IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15170 of 2009 1. DR. SUBARN SHEKHAR JHA S/O LATE SRIDHAR JHA R/O MOHALLA- RAJKUMARGANJ, P.S. SADAR, DISTT.- DARBHANGA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPTT. OF HEALTH, GOVT. OF BIHAR, PATNA 2. DEPUTY SECRETARY DEPARTMENT OF HEALTH GOVT. OF BIHAR, PATNA 3. UNDER SECRETARY DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVT. OF BIHAR, PATNA 4. ACCOUNTANT GENERAL, BIHAR, PATNA ----------- For the Petitioner:- Mr. Banwari Sharma & Mr. Shiv Kumar,Advocate For the State:- Mr. Sanjay Kumar No.I ( G.P.XIV) 4 30 .03.2010 Petitioner was a member of the Bihar Health Service Cadre and after serving for a long period, he has been finally superannuated from service with effect from 31.12.2001. At the time of his superannuation, petitioner was posted as Civil Surgeon Cum Chief Medical Officer, East Champaran at Motihari. Prayer of the petitioner is for quashing of part of the notification with respect to the petitioner, issued vide memo no. 139(3) and memo no. 140(3) dated 20.2.2007 (Annexures 3 and 4), whereby higher scales of pay, in the scale of Rs. 12000-16500 and Rs.14300- 18300 respectively has been denied to the petitioner on the ground of ineligibility because he was awarded 2 punishment of withholding of 5% pension in the departmental proceeding. Petitioner has also prayed for directing the respondents to give him benefits of higher scales of pay as per the Resolution No. 660 dated 13.2.1999 issued by the Finance Department in the scale of Rs.12000-16500, with effect from 1.1.1998 and Rs. 14300-18300, with effect from 1.2.2001 the date his juniors have been given and accordingly, all his post retiral benefits be fixed and paid on the basis of replacement scale of Rs.14300-18300 with 18% quarterly- compound interest. Counsel for the petitioner submits that it is well settled and also decided by the State Government that at the time of considering promotion of a person, his Character Roll for the period till the date of consideration can only be seen/verified. In case a departmental proceeding or a criminal proceeding has been initiated for the subsequent period and even though punishment awarded, that cannot be a reason for denying the promotional benefit to any Government employees for a period earlier to that. 3 The State Government earlier used to provide benefit of two time bound promotions to its employees in order to remove stagnation but subsequently vide memo no. 660 dated 13.2.1999 a notification was issued under the signature of Secretary, Department of Finance, Government of Bihar, Patna, whereby it was decided that for giving promotion the post will have to be identified as need based post. This provision was to be implemented with effect from 1.1.1996 and financial benefits in case of such promotion will be given with effect from 1.4.1997. It was further decided that the cadre controlling authority will prepare the seniority list of the employees, and the promotional scale will be allowed against need based post, in order of seniority. It was also resolved that in case the controlling authority faces any difficulty in issuing the order, the benefit of revised pay scale in the basic grade of the cadre will be granted to the employees, for the time being. Since need based post, according to the seniority could not be prepared, as such the petitioner was placed in the revised basic grade scale of Rs.6500- 4 10500 with effect from 1.1.1996 like all members of Bihar Health Service Cadre. It was the preliminary benefit, subject to identification of need based post as per the resolution issued by the Finance Department. The need based post could not be identified as per the seniority list till the date petitioner superannuated from service and he retired in the basic scale of pay, i.e. Rs. 6500-10500. His retiral benefits were also fixed in the basic scale only. Finally vide memo No.144(3) dated 3.3.2005 was issued under the signature of Deputy Secretary, Department of Health, Government of Bihar, the petitioner was given scale of pay, in the scale of Rs.10,000-15,200 with effect from 1.1.1996 but when subsequent notifications contained in memo No. 139(3) and memo No. 140(3) dated 20.2.2007 were issued, persons junior to the petitioner were allowed benefit of higher scale of pay, in the scale of Rs.12000-16500 and Rs.14300-18300 respectively as per resolution no. 660 dated 8.2.1999 but it was denied to the petitioner holding him ineligible on the ground that he was awarded punishment of withholding of 5% pension in the 5 departmental proceeding. Counsel for the petitioner submits that during the pendency of the departmental proceeding if petitioner could be given benefit of one higher scale of pay, in the scale of Rs.10000-15200, there is no reason for denying him benefit of another higher scales of pay, in the scale of Rs.12000-16500 and Rs. 14300-18300 with effect from 1.1.1998 and 1.2.2001 respectively. Allowing higher scale of pay is not a promotion, rather admissible replacement scale is allowed to an employee as per his seniority. The departmental proceeding, awarding any punishment, could not have made the petitioner ineligible as per the reason assigned in notifications contained in Annexures 3 and 4 dated 20.2.2007. The departmental proceeding was initiated much later than the date when petitioner became entitled for the higher scale. The scale became due with effect from 1.1.1998 and 1.2.2001. Petitioner superannuated from service on 31.12.2001 and the departmental proceeding had been initiated much after that. The stand taken by the respondent for not allowing the benefit of 6 higher scale to the petitioner is illegal, not justified as the order of punishment will not have any adverse effect on the entitlement of the petitioner for higher scale, for which he became entitled much earlier. Counter affidavit has been filed on behalf of the respondents, in which the reason assigned for not allowing the benefit of higher scale to the petitioner is awarding of punishment of withholding of 5% pension vide departmental notification no. 935(9) dated 30.6.2005, I find that the reason assigned for not allowing the benefit of higher scale to the petitioner cannot be a ground for the reason that the period during which petitioner became entitled for higher scale, there was no departmental proceeding initiated and order of punishment has also been awarded much later in the year 2005. Petitioner became entitled for these two higher scales in the years 1998 and 2001. Under such circumstances, the order contained in Annexures 3 and 4 dated 20.2.2007 are found fit to be quashed. In the result, the writ application is allowed. The respondents are directed to grant benefit of two 7 higher scales to the petitioner with effect from the date it has been allowed to juniors to him. Petitioner’s pension and all pensionary benefits shall also be fixed on the basis of his higher pay scales. The necessary orders must be issued by the respondents in this regard, within a period of four weeks from the date of production/communication of this order. All payments also must be made to the petitioner, preferably within a period of two months from the date of passing of the order. (Mridula Mishra,J.) A.Kumar