IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11182 of 2004 VIVEK RANJAN, S/O SRI BALESHWAR MANDAL, RESIDENT OF VILLAGE-ASIACHAK, P.O.- NONSAR, P.S.- SULTANGANJ, DISTRICT-BHAGALPUR. ………PETITIONER. Versus 1.THE STATE OF BIHAR, THROUGH THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHR, PATNA. 2.THECOMMISSIONER-CUM-SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 3.THECOMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 4. THE DISTRICT MAGISTRATE-CUM-CHAIRMAN, DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, BHAGALPUR. 5. THE ESTABLISHMENT DEPUTY COLLECTOR, BHAGALPUR COLLECTORATE-CUM-THE SECRETARY, DISTRICT COMPASSIONATE APPOINTMENT COMMITTEE, BHAGALPUR. 6. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, BHAGALPUR. 7. THE ADDITIONAL CHIEF MEDICAL OFFICER, BHAGALPUR. 8. THE DISTRICT ACCOUNTS OFFICER, BHAGALPUR. 9. MANOJ KUMAR, S/O LATE JAI PRAKASH SHARMA, RESIDENT OF MOHALLA-MOHADDINAGAR, P.0. MIRJANHAT, P.S.- MOJAHIDPUR, DISTRICT- BHAGALPUR. 10.SANJAY KUMAR, S/O MAHENDRA NARAYAN SAH, RESIDENT OF VILLAGE-PURANIGANJ JAMALPUR ROAD, KASHIM BAZAR, DISTRICT-MUNGER. 11. RAJESH KUMAR JAISWAL, S/O LATE SHURYA NARAYAN JAYSWAL, RESIDENT OF SABOUR, DISTRICT-BHAGALPUR. ………RESPONDENTS. ----------- 06/ 23.11.2010 Heard learned counsel for the petitioner and 2 learned counsel for the State. Prayer of the petitioner in this writ petition reads as follows: I. “Issuance of an order, direction or writ in the nature of Certiorari quashing the entry dated 1.7.2004 (Annexure-6) made by the Respondent no. 8 in the service-Book of the petitioner directing inter alia for considering the appointment of the petitioner on the post of a Lower Division Clerk in the office of the Additional Chief Medical Officer, Bhagalpur. II. Issuance of an order, direction or writ in the nature of Certiorari quashing memo no. 876 dated 11.08.2004 issued by Respondent No. 7, by which a recovery of Rs. 63,091/- is sought to be made from the salary of the petitioner in twelve equal installments. III. Issuance of an order, direction or writ in the nature of Mandamus commanding the Respondents to allow the petitioner to continue on the post of Upper Division Clerk in the scale of Rs. 4000-6000 and to allow the petitioner to receive its consequential benefits. IV. Issuance of an order, direction or an appropriate declaration that the petitioner is entitled to the same service benefits as has been extended to other similarly situated persons like respondent nos. 9 to 11”. 3 Mr. Jha in support of the aforementioned prayer has submitted that the petitioner came to be appointed only on compassionate ground after death of his wife on 18.04.2000. He has also submitted that District Compassinate Appointment Committee in its meeting held on 31.10.2000, had recommended the case of the petitioner for appointment on the post of clerk and thereafter the appointment letter was issued to the petitioner on 21.12.2000, in which the Civil Surgeon cum Chief Medical Officer, Bhagalpur while appointing him on the post of clerk had prescribed the pay scale of Rs. 4000-6000 and the petitioner had continued to get the same pay for more than three and a half years till he was given a show cause notice by the Civil Surgeon, Bhagalpur on 14.07.2004, asking him to show cause as to why his salary should not be reduced from the pay scale of Rs. 4000-6000 to Rs. 3050-4590, in view of the resolution of the Personnel and Administrative Reforms Department/Finance Department dated 20.12.2000, prescribing the pay scale of the Lower Division Clerk of Rs. 3050-4590 only. He has submitted that the petitioner’s 4 explanation dated 19.07.2004, did not yield favourable result and by the impugned order dated 22.07.2004, the petitioner was placed in the pay scale of Rs. 3050-4590 with also a direction that earlier excess of salary paid to the petitioner for the aforesaid period of 21.12.2000 to 22.7.2004 shall be recovered from his future salary. Mr. Jha in this context has submitted that the said resolution of the Finance Department cannot be made applicable in the case of the petitioner inasmuch as the recommendation of the District Compassionate Appointment Committee was made o 31.10.2000, and in fact had the petitioner been also appointed alike Manoj Kumar, Sanjay Kumar and Rajesh Kumar Jaiswal i.e respondent nos. 9, 10 and 11 on the post of clerk prior to 20.12.2000 in view of the fact that their case was also recommended by the same meeting of District Compassionate Appointment Committee, the petitioner could not have been subjected to the decision of lowering of the pay scale or consequential recovery inasmuch as the Government Resolution dated 20.12.2000 was only prospective in nature. 5 A counter affidavit has been filed in this case wherein, the aforementioned facts have not been disputed and the only explanation which has been given in the case of the petitioner is that the recommendation of the District Compassinate Appointment Committee dated 31.10.2000, in the case of the petitioner was received in the Office of Civil Surgeon on 16.11.2000, whereafter the petitioner was asked to produce his original documents on 15.12.2000, and when the petitioner had produced the same on 15.12.2000, his appointment letter was issued on 21.12.2000. It has been further explained that the Government Resolution dated 20.12.2000 being binding on the Civil Surgeon, the order of appointment issued on 21.12.2000 with the pay scale of Rs. 4000-6000 could not be sustained and therefore the impugned order was passed after giving the petitioner an opportunity to show cause and/or an opportunity of hearing to him. In the opinion of this Court, the power of fixing the pay scale is vested in of the State Government. It is the State Government which has laid down the terms and conditions for such appointment and therefore Subordinate 6 Appointing Authority is bound to follow the same. Thus when the State Government had taken a conscious policy decision dated 20.12.2000 not only with regard to merging the post of clerk into Lower Divison Clerk and Upper Division Clerk and also making the provision for initial appointment only on the post of Lower Division Clerk and every appointment to be made in the Muffasil Establishment on the post of Lower Division Clerk such appointment had to be invariably made on the post of Lower Division Clerk. To that extent, there would be no dispute in law that the petitioner will be entitled only to the post of Lower Division Clerk in pay scale of Rs. 3050- 4590, which was prescribed by the Finance Department in its Resolution dated 20.12.2000. However, a question would still arise as to what was the fault of the petitioner, so that he could be saddled with the consequence of recovery of the alleged excess amount which was paid by the Office of Civil Surgeon, Bhagalpur on the strength of the terms and conditions contained in appointment letter of the petitioner dated 21.12.2000, fixing the pay scale of the petitioner of Rs. 7 4000-6000. Obviously, the petitioner did not misrepresent his case in any other manner nor the District Compassionate Appointment Committee had made any distinction in the case of the petitioner. In that view of the matter, if the respondents took four years to make a discovery with regard to the alleged irregularity in grant of pay scale of Rs. 4000-6000, for that the petitioner cannot be punished. The law in this respect now stands settled in judgment of Apex Court in the case of Abdul Quadir vs. State of Bihar reported in 2009 (3) SCC 475 wherein it was held that if Fundamental Rule-22 was not followed correctly by the officials of the State of Bihar that cannot be made a ground for making any recovery of any excess amount paid to the teachers. That being so, the impugned order so far it relates to making recovery of the excess amount paid to the petitioner prior to 22.07.2004, cannot be sustained in law and accordingly that part of the order is set aside. As with regard to the claim of discrimination as against the respondent nos. 9, 10 and 11 this Court would find it difficult but for two reasons:- 8 One, that the petitioner himself had submitted his original documents for verification on 15.12.2000 where after his appointment letter was given within next six days i.e 21.12.2000. This Court however is not aware as when a similar direction was given to respondent nos. 9, 10 and 11 and in fact the petitioner has not given any such detail about them. Therefore, if they had submitted their documents earlier and their order of appointment was issued prior to 21.12.2000 that would be by itself sufficient for rejecting the plea of alleged discrimination. Secondly, the petitioner came to be appointed on compassionate ground, the purpose of which was to mitigate the hardship created on account of sudden death of his wife. The Respondents did, in fact provide him a source of employment within eight months of the death of the bread earner, his wife. There is no such abnormal delay which would in this case make this Court to hold that there was undue delay in appointing the petitioner so as to make out a case of discrimination on the ground of earlier appointment of respondent nos. 9, 10 and 11. Thus for the reasons indicated above this 9 application is allowed in part. In other words, the petitioner shall be deemed to have been appointed in the pay scale of Rs. 3050-4590 and all his emoluments shall be fixed in the said pay scale but any amount which has already been in the pay scale of Rs. 4000-6000 will not be recovered. With the aforementioned observation and direction this writ application is disposed of. Ranjan (Mihir Kumar Jha, J.)