Parshuram Jha vs The State Of Bihar And Ors
2023 Latest Caselaw 931 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.1339 of 2018
                                           In
                     Civil Writ Jurisdiction Case No.4311 of 2015
     ======================================================

Parshuram Jha, Son of late Rajendra Jha, resident of Mohalla- Adarsh Chowk, Ward No. 2, Police Station- Dumra, Post Office- Sitamarhi Head Post Office, District- Sitamarhi Bihar.

... ... Appellant/s Versus

1. The State Of Bihar

2. The Principal Secretary, Department of Finance, Government of Bihar, Patna.

3. The Principal Secretary, Department of Nagar Development and Housing, Government of Bihar, Patna.

4. The Joint Secretary, Department of Nagar Development and Housing Government of Bihar, Patna.

5. The Deputy Secretary-Cum-Director, Department of Nagar Development and Housing , Government Bihar, Patna.

6. The Under Secretary, Department of Nagar Development and Housing , Government of Bihar, Patna.

7. The Collector, District-Sitamarhi.

8. The Sub-Divisional Officer-cum-Chief Executive Officer, Sadar, District-

Sitmarhi.

9. The Executive Officer, Nagar Panchayat Dumra, District - Sitamarhi.

10. The Chairman, Nagar Panchayat Dumara, District- Sitamarhi.

... ... Respondent/s

====================================================== Appearance :

For the Appellant/s : Mr.Rajendra Lal Das, Advocate For the State : Mr.Yogendra Prasad Sinha, AAG-7 Mr. Shankar Kumar, AC to AAG-7 For Nagar Nigam : Mr. Surendra Kishore Thakur, Advocate Mr. Subodh Kumar, Advocate

CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)

Date : 25-02-2023

Heard learned counsel for the appellant and learned Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

counsel for the respondents.

2. The present L.P.A. is directed against the judgment

dated 13.08.2018 passed in CWJC No. 4311 of 2015 by the

learned Single Judge of this Court whereby and whereunder the

civil writ petition filed by the appellant has been dismissed.

3. In the writ petition, the appellant-petitioner has

sought following relief :

"(A) For quashing of the order dated 26.09.2012 of the Nagar Panchayat Dumra Presided by the Chairman, Nagar Panchayat Dumra whereby the decision had taken to grant Vth Pay Revision Scale with effect from October, 2012, mentioned at Agenda No. 11 under the proceeding of the General Meeting of the Nagar Panchayat Dumra, held on 26.09.2012, instead of with effect from 01.01.1996 under the Rule and Circulars of the Government of Bihar which is payable with effect from 01.04.1997. (B) For granting of Vth Pay Revision Scale effective from 01.01.2006 of the employees of Nagar Panchayat Dumra including the petitioner as per the Rule and Circulars of the Government of Bihar which is also applicable to the autonomous bodies of employees.

(C) For granting of arrear of salary after sanctioning of the Vth and VIth Pay Scale effective from 01.01.1996 and 01.01.2006 Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

respectively with consequential monetary benefit thereon to the petitioner who is now retired employees of the Nagar Panchayat Dumra, Sitamarhi from the post of Clerk-cum-Cashier after his successful service tenure about 36 years in the Nagar Panchayat Dumra, District- Sitamarchi (Bihar).

(D) For any other relief or reliefs to which the petitioner found entitled for from the concerned Respondents No. 9 and 10".

4. Brief facts of the case are that the appellant was

appointed on the post of Clerk and he joined in the office of the

Sitamarhi Municipality Notified Area, Dumra on 12.07.1976

and later on Dumra Notified Area was converted into Nagar

Panchayat, Dumra, which was an autonomous body under the

control of Ex-Officio Chairman, Sub-Divisional Officer, Sadar,

Dumra at its own pay scale. The employees of such local bodies

had been facilitated the equivalent pay scale similar to the State

Government employees vide memo dated 29.06.1990 issued by

Under Secretary, Nagar Development and Housing Department,

Bihar, Patna and, accordingly, the appellant was granted old

pay scale w.e.f. 01.01.1986. The State Government vide its

notification dated 24.08.1990 further extended the same

facilities to employees of local body on par with government Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

employees. When the State Government accepted the

recommendation of 5th Pay Revision to its employees with effect

from 01.01.1996 and had granted its monetary benefit with

effect from 01.04.1997, the appellant filed a representation

dated 10.01.1998 before the Sub-Divisional Officer-cum-

Chairman, Dumra Notified Area for granting 5 th Pay Revision

Scale alike the Bihar State Government Employees with effect

from 01.01.1996, but no action has been taken. When the

employees of the Government of Bihar had again been granted

6th Pay Revision Scale and the appellant was working in the old

pay scale granted to him w.e.f. 01.01.1986, being aggrieved, he

again filed a representation dated 15.06.2009 before the

Executive Officer, Nagar Panchayat, Dumra, Sitamarhi for

granting 5th and 6th Pay Revision Scale with effect from

01.01.1996 and 01.01.2006, but again no action was taken on it

and remained pending. Thereafter, the appellant again filed a

representation dated 11.01.2012 for granting him 5th and 6th pay

revision scale before the Executive Officer, Nagar Panchayat,

Dumra, Sitamarhi as he was due to retire from service on

31.01.2012, but all in vain. On 26.09.2012, the issue of grant of

5th and 6th pay revision was placed before the Board, the then

Nagar Parishad, Sitamari, who in turn resolved to extend the Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

facility of 5th pay revision with effect from 01.10.2012 and as

such the facility of 5th pay revision to the employees of the local

body (now Municipality, Sitamarhi) has been extended with

effect from 01.10.2012.

5. The appellant had moved earlier before this Court

by filing CWJC No. 14830 of 2013 for seeking pension and

other benefits including the benefit of 5th Pay Revision

Committee, which was dismissed vide order dated 27.08.2014

passed by a learned Single Judge of this Court.

6. Thereafter, the petitioner (appellant herein)

preferred CWJC No.4311 of 2015. The learned Single Judge

dismissed the appellant's writ petition. Hence, the present L.P.A.

7. The learned counsel for the appellant has submitted

that since the appellant has all along been treated at par with the

other government servants in the matter of all service benefits,

the decision of the Board to implement the recommendations of

the 5th Pay Revision Committee with effect from October, 2012

is not sustainable. The date of implementation with effect from

October, 2012 has been assailed since the appellant has retired

in January, 2012 and thus, under Resolution dated 26.09.2012,

the appellant stands excluded. The learned counsel further

submitted that the benefits arising out of the recommendations Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

of the revised scale made under 5th Pay Revision Committee

should have been implemented with effect from 01.01.1996 i.e.

the date on which it was made applicable to the State

Government employees and the employees of the Nagar

Panchayat and Urban Municipal bodies were asked to be treated

similarly.

8. Per contra, the learned counsel for the respondents

has submitted that in the meeting dated 26.09.2012, the matter

was placed for consideration of acceptance of 5th Pay Revision

in which the recommendation of 5th Pay Revision was accepted

by the Nagar Panchayat, Dumra with effect from 01.10.2012

and at that time, the appellant had already superannuated from

service, whereas the recommendation of 6th Pay Revision was

not accepted by the Nagar Panchayat, Dumra in its meeting

dated 31.05.2013 due to poor financial condition of the Nagar

Panchayat. The State Government did not issue any direction or

release the fund to the Municipality for the purpose of granting

the benefit of 5th Pay Revision or 6th Pay Revision to its

employees rather it was directed that the Municipalities have to

make payment from their own sources of income to grant the

benefits of such revision to its employees taking into

consideration their financial condition. Since the financial Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

condition of the Nagar Panchayat, Dumra is not good, therefore,

the Nagar Panchayat, Dumra implemented the recommendation

of 5th Pay Revision with effect from 01.10.2012 and did not

accept the 6th Pay Revision. Hence, no interference in the

impugned judgment of learned Single Judge is called for in the

facts and circumstances of the case.

9. The core issue involved in this case is whether the

appellant was entitled to the benefits of 5 th and 6th pay revision

at par with the other employees of the State Government.

10. From the resolution dated 13.04.2017, it transpires

that earlier a Notification No. 329 dated 16.01.2010 was issued

by the Urban Development and Housing Department to consider

grant of revised pay with effect from 01.01.1996 and 01.01.2006

to the officers and staff of Urban Bodies at par with the

Government employees along with other permissible perquisites

and it was also made clear that before granting such pay

revisions and perquisites, the Urban Bodies were at liberty to

take a decision after assessing their financial capability and it

was further made clear that the Government would not be liable

for financial burden arising out of such implementation.

11. From the resolutions dated 08.02.1999 and

21.01.2010, respectively, the recommendation of the 5th and 6th Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

Pay Revision Commission were adopted with effect from

01.01.1996 and 01.01.2006 while extending monetary benefit

from 01.04.1997 and 01.04.2007, respectively. Perusal of

resolution dated 13.04.2017 of Urban Development and Housing

Department shows the Government decided to allow salary

structure of 5th and 6th Pay Revision Commission with effect from

01.01.1996 and 01.01.2006 with monetary benefit with effect from

01.04.1997 and 01.04.2007, respectively to the employees of the

Municipalities with the rider that the extra burden arising out of

these pay revisions would be borne by the municipal bodies from

their internal resources and the State Government would not

provide any funds under these headings for this purpose. It has

been further ordered that the arrears of difference of salary would

be paid in easy installments by the municipal bodies through their

internal resources. It has been further ordered that such pay

revision would be granted only after verification of the same by

the Urban Development and Housing Department. It was again

reiterated that for the financial burden arising out of the aforesaid

pay revisions, the Government would not be responsible.

12. Perusal of aforesaid resolution makes it clear that the

Urban Development and Housing Department, which is over all

supervisory and controlling body over the Nagar Panchayat, issued

certain directions regarding implementation of 5 th and 6th Pay Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

Revision Commission to the employees of such Nagar Panchayat,

of course, subject to their capacity to bear the financial burden

arising out of it. If the Government has issued directives after

taking a resolution, it appears harsh on the employees of Nagar

Panchayat/Municipal Bodies that the benefit of pay revision had

been kept pending for years though the said benefits were

extended to the Government employees vide respective resolutions

taken in the year 1999 and in the year 2010 with effect from

01.01.1996 and 01.01.2006 with monetary benefit with effect from

01.04.1997 and 01.04.2007, respectively. On the ground of lack of

fund, the employees of municipal bodies could not be left in lurch

since the Government was duty bound to maintain the good

financial health of the municipal bodies and to keep them viable

under the mandate of Constitution specially Article 243H (c) and

even the municipal body where the appellant had been working

was under an obligation to extend the benefits of 5 th and 6th Pay

Revision Commission to its employees within a reasonable time

being a model employer.

13. It has been submitted on behalf of the respondents that

Nagar Panchayat, Dumra and subsequently Nagar Nigam,

Sitamarhi are autonomous bodies and vide a resolution taken in its

meeting dated 26.09.2012, decided to extend the benefit of 5 th Pay

Revision to its employees with effect from 01.10.2012 and the said Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

resolution was passed pertaining to the request of Urban

Development Department. As per the respondents, the said

decision was taken having regard to the fact that the municipal

body was to bear the excessive financial burden on its own for

extending the benefit of 5th Pay Revision to its employees and

these cut off date 01.10.2012 was arrived at. Thus, economic

condition of the Nagar Panchayat, Dumra was considered while

taking a decision regarding extension of benefits of 5 th Pay

Revision to the employees with effect from 01.10.2012. Further

contention is that the municipal body was not in a position to carry

this extra financial burden to the employees who retired after

01.01.1996. However, we do not think the municipal body or the

government could shirk their responsibility taking excuse of lack

of fund. As observed earlier, the State as well as Municipal Bodies

are duty bound to ensure that if the beneficial provision is ordered

to be extended to its employees with a policy decision fixing the

date, different sets of employees working in different bodies, who

have been treated at par while granting benefits, could not be left

to the mercy of their respective employers when the State needed

to intervene and ensure equitable apportion of burden arising out

of such benefits being extended to those employees. On this

account, we do not find any merit in the contention of the

respondents.

Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

14. However, another relevant fact which has been brought

to the notice of this Court in different counter affidavits filed by

the respondents has not been stressed upon by the parties at the

time of hearing of the matter. Annexure R/B appended with the

2nd supplementary counter affidavit filed on behalf of the

respondent nos. 8 and 9 shows the appellant had earlier moved

before this Court by filing CWJC No. 14830 of 2013 with the

claim or demands for payment of pension to him with other

claim of the appellant with regard to extension of 5 th pay

revision. The learned Single Judge did not find any merit in the

aforesaid petition and dismissed the same vide order dated

27.08.2014. The appellant did not challenge the aforesaid order

before any court of competent jurisdiction and thus, this order

has attained its finality. The appellant again filed another writ

petition bearing CWJC No. 4311 of 2015 which was again

dismissed vide order dated 13.08.2018 by a learned Single

Judge which is subject matter of challenge in the instant LPA.

15. Though in the light of discussions made here-in-

above, in principle this Court finds the appellant to be entitled

for the benefits of 5th and 6th Pay Revision Commissions'

Recommendations. However, the claim of the appellant for

grant of benefits of 5th Pay Revision was already rejected by a

learned Single Judge vide order dated 27.08.2014 passed in Patna High Court L.P.A No.1339 of 2018 dt 25-02-2023

CWJC No. 14830 of 2013, which in absence of any challenge

has attained finality. The appellant could not re-agitate the same

matter before this Court in another writ petition so far as grant

of benefit of 5th Pay Revision Commission is concerned. Hence,

the claim of the appellant for grant of 5th Pay Revision could not

be acceded to and is hereby rejected.

16. However, the appellant is found entitled to the

benefits of 6th Pay Revision with effect from 01.01.2006 and the

respondents are directed to ensure the payment of arrear arising

out of 6th Pay Revision Commission's recommendation to the

appellant within three months, failing which they will be liable

to pay interest @ 9% per annum.

17. In the light of aforementioned observations and

directions, the present LPA stands allowed in part.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) V.K.Pandey/-

AFR/NAFR                A.F.R.
CAV DATE                08.02.2023
Uploading Date          25.02.2023
Transmission Date       N.A.