Ravi Shankar Kumar vs The State Of Bihar And Ors
2021 Latest Caselaw 4827 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.23831 of 2018
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Ravi Shankar Kumar, son of Late Jagdish Ram, resident of Village - Baghi, P. S. - Maniyari, District - Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Main Secretariat, Patna

2. Principal Secretary, Department of Finance, Government of Bihar, Main Secretariat, Patna.

3. General Administration Department, Government of Bihar, Main Secretariat, Patna.

4. The District Magistrate, Nawadah.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Kishore Kumar Thakur, Advocate Mr. Rajesh Kumar, Advocate Mr. Braj Kishore Singh, Advocate For the Respondent/s : Mr. Manish Kumar, GP-4 Mr. Ajay Kumar, AC to GP-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 01-10-2021

This matter has been taken up for hearing online

because of COVID-19 pandemic restrictions.

2. Following are the reliefs which the petitioner has

claimed in the present writ application :-

"(i) For a direction to the respondents to make payment of salary to the petitioner in the same pay scale of Rs. 4000-6000 which is being paid to the other similarly appointed Lower Division Clerks, who entered the service along with petitioner by the same common appointment letter dated 06.09.2001, Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

initially in the pay scale of Rs. 3050- 4500 but are being provided with salary in higher pay scale of 4000- 6000, in compliance of the direction contained in the judgment and order dated 11.03.2011 passed in C.W.J.C. No. 15956 of 2006.

(ii) For a further direction to the respondents to make payment of arrears of salary to the petitioner in the said pay scale of Rs. 4000-6000 and its corresponding higher pay scale and grade pay, with effect from the date, the other similarly appointed Lower Division Clerks are being paid in such pay scale, in the light of the direction contained in the judgment and order passed in C.W.J.C. No. 15956 of 2006 and further in the light of the judgment and order passed in L.P.A. No. 167 of 2016."

3. By order No. 23/2001-2002 dated 06.09.2001, issued

by the office of the District Magistrate, Nawada, the petitioner

along with others was appointed as Lower Division Clerk in the

pay-scale of Rs. 3050-4590/- on compassionate basis, being a

dependent of a government servant who had died in harness.

4. This is not in dispute that the said scale of Rs. 3050-

4590/- was admissible for the said post of Lower Division Clerk

as on the date of appointment of the petitioner. In order to

appreciate the controversy involved in the present matter certain Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

basic relevant facts are required to be taken into account. Prior to

07.04.1977 there were two cadres of Clerk, namely, Lower

Division Clerk and Upper Division Clerk. The Finance

Department of the Government of Bihar came out with a letter

No. 3734 dated 07.04.1977 with a decision to merge a number of

cadres including the cadres of Lower Division Clerk and Upper

Division Clerk and the merged cadre came to be known as

Assistants, with a common pay-scale. Subsequently, the Finance

Department, Government of Bihar came out with a letter dated

20.12.2000 incorporating the decision of the State Government to

demerge the cadre of Assistants in three cadres, namely, Lower

Division Clerk with pay-scale of Rs. 3050-4590/-, Upper Division

Clerk with pay-scale of Rs. 4000-6000/- and Assistants in the

pay-scale of Rs. 5500-9000/-. The said exercise was apparently

undertaken in the light of recommendation of the Fitment

Committee to reconstitute different cadres in tune with the cadres

in the Central Government. Clause 5(i) of the said letter of

demerger dated 20.12.2000 clearly mentioned that subsequent to

issuance of the said letter and till further orders, direct

appointment shall be made only on the lowest post, till a

classification of posts by the Personnel and Administrative

Reforms Department regarding number of posts in each category/ Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

cadre is determined according to necessity, with the consent of

the Finance Department. Clause 5(ii) of the said letter dated

20.12.2000 further specified in no uncertain terms that all

selection processes for filling up the posts with higher scale than

the posts with lowest scale should be cancelled with immediate

effect, irrespective of the fact that the selection process has been

completed.

5. The petitioner's father had died in harness while

working as a Revenue Karmchari in Nawada Collectorate on

19.01.2000. He had made an application seeking appointment on

compassionate basis consequent upon the death of his father. He

held Intermediate qualification. It is the petitioner's case that the

District Compassionate Appointment Committee had found him

fit for appointment against a Class-III post and had, in fact,

forwarded its recommendation with other persons but

recommendation in case of the petitioner was deferred, awaiting

required report from the Circle Office, Govindpur where his

father was working at the time of his death. His name was finally

recommended on 17.01.2001 by the District Compassionate

Appointment Committee, pursuant to which the appointment

letter was issued on 06.09.2001, as noted above.

6. Before issuance of the said letter of the Finance Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

Department dated 20.12.2000, a selection process had begun with

the issuance of an advertisement No. 4/1998 by Bihar Public

Service Commission (for short BPSC) for the post of Assistant-

cum-Typist in the pay-scale of Rs. 1200-1800/- in the district of

Bhojpur. Pay-scale of Rs. 4000-6000/- was admittedly the revised

scale of Rs. 1200-1800/- for which the said advertisement was

issued. Persons selected pursuant to the said advertisement were,

however, appointed in the pay-scale of Rs. 3050-4590/-, which

was admissible to Lower Division Clerk.

7. Raising a grievance that they should have been

allowed the scale of Rs. 4000-6000/- they had approached this

Court by filing a writ petition which came to be registered as

CWJC No. 13577 of 2006 (Manish Kumar Pathak and others

vs. The State of Bihar and others). A coordinate Bench of this

Court, noticing Clause- 5 of the letter of the Finance Department

dated 20.12.2000, opined that if the authorities were not inclined

to appoint the petitioners of that case in the revised scale of the

advertised posts they ought to have cancelled the advertisement

and selection process but once they had not chosen to cancel the

advertisement and the selection process, then they were obliged to

appoint the petitioners of that case in corresponding revised scale

of the post advertised. Accordingly, the said writ application was Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

allowed with a direction to the respondents- State of Bihar to

grant them pay-scale of Rs. 4000-6000/- though they were

appointed after issuance of the Finance Department letter dated

20.12.2000.

8. It is the petitioner's case that some of the persons,

who were appointed on compassionate ground along with him by

the same order dated 06.09.2001, had approached this Court by

filing a writ application giving rise to CWJC No. 15956 of 2006

(Umesh Prasad and others vs. The State of Bihar and others)

seeking pay-scale of Rs. 4000-6000/- instead of Rs. 3050-4590/-.

By an order dated 11.03.2011, the said writ application was

allowed with a direction to treat the petitioners having been

appointed as Upper Division Clerk in the scale of Rs. 4000-

6000/- with all consequential benefits.

9. It is further case of the petitioner that he had earlier

approached this Court for grant of similar pay-scale of Rs. 4000-

6000/- by filing a writ application registered as CWJC No. 11096

of 2011, which was disposed of by an order dated 08.08.2012

with a direction that if the contention of the petitioners is correct

that they were similarly situated as that of the petitioners in

CWJC No. 5152 of 2010, which had been disposed of by an order

dated 16.11.2010, the respondents shall be guided by the same. Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

10. It would be apt, at this stage, to notice the order

dated 16.11.2010, passed in CWJC No. 5152 of 2010, which is as

under :-

"The petitioners claimed to be appointed on the post of Lower Division Clerk on compassionate ground but alleged grant of wrong pay scale of Rs. 3050-4590/-. It is submitted that similar matters have been considered by this Court when the pay scale entitlement has been held to be Rs. 4000-6000/- in pursuance of which the respondents have issued a conditional order dated 18.11.2009 granting the latter scale. The petitioners have also represented for the same but the representation remains unconsidered compelling them to file the present application.

It is next submitted that persons appointed after the petitioners are getting the higher scale.

Let the representation of the petitioners be considered considered and disposed off by a reasoned and speaking order when the conditional order dated 18.11.2009 shall necessarily have to form part of the consideration, within a maximum period of three months from the date of receipt/production of a copy of this order.

It is expected that if the respondents find justification in the claim or in any part of the claim, Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

necessary consequential orders shall be issued simultaneously."

11. In the aforesaid background, it is the petitioner's

case that as the process of consideration for their appointment on

compassionate ground had begun before issuance of letter dated

20.12.2000 of the Finance Department, they are entitled to scale

of Rs. 4000-6000/- instead of Rs. 3050-4590/-. This is the

background in which the petitioner is seeking a direction from

this Court to the respondents to allow him pay-scale of Rs. 4000-

6000/- as admissible on the date of his initial appointment with all

consequential benefits.

12. Counter affidavits and supplementary counter

affidavits have been filed in the present proceeding. The

petitioner has also filed reply and supplementary affidavit in

support of his claim.

13. Mr. Kishore Kumar Thakur, learned counsel

appearing on behalf of the petitioner, has submitted that since

similarly situated persons have been allowed pay-scale of Rs.

4000-6000/- there is no reason why the petitioner should be

denied the said pay-scale of Rs. 4000-6000/-. He has heavily

relied on decision rendered by the coordinate Bench of this Court

dated 11.03.2011, passed in CWJC No. 15956 of 2006 (Umesh

Prasad and others vs. The State of Bihar and others) and Bihar Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

Litigation Policy, 2011 which requires the State Government to

take a decision in matters covered by any decision of the Court.

He contends that since the petitioner's case is covered by the

decision in case of Umesh Prasad (supra), the petitioner should

have been given the same treatment and he should not have been

compelled to approach this Court. He has further submitted that

this Court in case of Manish Kumar Pathak (supra) allowed pay-

scale of Rs. 4000-6000/- though the appointments were made

subsequent to the letter dated 20.12.2000 issued by the Finance

Department on the ground that the process of selection had begun

before coming into force of the decision of demerger, same view

is required to be taken in the petitioner's case also whose

application for appointment on compassionate basis was pending

since before the said decision of demerger. He has also placed

reliance on a Division Bench decision of this court dated

23.06.2017 in LPA No. 167 of 2016 (Avinash Kumar

Chakerworty and others vs. State of Bihar and others), whereby

and whereunder the Court held the appellants/ writ petitioners of

that case entitled to pay-scale of Rs. 4000-6000/- though they

were appointed on compassionate basis after issuance of letter of

demerger dated 20.12.2000. The Division Bench of this Court in

case of Avinash Kumar Chakerworty (supra) has held as under :- Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

"We have heard learned counsel for the parties at length and we find that all the petitioners in the writ petition and the employees, who were appointed by virtue of the order passed in CWJC No.17566 of 2006 and the employees, who were originally working in the non-

formal education scheme and who were given fresh appointment vide Annexure-4 dated 23rd July, 2005 and Annexure-5 dated 20th July, 2006, are all working in the same office, namely the Collectorate at Siwan, all are discharging identical function, but except the five petitioners, the other employees indicated herein above are getting higher pay in the scale of Rs.4000/-

- Rs.6000/-. The only reason for giving the benefits are that they were appointed after the circular was issued on 20th December, 2000.

However, the fact remains that even in the case of employees, who were petitioners in CWJC No.13755 of 2006, they were appointed after 20th December, 2000, but they have been granted the benefit in the higher scale of pay of Rs.4000/- -

Rs.6000/- on account of the fact that the process of appointment initiated in the year 1999 was delayed because of the procedural delay. In the case of the petitioners also, as is evident from the records, their appointment process was also initiated in the year 1999-2000 and in the case of the petitioner Ashok Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

Kumar Sinha, he filed the writ petition claiming compassionate appointment way back in the year 1999 in CWJC No.9934 of 1999 and it was only after the order was passed in the aforesaid MJC in the year 2005 that the appointment order was issued. That being so, we see no much difference between the employees, who were petitioners in CWJC No.13577 of 2006 and the present petitioners. Even if for the sake of argument it may be assumed that the petitioners and the employees, who were petitioners in CWJC No.13577 of 2006 form two different categories, there is no justification in the matter of discrimination between the present petitioners and the retrenched employees who were working in the non formal education scheme. It is clear that the non-formal education scheme came to an end and large number of Class-III and Class IV employees was retrenched and thereafter in the year 2005 and 2006 as is evident from Annexures 4 and 5, they were re-appointed as a fresh appointee in the year 2005 and 2006, that is much after 20 th December, 2000 and in their case, they have been granted the higher pay scale of Rs.4000/- - Rs.6000/-.

If that be so, there is a discrimination in the matter of granting similar benefit to the petitioners when more than 300 employees have been granted such Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

benefit of higher pay scale in the grade of Rs.4000/- - Rs.6000/- even after they were appointed in the year 2005 and 2006, there is no reason as to why similar benefits should be denied to the petitioners when the petitioners are also doing similar work and were appointed after 20th December, 2000. To that effect, there is discrimination in the matter and the petitioners are entitled to equal treatment. That apart, the petitioners are working in the Collectorate at Siwan and many employees identically situated, like the petitioners, who were appointed after 20th December, 2000, as is indicated hereinabove, are being granted pay in the scale of Rs.4000/- - Rs.6000/- and if that be the factual position, there is no reason why a similar benefit should not be extended to the petitioners."

14. He has drawn my attention to the statement made in

paragraph 15 of the reply filed on behalf of the petitioner to the

counter affidavit filed on behalf of the State, wherein it has been

stated that the petitioner had approached the Public Grievance

Redressal Officer, Nawada constituted under Bihar Government

Servant Grievance Redressal Rules on 25.02.2020. The Public

Grievance Redressal Officer has, by an order dated 21.03.2020,

allowed the petitioner's claim for grant of scale of Rs. 4000-

6000/-. The said order of the Public Grievance Redressal Officer Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

has been brought on record by way of Annexure-P/15.

15. The Court fails to appreciate as to how, without

withdrawing the present writ application and without making any

statement in this regard the petitioner approached the Public

Grievance Redressal Officer seeking same relief, which the

petitioner is seeking in the present writ application. The Court

strongly deprecates the conduct of the petitioner in this regard.

16. Mr. Manish Kumar, learned GP-4, assisted by Mr.

Ajay Kumar, learned AC to GP-4, has drawn my attention to a

coordinate Bench decision of this Court dated 14.02.2012

rendered in CWJC No. 3516 of 2011 (Sriman Narayan Singh

and another vs. The State of Bihar and others), wherein the

same controversy had arisen as to whether persons appointed on

compassionate ground after issuance of letter of demerger dated

20.12.2000 were entitled to pay-scale of Rs. 4000-6000/- or not.

He submits that the coordinate Bench has held in case of Sriman

Narayan Singh (supra) that there was no error in the decision

granting pay-scale of Rs. 3050-4590/- for those appointed on

compassionate basis after the date of demerger. Reference has

also been made by learned State counsel to another decision of

this Court dated 03.11.2011, passed in CWJC No. 10441 of 2010

and other analogous cases (Smt. Mosarat Arra Khanam and Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

others vs. The State of Bihar and others), wherein another

coordinate Bench of this Court had held that the petitioners on

being appointed on compassionate ground, which is one time

exercise, they cannot see compassion upon compassion claiming

a higher pay-scale on misconceived sense of parity. The said

decision rendered in case of Smt. Mosarat Arra Khanam (supra)

has been affirmed by a Division Bench of this Court dated

19.02.2014 in its decision rendered in LPA No. 100 of 2012 (Smt.

Mosarat Arra Khanam and others vs. The State of Bihar and

others). He has submitted that the Division Bench decision of this

Court in case of Smt. Mosarat Arra Khanam (supra) was not

brought to the notice of the Division Bench in case of Avinash

Kumar Chakerworty (supra).

17. The only question which requires determination, in

the present matter, is as to whether the persons appointed on

compassionate ground as Lower Division Clerks after demerger

in the scale of Rs. 3050-4590/- can claim by way of right, a

higher pay-scale of Rs. 4000-6000/-. The Division Bench of this

Court in case of Smt. Mosarat Arra Khanam (supra) has, in no

uncertain terms, held as under :-

"The claim of the appellants for parity of pay with those lower division clerks is ex facie unsustainable. It is not in dispute Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

that the appellants were appointed during the years 2001 to 2004 and are placed in the pay-scale approved for the cadre of lower division clerks. Therefore, appellants' claim to a higher pay- scale sanctioned for the higher post of Upper Division Clerks cannot be accepted. The petitions are rightly rejected."

18. The said Division Bench decision in case of Smt.

Mosarat Arra Khanam (supra) was evidently not brought to the

notice of subsequent Division Bench in case of Avinash Kumar

Chakerworty (supra). The Division Bench in case of Avinash

Kumar Chakerworty (supra) has allowed the scale of Rs. 4000-

6000/- for persons appointed on compassionate basis after the

date of demerger, applying the doctrine of parity in the pay-scale.

19. In my opinion, in view of the conflicting views

taken by the Division Benches of this Court in case of Smt.

Mosarat Arra Khanam (supra) and Avinash Kumar

Chakerworty (supra) on the question as to whether the persons

appointed on compassionate basis in the scale of Rs. 3050-4590/-

can claim by way of right a higher pay-scale of Rs. 4000-6000/-

on the doctrine of parity in pay-scale, the matter needs to be place

before Hon'ble the Chief Justice for referring the same to a

Larger Bench.

Patna High Court CWJC No.23831 of 2018 dt.01-10-2021

20. Let the matter be placed before Hon'ble the Chief

Justice accordingly.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          05.10.2021
Transmission Date       NA