IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.13916 of 2004 DR.SUDHIR KUMAR THAKUR Vrs. THE STATE OF BIHAR & ORS. **** For the petitioner .. Mr. Dr. Sadanand Jha, Sr. Adv. With Mr. Dr. Mayanand Jha, Adv. For the State .. J.C. to A.G. **** /7/ 18 .09.2008 Heard the parties. 2. The petitioner started his career on 06.08.1971 as an Administrative Officer in Bihar Flying Club Limited, a company registered under the Companies Act. The Government of Bihar took over the control of Bihar Flying Club vide Bihar Flying Club (Taking Over Management and Control) Act, 1974. As per Section 5 of the Act, services of the officers and employees holding office of the Club, were transferred to the State Government and they became officers/employees of the State Government. The period of service of the officers and employees, as mentioned in the Act prior to taking over, was also deemed to be service under the State Government. In this respect, the Government of Bihar and Transport Department came out with notification bearing no. 8392, dated 20.09.1979. Petitioner‟s name figured at serial no. 6 of the Gazette, dated 2 07.09.1977, which was published absorbing the services of the employees of the Bihar Flying Club. The employees of the erstwhile Flying Club were given the pay scale applicable to the Government servants vide letter no. 2335 (Finance) Government of Bihar, dated 16.11.1991, with effect from 06.02.1974. The pay scale of the Administrative Officer was fixed as Rs.890- 1,415/-. 3. Petitioner‟s case is that the pay scale which was allowed to the Administrative Officer was much higher than the Sub Divisional Officer/Under Secretary rank officer of the Bihar Administrative Service, which was Rs.630-1,325/-. The pay scale of Rs.890-1,415/- was further revised to Rs.1,350-2,000/- vide Finance Department‟s Resolution No. 10770, dated 30.12.1981, with effect from 01.04.1981 which was the pay scale of the Under Secretary. Petitioner, thereafter, was granted first time bound promotion in the scale of Rs.1,575-2,300/- with effect from 06.08.1991 vide letter no. 21183-348, dated 06.10.1988. The pay scale of Rs.1,575-2,300/- was the pay scale of the Additional District Magistrate/Deputy Secretary rank officers in other Government department. The pay scale of Rs.1,575-2,300/- was revised by Finance Department‟s 3 Resolution No. 6021, dated 18.12.1989 to Rs.3,700-5,000/-, as per Schedule II of the notification. However, the scale of the Administrative Officer, Flying Club, was fixed to Rs.2,400- 4,150/-. Prior to fixation of replacement scale of the Administrative Officer of Flying Club at Rs.2,400-4,150 the petitioner was called on deputation to the Bihar State Financial Corporation vide notification no. 13/68-97, dated 19.09.1988, issued by the Finance Department in the scale of Rs.1,575- 2,300/-. Petitioner remained on deputation from 01.06.1989 to 30.06.1996, as such, he never received his salary in the lower down scale of the Administrative Officer. While on deputation, he got the replacement scale of Rs.1,575-2,300/-. Petitioner when returned from deputation a proposal was given to the Chief Minister to allow the petitioner join as Special Officer- cum-Ex Officio Under Secretary. This proposal was allowed by the Chief Minister. The Civil Aviation Department vide it‟s order, dated 11.12.1996, came out with notification no. 5081, dated 29.03.1996, whereby the petitioner was allowed to join as Special Officer-cum-Ex Officio officer/Deputy Secretary. Petitioner‟s case is that he was also given Secretariat allowance payable to the Under Secretary of the Government. 4 4. Since, the pay scale of Administrative Officer had been lowered down vide Finance Department‟s Resolution No. 6021, dated 18.12.1989, the petitioner challenged that by filing C.W.J.C. No. 7719 of 1996. C.W.J.C. No. 7789 of 1996, was filed for a direction to consider petitioner‟s case for promotion in I.A.S. grade and to refix and revise his pay scale which has arbitrarily been lowered down. This writ application was disposed of by order, dated 30.04.1998 (Annexure 7) rejecting the claim of petitioner regarding fixation of his pay scale as Rs3,7000-5,000/-, i.e., corresponding scale of Rs.1,575-2,300/-, but, a direction was issued to the respondents to consider his case for promotion for which four months‟ time was allowed. Since the petitioner did not get any clear relief, he preferred L.P.A. No. 700 of 1998 against the order, dated 30.04.1998, passed in C.W.J.C. No. 7719 of 1996. When the L.P.A. was pending the Government granted replacement scale of Rs.1,575- 2,300/-, i.e., Rs.3,700-5,000/- to the petitioner vide notification no. 2-69/98, dated 09.09.1998 (Annexure 5) modifying the earlier notification, dated 29.03.1996 (Annexure 3). Since, the grievance of the petitioner was substantially redressed and he was granted the replacement scale of Rs.1,575-2,300/-, i.e., 5 Rs.3,700-5,000/-, which was his pay scale when he left for the Department of Bihar State Food Corporation of India he withdrew L.P.A. No. 700/98 vide order, dated 01.12.1998. 5. Petitioner had to file present writ application as the Government of Bihar vide Finance Department‟s Resolution No. 660, dated 08.02.1999, revised the pay scales of employees working in different Departments. In the list of Aviation Department officials though Rs.3,700-5,000/- was revised to Rs.12,000-167,500/- and the pay scale of Rs.3,000-4,500/- was revised to Rs.10,000-15,200/-. The post of Special Officer-cum- Under Secretary, i.e., the post which petitioner was holding was not included for revision of pay scale. and it was referred to the Cabinet Sub Committee. The Cabinet Sub Committee recommended the pay scale of Rs.10,000-15,200/- for this post with a note that if the Government so pleases higher pay scale can be given provided the designation is changed to Deputy Secretary, as per appendix to letter no. 3944, dated 10.06.2000 (Annexure 6). The petitioner was made to suffer, once again, and he had to face the evil consequences of the arbitrary attitude of the Finance Department. In this circumstance, he was, again, forced to file present writ application. 6 6. The present writ application has been filed by the petitioner for directing the respondents to make payment of his retirement benefits after giving effect to the recommendations of the Personnel and Administrative Reforms Department to revise his pay scale of Rs.3,700-5,000 to Rs.12,000-16,500 with effect from 01.01.1996, after giving two promotions/monitory benefit on completion of twelve years and 24 years of service, as per the Assured Career Progression Scheme. During the pendency of the writ application the respondents came out with notification no. 253, dated 07.03.2006 (Annexure “A” to the supplementary counter affidavit filed on behalf of respondent no. 1) notifying that the petitioner is granted Assured Career Progression Scheme from 09.08.1999 in the scale of Rs.10,000- 15,200 and second Assured Career Progression Scheme in the scale of Rs.12,000-16,500/- with effect from 09.08.1999. Amended prayer of the petitioner is that notification no. 713/2006 should be quashed as it has been issued in violation of rule of natural justice as well as ignoring the fact that petitioner was already working on pre revised scale of Rs.12,000-16,500/- from 06.08.1986 which was replacement scale of Rs.3,700- 5,000/- from 01.04.1986 and before that Rs.1,575 to 2,300/- 7 from 01.04.1981. By issuing notification, dated 07.03.2006, the pay scale of the petitoner has been lowered down with effect from 1999 in the garb of granting the benefit of Assured career Progression Scheme. 7. Petitioner‟s case is that he received salary in the lowered scale under protest vide his letter, dated 06.02.2006, but, due to this arbitrary fixation of pay scale after his retirement his pension, pensionary benefits have been fixed in the lowered scale ignoring the fact that he was entitled to get the pay scale of Rs.3,700-5,000/- on account of Notification No. 2-69/98, dated 09.09.1998 (Annexure 5). This was allowed to the petitioner by the Government during the pendency of L.P.A. No. 700 of 1998. While the petitioner was getting pay scale of Rs.3,700-5,000/-, the Cabinet Sub Committee instead of changing the designation of the petitioner to Deputy Secretary, as per letter no. 3944, dated 10.06.2000, has issued the impugned Notification No. 253, dated 17.03.2006. 8. Petitioner‟s case is that the Finance Department while issuing impugned notification no. 253, dated 17.03.2006, has over looked the whole history of pay fixation relating to the post of the petitioner. The taken over persons of the Flying 8 Club, who wee getting same pay scale of Rs.3,700-5,000/-, were given replacement scale of Rs.12,000-16,500/-, but, contrary decision was taken in the case of the petitioner ignoring the recommendation of the Finance Department‟s Resolution No. 660, dated 08.02.1999, that if the Government so pleases, higher pay scale can be given to the petitioner, who was holding post of Special Officer-cum-Under Secretary, changing the designation to the Deputy Secretary. 9. Counter affidavits have been filed on behalf of respondents 1, 3 and 4. In the counter affidavit of Personnel and Administrative Department (respondent no. 4), it has been stated that the Civil Aviation Department in consultation with the Finance Department is competent to decide and they have no role to play. The Civil Aviation Department (respondent no. 1), in it‟s counter affidavit, has stated that pay fixation of petitioner from 01.01.1986 to 01.01.1996 in the scale of Rs.3,700-5,000/- and Rs.10,000-15,200/- was found to be wrong, as such, it was amended and revised in pay scale of Rs.3,000-4,500/- and Rs.8,000-13,500/-. The Screening Committee under the Chairmanship of the Development Commissioner has recommended first Assured Career Progression to the petitioner 9 with effect from 09.08.1998 in the scale of Rs. 10,000-15,200/- and second Assured Career Progression with effect from 09.08.1999 in the scale of Rs.12,000-16,500/- vide Notification No. 253, dated 07.03.2006, there is nothing wrong in this. The Finance Department (respondent no. 3), in it‟s counter affidavit, has stated that the Pay Revision-cum-Fitment Committee has revised and fixed the pay scale of Administrative Officer with effect from 01.01.1986 in the scale of Rs.2,400-4,150/- vide Resolution No. 6021 dated 18.12.1989. Since the petitioner was deputed under the Bihar State Food and Civil Supplies Corporation with effect from 01.06.1989 till February, 1998, his pay by mistake was fixed in the pay scale of Rs.3,700-5,000/- with effect from 01.01.1986 instead of Rs.3,000-4,500/-. After repatriation of his service in the Civil Aviation Department, he was posted as Under Secretary-cum-Special Duty Officer, which is basically the post of the Administrative Officer, as such, he is entitled for revised pay scale of Rs.8,000-13,500/-. The representation of the petitioner has also been considered by the Fitment Appellate Committee, but, no ground was found to alter the scale of Administrative Officer. 10. What I find that prior to his retirement the petitioner 10 never received his salary in the lower scale. The petitioner was on deputation on the date when the pay scale of Rs.3,000- 4,500/- was allowed by the Finance Department Resolution for the post of Administrative Officer. Till 1998 petitioner remained on deputation. He received his salary in the pay scale of Rs.3,700-5,000/-, which was revised to Rs.12,000-16,500/-. When petitioner rejoined in the Civil Aviation Department, he did not join on the post of Administrative Officer, but, with the approval of the Chief Minister a new post of Special Officer- cum-Ex Officio Officer/Deputy Secretary was created and petitioner joined on that post. When the central pay scale was introduced by the Government vide Finance Department Resolution No. 660, dated 08.02.1999, the post of Special Officer-cum-Under Secretary was not put in the list of Aviation Department, but the matter was referred to the Cabinet Sub Committee, which recommended pay scale of Rs.10,000- 15,200/- with a note that if the Government so pleases, higher pay can be given provided the designation is changed to the Deputy Secretary, as per Appendix 2 letter no. 3944, dated 10.06.2000 (Annexure 6). This means that the post of Special Officer-cum-Under Secretary was deemed to be equivalent to 11 the post of the Deputy Secretary considering the duties discharged as well as the responsibilities attached to the post. Earlier to that when the petitioner joined his duty after coming back from deputation with the approval of the Chief Minister he was allowed pay scale of Rs.3,700-5,000/- vide Notification No. 5081, dated 29.03.1996, and the Civil Aviation Department order, dated 11.02.1996. He was also allowed Secretariat Allowance payable to the Under Secretary of the Government. 11. Petitioner‟s case is that nature of duties he required to discharge could not be equated with the duties discharged by the Administrative Officer, which is of a ministerial cadre. He discharged duties of a Deputy Secretary and he was directly reporting to the Secretary or the Chief Secretary as there was no one in between or Joint Secretary in the Department. It was only due to the fact that the post in the Department was of Under Secretary, as such, designation was added to that post held by him as Special Officer-cum-Ex Officio Officer/Deputy Secretary. He was entitled to the replacement scale of Rs.12,000-16,500/- from 01.01.1996 and also two benefits of Assured Career Progression, as per the Assured Career Progression Scheme, 2006. The Assured Career Progression 12 Scheme stipulates that time bound promotion granted prior to 01.01.1996 will not be counted for Assured Career Progression, as such, the petitioner is entitled to pay scale of Rs.14,300- 18,300/- and then Rs.16,400-20,00/-. The respondents have refused him appropriate pay scale fixing it in a lower scale and fixed his retirement benefit in the scale which is even lower than what he was getting from earlier. Petitioner has also placed reliance on an unreported decision of this Court passed in C.W.J.C. No. 2982 of 1992 (Sheo Kumar Tiwary & Anr. Vrs. The State of Bihar & Ors.) (Annexure 22), where it has been held that proper replacement should be given to Government officials and it can not be changed simply on the ground that there is no concurrence of the Finance Department. 12. Considering the entire material and the submissions of the counsel, I find that in the earlier writ application, filed by the petitioner, there was a direction to consider the case of petitioner for promotion within four months‟ time. This was not done but during the pendency of L.P.A. preferred by petitioner, respondents allowed him scale of Rs.3,700-5,000/-, due to which petitioner withdraw his case. Petitioner‟s pay scale after his retirement could not have been altered considering the fact that 13 he did not even get opportunity to object it on account of his superannuation. The post which he was holding for fixation of pay scale was referred to Cabinet Sub Committee and during his service period no pay fixation was done. In this circumstance, it was required that the entire service history of the petitioner should have been considered and in the special circumstance his pay scale should have been decided and fixed. Direction of High Court in earlier writ application regarding promotional avenues also required consideration, but, even that was ignored. The petitioner has rightly stated that since inception the pay scale which was allowed to the petitioner was higher than the Sub Divisional Officer/Under Secretary rank ignoring it after 31 years of his service it could not have been fixed in a lower scale. 13. Accordingly, the exercise of fixation of pay scale done by the Finance Department (Annexure 14 series) as well as the Notification No. 235, dated 07.03.2006 (Annexure „A‟ to the supplementary counter affidavit filed on behalf of respondent no. 1 are quashed. The respondents 1 and 3 are directed to issue fresh notification granting two Assured Career Progressions after fixing the salary of the petitioner in the revised scale of Rs.12,000-16,500/- from 01.01.1996. The 14 respondents are further directed to make payment of retirement benefits of the petitioner on the basis of fresh pay fixation in the revised scale of Rs.12,000-16,500/-. The respondents must complete all these exercises within three months from the date of production/communication of this order. 14. With these observations and directions this application is allowed. Cp:2/S.A. ( Mridula Mishra, J. )