Jharkhand High Court
Krishna Bihari Prasad vs State Of Jharkhand on 9 March, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1876 of 2009
1. Krishna Bihari Prasad
2. Chhatradhari Singh
3. Arbind Kumar
4. Ashok Mishra
5. Mudrika Devi, W/o Late Shiv Shankar Prasad Verma
6. Mundrika Bhuiya ..... Petitioners
Versus
1. State of Jharkhand
2. Secretary Finance, Govt. of Jharkhand, Ranchi.
3. Secretary, Human Resources Development Department,
Govt. of Jharkhand, Ranchi
4. Director Primary Education, Govt. of Jharkhand, Ranchi
5. Director Primary Education, Govt. of Jharkhand, Ranchi
6. Deputy Commissioner, Giridih
7. District Education Officer, Giridih
8. Treasury Officer, Giridih ..... Respondents
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CORAM: HON'BLE MR. JUSTICEDEEPAK ROSHAN
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For the Petitioners : Mr. Abhijeet Kr. Singh, Advocate
For the Respondents : Mr. Ashok Kr. Yadav, Advocate
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23/ 09.03.2021 Heard Mr. Abhijeet Kumar Singh, learned counsel
for the petitioners and Mr. Ashok Kumar Yadav, learned counsel for
the respondent State through V.C.
2. The instant writ application has been preferred for
following reliefs:
I) For direction upon respondents to pay the salary
for the period since 16.05.2001 to 05.02.2008, as same
has not been paid without any rhyme and reason and
further this issue has been settled by and order of this
Hon'ble Court dated 12.11.2008 in W.P.(S) No.834 /
2005,
II) For direction upon respondent No.2 to grant pay
scale of 4000-6000 to petitioner no. 1 to 4 and grant
of the pay protection as per the cabinet decision dated
30.05.2007 (Annexure-1) and also for the reason that
the counter parts of the petitioner has been granted the
same pay scale vide letter no.-1129 dated 04.07.2006
(Annexure-6) and further for the reason that the
colleague of petitioner absorbed/regularized/adjusted in
different department of State of Jharkhand has been
paid pay scale of 4000-6000.
III) Further for direction upon the respondent no.-2
to allow to continue in old scheme of G.P.F. as well as
pension scheme as per letter of the State Government
dated 21.02.2009 (Annexure-5) and further their
counter parts in State of Bihar and other employees had
been continued in the same scheme.
IV) For further direction upon respondent no.2 to
release the current salary forthwith as salary has not
been released since petitioner had been on the verge of
starvation and there is no valid reason to withheld the
salary of petitioner without any rhyme and reason.
3. Mr. Abhijeet Kumar Singh, learned counsel for the
petitioners submits that during pendency of this writ application
prayer No.1 has already been considered and he confines his
argument only with regard to prayer No.2 i.e. for a direction to grant
pay scale of Rs.4000-6000/- to the petitioners and also for pay
protection as per Cabinet decision on 30.05.2007.
He further submits that in view of the Full Bench
judgment the issue has already been decided that the petitioners are
not entitled for pay protection but pay and pay protection are not
same and similar and the Full Bench has only said with respect to
pay protection; as such the petitioners are entitled for difference of
pay because initially he was appointed for Rs.4000-6000/- whereas
appointment letter has been issued showing the pay scale of 3050-
4590; as such the respondents may be directed to reconsider the case
of the petitioners in the light of several judgments.
4. Mr. Ashok Kumar Yadav, learned counsel for the State
submits that there is no illegality in the action of the Government. He
further referred to the supplementary counter affidavit dated
18.12.2020; relevant paragraphs 5, 8, 9 and 13 are quoted herein
below:
"5. That is stated and submitted that after closure of
Adult/Non-Formal Education dated 15.05.2001, the
employees working therein became surplus w.e.f.
16.05.2001.
8. That it is stated and submitted that the matter
for grant of pay scale admissible to the surplus employees
of Adult and Non-Formal Education have already been
decided by the Jharkhand Cabinet. From perusal of
Sl.No.02 of Para 07 of the "Sanlekh" issued vide memo no.
[email protected] 1&[email protected]&2028 dated 12 fnlEcj] 2007 it has been
decided that pay scale of Clerks posted in upgraded +2
high schools shall be Rs.3050-4590/- under Human
Resources Development Department.
"9. That it is stated submitted that similarly situated
matter has also been decided by the full bench of the
Hon'ble High Court in W.P.(S) NO.4110 of 2013, in the
matter of Bhola Nath Hansda @ Bhola Hansda along with
several other writ petitions on dated 02.05.2017 and the
Hon'ble High Court has passed the order which is stated
hereunder:
"The foregoing discussions therefore makes it
clear that past services of these
petitioners/employees were under the centrally
sponsored scheme known as Adult Education/Non-
formal Education/Mass Education Project which
was abolished w.e.f. 1.4.2001 by the Central
Government and consequently w.e.f. 15.5.2001 by the
Government of Jharkhand. Appointment of these
petitioners/employees under such a scheme/project
therefore, cannot be treated as under regular
establishment of the Government on a permanent
and substantive post. Moreover, their pay and
allowances were borne by the grant-in-aid released
by the Central Government from time to time. That
is the reason why their services were treated as
surplus once the Central Government closed the
scheme w.e.f. 1.4.2001. Petitioners have failed to
controvert the aforesaid position on facts.
13. That it is stated that a similar matter has also
been finally decided by Hon'ble Apex court in Civil
Appeal No.505-531 of 2020 in the matter of Parmeshwar
Nanda etc vs. State of Jharkhand through Chief Secretary
and Others on 07.02.2020 that "it is the policy decision of
the department to treat them as fresh appointments
without any benefit of seniority and pay protection.
Therefore, to count the period when appellants were
working under a Project as pensionable service is beyond
comprehension. The appellants have been appointed as
fresh candidates and therefore, their period of service for
pension has to be calculated from the date of their regular
appointment and therefore they cannot get any benefit of
past service rendered by them.
Therefore, the issue has finally been decided by
the Hon'ble Apex Court."
5. Mr. Yadav, further submits that it is true that Annexure-1
was issued for absorption of all those employees at the scale of
Rs.4000-6000/- for the post of Clerk-cum-Accountant. However,
since no post was vacant/created and the petitioners were either
appointed on the post of Clerk or on the post of Accountant because
none of the post of Clerk-cum-Accountant was vacant though
initially it was proposed; as such all the petitioners were absorbed
either on the post of Clerk or on the post of Accountant. In this view
of the matter, the pay scale of Clerk and/or Accountant cannot be
increased or enhanced only for the petitioner. He further submits that
in similar matter this Court did not interfere with regard to pay scale.
6. Relying upon the aforesaid facts and the judgments
passed by the Full Bench and upheld by the Hon'ble Apex Court,
learned counsel for the State submits that the instant writ application
does not deserve to be entertained.
7. Having heard learned counsel for the parties and after
going through several documents annexed with the respective
affidavits and the averments made therein it appears that now the
issue of pay protection has already been settled. Further, in the case
of similarly situated persons in the case of Sanjay Kumar and others
versus State of Jharkhand and others [(W.P.(S) No.2010 of 2011] this
Court has held that the reappointment/reengagement of the
petitioners on the post of Clerk and pay scale of Clerk at that time
was Rs.3050-4590 instead of Rs.4000-6000/- as such up-gradation of
their salary structure is not valid.
However, one person in whose case the reasoned order has
been passed has also challenged before this Court as such; interest of
justice would be sufficed if the petitioner get a chance in future;
meaning thereby to say that if in the case of similarly situated person
any order comes by this Court or any pursuant decision is taken by
the Government, then the petitioners may raise their demand afresh
before the concerned respondent and the respondents shall decide
the issue without raising any objection with regard to delay and
laches.
8. With the aforesaid observation, the instant writ
application stands disposed of.
(Deepak Roshan, J.)
Pramanik/
