CIVIL WRIT JURISDICTION CASE No.1319 OF 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. … Budha Deo Mistry, son of Late Bakhori Mistry, village Nathu Bigha, PS Parwalpur, District Nalanda – Petitioner. Vs. 1. The State of Bihar, 2. The Secretary, Welfare Department, Bihar, Patna. 3. The Secretary, Finance Department, Bihar, Patna. 4. The Under Secretary, Welfare Department, Bihar, patna. 5. The Director, Social Welfare, Govt. of Bihar, Patna. 6. The Deputy Director, Social Welfare, Patna Division, Patna. 7. The District Welfare Officer, Welfare Department, Patna – Respondents. … For the petitioner : Mr. Suraj Narain Yadav, Advocate. For the State : Mr. Mahesh Prasad, SC VIII and Mr. R.K.Sinha, AC to SC VIII. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan,J. The petitioner was working as an Instructor in the Beggars Home, Patna City. He is claiming that he is entitled to receive the pay scale of Rs.850-1360/- from 1.4.1981 as fixed by the 4th pay revision committee and the pay scale of Rs.1500-2700/- as fixed by the 5th pay revision committee from 1.4.1986. 2. The facts are that the petitioner was given the aforesaid scale which has been entered in his service book. It is also a fact that there is no decision of the Government or the department to give such scale to the petitioner. On examination of the matter the higher scale of the petitioner was down graded and he was granted the replacement scale of Rs.296-410/- which came to Rs. 580-860/- as per the recommendation of the 4th pay revision committee. 2 3. The petitioner being aggrieved by the aforesaid decision filed CWJC No. 3854/1991 which was disposed of on 27.4.1992. I am quoting paragraph 2 of the aforesaid order which reads as under : “In the counter affidavit filed on behalf of the respondent State, in paragraphs 12 and 13, an averment has been made that „the petitioner has claimed that the salary should have been fixed with the scale of Rs.850-1360/- instead of Rs.580-860/- after implementation of 4th pay revision committee with effect from 30.9.1983. It is a fact that according to service book after 4th Pay Revision Committee report the replacement scale of the petitioner was fixed on Rs.580-860/- with effect from 1.4.1981. However, this fixation was amended according to his service book of relevant page on 6.4.1991 and his pay fixation was made in the scale of Rs.850- 1360/- with effect from 1.4.1981. However, this fixation is subject to confirmation by Finance Department, District Accounts Officer, patna . . . it is a fact that on implementation of 5th pay revision committee recommendations, the petitioner‟s revised pay scale was fixed in the scale of Rs.1200-1800/- on 1.3.1989. However, the amendment was made in this respect and his revised pay scale was fixed in the scale of Rs.1500-2750/- with effect from 1.1.1986. This fixation is subject to confirmation by District Accounts Officer, patna.” 4. It was contended on behalf of the petitioner that the decision might have been taken but still the petitioner was not getting his salary. In this context the High Court held “that the authorities have already taken a decision in this regard we are inclined to direct them to see that the said decision is implemented preferably within two months from the date of receipt of a copy of this order.” 5. After disposal of the aforesaid writ petition, no decision was taken by the State Government and as such MJC No. 1403 of 1992 was filed in this court. A direction was given by the court that the respondents should take a decision within a period of two months and the contempt petition was disposed of. The result is that the court did not interfere or call upon the respondents to pass an 3 order which could be tested by the court hearing the contempt matter. 6. In compliance of the order of this court, the Welfare Department issued memo no. 5680, dated 1.12.1994 by which they have held that the petitioner would not be entitled to grant of higher scale as claimed by him as there was no replacement scale prescribed in the reports of the 4th and 5th pay revision committee. 7. Counsel for the petitioner submits that in view of the order passed by this court in CWJC No. 3854/1991, dated 27.4.1992 wherein the court has said that the decision of the State Government should be implemented, would be the ground for granting scale to the petitioner. On perusal of the order, dated 27.4.1992 it is apparent that no decision in fact was taken by the State Government by which it could have been held that the petitioner had been granted scale which he is claiming. In fact at paragraph 18 of the writ petition which has been the basis of holding that a decision was taken by the State Government does not indicate that a decision was taken. It is quoted below : “In paragraph 12 of the said counter affidavit it was stated on behalf of the respondent authorities that “it is stated that the petitioner has claimed the salary should have been fixed with the scale of Rs.850-1350 instead of Rs. 580-860 after implementation of IV pay revision with effect from 30.9.1981. It is a fact that according to the service book after IV Pay Revision Committee report the replacement scale of the petitioner was fixed on 580-860 with effect from 1.4.1981. However this fixation was amended according to service book of relevant pages on 6.4.1991 and his pay fixation was made in the pay scale of Rs. 850-1360 with effect from 1.4.1981 . . . .” “In paragraph no.13 of the said counter affidavit it was stated „that it is stated that it is fact that on implementation of Vth Pay Revision committee recommendation the petitioner‟s revised pay scale was fixed in the scale of Rs.1200-1800 on 1.3.1989. However the amendment was made in this respect and his revised pay scale was fixed in the scale of Rs, 1500-2750 with effect from 1.1.1986‟ . . . .” 4 8. These two paragraphs in fact do not reveal that the State had accepted the fact that they had taken a decision to grant scale to the petitioner. In fact the entire paragraph had not been quoted in the writ petition. In any event there is no document to show that any such decision was taken by the State Government which would form the basis of the entry in the service book. It is also an accepted fact that the grant of higher scale was subject to approval of the District Accounts Officer. Admittedly no such approval was obtained and as such it cannot be contended that the enhanced scale was correctly granted to the petitioner. 9. From perusal of Annexure 12, that is, the decision of the State Government granting scale to the petitioner, following facts have been stated for rejecting the petitioner‟s claim : (a) It has been stated that for the post of Instructor the qualification required is matric and I.T.I. training whereas the petitioner is matric and trained from polytechnic. (b) In the 3rd pay revision committee‟s report the replacement scale of Rs.296-460/- was Rs.580-860/- and, therefore, the petitioner would be entitled to get replacement scale as fixed by 3rd pay revision committee. (c) The replacement scale of Rs.580-860/- was fixed at Rs.1200-1800/- and, therefore, the 5 State Government by its decision, dated 18.12.1989 be granted Rs. 1200-1800/- of such persons who were getting scale of Rs.580-860/-. 10. On the basis of the aforesaid facts the scale of the petitioner was reduced to Rs.1200-1800/-. 11. This court also finds that there is no rationale given on behalf of the petitioner to justify that he would be entitled to get higher scale of Rs.1500-2700/-. The post of Instructor in the Beggars Home became non-functional and that there was no beggars home even in the year 1992 and the petitioner was transferred and adjusted in some other post. No special pay scale was fixed in the recommendations of 4th and 5th pay revision committee. In fact the petitioner was only getting the replacement scale fixed for a person working in the Welfare Department. 12. I, therefore, find that no ground is made out for quashing the impugned order contained in Annexure 12. The petitioner‟s prayer for grant of higher scale is, thus, rejected. 13. The petitioner has also prayed that he is entitled to super time selection grade. It is submitted that the petitioner was granted Ist time bound promotion and the second time bound promotion. It is submitted that there was a single post of Instructor and there was no ladder for getting required promotion on the post he was holding. It is also admitted that in fact the petitioner was transferred by the Welfare Department to perform other duties as the 6 beggars home itself ceased to exit. In these circumstances it is up to the Welfare Department to consider whether the petitioner would be entitled to grant of super time selection grade. 14. This writ petition is dismissed. Patna High Court, May 11, 2010, NAFR / haque (Sheema Ali Khan, J.)