Jharkhand High Court

Om Prakash Sinha vs The State Of Jharkhand on 19 March, 2021

                                1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       I.A. No. 47 of 2021
                                     In
                    W.P.(S) No. 3344 of 2014
     Om Prakash Sinha                              ..... Petitioner
                              Versus
     1. The State of Jharkhand.
     2. Principal Secretary, Animal Husbandry and Fisheries
        Department, Government of Jharkhand, Nepal House,
        P.O. Doranda, P.S. Doranda, District-Ranchi.
     3. Principal Secretary, Finance Department, Government of
        Jharkhand, Project Bhawan, P.O. Dhurwa, P.S.-
        Jagarnathpur, District-Ranchi.
     4. Deputy Secretary, Animal Husbandry and Fisheries
        Department, Government of Jharkhand, Nepal House,
        P.O.-Doranda, P.S.-Doranda, District-Ranchi.
     5. Accountant General, Jharkhand, Ranchi, P.O. & P.S.-
        Doranda, District-Ranchi.                 .....
        Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the State : Mr. Karan Shadeo, A.C. to S.C.-II

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14/Dated: 19th March, 2021 Heard learned counsel for the parties through V.C.

2. This interlocutory application has been preferred

by the petitioner for a direction upon the respondent-State to

issue notification for grant of the benefit of 6th Pay revision

and 7th Pay revision for the purpose of receiving pension in

the revised pay scale.

3. Learned counsel for the respondent-State does not have

any objection for the proposed amendment.

4. Looking to the statements made in this interlocutory

application, it transpires that the proposed amendment will

not affect the nature of this writ application; as such the same

is allowed.

5. Accordingly, I.A. No. 47 of 2021 stands disposed of.

6. Let the interlocutory application be taken as part and

parcel of the main writ application for future reference

W.P.(S) No. 3344 of 2014.

1. With the consent of the parties the main writ application

is taken up for hearing today.

2. Mr. Saurabh Shekhar, learned counsel for the petitioner

draws attention of this Court towards the order dated

11.09.2019 passed in this case which is quoted herein below:

"10/Dated: 11/09/2019

The petitioner has filed this writ petition for the following reliefs :-

(a) For issuance of appropriate writ(s)/order(s)/direction(s) directing the concerned respondents-authorities to forthwith fix the pay scale of the petitioner in the scale of Rs. 8000/-to Rs. 13500/- on the basis of recommendation of 5th Pay Revision Commission which has been implemented with effect from 01.01.1996 and the notional benefit has been directed to be given with effect from 15.11.2000 while the actual benefit has been directed to be given with effect from 01.03.2007, but instead thereof, the pay scale of the petitioner has not been revised and enhanced from Rs. 6500/- to Rs. 10,500/-.

(b) For issuance of further appropriate writ(s)/ order(s)/direction(s) directing the concerned respondents-authorities to forthwith release the entire arrears of difference of subsistence allowance on the basis of enhanced pay scale of Rs.8000/- to

Rs. 13500/- w.e.f. 15.11.2000 and the actual difference of arrears of salary may be directed to be given with effect from 01.03.2007 till date.

(c) For issuance of further appropriate writ(s)/order(s)/direction(s) directing the concerned respondents-authorities to pay subsistence allowance on the basis of fixation of his pay in the pay scale of Rs.8000/- to Rs. 13500/- instead of Rs. 6500/- to Rs. 10500/- and continue to pay the subsistence allowance on the basis of enhanced revised pay scale.

(d) For issuance of further appropriate writ(s)/ order(s)/direction(s) directing the concerned respondents-authorities to forthwith release the subsistence allowance alongwith 50% of Dearness Allowance pay by fixing his pay scale in the pay scale of Rs. 8000/-to Rs. 13500/- with effect from 01.04.2004.

(e) For issuance of further appropriate writ(s)/ order(s)/direction(s) directing the concerned respondents-authorities to forthwith release the House Rent Allowance on the basis of enhanced pay scale of Rs.8000/ Rs. 13500/- and to release arrears of difference of House Rent Allowance since the same is being paid on the basis of unrevised pay scale.

(f) Any other relief or reliefs as your Lordships may deem fit and proper for which the petitioner is very much entitled under the facts and circumstances of the case.

Now the petitioner has confined its prayer for the relief of sub-clause (d) of clause (1) of the relief portion, whereby prayer has been made for issuance of a direction upon the concerned respondents to forthwith release the subsistence allowance alongwith 50% of Dearness Allowance pay by fixing his pay scale in the pay scale of Rs. 8000-13500/-

with effect from 01.04.2004 although a criminal case is going on.

This writ application was filed on 09.07.2014.

A counter affidavit has been filed on behalf of respondent no.4 Deputy Secretary, Animal Husbandry & Fisheries Department, Govt. of Jharkhand dated 17.06.2015 bringing on record at para -9 that petitioner is an accused in the fodder scam case no. R.C.48(A)/96-PAT.

At para-10 it is stated that departmental proceeding was also initiated against the petitioner in 2004, but in accordance with the judgment passed by the Hon'ble Supreme Court on 30.03.1999 in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines & Another, the said department proceeding has been kept in abeyance till the disposal of the said criminal case.

A counter affidavit has also been filed on behalf of respondent no.3 Principal Secretary, Finance Department, Govt. of Jharkhand dated 06.09.2016, wherein at para 10 it is stated that the State of Jharkhand has decided to extend the benefit of 6thPay revision to its employees, as the petitioner was already under suspension and it is a settled principle of law, that a person under suspension is no extended the benefit of pay revision ( para-3 of resolution no. 660/f dated 08.02.1999).In the event of the suspension of the petitioner being revoked, he shall be extended the benefit of pay revision.

A counter affidavit has also been filed on behalf of respondent no.2 and 4 dated 25.11.2017 wherein at para-10 it is stated that during review of all matters of suspension since a long period due to involvement in fodder scam case, the said Departmental

Proceeding was re initiated vide departmental resolution memo no. 1628 dated 27.09.2016 but on the basis of report given by the conducting officer again on 17.01.2017 the departmental proceeding was re-initiated against the petitioner wherein he gave his opinion to keep in abeyance the said Departmental Proceeding till the disposal of the related criminal case being R.C. 48(A)/96-Pat. Meanwhile, petitioner was superannuated in January, 2018.

A counter affidavit has also been filed by respondent no.5 Accountant General, Jharkhand on 21.11.2014 wherein at para 8 it has been stated that the Deputy Secretary, Finance Department, Govt. of Jharkhand vide his letter no. 2217/vi dated 01.07.2009 has informed the office of the answering respondent that petitioner is not entitled to get the benefits of the merger of 50% of DA and his subsistence allowance and HRA will be fixed without merger of 50% of DA.

A supplementary counter affidavit has been filed by respondent no.2 dated 06.08.2019 wherein at para-8 it is stated that the matter of fixation of DA in accordance with the resolution no.1968 dated 02.06.2017 of Finance Department, Ranchi,which annexed as Annexure-12 to the supplementary affidavit dated 05.12.2017 filed on behalf of the petitioner, which reveals that vide Finance Department Resolution no.660 dated 28.02.2009 all the state government employees have been given the benefits of 6th pay commission w.e.f 01.01.2006 and vide Resolution no.217 dated 18.01.2017 the benefits of 7th pay commission have also been given to all the employees.

The resolution further reveals that the employees of Board, Corporation, State Government

Undertakings, Universities and after 5thpay revision, the suspended employees are getting the pay scale and DA on the basis of un- revised 5th pay revision. It is stated that from 01.07.2016 and 01.01.2017 they have been given DA @ 256% and 264% respective.

Further, at para-4 of the said resolution, it is stated that under the provision of Rule 34(A) of the Jharkhand Service Code the Dearness Allowance will be given on un-revised Basis Pay + Dearness Allowance.

Be that as it may, the respondent no.3 Principal Secretary, Finance Department, Government of Jharkhand, Ranchi is directed to take decision and file affidavit in this matter latest by 06.11.2019.

List this case on 06.11.2019.

Let a copy of this order be communicated to learned counsel for the respondent- State."

3. Pursuant to the aforesaid order, a counter-affidavit has

been filed by the respondent-State, which indicates that the

suspension of the petitioner was revoked and his pension has

been fixed.

4. Mr. Sauravh Shekhar, learned counsel further submits

that though the suspension of the petitioner was revoked from

the date of retirement and his pension has been fixed but the

same has not been fixed as per 6th and 7th pay revision for

which he was entitled. He further draws attention of this court

towards the representation filed by the petitioner which is