Madan Prasad vs The State Of Bihar And Ors
2023 Latest Caselaw 2452 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.22815 of 2018
     ======================================================

Madan Prasad son of Rama Kant Mahto Resident of Mohalla- Belbag, Bengali Colony, P.O. - Bettiah, P.S. - Bettiah Sadar, District- West Champaran at Bettiah, presently working as Assistant Engineer, Advance Planning, Investigation and Project Preparation Division, Motihari, District- East Champaran at Motihari.

... ... Petitioner Versus

1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna

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

3. The Engineer-in-Chief, Water Resources Department, Government of Bihar, Patna.

4. The Under Secretary (Prabadhan), Water Resources Department, Government Of Bihar, Patna.

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

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

7. The Additional Secretary, Finance Department, Government of Bihar, Patna.

8. The Chief Engineer, Water Resources Department, Advance Planning, Investigation and Project Preparation, Bihar, Patna

9. The Superintending Engineer, Water Resources Department, Advance Planning, Investigation and Project Preparation Circle, Muzaffarpur.

10. The Executive Engineer, Water Resources Department, Advance Planning, Investigation and Project Preparation Division, Motihari ... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr.S.B.K. Manglam, Advocate Ms. Anita Kumari, Advocate, For the State : Mr. Vijay Kumar Verma, AC to GA 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 17-05-2023

Heard learned counsel for the petitioner and learned

counsel for the respondents.

2. Let it be recorded at the out-set that this writ

application was heard together with C.W.J.C. No. 21000 of 2018 Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

(Bhagya Narayan Tiwari & Ors. Vs. The State of Bihar & Ors.) on

10.05.2023 and the judgment was reserved. In the nature of the

disputes, this Court thought it just and proper to write separate

judgments.

3. The petitioner in the present case is seeking the

following reliefs:-

"(I) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the order dated 05.12.2017 passed by the Respondent no.4 and issued under his memo no.4447 dated 06.12.2017 , whereby and where under the Respondent no.4 has been pleased to direct for modification of different letters by which the benefits of Modified Assured Career Progression in the pay-scale of Rs.PB-3 + 6600 Grade Pay was sanctioned to the petitioner and in lieu thereof he has been pleased to grant a lower pay-scale of PB-3 + 5400 Grade Pay to the petitioner in view of the letter of the Finance Department contained in letter no. 3655 dated 10.04.2015.

(II) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the letter dated 10.04.2015 passed by the Respondent no.7 and contained in his letter no.3655 dated 10.04.2015, whereby and where under he has informed the Respondent no.2 that in view of the Finance Department letter no.504 dated 16.01.2014, the pay-scale of Rs.PB-3 +5400 Grade Pay would be financial progression for the Government Servants working in PB-2 + Grade Pay 4800 or 5400 and thus in the case of Junior Engineers PB-2 + Grade Pay 5400 would be the scale of first Assured Career Progression and PB-3 + Grade Pay 5400 would be the scale of second Modified Assured Career Progression on the ground that if the writ petitioner was appointed as a Junior Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

Engineer much before 01.01.2006 for whom there was a separate recommendation for pay-fixation as contained in letter no.630 dated 21.01.2010 , the case of the petitioner would not be covered by the aforesaid letter of Finance Department which can be applied only in case of other Government Servant, joining their services on or after 01.01.2006.

(III) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the letter dated 30.08.2018 issued by the Respondent no.10 and contained in his memo no.207 dated 30.08.2018 whereby and where under he has been pleased to revise and reduce the pay-scale of the petitioner from PB-3 + 6600 Grade ay to PB-3 + 5400 Grade Pay in view of the letter dated 06.12.2017 issued by the Water Resources Department and also for quashing his order dated 19.11.2018 contained and also for quashing his order dated 19.11.2018 contained in his letter no.257 dated 19.11.2018, whereby and where under he has directed for recovery from the salary of the petitioner on the ground that because of illegal fixation of pay-scale, he has been paid excess amount of Rs.4,02,294/- from January, 2009 to June, 2018. (IV) For a declaration that since the petitioner was entitled for the benefits of first Assured Career Progression much before the introduction of Modified Assured Career Progression Scheme Rules, 2010 and, therefore, in view of the amended provisions of Assured Career Progression Rules 2003 amended in 2008, the petitioner was entitled for the pay-scale of Assistant Engineer in the scale of Rs.6500- 10,500 (PB-2 + Grade Pay 5400 with effect from 01.01.2006), the aforesaid letter of the Finance Department cannot be applied in the case of the petitioner for the reduction of his scale while he was duly granted by way of benefits of second Modified Assured Career Progression. (V) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

would be found entitled under the facts and circumstances of the case."

Brief Facts

4. The petitioner was initially appointed as Junior

Engineer in the service of the Water Resources Department on

21.01.1987. In December, 2016 he was promoted to the post of

Assistant Engineer and was posted as such in the office of the

respondent no. 10.

5. It is stated that in supersession of all the previous

Rules and Circulars on the Time Bound Promotion of State

Government Employees, the Government had come out with a

new Rules in the name of Bihar State Employees Service

Condition (Assured Career Progression Scheme) Rules, 2003

(hereinafter referred to as the 'Rules of 2003'). According to this

Rules of 2003, all the Government Servants were entitled for grant

of at least two financial progression in their service period. First

Assured Career Progression (in short 'ACP') was due after service

of 12 years and the second ACP would be due after a period of 24

years. Rules of 2003 was amended vide Amendment Rules 2008

and a notification to this effect was issued by the State

Government vide Memo No. 769 dated 28.01.2008 whereby and

whereunder it was provided that if the promotional avenues are

available in the Service Cadre then the basic scale of promotional Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

post would be granted by way of benefits of the financial

progression.

6. The petitioner claims that by virtue of the amended

provisions of the Rules of 2003, he would have been entitled for

grant of first ACP in the pay-scale of Assistant Engineer with

effect from 09.08.1999. The petitioner was infact granted a revised

pay-scale of the post of Assistant Engineer in Rs. 6500-10500/-

by way of benefit for first ACP. It was done in view of the

recommendation of the 5th Pay Commission with effect from

01.01.1996.

7. Pursuant to the recommendation of the scale by Pay

Revision Commission, the petitioner was granted the replacement

pay-scale with effect from 01.01.2006 in PB-2 Grade Pay 5400

which was the revised pay-scale of Assistant Engineer Grade with

effect from 01.01.2006. It is stated that in view of the revision of

its policy by the Central Government in the matter of financial

upgradation of its employees and in order to fall in line with the

said scheme of the Central Government, the State Government

also revised its policy of financial upgradation with effect from

01.01.2009 and the Rules of 2003 was replaced/substituted by the

Bihar State Employees Service Conditions (Modified Assured

Career Progression Scheme) Rules 2010 (hereinafter referred as Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

the 'Scheme of 2010). It was issued by the Finance Department's

Memo No. 7566 dated 14.07.2010.

8. It is the case of the petitioner that in terms of the

Scheme of 2010, the next scale as contemplated under Schedule I

of the Finance Department's resolution no. 630 dated 21.01.2010

would be granted to the employees and by virtue of this the

Finance Department had revised the pay-scale of its employees

with effect from 01.01.2006. It is the contention of the petitioner

that as per Schedule I of the resolution dated 21.01.2010, after the

scale of Rs. PB 2 + Grade Pay 5400, the next scale is PB-3+Grade

Pay 6600/. The petitioner was granted the pay-scale of PB-3 Grade

Pay 6600/- by way of benefits of the second Modified Assured

Career Progression (in short 'MACP') with effect from

0.10.102009 vide order contained in Memo No. 4426 dated

08.09.2014 (Annexure 'P 5' to the writ application).

9. It is, at this stage, the Water Resources Department

came out with the impugned order dated 05.12.2017 whereby and

whereunder the scale of PB-3+Grade Pay 6600 which was granted

to the petitioner by way of his second financial progression under

MACP Scheme 2010 has been revised/modified and in place

thereof he has been granted the scale of Rs. PB-3 + Grade Pay Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

5400/- This has been done in view of the Advisory issued by the

Finance Department vide letter no. 3655 dated 10.04.2015.

10. The petitioner is aggrieved by the revision of his pay

scale in a lower grade pay. His salary from 01.01.2009 to

01.07.2018 has been calculated and a direction has been issued for

recovery of the excess amount paid to the petitioner. The

impugned order of recovery is Annexure 'P-9' to the writ

application.

11. Learned counsel for the petitioner submits that the

impugned orders have been passed contrary to the provisions of

the terms and conditions of the Scheme of 2010 read with

Schedule I of the Finance Department's resolution No. 630 dated

21.01.2010.

Stand of the State

12. A counter affidavit has been filed on behalf of the

respondent no. 4. It is the stand of the respondent no. 4 that since

the petitioner had already been granted the benefit of first ACP in

the pay-scale of PB-2 + Grade Pay 5400 hence with effect from

01.01.2006, the petitioner was granted the pay scale of PB-3 +

Grade pay 6600 by way of benefit of 2nd MACP w.e.f. 01.01.2009.

13. The Finance Department's letter no. 3665 dated

10.04.2015 is in the nature of Advisory which specifically states Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

that in the light of the Finance Department's Memo No. 504 dated

16.01.2014 the Junior Engineers are entitled to PB-2 + Grade Pay

5400 for the first MACP and PB-3 + Grade Pay 5400 for second

MACP and accordingly the department was directed.

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

respondent no. 5 and 6 (Department of Finance). It is stated that

the petitioner got the benefit of first ACP with effect from

09.08.1999 in the pay-scale of Rs. 6500-10500 and further after

sixth pay revision, his pay-scale was revised in replacement pay-

scale of PB-2 + Grade Pay 5400 with effect from 01.01.2006. The

Administrative Department of the petitioner provided the benefit

of second MACP provisionally in the pay-scale of PB-3 Grade

Pay 6600 with effect from 01.01.2009 vide Annxure 'P 5' to the

writ application after completion of 20 years of his service with a

condition that on account of any mistake if pointed out in future,

the said benefit granted under MACP scheme shall be

cancelled/modified and excess amount paid to the employees will

be recovered.

15. According to these respondents, later on it was found

that PB-3 + Grade pay -6600 was fixed by jumping one pay-scale

of PB -3 + Grade Pay 5400 which is just next higher pay scale of

PB - 2 + Grade Pay - 5400. It is the submission of the respondents Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

that this mistake has been rectified /amended vide Memo No.

4447 dated 06.12.2017 and the Administrative Department has

re-fixed the pay scale of the petitioner in PB- 3 + Grade Pay 5400

with effect from 01.01.2009. It is stated that similar view has

been taken by the Finance Department in similar cases. It is

stated that under the MACP Scheme 2010 the provisions are

different from Rules of 2003. Under this Scheme, financial

progression, first after completion of 10 years, second after 20

years and 3rd after completion of 30 years can be given in just next

higher Grade Pay but not in higher promotional pay scale. This is

the basic difference between ACP and MACP. It is submitted that

it is evident from perusal of paragraph 8.1 of the MACP Scheme

2010, Grade Pay Rs. 54000 exists in two pay band i.e. is PB- 2 +

5400 and PB- 3+ 5400. These are two separate Grade Pay for the

purpose of grant of upgradation under MACP scheme. This has

also been clarified by Ministry of Personal, Public Grievance and

Pension (Department of Personal and Training) Govt. of India vide

letter dated 08.04.2013 in reply to the letter no. 3400 dated

02.04.2013 of the Finance Department, Government of Bihar.

Consideration

16. Having heard learned counsel for the petitioner and

State as also on perusal of the materials available on the record, Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

this Court finds that paragraph 8.1 of the MACP Scheme 2010

reads as under:-

"8.1 osru lfefr dh vuq"kalvksa dks ykxw fd, tkus ds QyLo:i] 5400 :0 dk xszM osru vc nks osru cSaMksa ;Fkk osru cSaM&2 vkSj osru cSaM&3 esa gSa A :ikUrfjr lquf"Pkr o`fŸk mUu;u ;kstuk ds v/khu mRØe.k Lohd`r djus ds iz;kstukFkZ osru cSaM&2 xszM osru 5400 :0 rFkk osru cSaM&3 esa xszM osru 5400 :0 dks i`Fkd xszM osruksa ds :i esa ekuk tk,xkA"

17. It is crystal clear from paragraph 8.1 of the Scheme

of 2010 that the Grade Pay of Rs. 5400 is now available in two pay

bands i.e. pay band -2 and pay band -3 and for the purpose of

grant of the benefits under this scheme both grade pay are to be

treated separately. The respondents have drawn the attention of

this Court towards the reply of the Central Government in

response to the letter of the Government of Bihar. This Court

would reproduce the reply of the Government of India as under:-

"In terms of Para 8.1 of the Scheme, GP of Rs. 5400 in PB- 2 and GP of Rs. 5400 in PB- 3 will also be treated Grade Pays for grant of upgradation under MACPS. Every financial upgradation including non-functional grades granted are treated as on offset against one financial up gradation under MACP Scheme."

18. The Rules of 2003 with respect to grant of Assured

Career Progression came to be repealed w.e.f. 13.07.2010. The Patna High Court CWJC No.22815 of 2018 dt.17-05-2023

petitioner got his first ACP under the Rules of 2003 but his Second

ACP would have been due only on completion of 24 years which

did not happen before 13.07.2010, therefore by virtue of coming

into force of the MACP Scheme 2010, the petitioner was

considered for the 2nd MACP.

19. On the face of the informations and the materials

quoted hereinabove, the contention of the petitioner that because

he was already granted pay scale of PB- 2 + Grade Pay 5400/-

with effect from 01.01.2006, therefore, by virtue of the second

MACP, he was entitled for the pay scale of PB- 3 + Grade Pay

-6600/- with effect from 01.01.2009 is erroneous. The

rectification and correction action taken by the Administrative

Department pursuant to which the recovery of excess payment

from the petitioner is in accordance with law and it is fully

justified. There is no denial of the fact that the petitioner had given

an undertaking.

20. This writ application has no merit. It is dismissed

accordingly.

(Rajeev Ranjan Prasad, J) avin/-

AFR/NAFR
CAV DATE                10.05.2023
Uploading Date          17.05.2023
Transmission Date