated 08.02.1999, the writ petitioners cannot

base his claim on the basis of the Resolution dated

08.02.1999 and further according to her Resolution dated

08.06.1999 has never been assailed by the writ

petitioner, hence they now cannot claim pay-scale of Rs.

1200-1800 (pre-revised pay-scale of Rs. 4000-6000).

According to learned counsel, the learned Single Judge

without appreciating these aspects of the matter has

passed the impugned order, which is not sustainable in

the eyes of law.

Learned counsel for the State has further

submitted that as per the pleadings made in the writ

petition and the submissions advanced by learned

counsel for the writ petitioners, as recorded by learned

Single Judge in the impugned order, the whole case of the

writ petitioners is based upon the recommendation of the

Pay Anomaly Removal Committee whereby the writ

petitioners have claimed that their pay-scale was up-

graded to the pay-scale of Rs. 1200-1800 but the same is

not related with the pay-scale of the writ petitioners,

therefore, the impugned order suffers from error.

16. We have heard learned counsel for the parties and

perused the record as also the finding recorded by

learned Single Judge in the impugned order.

The admitted facts herein are that the writ

petitioners, who were working as Typists and Copyists on

remuneration basis, were taken over by the Government

vide Resolution as contained in Memo No. 1381 dated

08.07.1980, whereby it was decided to declare the writ

petitioners and other similarly situated persons as

Government Servant entitling them all service condition

as of Class III employees of the State Government and

further they were made entitled to get the pay-scale of

Rs.220-315 similar to the pay-scale of LDC working in

Muffasil office.

The writ petitioners had accepted the aforesaid offer

of appointment and reported to duty on the pay-scale of

Rs. 220-315, which by virtue of recommendation of 4th

pay commission was revised in the pay-scale of Rs. 975-

1540/- and thereafter under 5th pay revision, his pay-

scale was revised to the pay-scale of Rs. 3050 - 4590 and

after rectification vide Memo No. 2714 dated 21.09.2007

of Finance Department, Government of Jharkhand, it was

enhanced to the pay-scale Rs. 3200- 4900.

17. It was the specific case of the writ petitioner before

the writ Court that in order to remove certain anomaly in

the pay fixation of some cadre of employees, a Pay

Anomaly Committee was constituted which gave its

recommendation, which accepted vide Resolution No.

6932 dated 18.12.1995 whereby the pay-scale of the writ

petitioner was enhanced from Rs. 975-1540 to Rs. 1200-

1800.

In this regard, this Court during course of hearing

vide order dated 16.06.2020 made a specific query as to

whether the recommendation of Pay Anomaly Removal

Committee was accepted and implemented by the State or

not.

Relevant portion of order dated 16.06.2020 is

reproduced herein below:

"Let the State-appellants answer the query raised by this Court as to whether the recommendation of Pay Anomaly Removal Committee was accepted and implemented by the State or not.

The Writ Court has observed in para-2 of the impugned judgment that the recommendation of Pay Anomaly Removal Committee was not implemented and subsequently the pay was wrongly fixed in the pay-scale of Rs. 3200-4900/-.

In such a situation, in our view the State would have to explain as to why the Pay Anomaly Removal Committee Report was not accepted or whether it was accepted for some other employees and claim of writ

petitioners was rejected or the same was not accepted in toto.

As prayed on behalf of the State, put up on 07.07.2020."

In compliance thereto, the appellants-State filed

supplementary affidavit dated 09.07.2020, in which, at

paragraph 5 it has specifically been stated that "....the

recommendation in relation to remunerative copyist (as

contained in annexure -2) was never implemented by the

State Government. In fact, the State allowed the pay-scale

of 3200-4900 to Remunerative Copyist vide Memo No.

2714 dated 21.09.2007. ...".

At paragraph 6 of the supplementary affidavit, it

has been reiterated that "the recommendation of Pay

Anomaly Committee was not accepted by the State

Government with respect to remunerative copyist...".

In view of the specific reply made by the appellants-

State in the supplementary affidavit, which has not

properly been discarded either by filing reply to

supplementary affidavit or making specific submission in

this regard and further on perusal of Resolution No. 6932

dated 18.12.1995, it appears that it is not related with

the writ petitioners.

18. The appellants-State has placed reliance on

Resolution no. 3435 dated 08.06.1999 wherein it has

been stated that the State Government had notified the

revised pay-scales of the employee vide Finance

Department's Resolution No. 660 dated 08.02.1999,

however, the matter of the pay-scale of certain categories

of employees was sent back to the Fitment Committee for

re-consideration. The Fitment Committee reviewed the

matter and suggested no change in the pay-scales already

recommended. Further in the said Resolution, the

existing pay-scale of the remunerative Copyist falling at

serial no. 6(1) at Schedule 1 has been shown to be 975-

1540 and revised pay-scale has been shown to be Rs.

3050-4590/-.

However, on grievance being raised by some set of

employees regarding their pay-scale, a Fitment Appellate

Committee was constituted, who after consideration

submitted its report/recommendation which was

implemented by the Department of Finance, Government

of Jharkhand vide Resolution no. 2714 dated 21.09.2007,

wherein for the post of Remunerative Copyists of the

Revenue and Land Reforms Department as mentioned at

serial no. 51, in which cadre the writ petitioners fall, pay-

scale has been enhanced from Rs. 3050-4590 to Rs.

3200-4900.

From perusal of Memo No. 640 dated 11.09.2009,

Annexure SA/A7 to the supplementary affidavit filed by

the appellants, it further appears that benefits of ACPs

have been extended to the writ petitioners, which they

have accepted and now they have already retired from

services.

19. From the pleadings made in the writ petition as well

as before this Court, it appears that the writ petitioners

have never challenged the recommendation of Fitment

Appellate Committee, basing upon which his pay has

been fixed in the pay-scale of Rs. 3200-4900 and they

were extended benefits under ACP Scheme.

20. Now coming to the question which has been raised

by learned counsel for the writ petitioner that they are

entitled to pay-scale at par with the LDC working under

the establishment of the Muffasil Office since as per

Memo No. 1381 dated 08.07.1980, Annexure 1 to the writ

petition, they were granted pay-scale of Rs. 220-315 at

par with the LDC working in the Muffasil Office and,

therefore, according to writ petitioners they are entitled to

get pay-scale which is admissible to the LDC working

under Muffasil Office.

We find no substance in his argument as the

decision of the State Government as contained in Memo

dated 1381 dated 08.07.1980 does not reflect that the

writ petitioners have ever been absorbed under the

establishment of the Muffasil Office rather they were

granted pay-scale attached to the post of LDC working

under the Muffasil Office. Further, it is evident that such

decision was taken to treat the writ petitioners and

similarly situated persons as Class III employee and pay-

scale admissible to them was of the LDC working in

Muffasil Office.

There cannot be any dispute that if government is

absorbing the services of one or the other employees in

any of the establishments there must be a specific

decision to that effect. If an employee is given pay-scale at

par with employees working under a particular

establishment it does not mean that such employee

would be treated to be the employee of the said

establishment as is being claimed by the writ petitioners.

Since merely because pay-scale of Rs. 220-315, which is

admissible to the LDC working under Muffasil Office was

given to the writ petitioners, they would not be treated to

be an employee of the Mufassil Office entitling them to get

the pay-scale of Rs. 1200-1800 in place of Rs. 975-1540.

Further, on plain reading of the decision of the

State Government as contained in Memo No. 1381 dated

08.07.1980, it appears that since there is no stipulation

of absorbing the services of the writ petitioner in the

Muffasil Office, the writ petitioner cannot be held entitled

to get the pay-scale attached to the post of LDC of the

Muffasil office in next pay-revision rather they would be

entitled to get the pay-scale of Remunerative Copyist, the

post on which they were working.

21. The writ petitioners have further claimed that once

the pay-scale of Rs. 220-315 was extended to them there

cannot be reduction in the pay-scale on the basis of

acceptance of recommendation of 5th pay revision with

effect from 01.01.1996.

But the question is that when the recommendation

of 5th pay commission has come and further to rectify the

anomaly in the pay-scale, a Pay Anomaly Removal

Committee was constituted which submitted its

recommendation and the said recommendation has never

been accepted by the State Government, so far the pay-

scale of the writ petitioners is concerned and further the

Fitment Appellate Committee revised the pay-scale of the

writ from Rs. 3050-4590 to Rs. 3200-4900, which was

never questioned by the writ petitioners, can the Writ

Court interfere with the impugned decision of the State-

authorities.

It is admitted fact as would be evident from

impugned order that non-acceptance of the

recommendation of Pay Anomaly Removal Committee and

recommendation of the Fitment Appellate Committee,

which was accepted by the State vide Sankalp dated

21.09.2007, have never been challenged by the writ

petitioners.

22. The question further would be that when there is

conscious decision of the State Government not accepting

the recommendation of the Pay Anomaly Removal

Committee, so far the pay-scale of these writ petitioners

are concerned, and further the Fitment Appellate

Committee recommendation for extending the pay-scale

of Rs. 3200-4900 to the writ petitioners, having not been

questioned before any appropriate forum, the writ

petitioners can claim the pay-scale contrary to the said

decisions of the State.

It is settled position of law that in the matter of

fixation of pay-scale the decision of expert bodies like the

Pay Commission is not ordinarily subject to judicial

review obviously because pay fixation is an exercise

requiring going into various aspects of the posts held in

various services and nature of the duties of the

employees.

Reference in this regard be made to the case

rendered by Hon'ble Apex Court in State of U.P. and Ors

vs. U.P. Sales Tax Officers Grade II Association

[(2003) 6 SCC 250, wherein at paragraph 11 it has been

held that there can be no denial of the legal position that

decision of expert bodies like the Pay Commission is not

ordinarily subject to judicial review obviously because pay

fixation is an exercise requiring going into various aspects

of the posts held in various services and nature of the

duties of the employees.

23. This Court has proceeded on the premise of the

settled legal position, as referred above and taking into

consideration the admitted fact that the writ petitioners

have neither questioned the recommendation of the Pay

Anomaly Removal Committee nor the recommendation

made by Fitment Appellate Committee, they cannot claim

such benefit by invoking writ jurisdiction of this Court

under Article 226 of the Constitution of India in exercise

of power of judicial review.

We have gone through the order passed by the

learned Single Judge and found therefrom that although

learned Single Judge has made reference in the impugned

order about recommendation of Pay Anomaly Removal

Committee by observing that Pay Anomaly Removal

Committee submitted its recommendation for absorption

of the pay of the writ petitioners from the pay-scale of Rs.

975-1540 to the pay-scale of Rs. 1200-1800 but the

recommendation of the pay anomaly removal committee

was not implemented, even then the learned Single

Judge, without giving thoughtful consideration to the

facts narrated above, proceeded in wrong direction and

quashed the impugned decisions and directed the

respondents-State to pass appropriate order to place the

writ petitioners in the scale of Rs. 4000-6000 w.e.f.

01.01.1996 and accordingly grant Time Bound

Promotion/ACP, which according to us cannot be said to

be justified on the basis of discussions, made herein

above.

24. We, on the basis of entirety of the facts and

circumstances of the case and case law referred herein

above, are of the view that the order passed by the

learned Single Judge suffers from infirmity and is,

accordingly, quashed and set aside.

25. Accordingly, the present intra-court appeal is

allowed.

26. In the result, the writ petition stands dismissed.

(Dr. Ravi Ranjan, C.J.)

I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)

Alankar/ -

A.F.R.