LETTERS PATENT APPEAL No.234 OF 2007 ( Against the judgment and order dated 13.10.2006 passed in C.W.J.C. No. 14243 of 2004). 1. THE STATE OF BIHAR THROUGH THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, MAIN SECRETARIATE, MAIN SECRETARIAT, PATNA. 2. THE FINANCE COMMISSIONER-CUM- SECRETARY, FINANCE DEPARTMENT, GOVT. OF BIHAR, MAIN SEFRETARIATE, PATNA. 3. THE SECRETARY, LABOUR EMPLOYMENT AND TRAINING DEPARTMENT, GOVERNMENT OF BIHAR, NEW SECRETARIAT, VIKAS BHAVAN, PATNA. 4. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, SINCHAI BHAWAN, PATNA. 5. THE SECRETARY, COOPERATIVE DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA. 6. THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA. 7. THE SECRETARY, TRANSPORT DEPARTMENT, GOVERNMENT OF BIHAR, NIRMAN BHAWAN, BAILEY ROAD, PATNA. ……….. APPELLANTS. - VERSUS- 1.SUNIL KUMAR , SON OF LATE KUNJ BIHARI PRASAD, RESIDENT OF VILLAGE-KORMA, P.O. MODANG, P.S.-GHOSHI, DISTRICT- JEHANABAD 2. VINAY KUMAR, SON OF SHRI RAMDEO SINGH, RESIDENT OF VILLAGE AND P.O. BARDIH, P.S. ISLAMPUR, DISTRICT-NALANDA. 3. ANIL KUMAR VERMA, SON OF LATE DHRUB DEO PRASAD, RESIDENT OF VILLAGE-KHAJURIA, P.O. RAMPRASAURA, VIA LAURIA, P.S,. SATHI, DISTRICT-EAST CHAMPARAN. 2 4. ARBIND NARAYAN, SON OF SHRI SUKHDEO LAL, RESIDENT OF MOHALLA-LAHERIA TOLA, P.S. MOKAMA, DISTRICT-PATNA. 5. RAMANAND PODDAR, SON OF SRI CHANDRADEO PODDAR, RESIDENT OF PLOT NO. 19, PATLIPUTRA COLONY, TOWN AND DISTRICT-PATNA. 6. SUBODH KUMAR VERMA-I, SON OF SHRI RADHEY SHYAM PRASAD, RESIDENT OF MOHALLA-BIRLA COLONY, NEAR FCI GODOWN, P.S. PHULWARISHARIF, TOWN AND DISTRICT-PATNA. 7. RAJNI KANT SINHA, SON OF LATE UMA KANT PRASAD, RESIDENT OF MOHALLA-ADARSH NAGAR, ROAD NO. 2, NEAR RAILWAY STATION, P.S. PHULWARISHARIF, TOWN AND DISTRICT- PATNA. …………. RESPONDENTS. For the state: Sri Lalit Kishore, AAG-III with Sri Piyush Lall Asstt. Counsel to AAG-III For the Respondents: Mr. R. N. Mukhopadhyay LPA No.878 oh 2007 ( Against the judgment and order dated 09.03.2007 passed in C.W.J.C. No. 12301 of 2004). 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVERNMENT OF BIHAR 3. THE FINANCE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF FINANCE, GOVT. OF BIHAR, PATNA. 4. THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA. 5. THE INDUSTRIES GIVELOPMENT COMMISSIONER, DEPARTMENT OF INDUSTRIES, GOVERNMENT OF BIHAR, PATNA. 6. THE CABINET SECRETARY, GOVERNMENT OF BIHAR, PATNA. 3 7. THE DIKRECTOR OF INDUSTRIES, GOVERNMENT OF BIHAR, PATNA. …… APPELLANTS. VERSUS 1. ALAKH KUMAR SINHA, AGED ABOUT 41 YEARS, SON OF SRI GOPAL PRASAD AMBASTHA, RESIDENT OF POWER HOUSE ROAD, BEGUSARAI, P.S. AND DISTRICT-BEGUSARAI. 2. RAJESH KUMAR, AGED ABOUT 41 YEARS, SON OF LATE HARIHAR PRASAD, RESIDENT OF AT & P.O. NASRIGANJ, P.S. NASRIGANJ, DISTRICT-ROHTAS. …….. PETITIONERS/RESPONDENTS LPA No.269 of 2007 (Against the judgment and order dated 07/11/2006 passed in C.W.J.C. No. 14281 of 2004) 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, OLD SECRETARIAT, PATNA, BIHAR. 2. THE FINANCE SECRETARY-CUM-COMMISSIONER, THE STATE OF BIHAR, FINANCE DEPARTMENT, OLD SECRETARIAT, PATNA, BIHAR. 3. THE COOPERATIVE SECRETARY, DEPARTMENT OF CO- OPERATION, GOVERNMENT OF BIHAR, VIKAS BHAWAN, PATNA. 4. ADDITIONAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, PATNA. ….. RESPONDENTS/APPELLANTS. For the state: Sri Lalit Kishore, AAG-III with Sri Piyush Lall Asstt. Counsel to AAG-III For the Respondents: Mr. Pramod Kumar Sinha Mr. Rajesh Kumar Sinha Mr. Arvind Kumar Sharma No.-1 Advocates. 4 -VERSUS- 1. NIRPENDRA KUMAR , SON OF DEO KUNTH PRASAD SINGH, COOPERATIVE EXTENSION OFFICER, AT PRESENT POSTED AT THE OFFICE OF THE ASSISTANT REGISTRAR, COOPERATIVE SOCIETIES, PATNA CIRCLE, BUDHA MARG, P.S. KOTWALI, DISTRICT-PATNA. 2. RAJIV KUMAR SINGH, SON OF BINDESHWAR SINGH, COOPERATIVE EXTENSION OFFICER, POSTED AT THE OFFICE OF THE ASSISTANT REGISTRAR, COOPERATIVE SOCIETIES, BUXAR CIRCLE, BUXAR, P.S. TOWN THANA, DISTRICT-BUXAR. ………… PETITIONERS/ RESPONDENTS For the state: Sri Lalit Kishore, AAG-III with Sri Piyush Lall Asstt. Counsel to AAG-III FOR THE RESPONDENTS: Mr. Sanjay Kumar Mr. Janaki Ballabh Roy Mr. Subodh Kumar Jha Mr. Sareshwar Tiwary Advocates. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh & Hemant Kumar Srivastava, J.J. State has preferred these three Letters Patent Appeals to test the correctness and legality of judgment and order by learned Single Judge in the case of Sunil Kumar & Ors. Vs State of Bihar and Ors. bearing C.W.J.C. No. 14243 of 2004 allowed on 13.10.2006. Directly against that judgment is L.P.A. No. 234 of 2007 whereas the other two 5 appeals arise out of later judgments by learned Single Judges adopting the view taken in the case of Sunil Kumar & Ors (supra). 2. The facts necessary for deciding the issue involved in these appeals lie within a narrow compass. The writ petitioners who are respondents in these appeals appeared in IIIrd Graduate Level Recruitment Examination alongwith other candidates. On the basis of common combined competitive examination, appointments were made in different class-III Graduate Level Supervisory Posts in different departments of the state. The dispute relates to 16 categories of posts under different departments which at the time of recruitment and even thereafter, were treated as equal and carried same pay scale. Allotment was made to these posts not on the basis of merit-cum-choice but in a random manner because allotment and appointment to any of the 16 services had no adverse effect on anyone due to same pay scale. 3. As a result of recommendation of the Fourth Pay Revision Committee, w.e.f. 01.04.1981; ten of the services from the group of 16 were placed in higher pay scale of Rs 850-1360, while the remaining six were placed in a lower scale. The dispute went to Pay Anomaly Removal Committee which found the grievance of the six left out services to be genuine and, therefore, they also were granted the pay scale of Rs 850-1360. Again, as a result of 6 recommendation of Fifth Pay Revision Committee made on 15.12.89, but effective from 01.01.1986, for ten services the revised scale was of Rs 1600-2750 and for the remaining six, the recommendation was for Rs 1500-2750. 4. The employees adversely affected by the aforesaid decision and grant of lower pay scale challenged the decision of the State Government through a writ petition preferred by Nagendra Sahani & Ors. bearing C.W.J.C. No. 8419 of 1992 which was allowed by judgment and order dated 22.09.1993. Copy of that judgment is available in the records of several writ petitions including C.W.J.C. No. 14281 of 2004 out of which L.P.A. No. 234 of 2007 arises. For the sake of convenience, facts have been taken from the records of this case only. 5. On account of demand by the employees of the State Government for grant of Central Pay Scale, a Fitment Committee was constituted by the State Government on 02.01.1998. Its terms of reference are annexed as Annexure-R/3 to the counter affidavit in the Appeal. On behalf of the state two features of the terms of reference have been highlighted to support the submissions on behalf of the state. The terms of reference mention that a demand for Central Pay Scale was made by the employees of the State Government and on their demand, reference was made to the Fitment Committee for working out possible equivalence between the pay scale of state 7 employees and the pay scales being given to central employees on account of recommendations of Fifth Pay Commission. The second aspect is that even those state employees who may be getting higher or lower pay scales should also be granted appropriate equivalent central pay scale. On the basis of report of the Fitment Committee dated 08.02.1999, the majority of 16 services, to be particular 14 of them were placed in the pay scale of Rs 5,000-8000 whereas the post of Co-operative Extension Officer in the Co-operative Department was placed in the scale of Rs 4500-7000 whereas post of Labour Inspector and Labour Officer was placed in a higher scale of 5500-9000. Subsequently, the post of Senior Auditor Grade-II has also been admittedly placed in the higher scale of Rs 5500-9000 whereas the post of Co-operative Officer has been subsequently granted the scale of Rs 5000-8000 by the State Government itself. 6. On account of award of different pay scales to different services (posts) out of 16 which were earlier treated as equivalent to each other, a grievance was raised before the Fitment Appellate Committee constituted by the State Government on 15.01.2000. This Committee considered the grievance raised on behalf of the writ petitioners who are respondents in these appeals and on the ground that they were recruited through a common combined competitive examination and allotted different posts/services having 8 similar pay scale in a random manner without adopting any criteria/ principles based on marks and choice, it held that all the 16 posts/services deserved to be placed in one pay scale otherwise persons having secured higher marks in the competitive examination will get lesser pay scale for no fault of theirs. The Fitment Appellate Committee recommended for adopting a common pay scale of Rs 5000-8000 for all the 16 services. 7. Since the State Government did not accept the recommendation of the Fitment Appellate Committee, the writ petitions in question were filed to claim pay sale of Rs 5500-9000 being given initially only to Labour Inspectors and Labour Officers and subsequently to Senior Auditor Grade-II also. By the order under appeal, the claim of the writ petitioners has been allowed on the ground that since all the petitioners had been recruited on account of a common combined competitive examination, and allotted different services/posts in a random manner without regard to merit or option and the services at the time of recruitment carried same pay scales, the State could not discriminate by placing some of the services out of 16 in a lower pay scale. The writ court agreed with the recommendation of the Fitment Appellate Committed which was headed by sitting judge of this court, Mr. Justice Aftab Alam as he then was, that the recommendations of the Fitment Committee could be accepted by the state but only prospectively. While allowing 9 the writ petitions, the learned Single Judge also considered the judgment of the Division Bench in the case of Nagendra Sahani (supra) in support of the submission that since the appointees in the 16 services belong to one class, they were entitled to same replacement scale. The defence of the State of Bihar that further classification was necessitated on account of demand for Central Pay Scale was not accepted by the learned Single Judge because it was found obligatory on the part of the state to treat similarly situated employees in similar manner and such obligation could not be avoided on the plea of necessity to grant central pay scale equivalence. 8. Another ground urged on behalf of the state that even in Civil Services Examination, recruitments are made to different categories of posts carrying different pay scales was found to be of no help because in Civil Services Examination although the examination is common but allocation to different posts and services are made on the basis of merit-cum-choice principle. 9. Before us also on behalf of the state, same arguments were advanced and an attempt was made to distinguish the judgment of the Division Bench in the case of Nagendra Sahani only on the basis of necessity to take up the exercise of fitment for finding out equivalence with central pay scales. 10. We find ourselves in agreement with the 10 views expressed by the learned Single Judges in the orders under appeal. All those employees of the state who were appointed on different dates through the same combined competitive examination on random basis and when the posts were having same pay scale and were therefore, admittedly equivalent to each other cannot be made to suffer by the state by placing some of the 16 such services in lower pay scale. This would amount to impermissible classification and discrimination. The purpose of granting central equivalence in pay scales can be achieved without resorting to such discrimination and for this, the option was given by the Fitment Appellate Committee as well as by the learned Single Judge in the case of Sunil Kumar & Ors. But unfortunately, the state has not opted for such a suggested course of action. Hence in our view, there is no scope to take a different view in the matter. We are also of the considered view that such employees as the writ petitioners belonging to one or other of the 16 services must be given same revised pay scale w.e.f. 01.01.1996 notionally and effective from 01.04.1997. 11. As to what should be the common pay scale for all the 16 services in the light of recommendations of the Fitment Appellate Committee and our judgment in these cases, should first be decided by the State Government itself. It is required to select between one of the two pay scales i.e. of Rs 5000-8000 or 5500-9000. This exercise 11 should best be left to the State Government to be done in a judicious manner which may require inviting objections from the holders of the post of Labour Inspectors and Labour Officers and Senior Auditor Grade-II who are in receipt of the higher pay scale of Rs 5500-9000. This should be done expeditiously and in any case, within six months from today. If the State Government fails to take a decision within the period of six months, in that event the writ petitioners and others similarly situated would be entitled to be higher pay scale of Rs 5500-9000 as provided by the writ court. 12. It will be open for the State Government to adopt the recommendations of the Fitment Appellate Committee that the pay scales suggested by the Fitment Committee may be adopted only prospectively, i.e. for appointments to be made to the concerned services in future. 13. The appeals are disposed of accordingly. There shall be no order as to costs. Patna High Court The 30th day of August,2010 AFR/AKV/- (Shiva Kirti Singh,J.) ( Hemant Kumar Srivastava, J.)