CIVIL WRIT JURISDICTION CASE No. 12518 OF 1992 SURYADEO PRASAD TEWARY-------------------(Appellant) Versus STATE & ORS-------------------------------------- (Respondents) For the Petitioner : Mr. SURYADEO PRASAD TEWARY For the Respondent : MR. ROHIT KISHORE PD. JC TO SC III. MR. VISHWA MOHAN KR. SINHA S.C. III. ----------------- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON’BLE MR. JUSTICE C.M. PRASAD J U D G M E N T Barin Ghosh & C.M. Prasad, J.J. The appellant appeared in person. On 11th January, 1997, being successful in the Combined Competitive Examination held and conducted by the Bihar Public Service Commission, petitioner was appointed in the Bihar Finance Service (Senior Branch). While the petitioner was so appointed, one Sri Sarju Prasad was also appointed. Petitioner was second in the merit list; whereas Sri Sarju Prasad was eight in the merit list. In course of their service, petitioner as well as Sarju Prasad were promoted to the posts of Assistant 2 Commissioner, Deputy Commissioner and Joint Commissioner of Commercial Taxes. Sri Sarju Prasad althrough out remained junior to the petitioner. On 1st October, 1979, in the Bihar Finance Service (Senior Branch) posts of Senior Joint Commissioner and Additional Commissioner of Commercial Taxes in Super Time Scales were created. It was made clear in the notification dated 21st September, 1979, by which the said posts were created, that a certain percentage of the employees holding posts in the service would be entitled to have the benefit of the said posts and the Super Time Pay Scales attached thereto from their due date and that, inasmuch as the same was grant of Super Time Scales, reservation policy will have no application in relation thereto. After the recommendation of the 4th Pay Revision Committee, the matter was considered by the Cabinet on 14th April, 1981 and on 16th June, 1981 and thereafter, on 6th March, 1985. In all those decisions, it had been clearly mentioned that the persons reaching the earmarked percentage will be benefited and in that regard, there shall be no application of reservation policy. On 20th January, 1990, Rules were framed when also the above had 3 been reiterated. It was mentioned in the Rules that the seniority in the basic grade shall be the basis for consideration, there shall be no reservation and benefits shall be given from the dates vacancies are available i.e. no sooner, an employee comes within the earmarked percentage. On 9th June, 1983, Sri Sarju Prasad was given the benefit of the Super Time Scale by grant of promotion to the post of Senior Joint Commissioner. However, the said grant was on ad-hoc basis. The ad-hocism, which was though limited for a period certain, had been extended from time to time, even with retrospective effect. On 31st March, 1987, Sri Sarju Prasad was, on ad-hoc basis, granted the benefit of Super Time Pay Scale as was available to Additional Commissioner of Commercial Taxes. Again this ad-hoc grant was for six months, which was later on extended from time to time, even with retrospective effect. In relation to grant of Super Time Scale, as was applicable to the post of Senior Joint Commissioner, as also in respect of grant of Super Time Scale, as was applicable to the post of Additional Commissioner of Commercial Taxes, as were granted to Sri Sarju Prasad, the petitioner raised objections 4 in writing, but the same were of no effect. On 19th September, 1990, a disciplinary proceeding was initiated against the petitioner. The same was ultimately quashed by an order passed by this Court on 18th May, 1992. In the meantime, High Level Committee sat for consideration of the case of the petitioner, but until the date of retirement of the petitioner on 31st January, 1991, no recommendation could be made by them. In the meantime, on 24th July, 1990, petitioner was appointed as Officer on Special Duty. The said post carried a pay scale of Rs. 3000-3500. The said scale was replaced by pay scale of Rs. 5900-6700 since 1st January, 1986. Petitioner, however, was not given the benefit of the revision so accorded. He was given the pay scale of Rs. 4100-5300. In the counter affidavit, it is the contention of the State that the Reservation Policy applies to all posts in the Government and accordingly, Sri Sarju Prasad, a member belonging to a Reserved Category, was accorded the promotions to the posts of Senior Joint Commissioner and Additional Commissioner of Commercial Taxes carrying Super Time Pay Scales. It is the contention of the 5 State that inasmuch as the petitioner was entile to the pay scale of Rs. 1900-2500 immediately before he was appointed as Officer on Special Duty, Finance (Bureau of Public Enterprises) Department, Bihar, he was entitle to revised scale of Rs. 4100-5300 and not the revised Scale of Rs. 5900-6700. The post of Senior Joint Commissioner and Additional Commissioner of Commercial Taxes, as would be evident from the decision of the Government, were created to remove stagnation and accordingly, it was clearly held out that the persons would be accommodated in those posts on the basis of length of their service in the cadre and that the remuneration that would be granted to them would be in Super Time Pay Scales. It was also mentioned that the persons would be accommodated in those posts as and when they would come within the percentage of posts mentioned in the decision of the Government. That made it abundantly clear that the people reaching the ladder at the top in the Cadre would be entitle to the benefit of such scales and as such, reservation policy had no application in relation thereto. 6 The petitioner was appointed in an Ex-cadre post while he was appointed on the post of Officer on Special Duty, Finance (Bureau of Public Enterprises) Department, Bihar and accordingly, he became entitle to all the benefits attached to the said post. Because the petitioner was receiving some other salary before such appointment, while serving in a cadre post, would not justify refusal to pay to the petitioner remuneration attached to the Ex-cadre post to which he was appointed. There being no dispute that the said Ex-cadre post carried a scale of Rs. 3000-5000 and was replaced by the Scale of Rs. 5900-6700 since 1st January, 1986, there is no just reason for non-payment of salary to the petitioner in the said replaced scale of Rs. 5900-6700. The Government decision, as above, made it absolutely clear that the right to Super Time Scale would accrue to an employee from the due date i.e. from the date when the employee concerned would come within the percentage of the Cadre. Inasmuch as Sri Sarju Prasad, Junior to the petitioner has reached the said percentage, it goes without saying that the petitioner, at least from the 7 date Sri Sarju Prasad was accorded the said scales, became entitle to the same. In the circumstances, the writ petition is allowed by directing the respondents to grant to the petitioner the benefits of Super Time Scale applicable in relation to the post of Senior Joint Commissioner on and from 6th June, 1983 and also the Super Time Scale applicable to the post of Additional Commissioner on and from 31st March, 1987 i.e. the date since when Sri Sarju Prasad was accorded such scales. The respondents are also directed to pay to the petitioner salaries in the scale of Rs. 5900-6700 from 1st September, 1990 i.e. the date the petitioner joined the post of Officer on Special Duty, Finance (Bureau of Public Enterprises) Department in terms of the order dated 24th July, 1990 until the date of his superannuation i.e. 31st January, 1991 and to fix the pension, gratuity and other retrial benefits of the petitioner on the basis as above and to pay the same to the petitioner less what has already been paid on that account as quickly as possible but not later than three months from the date of service of a copy of this order upon the Secretary, Finance 8 Department, State of Bihar together with interest at the Government prescribed rate of 5% per annum, in default, such dues of the petitioner shall carry interest @10% per annum. Patna High Court, 19th May, 2008, S.B.P. (Barin Ghosh, J.) (C.M. Prasad, J.)