Jharkhand High Court

Dr. Nawal Kishore Prasad vs The State Of Jharkhand Through ... on 23 June, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

                                                                         2013:JHHC:13731

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 5329 of 2007
                                        .........

Dr. Nawal Kishore Prasad, Son of Late Rameshwar Dayal, permanent resident of Mohalla Moghalkuan, P.S. Biharsharif, P.O. Soh-Sahai, District-Nalanda at Present resident of Plot No. A-26, Akanksha Enclave, Tetartoli, P.O. R.M.C.H, P.S. Bariatu, Harihar Singh Road, Ranchi-834009.

..... Petitioner Versus

1. The State of Jharkhand through Secretary-cum- Commissioner, Department of Health, Government of Jharkhand, Ranchi.

2. Principal, Rajendra Medical College, now Rajendra Institute of Medical Sciences, Bariatu, Ranchi.

3. Director-in-Chief, Health Services, Jharkhand, Ranchi.

4. District Provident Fund Officer, Ranchi.

5. Treasury Officer, Ranchi.

6. State of Bihar through Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna.

7. Director-in-Chief, Health Services, Government of Bihar, Department of Health, Patna. ..... Respondents .........

 CORAM:             HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                        .......
          For the Petitioner                        : Mr. Prabhash Kumar, Adv
                                                      Mr. Manish Sharma, Adv
          For the Res.-State                        : Mr. Ranjan Kumar, A.C.to Sr. S.C.-I
          For the State of Bihar                    : Mr. Binit Chandra, Advocate
                                                    .........
C.A.V. ON 01/05/2025                                PRONOUNCED ON:23/06/2025
           Heard learned counsel for the parties.

2. The instant writ application was initially preferred by the petitioner for the following reliefs: -

(A) Rule Nisi for issuance of a Writ or a Writ in the nature of a Writ of Certiorari for quashing letter No. May-1-46/04/242(3), Patna dt., 24.3.2005 issued under the signature of under Secretary, Deptt. of Health, Govt. of Bihar, Patna whereby the petitioner representation which was filed in the light of this Hon'ble Court's Order dt. 1.10.2004 passed in

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W.P.(S) 5339 of 2004 for fixation of his pay in the scale of Rs. 14,300 to 18,300 w.e. f. 01.01.96 (Petitioner having been superannuated on 31.7.99) was rejected on the ground that the Bihar Health Education Service has been completly bifurcated from the Bihar Health Service vide Notification No.4162 (17) P dt. 24/05/1997Clause - 6 and therefore the promotion granted to the petitioner is not maintainable in the Bihar Health Education Service and accordingly the petitioner is not an Officer of the Bihar Health Education Cadre and therefore the representation was rejected.

(B) Rule Nisi for issuance of a Writ or a Writ of or in the nature of a Writ of Certiorari for quashing Memo No. 38(3) dt. 16.1.2006 issued under the signature of Secretary, Deptt. of Health, Govt. of Bihar, Patna whereby the review petition filed by the petitioner against the order dt. 24.3.2005 passed by Under Secretary, Health, Patna for fixing petitioner's pay in the Pay Scale of Rs. 14,300 18,300 was again rejected on the ground that the petitioner has not filed any objection while he was posted as Medical Officer in the Non-teaching Cadre.

(c) RULE NISI for issuance of an appropriate writ of or in the nature of a writ Mandamus directing and commanding upon the Respondents concerned to immediately and forthwith fix up the petitioner's pay in the revised pay scale of Rs. 14,300/- to 18,300/-with effect from 1.1.1996 as per the recommendation made by the Vth Pay Revision Committee and subsequent to that to pay all arrears/ difference of salary till the date of petitioner's superannuation i,e, uptill 31.7.1999 AND further to fix up petitioner's pension on the basis of pay fixed in the revised pay scale of Rs. 14,300/- to 18,300/- and last pay drawn in the month of July 1999 and to pay all arrear/differences of pension, and other post retiral benefits on the basis of revised pay scale and to pay interest @ 15% per annum on such lawful and legal dues;

D) Rule Nisi for issuance of an appropriate writ or a writ of or in the nature of a writ of Mandamus commanding and directing upon the Respondents to immediately and forthwith release and pay to the petitioner the entire amounts towards full pension, General Provident, Fund, unutilized leave encashment, Gratuity and other lawful and legal post retiral dues in the revised pay scale of Rs. 14,300/- to 18,300/- as on 31.7.99 and fixed w.e.f. 1.1.1996, for commutation of pension in revised pension AND to pay interest to the petitioner at the rate of 15% per annum on all the dues to which petitioner is lawfully and legally entitled and to pay costs of this litigation;

E) Rule Nisi for issuance of an appropriate writ or a writ of or in the nature of a writ of writ/order/direction to lay bare and explain before this Hon'ble Court as to how and under what circumstances the respondents have fixed up the petitioner's pay in the pay scale of Rs. 6500/- to 10500/- and at basic pay at Rs. 10,700/- as on 31.7.1999 on account of the fact that petitioner had joined the Bihar Health Service in Class-II post on 28.09.1966 and he was granted two promotion during his service tenure and he is entitled for his pay fixation in the pay scale of Rs.14,300/- to 18,300/- as on 1.1.1996.

3. During pendency of this application, the Petitioner has also challenged the notification no.144(3) dated 3.3.2005 issued under the signature of Deputy Secretary Department of Health, Govt. of Bihar, Patna; whereby 1098 posts of Deputy Superintendents and of equivalent Cadre in Non Teaching Cadre

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of Bihar Health Services, Patna in the pay scale of Rs.10,000/- to 15,200/- was sanctioned with retrospective effect from 1.1.1996 and clause 3 of the said Notification contains the name of those Doctors who are not entitled to the pay scale of Rs.10,000/--15,200/- and name of this Petitioner does not appear in the said list.

4. The brief facts of the case as per the pleadings are that the petitioner joined the Bihar Health Service in Class-II with effect from 28.09.1966 which was confirmed with effect from 14.07.1974. The petitioner was granted promotion on Junior Selection Grade with effect from 01.04.1980 and in Senior Selection Grade with effect from 01.04.1990.

After the grant of promotion in Senior Selection Grade the petitioner filed an application before Commissioner-cum- Secretary, Department of Health wherein he made a request for proper fixation of his pay scale with effect from 01.01.1996 in pay scale of Rs. 14300/- to Rs. 18300/- as per the recommendation of the 5th pay commission.

Thereafter, the Office of Accountant General, Bihar issued the pay slip of the petitioner on 15.10.1998 wherein his basic pay was fixed at Rs. 5300 with effect from 01.07.1996. Thereafter, petitioner filed several representations before Secretary-cum-Commissioner for fixation of his pay scale but all in vain. The petitioner superannuated on 31.07.1999 and the respondents have made payment of gratuity on the basis of the last pay drawn by him. The petitioner then also filed representation before the authorities for fixation of his revised pay scale and when no decision was taken, petitioner filed a writ application before this Court being W.P.(S) No.5339 of 2004 which was disposed of by directing the respondents to pass a final order.

In compliance of the Court's order, the concerned respondent passed the final order rejecting the claim of petitioner against which the petitioner preferred a review petition

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which was also rejected on the ground that the petitioner did not file any objection while he was working as medical officer in non- teaching cadre and was entitled to pay protection of promoted scale.

Aggrieved by the rejection order the petitioner has filed the present writ application.

5. Learned counsel for the petitioner submits that vide notification no. 144(3) dated 03.03.2005 issued under the signature of Deputy Secretary Department of Health, Government of Bihar; 1098 posts of Deputy Superintendents and of equivalent cadre in non-teaching cadre of Bihar Health Service in the pay scale of Rs.10,000-15,20000/- was sanctioned with retrospective effect from 1.1.1996 and clause 3 of the said notification contains the names of those Doctors who are not entitled for the aforementioned pay scale and the name of this petitioner does not appear in the said list.

He further submits that vide memo no. 778(2) dated 17.06.2005 issued under the signature of Deputy Secretary Department of Health, Government of Bihar whereby inter-se seniority of 3054 medical officers of Bihar Health Service cadre has been determined and the name of petitioner appears at serial no. 995.

He submits that the reasoned orders passed by Secretary, Health Department rejecting the representation of petitioner were not passed after taking into consideration the whole facts and circumstances of the case, as such, it is not sustainable in the eyes of law.

6. Learned counsel further submits that vide resolution no. 3A-2 WA.PA-12/2004 issued by Finance Department and communicated under the signature Additional Secretary; recommendation was made to fix pay scale in the revised pay scale with effect from 01.01.1996 in Non-Teaching Cadre of Bihar Health Service and in the said resolution senior medical officer have been granted revised pay scale of Rs. 14300-18300.

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He lastly submits that the petitioner was in non-teaching cadre as is clear from the certificate granted by Director RIMS certifying that the petitioner was posted as non-teaching cadre with effect from 3.11.1985 to 31.07.1999; as such, the petitioner is entitled to get the benefit of revised pay scale and all consequential benefits.

7. Per contra, Mr. Ranjan Kumar, A.C.to Sr. S.C.-I relying upon the counter affidavit submits that the petitioner retired on 31.07.1999 much before the creation of State of Jharkhand; as such the respondents have no role in fixing the petitioner's salary or post-retirement benefits.

He further submits that the petitioner was in non-teaching cadre and State of Bihar was his employer and he also retired from the service from state of Bihar; as such all his claims including grant of pay scale and post-retirement benefits are to be decided and granted by Government of Bihar only; as such the writ petition is liable to be dismissed.

8. Mr. Binit Chandra, learned counsel representing State of Bihar submits that the petitioner has retired from the territorial jurisdiction of Jharkhand State and is also receiving his pension from Ranchi Treasury/ Bank and in view of the Judgment rendered by this Court in the case of Bharti Prasad Thakur v. Sidhu Kanhu University, Dumka1 it has been categorically held that pension of the retired employee retiring prior to the date of bifurcation of Jharkhand State from Bihar be given by the State of Jharkhand in case the office from which the officer retired falls in the territory of the State of Jharkhand.

9. Having heard learned counsel for the parties and after going through the respective affidavits, following issues are necessary to be adjudicated by this Court:

(i) "Whether the order dated 24.05.1997 and 24.03.2005 by which the representation of petitioner was rejected requires interference ?"

2002 SCC Online Jhar 29

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(ii) "Whether the petitioner is entitled for the pay scale of Rs.

14300-18300 and consequential post-retirement benefits ?"

(iii) "Whether the State of Jharkhand is liable to pay the revised pay scale and consequential benefits to the petitioner, if he is found to be entitled ?"

10. With regard to issue no.1, it appears that petitioner joined the Bihar Health Service in Class-II with effect from 28.09.1966 and was granted promotion on Junior Selection Grade and Senior Selection Grade with effect from 01.04.1980 and from 01.04.1990, respectively. The petitioner was posted at RMCH on the post of medical officer in the department of P.S.M., Field Demonstration Centre, Rajendra Medical College Ranchi vide notification dated 2.11.1985 and was posted therein till his superannuation.

11. It further appears that vide memo No. 3/ Nyay-1- 46/04/242(3) dated 24.03.2005, the representation for revised pay scale and consequential benefits was rejected on the ground that the Bihar Health Education Service had been completely bifurcated from the Bihar Health Service vide notification no. 162(17) dated 21.05.1997 and therefore the promotion granted to the petitioner is not maintainable in the Bihar Health Education Service.

The reasons assigned for rejecting the representation of the petitioner, it appears that the same has been taken without proper consideration of the relevant facts as it is evident that vide notification dated 24.05.1997 issued by the Government of Bihar, Department of Health, Patna; service regulation for Bihar Health Education Service Cadre was made and in view of Para 5(Ka) of the said notification different posts in Education Department were identified and there is no such post of Medical Officer in the said list.

Further, vide clause 5 (ga), options would have to be called from the concerned Doctors as to whether they intended to remain in Bihar Health Service on in Bihar Health Education

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Service and if no option is given; in that event, the candidate would be sent back to their original cadre of Bihar Health Service.

In the case at hand, the petitioner had not filed any option and consequently he remained in the cadre of Bihar Health Services; as such, the rejection order is perverse.

12. Further, the review petition filed by the petitioner against the order dated 24.03.2005 was rejected on the ground that the petitioner has not filed any objection while he was working as Medical Officer in the non-teaching cadre and therefore, he is only entitled for pay protection of promoted scale.

In regard to the reason assigned for rejecting the review petition it appears that the reviewing authority failed to consider the fact that the Health Department of the Government is solely responsible for the posting of Medical Officer either in District, Sub-Division, or Medical College and the candidate has to abide by the orders of Government. Mere posting in medical college hospital does not make an officer a teacher.

The 1997 rules clearly define the teaching cadre of Bihar Health Services in which the following posts are earmarked; they are tutor, lecturer, assistant professor, associate professor and professor and the petitioner was never posted against any of the aforementioned posts; as such, the order rejecting the review is non-Est in the eye of law and deserves to be set aside.

13. As such, the first issue is decided in affirmative and in favour of the petitioner. The order dated 24.05.1997 and 24.03.2005 by which the representation of petitioner was rejected, are, hereby quashed and set aside.

14. Now coming to issue no. 2, it appears that that vide resolution no. 3A-2 WA.PA-12/2004 issued by Finance Department and communicated under the signature of Additional Secretary; recommendation was made to fix pay scale in the revised pay scale with effect from 01.01.1996 in Non- Teaching Cadre of Bihar Health Service and in the said

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resolution Sr. Medical Officer have been granted revised pay scale of Rs. 14300-18300. Further, vide memo no. 966 (3) dated 19.07.2004 issued under the signature of Additional Secretary , Department of Health Government of Bihar; on the basis of recommendation made by the Fitment Committee the need based post were identified in the non-teaching cadre of the State Health Services and vide resolution dated 24.03.2006 issued under the signature Joint Secretary; recommendation was made for implementation of revised pay scale to the Doctors with effect from 01.01.1996 who were working in non-teaching cadre of the State Health Service.

The petitioner happens to be in non-teaching cadre as it is very much clear by the certificate granted by the RIMS Director endorsing that the petitioner was posted on non-teaching post w.e.f. 03.11.1985 to 31.07.1999 vide memo no. 2745 dated 29.05.2006 and this fact has also been accepted by the respondent in paragraph 10 of the counter affidavit filed on 07.07.2008 and the statement of pay fixation of petitioner with effect from 01.01.1996 shows the petitioner's pay as Rs. 17,100/- as on 01.04.1999 (Annexure 7 of writ application). However, the A.G. had adjusted the money vide pay slip LPE-2 Medo-PD-V7-1712 dated 17.10.1999 and thereafter the petitioner has drawn the basic scale of Rs. 6500-10500/-and got the entire retirement benefits in this pay scale only.

15. Having regard to the above facts this court concludes that the petitioner is entitled for the revised pay scale of Rs. 14300- 18300 and consequential benefits in the line of recommendation made by the Fitment Committee vide memo no. 966 (3) dated 19.07.2004 and in the line of resolution date 24.03.2006 issued under the signature Joint Secretary, Department of Health, Government of Bihar.

Further, there is no justification or jurisdiction for fixing the petitioner's pay in the pay scale of Rs. 6500/- to 10500/- with effect from 01.01.1996 which is the pay scale of Class II

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Officers of the Bihar Government especially in view of the fact that petitioner joined the service in Class II and was granted two promotions during his service tenure.

Accordingly, the second issue is decided in affirmative and in favour of the petitioner.

16. Now coming to the final issue, it appears that the respondent authorities have contended that the petitioner was in the service of State of Bihar and he also retired from the service from state of Bihar; as such, all his claims including grant of pay scale and post-retirement benefits are to be decided and granted by Government of Bihar.

This argument of the State Counsel is not acceptable to this Court as the petitioner has retired from the territorial jurisdiction of Jharkhand State and is also receiving his pension from Ranchi Treasury/Bank and in view of the Judgment rendered by this Court in the case of Bharti Prasad Thakur (supra) wherein it has been categorically held that pension of the retired employee retiring prior to the date of bifurcation of Jharkhand State from Bihar be given by the State of Jharkhand in case the office from which the officer retired falls in the territory of the State of Jharkhand. The relevant paragraphs are quoted herein below:

"6. From the pleadings of the parties the admitted facts which emerge are that Godda college was previously under Tilka Manjhi Bhagalpur University. In 1992 Sidhu Kanhu University was established at Dumka and all the colleges including Godda college came under Sidhu Kanhu University. The petitioner retired on 7.2.1993 from Godda college which was then under Sidhu Kanhu University. However, the petitioner was paid pension from the parent University Le. Tilka Manjhi Bhagalpur University because Sidhu Kanhu University was then simply established. Both the Universities were within the jurisdiction of State of Bihar. After bifurcation of the State of Bihar and creation of the State of Jharkhand Sidhu Kanhu University came within the State of Jharkhand.

7. Section 53 is the relevant provision in the Bihar Re-organisation Act, 2000 which deals with the liability of the state of Bihar and the State of Jharkhand in respect of payment of retirement benefits. Section 53 reads as under: --

"53. Pension. --The liability of the existing State of Bihar in respect of pensions and other retirement benefits shall pass to, or be apportioned between the successor States of Bihar and Jharkhand in accordance with the provisions contained in the Eighth Schedule to this Act."

8.Clauses 1, 2 and 3 of the Eighth Schedule of the said Act read as under: --

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"1. Subject to the adjustments mentioned in paragraph 3, each of the successor State shall in respect of pension and other retirement benefits sanctioned before the appointed date, pay from their respective treasuries.

2. Subject to the said adjustment, the liability in respect of pensions and other retirement benefits of officers serving in connection with the affairs of the existing State of Bihar who retire or proceed on leave preparatory to retirement before the appointed day, but whose claims for pensions and other retirement benefits are outstanding immediately before that day, shall be the liability of the State of Bihar.

3. Subject to the said adjustment, sanctions of such pension and other retirement benefits by the competent authority may be given in those cases, in which their office falls in the territory of Jharkhand State."

9. From the reading of the aforesaid section and clauses it is manifest that the State of Bihar and the State of Jharkhand shall take decision in respect of apportionment and adjustment of liability but it is clear that pension of the retired employee may be given by the State of Jharkhand in case the office from which the officer retired, falls in the territory of the State of Jharkhand.

10. However, I am not deciding the issue with regard to the liability of the respective State of Bihar and State of Jharkhand and the matter is left open. But the fact remains that the petitioner retired from Godda college which came under Sidhu Kanhu University at the time when he retired. Both the college and the University fall within the territory of the State of Jharkhand.

11.The petitioner has been residing in the State of Jharkhand. Taking into consideration all these facts I am of the opinion that the petitioner must get pension from Sidhu Kanhu University and the State of Jharkhand. The State of Jharkhand will provide sufficient funds to Sidhu Khanhu University and shall take all necessary steps for allotment of funds in order to pay pension to the petitioner.

12. This writ application is, therefore, allowed and both Sidhu Kanhu University and the State of Jharkhand are directed to make payment of arrears of pension which has not been paid from August, 2001 within one month from today and also continue payment of pension to the petitioner. It goes without saying that it shall be open to the State of Bihar and the State of Jharkhand to determine the liability while deciding the division of assists and liabilities."

17. Having regard to the above decision the third issue is

also decided in affirmative and in favour of the petitioner.

18. Accordingly, the instant writ application stands

allowed and the respective impugned orders, are hereby,

quashed and set aside. Further, the concerned Respondent

is directed to issue necessary order so that the Petitioner

shall get all consequential benefits.

The entire exercise of issuing necessary order and

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thereafter the consequential benefits to be credited in the

account of the Petitioner shall be completed within a period

of 12 weeks from the date of receipt/production of copy of