Patna High Court
Anil Kumar vs The State Of Bihar And Ors on 11 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4550 of 2016
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Anil Kumar son of Late Shivnandan Paswan, resident of Village-
Yashwantpur, P.O.- Rukhari, P.S.- Chandi, District- Nalanda.
... ... Petitioner
Versus
1. The State Of Bihar
2. The Principal Secretary, Department of Finance, Government of Bihar, Old
Secretariat, Patna.
3. The Joint Secretary, Department of Finance, Government of Bihar, Old
Secretariat, Patna.
4. The Principal Secretary, General Administration Department, Government
of Bihar, Old Secretariat, P
5. The Joint Secretary, General Administration Department, Government of
Bihar, Old Secretariat, Patna
6. The Commissioner, Patna Division, Patna.
7. The District Magistrate, Nalanda at Biharsharif.
8. The Deputy Collector, Establishment, Nalanda Collectorate, Nalanda at
Biharsharif.
9. The Sub Divisional Officer, Hilsa, Nalanda, Biharsharif.
... ... Respondents
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Appearance :
For the Petitioner : Mr. Tej Bahadur Singh, Sr. Advocate
Mr. Ajey Kumar, Advocate
Mr. Mantu Kumar, Advocate
For the Respondent/s : Mr. S.D. Yadav, AAG-3
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
C.A.V. JUDGMENT
Date : 11-05-2022
The petitioner has been granted grade pay of Rs. 2800 in
the pay scale of Rs. 5200-20200 upon grant of first Modified
Assured Career Progression (MACP) with effect from
01.01.2009. It is the petitioner's claim that he is entitled to the
grade pay of Rs. 4200 in place of Rs. 2800.
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
2. The factual background in which the petitioner
claims grade pay of Rs. 4200 is pleaded in the writ petition and
other pleadings on record are as under:-
3. Based on a limited competitive examination held
for class IV employees for promotion to class III posts, the
petitioner's name was recommended by the Bihar Public Service
Commission and, admittedly, he was appointed against the post
of clerk in the pay scale of Rs. 1200-1800 with the issuance of
an office order dated 03.12.1998 by the office of District
Magistrate-cum-Collector, Nalanda, Bihar Sharif. The said pay
scale of Rs. 1200-1800 was subsequently revised to Rs. 4000-
6000 with effect from 01.01.1996 and to Rs. 5200-20200 with
grade pay of Rs. 2400/- (P.B.-1) with effect from Rs.
01.01.2006.
4. Previously, there were two different cadres of
Lower Division Clerk and Upper Division Clerk working in the
Collectorate and Mufassil Office. Both the cadres were merged
into one cadre of Assistant with effect from 01.05.1980.
However, subsequently by a notification dated 20.12.2000, the
merged cadres of clerks was de-merged with the creation of
Lower Division Clerk and Upper Division Clerk carrying two
different pay scales. It was, however, clearly mentioned in the
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
said letter dated 20.12.2000, issued by the Finance Department
that all clerks working before the issuance of the said letter
dated 20.12.2000, will be treated as Upper Division Clerks.
5. It is, thus, not in dispute that the petitioner's initial
appointment, for the purpose of adjudication of his claim in the
present writ application, is to be treated against the post of
Upper Division Clerk. The fact that the petitioner was appointed
on the post of Upper Division Clerk in the year 1998 is admitted
in the counter affidavit filed on behalf of the State-respondents.
6. Earlier, there was scheme of Assured Career
Progression, 2003 which allowed grant of first A.C.P. after
completion of 12 years of service to get next higher pay scale
which remained effective till 12.07.2010. There was no question
of the petitioner getting benefit of A.C.P. under the aforesaid
scheme till the same was in force as he had not completed
minimum 12 years of required service. The MACP scheme
came to be introduced with effect from 01.01.2009, whereby
and whereunder, an employee, upon completion of 10 years of
his service has been made entitled to the next pay instead of
next promotional post.
7. It is pertinent to notice at this stage that the State
Government of Bihar framed Bihar Collectorate Clerical Cadre
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
(Recruitment and Condition of Service) Rules, 2011 in exercise
of powers under Article 309 of the Constitution of India. The
Cadre of clerks, under the said Rules, which came into force
with effect from 23.03.2011, has four grades, namely, L.D.C.,
U.D.C., head Clerk, and Assistant Administrative Officer. In
terms of the said Rules, grade of U.D.C. has been placed in P.B.-
1 with pay band of Rs. 5200-20200 and grade pay of Rs. 2400.
For the purpose of clarity, Clause 3 (c) is being reproduced
hereinbelow:-
3. Cadre Structure.-
The Cadre structure of the clerical cadre shall be as
follows:-
Sl. Name of Level Name Pay Band Grade
No. grades of pay
Band
(a) Lower Basic PB-1 5200- 1900
Division Clerk grade 20200
(b) Upper Division First PB-1 5200- 2400
Clerk Promotion 20200
Level
(c) Head Clerk Second PB-1 5200- 2800
Promotion 20200
Level
(d) Assistant Third PB-2 9300- 4600
Administrative Promotion 34800
Officer Level
8. Next higher grade, i.e., Head Clerk carries in pay
band of Rs. 5200-20200 with grade pay of 2800. The said Rule
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
3 of the Rules was amended with the issuance of notification
dated 02.09.2013, whereby the same has been substituted by the
following:-
(c) Head Clerk Second PB-1 9300- 4200
Promotion 34800
Level
9. It is pertinent also to note that the Rules as well as
the amending provision apparently have become operative with
prospective effect.
10. It is petitioner's specific case, as clearly pleaded in
the second rejoinder to the counter affidavit, that the petitioner
was placed in PB-1 with grade pay of 2800 which came to be
subsequently substituted by PB-2, i.e. 9300-34800 with grade
pay of 4200 and, therefore, the petitioner is entitled to get grade
pay of 4200 from the first MACP itself since when the
respondents have granted grade pay with higher pay scale while
granting second MACP.
11. The petitioner's claim of grant of grade pay of 4200
is apparently with effect from 01.01.2009. In the Rules, post of
Head Clerk had been placed in PB-1 with grade pay of 2800.
The said grade pay was subsequently amended in 2013 with
effect from 02.09.2013, as has been noticed above. The
petitioner, in the Court's opinion, cannot claim benefit of grade
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
pay of Rs. 4200 with effect from a date prior to 02.09.2013
when for the first time the grade pay of Rs. 2800/- was
substituted by Rs. 4200. The petitioner, in his representation,
dated 09.02.2016, a copy of which has been brought on record
by way of Annexure-5, claimed grade pay of Rs. 4200 on the
basis that similarly circumstanced employees in Begusarai,
Siwan and other districts were granted grade pay of Rs. 4200.
There was no legal basis disclosed in his representation.
12. In my view, in the present writ application, the
petitioner has not been able to demonstrate any legal basis for
grant of higher grade pay of Rs. 4200 with effect from the date
when he became entitled to the first MACP.
13. The petitioner in the present writ application has
challenged his pay fixation done by the Sub-Divisional Officer,
Hilsa (Nalanda) which has been brought on record by way of
Annexure-4/1. The petitioner's salary as on 01.01.2009 has been
determined at Rs. 12,970/- upon grant of Grade pay of Rs. 2800
in P.B.-1. The said fixation of pay, in my opinion, cannot be said
to be suffering from any infirmity.
14. The petitioner may, however, claim grant of higher
pay band upon amendment in the Rule 3(c) of the Rules with
effect from 02.09.2013. Apparently he has not raised such claim
Patna High Court CWJC No.4550 of 2016 dt.11-05-2022
nor he has developed his case in the present writ application on
that line. In such circumstance, while holding that the Court
does not find any infirmity in determination of the petitioner's
pay with effect from 01.01.2019 allowing him pay band of Rs.
2800, it is observed that the petitioner shall be at liberty to raise
his claim before appropriate authority for grant of higher grade
pay consequent upon amendment in the Rules with effect from
02.09.2013.
15. With the aforesaid observation, this application is
disposed of.
(Chakradhari Sharan Singh, J)
K.K.RAO/-
AFR/NAFR NAFR
CAV DATE 20.04.2022
Uploading Date 11.05.2022
Transmission Date N/A
