IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7392 of 2010 Arun Kumar Ram Versus The State Of Bihar & Ors ---------------------------------- 3 26.09.2011 Heard learned counsel for the petitioner and the State. The petitioner claims two reliefs: (a) He should be considered and appointed as a clerk in the Divisional Cadre in accordance with the advertisement in pursuance of which he has been appointed. (b)He should be given the pay scale of Rs. 4000-6000 even on the post of Family welfare worker on which he was regularly appointed as also specifically directed by the District Magistrate, Siwan on 8.12.2009. Learned counsel submits that that the advertisement No. 21 of 1998 was issued for appointment on Grade- III post in the divisional cadre as assistant/clerks. While others came to be appointed in that capacity from 16.6.2003 the petitioner was wrongly denied such appointment till 30.6.2005. He is, therefore, entitled to both the reliefs with retrospective effect. Counsel for the State submitted that the advertisement was for appointment in regional offices (at district level) and on Grade-III posts and not in any Divisional Cadre of clerks. At the time of his appointment the pay scale of clerks in the Divisional Cadre and Family Welfare Worker was the same but subsequently after the 5th Pay Revision Committee Report the pay scale of a family welfare worker stood reduced to Rs. 3050-4590. The post of clerks in the divisional cadre and the family welfare 2 worker are both class-III posts. The petitioner was as a family welfare worker appointed on 30.6.2005. The advertisement in no uncertain terms was for appointment in regional offices at the district level on class-III posts. The petitioner has been appointed on a class-III post at the regional level. If he was aggrieved with his appointment as a family welfare worker and not as a clerk in the divisional cadre, it was for him to agitate his grievance no sooner than he was appointed. The writ petition has been filed nearly five years after the appointment. The court cannot be unmindful of the consequences that may ensue if today directions are given to consider him for appointment as clerk in the divisional cadre from 16.6.2003. A necessary concommitent of any such direction shall be a severe turbulence with regard to the issue of seniority vis-à-vis those already appointed in 2003. The court finds no error in the appointment even otherwise. If the petitioner had a perceived grievance it was for him to have been more vigilant to protect his interest. The court is not persuaded to entertain the writ application to that extent. If the District Magistrate, Siwan as recently on 8.12.2009 has ascertained the pay scaled entitlement of the petitioner as Rs. 4000-6000/- from the date of appointment, there is no occasion for this Court to dwell upon that matter. The respondents have not dealt the issue in their counter affidavit. Applying the principle of non-traverse it stands admitted. The counter affidavit by the Civil Surgeon-cum-Chief Medical 3 Officer, Siwan lends weight to the order of the District Magistrate dated 8.12.2009 when it states that the District Magistrate alone was competent to take decision with regard to pay scale entitlement of the petitioner. It is unfortunate that the counter affidavit is casual and non-committal on the aspect of pay scale entitlement of the petitioner. Had the respondents filed a proper counter affidavit the court may have conclusively disposed the matter one way or the other. A casual counter affidavit prevents the court from doing so as it does not have the confidence that the order shall be fully in consonance with the law. The matter of pay scale is therefore referred to the Principal Secretary, Department of Finance, who shall call for the comments of the District Magistrate for the circumstances under which he issued the order date 8.12.2009, a copy of the comments shall be furnished to the petitioner and the petitioner be permitted to file his reply to the same. Only thereafter the Finance Secretary shall pass a reasoned and speaking order considering all aspects of the matter. The limitations of one department of the Government questioning the order of the other department of the Government shall also have to be the subject matter of consideration in the order of the Secretary Finance Department. Let the pay scale entitlement of the petitioner be decided in the aforesaid manner within maximum period of four months from the date of receipt/production of a copy of this order. 4 Needless to state that if the respondents find justification in the claim or any part of the claim, necessary consequential order shall be issued simultaneously. The application is allowed to the extent indicated. M.Rahman (Navin Sinha, J)