The State Of Bihar vs The Bihar State Plus 2 Vocational ...
2023 Latest Caselaw 4624 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.476 of 2019
                                         In
                   Civil Writ Jurisdiction Case No.11995 of 2016
     ======================================================

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

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

3. The Director, Secondary Education, Government of Bihar, Patna.

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

... ... Appellant/s Versus

1. The Bihar State + 2 Vocational Teachers Association through its Secretary Vidhu Mangal Singh having its registered office at Indrapuri Road NO.-7, P.S.-Rajeev Nagar, District-Patna.

2. Vidhu Mandal Singh, Son of Sri Fakir Chand Singh, Resident of Village Kurmuri, P.S.-Sikrahata, District-Bhojpur, presently posted in H.N.K. + 2 School, Ara, P.S.I-Nawad, District, Bhojpur, the Secretary, Bihar State + 2 Vocational Teachers Association.

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

For the Appellant/s : Mr. Alok Ranjan, A.C. to AAG-5 For the Respondent/s : Mr. Lalit Kishore, Sr. Advocate Mr. Satyam Shivam Sundaram, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 15-09-2023

1. The question which arose before the Writ Court in

the writ petition filed by the petitioners, who are respondents

herein, was whether the Laboratory Assistants in the Education

Department were entitled to the revised pay-scale as per the 5 th

Pay Revision de hors a Graduation in Science with Diploma or Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

Certificate. The learned Single Judge on the basis of the specific

recommendations in the Bihar Gazette with respect to 'Revision

of scales of pay of State Government Employees' set aside the

order of the year 2016, challenged in the writ petition, whereby

the pay-scale of Laboratory Assistants was sought to be reduced.

2. Learned Government Advocate assailed the

judgment specifically pointing out that the Finance Department

has issued a clarification immediately after the notification of

1999, in the year 2000 specifically clarifying that only those

persons with a Graduate qualification with Diploma or

Certificate would be entitled to the enhanced pay. The others

who were appointed, would have to continue with a lesser pay-

scale which pay-scale is also revised and recommended by the

Pay Fixation Committee. In fact, for similarly placed Lab

Assistants in the Muzaffarpur Institute of Technology, the non-

Graduates were conferred with only the benefit of the lesser

pay-scale. There is hence no question of the Lab Assistants in

the Education Department alone being conferred with a higher

pay-scale.

3. Learned Senior Counsel appearing for the

respondents in the appeal would, however, specifically point out

that the higher pay-scale was granted to the Lab Assistants in Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

the Education Department specifically with the condition that

they would not be entitled to further promotions unless they

acquire the said qualification. Hence, it was a conscious

decision taken by the Government which was published through

the Gazette and this cannot be easily interfered with by the

Finance Department, by a clarification. It is also submitted that

after the 5th Pay Revision, there were two other Pay Revisions,

the 6th and the 7th, in which the Lab Assistants in the Education

Department were given a revision based on the higher scale of

pay conferred by the 5th Pay Revision. It is also asserted that

they were drawing the higher pay all along and many of these

Lab Assistants have now superannuated. In any event, the

decision taken in 1999 cannot be easily interfered with in the

year 2016, that too by a clarification issued by the Finance

Department, when the earlier decision was that of the Cabinet.

4. We first look at Annexure-3, which is a notification

issued for revision of scale of pay of State Government

Employees. When we look at the tabulation of the existing pay-

scale and revised pay-scale, we see that under the Muzaffarpur

Institute of Technology and College of Engineering, Bhagalpur, it

provided two pay-scales for the Laboratory Assistants. The

higher scale of Rs. 5,000-8,000/- for those recruited with B.Sc

and Diploma/Certificate and otherwise the lower pay-scale of Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

Rs. 4500-7,000/-.

5. The higher pay-scale is given in the tabulation as

the revised pay-scale and in the remarks column the requirement

of Graduation as also the lower pay-scale otherwise, has been

specified. In so far as the Education Department is concerned,

only the higher pay-scale of Rs. 5000-8000/- is indicated as the

revised pay-scale; without any specification of a lower pay-

scale. This has to be reckoned based on the recital in Paragraph

2 of the notification, extracted hereunder:-

"... For cases where the Fitment Committee have not indicated any lower pay Scale, the existing incumbents, whether fulfilling the newly prescribed qualification or not, will draw their pay in the revised pay scale in accordance with the procedure laid down in the resolution. However, those who do not fulfil the newly prescribed conditions would not be eligible for further promotion unless they obtain the requisite qualifications. In respect of a few recommendations of the Fitment Committee as regards the pay scales, it has been decided to review them in consultation with the Fitment Committee. Annexure V lists these cases."

Hence, it was provided that where the Fitment Committee has

not indicated a lower pay-scale, the existing incumbents

whether fulfilling the newly prescribed qualification or not, will

draw their pay in the revised pay-scale; subject only to the

condition that unless they fulfil the prescribed conditions, they Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

would not be eligible for further promotion. This specifically

indicates that for the Education Department, as against the

Laboratory Assistants, since no lower pay-scale is specified, the

existing incumbents would be entitled to draw the pay at the

higher pay-scale.

6. The clarification issued by the Finance Department

is available at Annexure-A, the translated form of which is

extracted hereunder:-

"Subject: Clarification regarding admissible Revised Pay Scale of Lab Assistants posted in different departments of the State w.e.f. 1.1.1996.

As directed, according to Resolution No 660 F (2), dated 8.2.1999 of the Finance Department, the approval for Revised Payscale of Lab Assistants posted in different departments of the state has been given w.e.f. 1.1.1996. Accordingly, the revised pay scale of Rs 5000- Rs 8000 has been approved to the lab assistants working in the present pay scale of 1,400-2,600, if recruited with B.Sc and diploma/certificate then scale to be admissible, otherwise, the same has been approved with the condition of pay scale Rs 4,500-7,000.

The State Government has received information that due to approval of the above conditional pay scale, there is a situation of confusion in different establishments of different departments.

In light of the recommendations received from Fitment Committee regarding the post in question, the conditions are being clarified as follows:

(a) The pay scale of Rs. 5000-8000 shall be admissible to Lab Assistants having the following qualifications:

(i) If the qualification for the appointment is fixed as Science graduate along with the Diploma/Certificate Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

in Laboratory Technique and the post holder possesses the required qualification and;

(ii) if the present post holder is working in the pay scale of Rs 1400-26000 and in this pay scale, 50% of the posts are filled by direct recruitment. If the postholder does not possess the eligibility of Dipoma/Certificate, then the increment of pay in the new pay scale shall not be admissible to him till the attainment of this eligibility."

7. At the outset, it has to be noticed that this is just a

communication issued by the Special Secretary to the

Goverment of Bihar to all the Departmental Secretaries, which

clarification is in direct conflict with the Gazette notification.

The clarification hence is of no consequence in so far as the

existing incumbents of a post against which the Fitment

Committee, under the 5th Pay Revision, has not indicated a

lower pay-scale. Though, there is prescribed a new set of

qualifications, when there is no lower pay-scale indicated as

against the post, then the existing incumbents would be entitled

to draw the higher pay-scale, subject only to the restriction that

they would not get any further promotion unless they acquire

the newly prescribed qualification.

8. We also have to notice that despite the so-called

clarification having come in 2000, the Government continued to

pay the Laboratory Assistants in the Education Department as

per the higher pay-scale. The attempt to reduce the pay-scale Patna High Court L.P.A No.476 of 2019 dt.15-09-2023

based on an inconsequential clarification of 2000, came only in

the year 2016.

9. We find absolutely no reason to interfere with the

judgment of the learned Single Judge and dismiss the appeal.

10. Interlocutory Application(s), if any, shall stand

closed.

(K. Vinod Chandran, CJ)

(Partha Sarthy, J) P.K.P./-

AFR/NAFR
CAV DATE
Uploading Date          19.09.2023
Transmission Date