Shashi Bhushan Kumar vs The State Of Bihar And Ors
2023 Latest Caselaw 2380 Patna

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023
                                           1/34




            IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Civil Writ Jurisdiction Case No.6277 of 2020
       ======================================================

1. Mukesh Kumar S/o Late Ram Ratan Singh R/o Village/ Mohalla- Pachadha, P.O.- Pachadha, P.S.- Hisua, District- Nawada.

2. Satendra Kumar S/o Late Mahesh Prasad R/o Mahendru Mohalla, Babhantoli, P.S.- Sultanganj, District- Patna.

3. Binit Kumar Son of Late Uma Nandan Shahi R/o Damuchak Road, P.S.-

Kazi Mohammadpur, District- Muzaffarpur.

4. Ravi Kumar Son of Late Ram Chandra Mahto R/o Maripur Main Road, Mohalla- Kurami Tola, P.S.- Kazi Mohammadpur, District- Muzaffarpur.

... ... Petitioners Versus

1. The State of Bihar through the Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar, Patna.

3. The Principal Secretary, Finance Department, Govt. of Bihar, Patna.

4. The Principal Secretary, General Administration Department, Govt. of Bihar, Patna.

5. The Secretary, Expenditure Finance Department, Govt. of Bihar, Patna.

6. The Additional Secretary, Finance Department, Govt. of Bihar, Patna.

7. The Engineer-in- Chief-cum- Special Secretary, Public Health Engineering Department, Bihar, Patna.

8. The Engineer-in- Chief, Building Construction Department, Bihar, Patna.

9. The Chief Engineer, (Mechanical), Public Health Engineering Department, Bihar, Patna.

10. The Chief Engineer, Building Construction Department, Bihar, Patna.

11. The Superintending Engineer, Public Health Engineering Circle, Muzaffarpur.

12. The Superintending Engineer, Public Health Engineering Circle, Gaya.

13. The Superintending Engineer, Building Construction Department, Circle, Muzaffarpur.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 16185 of 2012 ====================================================== Shashi Bhushan Kumar Son Of Late Ram Diwas Sinha Resident Of Village - Sarkuna, P.O. Bharatpura, P.S. Dulhin Bazar, District - Patna, Presently Posted As Accounts Clerk, Water Resources Department Design Division No.1, Anishabad, Patna. ... ... Petitioner Versus

1. The State Of Bihar

2. The Finance Secretary, Government Of Bihar, Patna. Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

3. The Principal Secretary, Water Resources Department, Government Of Bihar, Patna.

4. The Engineer-In-Chief-Cum- Additional Secretary-Cum- Special Secretary, Water Resources Department, Government of Bihar, Patna

5. The Chief Engineer, Water Resources Department, Of Bihar, Patna.

6. The Superintending Engineer, Water Resources Department Design, Planning And Monitoring Circle, Anishabad, Patna

7. The Executive Engineer, Water Resources Department, Design Division No. 1, Anishabad, Patna.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 9957 of 2017 ======================================================

1. Binod Kumar Mishra son of Late Damodar Mishra, R/o village- Chaksirai, P.O. & P.S.- Ujiyarpur, District- Samastipur

2. Shivam Kanhaiya son of Late Sukhdeo Prasad, R/o Keshri Cottage, Gandhi Nagar, Lane 1, Power House Road, P.O. & P.S. Begusarai, District- Begusarai

3. Shashi Bhushan Lal Das, son of Late Kameshwar Lal Das, R/o village- Dilawarpur, P.O. Milkichak, P.S.- Bahadurpur, Via Lakshmisagar, District- Darbhanga

4. Nawal Kishore Jha, son of Late Arjun Jha, R/o village- Dhanga, P.O.- Dhanga, P.S.-Arer, District- Madhubani

5. Pankaj Kumar son of Late Dhirendra Kumar Sinha, R/o village- Majhvalia, P.O.- Chakra, P.S.- Muffasil Siwan, District- Siwan

6.Satyendra Nasth Tiwari, son of Late Laxmi Kant Tiwari, R/o Gandak Colony No. 3, P.O. & P.S.- Motihari, District Motihari

7. Rahul Kumar son of Late Yogendra Choudhary, R/o S/13, Malahi Pakri, P.O. & P.S. Kankarbagh, District- Patna ... ... Petitioners Versus

1. The State Of Bihar through the Principal Secretary, Finance Department, Bihar, Patna.

2. Principal Secretary, Water Resources Department, Bihar, Patna.

3. Principal Secretary, Building Construction Department, Bihar, Patna

4. Chief Engineer, Flood Control & Drainage, Water Resources Department, Samastipur

5. Chief Engineer, Central Design Organization, Water Resources, Patna.

6. Chief Engineer, Flood Control & Drainage, Water Resources Department, Muzaffarpur

7. Chief Engineer, Flood Control & Drainage, Water Resources Department, Gopalganj

8. Chief Engineer, Building Construction Department, North Bihar Upbhag, Bihar Patna ... ... Respondents ====================================================== Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

with Civil Writ Jurisdiction Case No. 10350 of 2017 ======================================================

1. Ranjan Kumar S/o Late Chandrabhushan Sharma, Resident of Village-

Naudiha, P.O.- Jamuawa, P.S. Daud Nagar, District- Aurangabad.

2. Shishir Kumar, S/o Satish Kumar, Resident of Village- Gokhulpur, P.O.-

Basniva, Harnaut, District- Nalanda.

3. Sudhir Kumar, S/o Late Jeet Shankar Lal, Resident of VillageP.O.-

Kochahasha, P.S.- Kinjar, District- Arwal.

4. Singh Vipul Kumar, S/o Late Gulab Prasad Singh, Resident of Village+PO +PS+ District- Vaishali.

5. Pankaj Kumar, S/o Late Dindayal Prasad, Village+P.O.+P.S.- Daniyawa, District- Patna.

6. Niraj Kumar Roy, S/o Late Raghunath Roy, Resident of Village- Bania Chhaper, PO+PS- Gopalpur, District- Gopalganj.

7. Rajeev Ranjan Kumar, S/o Late Suresh Kumar, Resident of Village+PO-

Nagarnausa, District- Nalanda.

8. Satish Kumar, S/o Late Fateh Bahadur Singh, Resident at- Shivram Enclave, Saguna More, District- Patna.

... ... Petitioners Versus

1. The State Of Bihar through the Principal Secretary, Water Resources Department, Bihar, Patna.

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

3. The Secretary (Expenditure), Department of Finance, Government of Bihar, Patna.

4. The Principal Secretary, Water Resources Department, Government of Bihar, Patna.

5. The Superintending Engineer, Planning and Monitoring Circle-1, Patna.

6. The Superintending Engineer, Planning and Monitoring Circle-2, Patna.

7. The Superintending Engineer, Sichai Yojana and Monitoring Circle, Patna.

8. The Executive Engineer, Flood Control and Drainage Division, Biahrsharif, Nalanda.

9. The Executive Engineer, Sone Canal Division, District- Ara.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 10435 of 2017 ======================================================

1. Sanjay Kumar Son of Late Ramakant Singh, Resident of Village-

Dharkandha Khurd, P.O.- Simri, P.S.- Dawath, District- Rohtas.

2. Rajeev Kumar Verma, S/o Late Budhdeo Prasad Verma, Resident of Village-

Ramdapatty, P.O.- Nemua, P.S.- Supaul, District- Supaul. Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

3. Chandra Madhav, Son of Late Sachidanand Mishra, Resident of Mohalla-

Chatturbhuj Thakur Marg, Gannipur, Muzaffarpur, P.O.- Ramna, P.S.- Kazimahmadpur, District- Muzaffarpur.

4. Lalan Kumar, Son of Late Vishnu Deo Yadav, Resident of Mohalla-

Alalpatti, Ganga Sagar Pokhar South Side, P.O. D.M.C., District- Darbhanga.

5. Dilip Kumar, S/o Late Lalan Prasad, Resident of At and P.O.- Gyashpur, P.S. Paroo, District- Muzaffarpur.

6. Awadhesh Kumar Mandal, S/o Late Muneshwar Mandal, Resident of Village- Thuthi, P.O. Balua Bazar, Bhimpur, District- Supaul.

7. Pranav Prakhar, S/o Late Sachidanand Mishra, Resident of Village-

Devhitola (Deep), P.O. Darbhanga, P.S. Jhanjharpur, District- Madhubani.

8. Praphull Kumar Mahato, Son of Late Janki Prasad Mahato, Resident of Village- Kola Kushma Tola Nayadih, P.O. K.G. Asharam Gosaidih, District- Dhanbad.

9. Prem Shankar Mishra, S/o Late Narayan Mishra, Resident of Village- Bheja, P.O. Bheja, P.S. Bheja, District- Madhubani.

10. Nikhil Ranjan, Son of Late Sachidanand Sinha, Resident of Village- Batraul, P.O. P.S.- Lalganj, District- Vaishali.

11. Rajesh Kumar, S/o Late Lakshmi Narayan Singh, Resident of Village-

Chainpura, P.O.- Bhangha- Chandpur, P.S.- Jankinagar, District- Purnia.

12. Ravi Ranjan Patel, S/o Late Nawal Kishore Singh, Resident of Village-

Baghatilha, P.O.- Jodhan Bigha, P.S.- Belchi, District- Patna.

... ... Petitioners Versus

1. The State Of Bihar through the Principal Secretary, Water Resources Department, Bihar, Patna.

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

3. The Secretary (Expenditure), Department of Finance, Government of Bihar, Patna.

4. The Principal Secretary, Water Resources Department, Government of Bihar, Patna.

5. The Executive Engineer, Irrigation Division, Bhagalpur, District- Bhagalpur.

6. The Executive Engineer, Tirhut Canal Division, Ratwara, District-

Muzaffarpur.

7. The Executive Engineer, Western Embankment Division, Nirmali, District-

Supaul.

8. The Executive Engineer, Local Area Engineering Organization Work Division- 1, Bihar Sharif, District- Nalanda

9. The Executive Engineer, North Koyal Canal Division, Amba, District-

Aurangabad.

10. The Executive Engineer, Irrigation Division, Birpur, District- Supaul.

11. The Executive Engineer, Eastern Embankment Division, Supaul, District- Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

Supaul.

12. The Executive Engineer, Irrigation Division, Araria, District- Araria.

13. The Executive Engineer, Flood Control Division, Ekangarsarai, District-

Nalanda.

... ... Respondents ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 6277 of 2020) For the Petitioner/s : Mr.Siyaram Pandey, Advocate For the Respondent/s : Mr. Bijoy Kumar Sinha, AC to AAG-5 (In Civil Writ Jurisdiction Case No. 16185 of 2012) For the Petitioner/s : Mr.Shashi Bhushan Kumar Manglam, Advocate For the Respondent/s : Mr. Kameshwar Prasad Gupta GP 10 Mr. Satya Vrat, AC to GP-10 (In Civil Writ Jurisdiction Case No. 9957 of 2017) For the Petitioner/s : Mr.Abhinav Srivastava, Advocate For the Respondent/s : Mr. Sudhir Kumar Upadhyay, AC to GP-7 (In Civil Writ Jurisdiction Case No. 10350 of 2017) For the Petitioner/s : Mr. Siya Ram Shahi, Advocate Ms. Shally Kumari, Advocate For the Respondent/s : Mr.Vinay Kirti Singh- GA 2 (In Civil Writ Jurisdiction Case No. 10435 of 2017) For the Petitioner/s : Mr. Siya Ram Shahi, Advocate Ms. Shally Kumari, Advocate For the Respondent/s : Mr. Sanjay Kumar AC to AAG -4 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

CAV JUDGMENT

Date : 17-05-2023

Heard learned counsel for the petitioners and learned

counsel for the State in all these writ applications.

2. Since these matters are involving a common issue,

these writ applications have been heard together on the request of

the parties and are being disposed of by this common judgment.

For reference C.W.J.C. No. 6277 of 2020 (Mukesh Kumar vs.

The State of Bihar & Ors.) has been taken as the lead case.

3. The petitioners in the present case are seeking the

following reliefs:-

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

"(i) Writ of certiorari for quashing setting aside the letter no. 1041 dated 07.02.2020 issued by the Additional Secretary, Finance Department, Govt. of Bihar, Patna (Annexure-3) by which the representation filed by the petitioners in compliance of the order dated 29.08.20219 passed in CWJC NO. 2469/2019 have been rejected and be pleased to quash paragraph no. 5(ii) of Memo No. 3111 dated 25.03.2015 issued by the Secretary (Expenditure) Finance Department, Govt. of Bihar, Patna (Annexure-13) by which the actual date of demerger is wrongly shifted from 25.03.2015 to 28.09.1999 and the accounts clerk appointed after 28.09.1999 is ordered to be treated as Junior Accounts Clerk with retrospective effect whereas the only post available between 01.05.1980 to 25.03.2015 is Accounts Clerk scale meant for Senior Accounts Clerk for which the petitioners are legally entitled to hold that post with all consequential benefits and be further pleased to pass and appropriate writ/writs in the nature of.

(ii) Writ of mandamus or an appropriate writ/writs order/orders or direction/directions commanding the respondents to treat the petitioners as Accounts Clerk i.e. Senior Accounts Clerk with pay-scale of Rs.4500- 7000 (unrevised) with revised pay scale of Rs.5200- 20200 with grade pay 2800/- from the dates of their appointment with arrears and all other consequential service benefits and/or

(iii) Be pleased to pass such other order on orders which may be deemed fit and proper in the facts and circumstances of the case."

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

Brief Facts

4. The petitioners were admittedly appointed on

compassionate ground on the post of Junior Accounts Clerk, after

28.09.1999. The appointment letters of the petitioners in C.W.J.C.

No. 6277 of 2020 are Annexure '4', '5', '6' and '7' respectively.

They were placed in the pay scale of Rs. 4000-100-6000.

5. It appears that the petitioners moved this Court on

earlier occasion in CWJC No. 2469 of 2019 claiming parity in the

matter of grant of pay with the beneficiaries of the decision in the

case of Binit Kumar and Ors. vs. State of Bihar and Ors. in CWJC

No. 9921 of 2017. During the pendency of the writ application, the

State Government granted parity to the petitioners treating them

similarly situated with the petitioners of CWJC No. 9921 of 2017.

While disposing of their writ applications, the petitioners were

granted liberty to approach the respondents authorities, for grant of

better benefits. The petitioners, thereafter filed a representation as

contained in Annexure '2' to the writ application to the Principal

Secretary Department of Finance wherein they claimed pay scale

of Rs. 4500-7000(unrevised) with revised pay scale of Rs. 5200

that 20,200 with grade pay PB 1 2800 from the date of their initial

appointments.

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

6. It is the case of the petitioners in CWJC No. 6277 of

2020 that they were appointed on compassionate ground during

the year 2001-2002 on the post of Junior Accounts Clerk whereas

the post of Junior Accounts Clerk and Senior Accounts Clerk had

already been merged on 18.02.1981 w.e.f. 01.05.1980. It is their

case that the posts were demerged into Junior Accounts Clerk and

Senior Accounts Clerk by virtue of Resolution No. 3111 dated

25.03.2015 issued by the Department of Finance, Government of

Bihar. Thus, the submission is that because the petitioners were

appointed between 01.05.1980 and 25.03.2015 during which the

only post available in the cadre was of Senior Accounts Clerk, the

appointment of the petitioners should have been done only against

the post available in the Department for the Accounts cadre.

7. In course of submissions, learned counsel for the

petitioners have given much emphasis on their submissions that

even as the Cabinet decision was taken by the Government on

27.09.1999 to demerge the different clerical cadre into Senior and

Junior Grade/Cadre and accordingly, the clerical cadre of

Collectorate and other Muffasil offices were demerged w.e.f.

20.12.2000 vide Letter No. 8825-8826, there was no demerger of

the Accounts cadre. According to the petitioners, the Finance

Department Resolution No. 3111 dated 25.03.2015, insofar as it Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

has been made retrospective is bad and the same is not sustainable

in the eye of law. It is stated that in Letter No. 3/A-9 Misc. 32/09-

38471 Finance dated 05.05.2009, the Department of Finance made

available an information under the Right to Information Act to one

of the petitioners in CWJC No. 16185 of 2012 wherein it is stated

that there is no such letter issued with respect to demerger of

Junior and Senior Accounts Clerk.

8. It is worth mentioning that in one of the writ

applications being CWJC No. 9957 of 2017 (Binod Kumar Mishra

versus the State of Bihar and others), Mr. Abhinav Shrivastava,

learned counsel representing the petitioners has submitted that so

far as the petitioners in the present case are concerned, they were

appointed after 28.09.1999 but before 20.12.2000. It is his

submission that these petitioners were entitled to be appointed

against the post of Upper Division Clerk because the decision of

the State Government with respect to the demerger of the post of

clerical cadre had been given effect to only on 20.12.2000. His

further submission is that unfortunately, the Cabinet decision taken

in the meeting held on 27.09.1999 pursuant to which letter was

also issued on the same date by the Finance Department proposing

to effect the demerger of the clerical cadre but actually demerger Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

never took place prior to issuance of Letter No. 8825 dated

20.12.2000 issued by the Finance Department.

9. Mr. Shrivastava, has further submitted that the

petitioners are entitled for being extended the benefits of

designation of Senior Accounts Clerk and fixation of their salaries

in the scale of Rs.4500-7000 as the resolution of the Finance

Department dated 25.03.2015 provides for the same w.e.f.

01.01.1996 in place of Rs.4500-6000. Learned counsel submits to

the extent that the petitioners in this case may be allowed the

benefits of the post of Senior Accounts Clerk for their post retiral

benefit and they would not claim arrears on account of difference

of salary from the date of their appointments.

Stand of the State

10. A counter affidavit has been filed on behalf of

respondent no. 3 and 6 in C.W.J.C. No. 6277 of 2020. It is the

stand of the respondents that the submissions advanced on behalf

of the petitioners are misconceived and wholly erroneous.

According to them the cadre of Senior Accounts Clerk which was

created from 07.05.1980 by merging the erstwhile two posts was

demerged by operation of letter no. 6389 dated 28.09.1999. It is

further stated that letter no. 3111 dated 25.03.2015 is a mere

reiteration of the earlier letter dated 28.09.1999. Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

11. It is further stand of the State that the subsequent Pay

Revision Committees of the State Government did not take

cognizance of the merger of the Accounts Clerk cadre and the

successive Pay Revision Committees have in the years 1981, 1986

and 1996 recommended separate pay scales for both the posts of

Junior Accounts Clerk and Senior Accounts Clerk. In view of the

separate pay scales recommendations for the two posts, the State

Government was making new appointments after 01.04.1981 in

the Accounts Clerk cadre on the post of Junior Accounts Clerk

which was the subject matter of dispute in C.W.J.C. No. 8828 of

2006 (Binda Ray & Ors. Vs. The State of Bihar & Ors.). The

writ application was disposed of on 01.12.2010. This Hon'ble

Court while interpreting letter no. 6389 dated 28.09.1999 has

been pleased to hold that the State took a decision to demerge the

Accounts Clerk post with effect from 28.08.1999. This view of the

writ court was approved in L.P.A. No. 512 of 2012 (State of

Bihar & Ors. Vs. Bida Ray & Ors.). Again in C.W.J.C. No. 1102

of 2009 (Sheo Charan Paswan Vs. The State of Bihar & Ors.)

vide judgment dated 08.08.2011, the Hon'ble Writ Court has been

pleased to hold that the Accounts Clerk Cadre was demerged on

28.09.21999. This decision was also upheld by the Hon'ble

appellate Court in L.P.A. No. 576 of 2012 (State of Bihar & Ors. Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

Vs. Sheo Charan Paswan). It is in the aforementioned

background the Finance Department has issued Letter No. 3111

dated 25.03.2015.

12. The respondents have also placed reliance upon the

judgment of this Court in C.W.J.C. No. 9921 of 2017 and

analogous cases which has been affirmed by the Hon'ble Appellate

Court in L.P.A. No. 1702 of 2017 and analogous cases decided on

11.07.2018 and the same has not been interfered with the Hon'ble

Supreme Court.

13. A counter affidavit has been filed in C.W.J.C. No.

9957 of 2017 on behalf of Respondent no. 1.

14. It is stated that in the Resolution dated 25.03.2015

the Government has fixed the cut-off date of merger of Accounts

Clerk Cadre w.e.f. 28.09.1999 in compliance with the orders of

this Court in the aforementioned cases. It is stated that the cut-off

date of demerger of Accounts Clerk Cadre on the basis of letter

No. 6389 dated 28.09.1999 has been issued by the Finance

Department whereas the Government has already issued demerger

of Clerical Cadre of Collectorates and Secretariats vide Letter no.

8825 dated 20.12.2000. The respondent no. 1 has denied the claim

of the petitioners on the ground that the cut-off date of demerger of

the Accounts Clerk Cadre of the Works Department is 28.09.1999 Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

fixed by the Hon'ble Court. It is also submitted that the writ

application has been filed after two and half years from the date of

issuance of resolution dated 25.03.2015.

15. A counter affidavit has also been filed on behalf of

respondent nos. 2, 4 and 7 in CWJC No. 9957 of 2017 wherein

similar contentions as noted above have been made. However, one

of the submissions made on behalf of these respondents that the

petitioners are challenging the policy decision as contained in

Letter No. 6389 dated 28.09.1999 after a gap of 20 years,

therefore, the writ application may be dismissed on the ground of

delay and laches alone.

16. In other writ applications, though no separate

counter affidavits have been filed but learned counsel for the State

have adopted the same and one argument as stated above.

Consideration

17. Having heard learned counsel for the petitioner(s)

and learned counsel for the State, this Court would first of all take

note of the admitted facts of the case that these petitioners came to

be appointed on the post of Junior Accounts Clerk in the pay scale

of 4000-6000 after 28.09.1999. They accepted their appointment

on compassionate ground and continued with the same without

any whisper of protest for over a decade.

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

18. From the records placed before this Court it appears

that initially one Binda Ray (supra) came to this Court in

C.W.J.C. No. 8828 of 2006. He was promoted to the post of

Accounts Clerk in the year 1993 and his remuneration was

accordingly fixed. A dispute arose in his case with regard to the

period 01.04.1997 to 01.10.2002 and thereafter as to the scale on

which the salary has to be paid to the petitioner. A learned co-

ordinate Bench of this Court examined the controversy. The Court

took note of the fact that there were earlier Division Bench and

Single Judges judgments on the point as to what payment would

be made to the Accounts Clerk. It was found that the petitioner

was earlier paid the remuneration on the basis of pay scale of Rs.

4500-7000 which was the pay scale for Senior Accounts Clerk.

19. The learned Writ Court reiterated that the distinction

having been obliterated by the merger it could only be put into use

after demerger. It is recorded in the judgment in the case of Binda

Ray (supra) that the State took a decision to demerge the post with

effect from 28.08.1999. The Court has further recorded that in this

demerger notification itself it is clearly stated that people who

were receiving remuneration at a higher scale prior to merger

would not be prejudiced in any manner thereby and they would

continue to receive the higher pay scale. The judgment in the case Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

of Binda Ray (supra) was approved by the Hon'ble Division

Bench in LPA No. 512 of 2012. The Division Bench has also

taken note of the fact that there is a demerger of the two posts vide

Government's Resolution dated 28th September, 1999. In the case

of Sheo Charan Paswan (supra) also the same view was

reiterated. In his case, taking note of the fact that the petitioner

was not actively pursuing the matter, this Court restricted the relief

towards payment of arrears for the period of three years

commencing from the date of filing of the writ petition. Again

Sheo Charan Paswan (supra) case was of an appointment made

on 14.12.1989. His case stood on a differing footing for one more

reason that in his case, this Court had passed an order dated

02.07.1998 in C.W.J.C. No. 879 of 1997 wherein the Court had

granted him revised pay scale of a non existent post. Thus, issue

was restricted to payment of the revised pay scale of Accounts

Clerk (re-designated as Senior Accounts Clerk after demerger). In

the case of Sheo Charan Paswan (supra) also this Court

recognized the fact that there was a demerger of the Accounts

Cadre in two posts of Junior Clerk and Senior Accounts Clerk.

20. At this stage, this Court would reproduce the letter

no. 6389 dated 28.09.1999 issued by the Department of Finance,

Government of Bihar as under:-

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

"[fcgkj ljdkj] foRr foHkkx] i= la[;k

[email protected],e0&2&5&os0iq0&[email protected]@6389 fo0 (2)] fnukad 28&9&1999 dh izfrfyfiA]

fo'k; % fofHkUu [email protected] ds lafofy;u dks i`Fkd djrs gq, iwoZ dh

Hkk¡fr duh; ,oa ojh; laoxZ dks iquthZfor djus vkSj ubZ lsokvksa ds xBu ds laca/k

esaA

mi;qZDr fo'k; ds laca/k esa funs"kkuqlkj dguk gS fd jkT; ljdkj us

vius lsohoxZ dks dsUnzh; lsok "krksZa ds lkFk dsUnzh; [email protected]Ÿkksa ,oa vU;

lqfo/kk,¡ iznku djus dk fu.kZ; fy;k FkkA ml Øe esa fQVesaV dfeVh dh vuq"kalk

ij ladYi la[;k 660 fo0 (2), fnukad 8&2&1999 ds }kjk dsUnzh; osruekuksa dh

Lohd`fr iznku dh tk pqdh gS k

2. jkT; ljdkj us fQVesaV dfeVh dh fofHkUu [email protected] ds

"kS{[email protected]"kS{kf.kd ;ksX;rk] lsok "krZ vkfn esa la"kks?ku dh vuq"kalkvksa dks Hkh eku

fy;k gSA bl Øe esa eaf=ifj'kn~ dh vkfFkZd lfefr esa ;g fu.kZ; fy;k x;k fd

dsUnz esa fofHkUu laoxZ dh lajpuk ds vuq:i jkT; ljdkj esa Hkh laoxksZa rFkk lsokvksa

rFkk lsokvksa dk iquxZBu fd;k tk,A mnkgj.k ds fy, dsUnz ljdkj ds v/khu

{ks=h; dk;kZy;ksa esa fuEuoxhZ; vkSj mPpoxhZ; fyfidksa ds in gSa] tcfd jkT;

ljdkj esa bu inksa dk vkSj blh izdkj] vU; foHkkxksa esa Hkh fofHkUu inksa dk 1980

ds n"kd ,dhdj.k dj fn;k x;kA fopkj&foe"kZ ds nkSjku ;g fu.kZ; Hkh fy;k

x;k fd vU; lsokvksa esa Hkh] ftlds led{k dsUnz esa lsok,Wa ugha gSa] ftu

fuEuoxhZ; ;k duh; inksa dk lafofy;u ojh; inksa ls dj fn;k x;k] mu laoxksZa

dks Hkh iquthZfor fd;k tk,A

3- jkT; ljdkj us 27&7&1999 dh eaf=ifj'kn~ dh cSBd esa ;g fu.kZ;

fy;k gS fd%& Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

(1) ftu foHkkxksa ;k lsokvksa esa laoxZ dh orZeku lajpuk dsUnz ljdkj

esa miyC/k lanHkZ ls fHkUu gS] ogk¡ dsUnzh; iSVuZ dh lsokvksa dk iquxZBu fd;k tk,A

mnkgj.k ds fy, dsUnzh; lfpoky; ds iSVuZ ij ;gk¡ Hkh fcgkj lfpoky; lsok vkSj

lfpoky; fyfidh; lsok ds laoxZ dk xBu fd;k tk,A mlh izdkj {ks=h;

dk;kZy; esa dsUnz ds vuq:i fuEuoxhZ; rFkk mPp oxhZ; fyfidksa ds laoxZ dk

l`tu fd;k tk,A

(2) jkT; dh ftu lsokvksa ;k laoxZ ds leku dsUnz esa laoxZ ;k lsok

miyC/k ugha gS ,sls ekeyksa esa Hkh ;g fu.kZ; fy;k x;k gS fd iwoZ esa ftl izdkj

duh; vkSj ojh; lsok,¡ Fkh vkSj ftudk ,dhdj.k 1980 ds n"kd esa dj fn;k x;k

gS] oSls ekeyksa esa duh; laoxksZa dks iquthZfor fd;k tk,A ,dhdj.k ls izHkkfor oSls

laoxksZa dh ,d lwph vuqyXud 1 esa nh xbZ gSA

(3) ;g Li'V fd;k tkrk gS fd orZeku esa tks lsokdehZ gSa] og ojh;

inksa ij gh jgsaxs vkSj mUgsa iquthZfor fd, tkus okys ;k uo&l`ftr fd, tkus okys

fuEu&Lrjh; laoxZ esa lek;ksftr djus dk dksbZ iz"u ugha gSA fu.kZ; ds ckn

fu;qDr gksus okys dehZ dks gh mu fuEu&Lrjh; laoxZ esa j[kk tk,xkA

(4) foHkkxh; lfpo foHkkx dh iz"kklfud vko";drk ,oa foHkkx dh

lajpuk dks n`f'V&iFk esa j[kdj duh;@ojh;] [email protected] in ,oa osrueku~ ds

lkFk u;s laoxZ ds xBu gsrq fu;ekuqlkj vko";d dkjZokbZ ,d ekg ds vUnj iw.kZ

djsaxsA ,rn~ fo'k;d izLrko xfBr djrs le; ,dhdj.k ds iwoZ dh lajpuk dks

/;ku esa j[ksaxs] lkFk gh vxj dsUnz esa Hkh led{k in ,oa laoxZ gks rks mldh

lajpuk dks Hkh iw.kZ:is.k /;ku esa j[ksaxs rkfd ;FkklaHko dsUnz ds vuq:i lajpuk

xfBr gks ldsA tgk¡ dsUnz dk ekWaMy miyC/k ugha gks ogk¡ foHkkx dh

iz"[email protected]{ks=h; vko";drkvksa ds vuq:i iquthZfor fd, tkus okys [email protected]

dks lajpuk izLrkfor dh tk,A Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

(5) foHkkx vko";drkuqlkj HkrhZ ,oa izksUufr fu;ekoyh esa Hkh fofgr

vkSipkfjdrkvksa dk fuokZg dj la"kks/ku djsaxs ;k vko";drkuqlkj u;s fljs ls

fu;ekoyh rS;kj djsaxsA fu;ekoyh esa ;g Li'V fd;k tk,xk fd fuEurj Lrj ds

laoxZ dk Lo:i D;k gksxk] mldk inuke D;k gksxk] ml ij HkrhZ dh O;oLFkk D;k

gksxh vkSj fuEurj inksa dk mPpLrjh; laoxZ ls D;k laca/k gksxkA

(6) foHkkxh; lfpo ,d ekg ds i"pkr~ bl lanHkZ esa dh x;h dkjZokbZ

ls foŸk foHkkx dks voxr djkus dh d`ik djsaxsA orZeku esa l`ftr vkSj dk;Zjr cy

dh Hkh Li'V lwpuk ladfyr dj miyC/k djkbZ tk,A

(7) mi;wZDr fu.kZ; ds dk;kZUo;u esa ;fn foHkkx dks dksbZ dfBukbZ

eglwl djrk gS rks dfBukbZ ds fcUnq dks Li'V djrs gq, vko";drkuqlkj

foŸ[email protected] foHkkx dk ijke"kZ izkIr dj ysaxs] fdUrq vkos"k ds dk;kZUo;u dh

vafre ftEesnkjh iz"kklfud foHkkx dh ekuh tk,xhA"

21. Schedule 1 to the Letter No. 6389 contains the

revised pay scale of the two posts of Junior Accounts Clerk and

Senior Accounts Clerk.

22. The Finance Department's letter no. 8825 dated 20 th

December, 2000 refers merger of the Clerical cadre in the

Collectorate and other Muffasil offices is being reproduced

hereunder for a ready reference:-

"[fcgkj ljdkj foŸk foHkkx] i= la[;k 3 ,e&[email protected]&os0iq0

[email protected]&8825 fo0 (2)@iVuk] fnukad 20 fnlEcj] 2000 dh izfrfyfiA izs'kd

jkes"oj flag] ljdkj ds fo"ks'k lfpoA lsok esa] egkys[kkdkj fcgkj ohjpUn iVsy

iFk] iVuk iks0 fgUuw jkWaphA] Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

fo'k; % lekgj.kky; ,oa vU; eq¶Qfly dk;kZy;ksa ds fyfifd; inksa

ds ,dhdj.k dks i`Fkd~ djus ds laca/k esaA

funs"kkuqlkj eq>s ;g dguk gS fd fQVesaV dfeVh dh vuq"kalk ij

jkT; ljdkj ds fofHkUu [email protected] dh lajpuk dsUnz ds vuq:i iquxZfBr djus

dk fu.kZ; foŸk foHkkx ds i= la[;k 6389] fnukad 28&9&1999 }kjk lalwfpr fd;k

x;k Fkk vkSj blh Øe esa foŸk foHkkxh; i=kad 5206 fnukad 24&5&1980 }kjk

lekgj.kky; ,oa vU; eq¶Qfly dk;kZy; ds vuqlfpoh; ljdkjh lsodksa ds

fuEuoxhZ; ,oa mPpoxhZ; ds inksa ds ,dhdj.k dks lekIr fd, tkus dk iz"u

ljdkj ds fopkjk/khu FkkA

2. foŸk foHkkxh; i=kad 5206 fnukad 24&5&1980 }kjk

lekgj.kky; ,oa vU; eq¶Qfly dk;kZy;ksa dh LFkkiuk ds fuEu oxhZ; fyfid

(osrueku :0 220&315) ,oa mPp oxhZ; fyfid (osrueku :0 284&372) ds inksa

dks ,dhd`r dj fyfid dk inuke fn;k x;k Fkk vkSj mlds fy, :0 284&372

dk osrueku fnukad 1&5&1980 ds izHkko ls Lohd`r fd;k x;k FkkA

3. dsUnz ds vuq:i [email protected] dh lajpuk iquxZfBr vkSj fodflr

djus ds fu.kZ; dks n`f'ViFk esa j[krs gq, jkT; ljdkj us fu.kZ; fy;k gS fd foŸk

foHkkx ds mi;qZDr jkT;kns"k }kjk ,dhd`r fd, x, fyfidh; laoxZ ds inksa ,oa

osruekuksa dks fuEu izdkj ls i`Fkd (Demerge) dj fn;k tk;&

orZeku inuke Uk;s inuke osrueku fyfid fuEu oxhZ; fyfid 3050&4500 mPp oxhZ; fyfid 4000&6000

4. bl Lohd`R;kns"k ds fuxZr gksus ds iwoZ ls dk;Zjr fyfid dks mPp

oxhZ; fyfid ekuk tk,xkA Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

5. bl Lohd`R;kns"k ds fuxZr gksus ds ckn mi;qZDr dafMdk 3 esa of.kZr

i`FkDdhdj.k ds vuq:i~ fuEu oxhZ; fyfid ds inksa ij gh lh/kh fu;qfDr dh

dkjZokbZ dh tk,xh vkSj mPp oxhZ; fyfid dk in iw.kZr% izksUufr dk in ekuk

tk,xkA

bl fu.kZ; ds QyLo:i orZeku esa 'fyfid' ds fjfDr;k¡ fuEu oxhZ;

fyfid dh fjfDr;k¡ ekuh tk,¡xhA

(ii) ;fn mPprj osrueku ds fyfid ds inksa ij dksbZ fu;qfDr

izfØ;k/khu gks rks mls rkRdkfyd izHkko ls jn~n dj fn;k tk,xk Hkys gh p;u dh

izfØ;k iw.kZ gks xbZ gksA oSls vH;kfFkZ;ksa dks fcuk nqckjk "kqYd fy, fuEurj Lrj ds

inksa ij fu;qfDr ds fy, p;u dh izfØ;k esa "kkfey gksus dk volj fn;k tk,xkA

6. fQVesaV dfefV dh vuq"kalk dks /;ku esa j[kdj mi;qZDr inksa ls

lacaf/kr laoxZ ds xBu gsrq jktLo i'kZn }kjk HkrhZ ,oa izksUufr fu;ekoyh rS;kj fd,

tkus ij bl laoxZ ds fofHkUu Lrjksa dk Lo:i] HkrhZ dh izf Ø;k ,oa izksUufr dh

O;oLFkk vkfn Lor% Li'V gks tk;xh vkSj rn~uqlkj bl Lohd`R;kns"k esa fd, x,

izko/kku Hkh la"kksf/kr gks tk,¡xsA"

23. A bare perusal of the letter no. 8825 would show that

it refers the earlier letter of the Finance Department bearing no.

6389 dated 28.09.1999 and reiterates that the Finance Department

has notified the decision of the State Government on the

recommendation of the Fitment Committee to restructure the

different post/cadres in the light of the Central Government.

Paragraph (3) of the letter no. 6389 clearly says that after the Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

decision is taken the appointees thereafter shall be kept in the

lower level.

24. This Court further finds that in the case of Ram

Janam Jha and others Vs. The State of Bihar & Ors. (C.W.J.C.

No. 12124 of 2011) the petitioners were initially appointed as

Junior Accounts Clerk in the office of the Executive Engineer,

Water Resources Department in different Divisions. The

petitioners were designated as Accounts Clerk and were granted

the said salary but by issuing a circular dated 03.08.2010 the

Department of Finance, Government of Bihar said that the merger

of the post of Junior Accountants Clerk and Senior Accounts Clerk

were wrongly understood. They referred the letter of the Finance

Department dated 28.09.1999 and submitted that the 4th, 5th and 6th

Pay Revision recommendations did not accept the said merger.

While deciding these writ applications, once again the learned Writ

Court held that the letter of the Finance Department dated

28.09.1999 is virtually an order of demerger but a close reading

of it would show that it has prospective application. The writ court

reiterated that the people who were on the merged posts continue

to remain as such. The Court refused to accept the said contention

of the State in the said case that the petitioners' posts were not Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

merged and they were wrongly treated as Accounts Clerk which

was the designation upon merger.

25. The judgment of the writ court in the case of Ram

Janam Jha & Ors. came to be challenged in L.P.A. No. 206 of

2014 (State of Bihar & Ors. Vs. Ram Janam Jha & Ors.).

Before the Hon'ble Division Bench, the State Government's

Resolution no. 3111 (v) dated 25.03.2015 was placed. The

Hon'ble Division Bench took note of the fact that the controversy

as to the pay revision has been examined by the State Government

in its resolution and the same has been resolved, dismissed the

letters patent appeal.

26. In the case of Binit Kumar & Ors. and another

analogous matters (C.W.J.C. No. 9921 of 2017) the petitioners

moved this Court for restoration of their pay scales. They had been

reverted from the post of Lower Division Accounts Clerk / Lower

Division Clerk (Accounts) in the pay scale of 3050-4590 with

effect from 20.12.2000. They were re-designated as Lower

Division Clerk with effect from the date of their initial

appointment and were assigned the pay scale of Rs. 3050-4590

with revised pay scale payable with effect from 01.01.2006. It was

the case of the petitioners that they were appointed on Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

compassionate ground on different posts in Accounts Clerk Cadre

on different dates beginning from 01.01.2001 to 02.04.2014.

27. In the above case also the Finance Department's

resolution bearing no. 3111 dated 25.03.2015 came to be

considered. Learned counsel for the petitioners in those writ

applications referred the operative portion at paragraph '5' and

submitted that since the decision has been taken by the State

Government in its Finance Department that all appointments

made in different Departments of the State Government in the

Accounts Clerical Cadre since after 27.09.1999 whether on the

post of Junior Accounts Clerk / Lower Division Clerk or Lower

Division Clerk (Accounts) would be designated as Junior

Accounts Clerk and would be entitled to a pay scale of Rs. 4000-

6000 with effect from 31.12.2005 and in the Pay Band -1 with

Grade Pay of Rs. 2400/-.

28. Further, it appears that in the case of Binit Kumar

& Ors., the petitioners relied on paragraph 5(ii) of the Finance

Department's Resolution No. 3111 dated 25.03.2015 and

submitted that the resolution of the State Government was in the

light of the orders passed by this Court on the issue of anomaly of

pay scale in the Accounts Clerk Cadre. It was the case of the

petitioners that Clause 5(ii) would squarely cover the case of the Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

petitioners. It is worth mentioning that Binit Kumar the petitioner

no. 1 in C.W.J.C. No. 9921 of 2017 is petitioner no. 3 in present

C.W.J.C. No. 6977 of 2020 which is the leading case. Similarly

petitioner no. 2 in the present case was petitioner no. 1 in C.W.J.C.

No. 8538 of 2016 and petitioner no. 4 of this case was petitioner

no. 2 in the C.W.J.C. No. 9921 of 2017.

29. This Court, therefore, finds that atleast some of the

petitioners having contended earlier that the resolution of the State

Government dated 25.03.2015 was in compliance of the order of

this Court and paragraph 5(ii) squarely covers their case have now

moved this Court with a prayer to quash the same paragraph 5(ii)

of Memo No. 3111 dated 25.03.2015 issued by the Department of

Finance, Government of Bihar. In the writ application they have

made a declaration in paragraph '2' that they have not moved

earlier in this matter except that they moved in C.W.J.C. No. 2469

of 2019 disposed of vide order dated 29.08.2019. Apparently they

have concealed material facts that some of them were petitioners

in C.W.J.C. No. 9921 of 2017 and other analogous matters.

30. This conduct of the petitioners who had moved this

Court earlier in CWJC No. 9921 of 2017 and other analogous

matters but did not disclose it while filing the present writ

applications are liable to be deprecated.

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

31. The petitioners have taken benefit of paragraph 5(ii)

of the Finance Department's Resolution No. 3111 dated

25.03.2015, therefore at this stage, they are stopped from

contending that there was no demerger of the Accounts Cadre

posts in Junior Accounts Clerk and Senior Accounts Clerk on the

date of their respective appointments. The contentions of the State

that what has been stated in the Resolution dated 25.03.2015 is

nothing but a reiteration of the Cabinet decision taken in the

meeting held on 27.09.1999, it was notified vide Departmental

Letter No. 6389 dated 28.09.1999 is correct. This stand of the State

respondents are required to be seen keeping in mind the earlier

round of litigations and the judgments in which controversy

relating to merger and demerger of the Accounts Cadre posts have

been examined and adjudicated. The decisions of this Court

referred hereinabove go a long way to show that not only the State

respondents but even the petitioners who had been appointed on

the post of Junior Accounts Clerk had accepted the position that

vide Letter No. 6389 dated 28.09.1999 the separate existence of

the posts, namely, Junior Accounts Clerk and Senior Accounts

Clerk had been recognized, accordingly appointments were made

on the post of Junior Accounts Clerk in the given pay scale. In

paragraph '17' of the writ application (CWJC No. 9957 of 2017) a Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

statement has been made that several representations were filed by

the petitioners seeking their appointment as Senior Accounts Clerk

and the pay scale of the same. Copies of such representations have

been enclosed as Annexure '6 Series' to the writ application

(CWJC No. 9957 of 2017). A perusal of Annexure '6 Series' would

show that the representations were made during the period 2017 to

2019.

32. The petitioners in CWJC No. 6277 of 2020 have

assailed Letter No. 1041 dated 07.02.2020 (Annexure '3' issued by

the Additional Secretary, Finance Department, Government of

Bihar by which the representations filed by the petitioners in

compliance of the order dated 29.08.2019 passed in CWJC No.

2469 of 2019 have been rejected. On perusal of Annexure '3', it

would appear that the petitioners had submitted an application

seeking compliance of the order dated 29.08.2019 passed in CWJC

No. 2469 of 2019 (Mukesh Kumar and Others versus the State of

Bihar and Others). The communication as contained in Annexure

'3' reads as under:-

"i=kad &3,&1&eqd0&[email protected]& 1041 बबहार सरकार बवत बवभाग।

isz'kd] lqjsUnz ठाकुर] सरकार के voj सबचव।

से वा मे ] Jh मु केश dqekj] Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

S/o सव० राम रतन बसं ह] [email protected]&ipk<+k] iks0&ipk<+] Fkkuk&fglqvk] ftyk& [email protected]

Jh lrsUnz dqekj] S/o सव० egs"k izlkn] R/o egsUnwz] eqgYyk&cHkuVksyh] FkkUkk& lqYrkuxat] ftyk& [email protected]

Jh fcuhr dqekj] S/o सव० mek uanu lkguh] R/o Mksewpd jksM] Fkkuk dkth eksgEeniqj] ftyk eqt¶[email protected]

Jh jfo dqekj] S/o सव० mek uUnu lkguh] R/o ekjhiqj esUk jksM] eqgYyk&dqjeh Vksyk] Fkkuk dkth eksgEeniqj] ftyk eqt¶[email protected]

Jh f"ko "kadj izlkn] S/o सव० y{ke.k izlkn R/o xzke&Bkdqj LFkku] iksa0$Fkkuk& ca/kqxat] ftyk&tgkukckn

iVuk] fnukad & [email protected]@2020

बवषय %& CWJC No. [email protected] मु केश कुमार एवं अनय बनाम बबहार राजय एवं अनय मे बदनांक [email protected]@2019 को पाबरत आदे श का अनु पालन के संबंध मे ।

महाशय] बनदे शानु सार उपयु रकत बवषयक आपके दारा समबपरत अभयावे दन के सं बंध मे कहना है बक CWJC No. [email protected] ¼ बबनदा राय एवं अनय ½ मे बदनांक-& [email protected]@2010 को एवं CWJC No. [email protected] ¼ बशवचरण पासवान ½ मे बदनांक- [email protected]@2011 को माननीय mPp U;k;ky; पटना दारा पाबरत नयायादे श के आलोक मे बवत बवभागीय सं कलप सं खया- 3111] बदनांक- [email protected]@2015 दारा i`FkDdhdj.k की बतबथ [email protected]@1999 बनधारबरत की गयी है । उकत

ladYi के अनु सार बदनॉक [email protected]@1999 के पूवर ले खा बलबपक laoxZ esa fu;qDr dehZ dks osrueku 4500&[email protected]& ,oa fnukad [email protected]@1999 ds ckn mDr laoxZ ds ewydksVh; in duh; ys[kk fyfid ds in ij fu;qDr dehZ dks osrueku 4000&[email protected]& vuqekU; fd;k x;k gSA बदनांक [email protected]@1999 के बाद ले खा बलबपक सं वगर esa अनु कमपा के आधार पर बनयु कत कनीय ले खा बलबपक को CWJC No.

9921/2017 ¼ बबनीत कुमार oxSjg½ के मामले मे माननीय सवोरचच नयायालय] Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

नई बदलली दारा पाबरत नयायादे श के vkyksd esa वे तनमान 4000&[email protected]& सवीकृत बकया गया है । आपकी बनयु बकत बदनांक [email protected]@1999 के बाद होने के कारण वे तनमान 4000&[email protected]& अनु मानय बकया गया है ] जो नयायादे श के अनु रप है ।

अतः बदनांक [email protected]@1999 के cut-off-date के बढाए जाने एवं वे तनमान 4500&[email protected]& अनु मानय बकये जाने का बै बधक आधार नहीं होने के कारण आपका दावा बवचारणीय नहीं है ।

fo"oklHkktu [email protected]& ¼lqjsUnz Bkdqj½ ljdkj ds voj lfpo"

33. In CWJC No. 16185 of 2012, the petitioner, namely,

Shashi Bhushan Kumar came to be appointed as Junior Accounts

Clerk on 12.11.1999. He moved this Court in CWJC No. 7451 of

2010 together with two other petitioners, namely, Md.

Nizamuddin, Amit Kumar and Laleshwar Prasad Singh. They

sought relief by way of grant of pay in the scale of Rs.4500-7000

in lieu of Rs.4000-6000/- which was being paid to them on the

post of Junior Accounts Clerk. The learned Writ Court was

informed that the merger took place on 18.12.1981 w.e.f.

01.05.1980 and de-merger on 28.09.1999 with regard to the post

of Junior Accounts Clerk and Senior Accounts Clerk of the

Collectorate and Muffasil Offices in the establishment Section

alone. The petitioner was a Clerk in the Works Division. It is

important to take note of the observation of the learned Writ Court

in the following terms:-

Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

"The aforesaid discussions shall still exclude petitioner no. 2 who was appointed on 05.08.1992 after merger and before de-merger. Relevance of his claim shall depend on what was merged and what was not merged."

34. The petitioner no. 2 in the said case was Md.

Nizamuddin who is not before this Court in CWJC No. 16185 of

2012. So far as the other petitioners are concerned, admittedly they

were appointed after 28.09.1999.

35. This Court, therefore, finds that at the earliest date

on which the claim for the post of Senior Accounts Clerk was

made by the petitioner Shashi Bhushan Kumar by filing a writ

application in CWJC No. 7451 of 2010 is also after about a

decade from the date of appointment. The submissions advanced

on behalf of the petitioners in CWJC No. 16185 of 2012 would,

however show that after the order passed by this Court in CWJC

No. 7451 of 2010 when the petitioners filed their representation

before the Principal Secretary of the Department, the

representations came to be rejected vide order dated 07.04.2012

communicated to the petitioner vide Memo No. 669 dated

24.05.2012 (Annexure '7' of CWJC No. 16185 of 2012). The

Principal Secretary of the Department observed that the petitioners

are looking for the benefit of the pay scale of Rs.4500-7000 which

they cannot get because they were not in service on 01.05.1980. Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

This Court finds that this petitioner is claiming the benefits of

Assured Career Progression undder the Bihar State Employees

Conditions of Service (Assured Career Progression Scheme)

(Amendment) Rules, 2006. This petitioner has not challenged the

Resolution No. 3111 dated 25.03.2015 issued by the Department

of Finance, Government of Bihar.

36. This Court has taken note of the judgment of this

Court hereinabove where the Court has taken note of the fact that

for the resolution of the controversies relating to the pay scales of

the Junior Accounts Clerk and Senior Accounts Clerk, Department

of Finance came out with the Resolution No. 3111 dated

25.03.2015.

37. The aforementioned discussions would led this

Court to a conclusion that these petitioners remained content with

their appointments on the post of Junior Accounts Clerk in the

given pay scale for over a decade. Some of the petitioners who

were sought to be placed in a lower pay scale of the post of Lower

Division Clerk treating them compassionate appointees, came to

this Court in CWJC NO. 9921 of 2017 and other analogous cases.

They placed reliance on the Finance Department Resolution No.

3111 dated 25.03.2015 claiming the benefits of paragraph 5(ii) and

succeeded in their respective writ applications. A learned Co- Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

ordinate Bench of this Court held in the concluding paragraphs of

the judgment in case of Binit Kumar and Others (Supra) as

under:-

"In view of the clear stipulations present in the resolution of the State Government bearing No. 3111 dated 25.03.2015 present at Annexure '4' which has been referred to by the Division Bench in the case of Ram Janam Jha (supra) to uphold the claim of the compassionate appointees, the directives issued by the Principal Secretary of the Finance Department as contained in the Order No. 5843 dated 11.07.2016 is not only contrary to the State Governments decision but also is in the teeth of the judicial pronouncements of this Court and is accordingly quashed and set aside. The petitioners having been appointed against different posts in the accounts clerical cadre posts after 28.09.1999 they are fully covered under the resolution of the State Government dated 25.03.2015 as also under the judgment of this Court as affirmed by the Hon'ble Supreme Court. ......".

38. At this stage, this Court is also of the view that these

writ applications would suffer on the principal of constructive res

judicata. In fact, this Court called upon learned counsel for the

petitioners to make their submissions as to why this principal Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

cannot be applied in these cases. The fact remains that in Binit

Kumar and Others (supra) and several other writ applications,

the petitioners moved this Court much after issuance of the

Resolution No. 3111 dated 25.03.2015 by the Finance

Department, they did not challenge clause 5(ii) rather sought

benefit of the same.

39. In the case of Forward Construction Company

and Others versus Prabhat Mandal and Others reported in

(1986) 1 SCC 100, the Hon'ble Supreme Court has, on the

principal of constructive res judicata and applicability of the said

principal to the writ petitions held in paragraph '20' as under:-

"20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition.

Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."

40. This Court is of the considered opinion that there is

an adjudication of this Court present in the case of Binit Kumar

and others (Supra) as regards paragraph 5(ii) of the Resolution

No. 3111 dated 25.03.2014 issued by the Department of Finance,

Government of Bihar which is conclusive and final not only with

regard to the actual matter but as to every other matter which the

parties may ought to have litigated. Whether clause 5(ii) gives

effect to the de-merger of the Accounts Cadre Posts with

retrospective effect or not and what will be the impact of the same

was essentially connected to the subject matter and the parties had

an opportunity to challenge the said provision but instead of doing

that they chose to rely upon the said resolution and got benefit of

the same.

41. In this circumstance, this Court is of the considered

opinion that these writ applications have no merit and these are

liable to be dismissed.

42. Since this Court finds that some of the petitioners

had earlier moved this Court in CWJC No. 9921 of 2017 and other Patna High Court CWJC No.6277 of 2020 dt.17-05-2023

analogous matters but they did not disclose this fact in the writ

application and in course of hearing also they did not bring it to

the notice of this Court, for their conduct, this Court deems it just

and proper to impose cost assessed at Rs.15,000/- against each one

of them who are parties in these writ applications without

disclosing that they were parties to the writ applications (CWJC

No. 9921 of 2017) and other analogous matters disposed of by this

Court on 21.08.2017. They will deposit this cost with the Patna

High Court Legal Services Authority within a period of four weeks

from today, failing which the same will be realized through

process of law.

41. These writ applications are accordingly dismissed

with the cost as stated above.

(Rajeev Ranjan Prasad, J) avin/sushma-

AFR/NAFR
CAV DATE                10.05.2023
Uploading Date          17.05.2023
Transmission Date