IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7024 of 2007 1. Suman Kumar, son of Shri Sidheshwar Prasad, resident of D-44, Ashoka Tower, Machhali Gali, Raza Bazar, P.S. Shastri Nagar, Town and District Patna 2. Prabhat Kumar Sinha, son of Shri Raghunath Prasad Sinha, resident of House No. 67, Road No.14, Shrikrishna Nagar, P.S. Buddha Colony, Town and District Patna … Petitioners Versus 1. The State Of Bihar through the Commissioner and Secretary, Health, Medical Education and Family Welfare Department, New Secretariat, Vikas Bhawan, Patna 2. The Finance Commissioner and Secretary, Finance Department, Main Secretariat, Patna … Respondents ---------------------------------- 3. 27.9.2011 Heard Mr. R.N.Mukhopadhaya, learned counsel for the petitioners and the learned counsel for the State. The two petitioners in this writ application have sought a direction from this Court for payment of their salary in the pay scale of Rs. 5500-9000 on a plea that their entry in a graduate level Class III service was made on the basis of a common competitive examination meant to fill up 16 categories of graduate level supervisory post under different Departments with a common pay scale and therefore, when the selection and appointment by way of allotment of successful candidates in the said competitive examination was also not made by following the criteria of merit cum choice, rather such appointment in all 16 categories was made in a random manner, the State while making revision of pay scale in respect of them cannot provide different pay scales. Mr. Mukhopadhaya would further submit that the said issue has been receiving attention of this Court in a number of cases, inasmuch as the State Government had sought to grant 2 different pay scales to some of the 16 categories in the subsequent pay revision and this Court has always held that there could be no distinction in grant of pay scale to these persons, who were appointed in 16 categories on the basis of same competitive test. In this context he would refer to an unreported judgment dated 22.9.1993 in C.W.J.C.No. 8419/1992 ( Nagendra Sahani & ors. vs. the State of Bihar & ors.) as also a recent Division Bench judgment dated 30.8.2010 in L.P.A.No. 234/2007 (State of Bihar & ors. vs. Sunil Kumar & ors.). Learned counsel for the State would not dispute the aforementioned proposition of Mr. Mukhopadhaya but then he would submit that the job of fixation of pay and its revision is to be left in the hands of the experts and such fixation made by the experts is normally to be approved by the Courts. He has in this context also referred to an order of the Apex Court dated 22.2.2008 in Civil Appeal No. 1507/2008 (State of Bihar & ors. vs. Bihar Veterinary Association & ors.). In the considered opinion of this Court the two cases relied by Mr. Mukhopadhaya completely cover the issue and therefore, there would be no need once again to deal with the same aspect, especially when they are Division Bench judgments and thus, having a binding effect on this Court. All that has been, therefore, noted is that when it is an undisputed fact that the petitioners were also successful candidates of the same competitive examination meant to fill up supervisory Class III graduate level post under 16 categories in different departments 3 and at that point of time all 16 categories of post were treated to be with the facility of the same pay scale, the successful candidate could not be subsequently deprived the benefit of the same pay scale, especially when their allotment on the basis of result of the competitive examination was not on the basis of merit cum choice but only by a random method wherein anyone could have been appointed in any of the 16 categories of service. This particular group of persons, therefore, constitute a class and they cannot be subjected to any discrimination on the basis of a subsequent order of the Fitment Committee, inasmuch as there being allotted to a particular category of service having lower pay scale was a fortuitous circumstance. As a matter of fact the State could have avoided litigation on this score when way back the Division Bench in the case of Nagendra Sahani (supra) had while allowing the claim for grant of the same pay scale of Rs. 1600-2780 which was a forerunner pay scale of the present pay revision has held that all similarly situated persons of the 16 categories of service who were inducted on the basis of competitive examination were not required to move this Court separately and in fact they all were directed to be given the same pay scale with same monetary benefit as allowed to the petitioners Nagendra Sahani and others. If this view taken by the Division Bench of this Court in the case of Nagendra Sahani (supra) had become final as deemed in view of dismissal of the Special Leave Petition No. 4555/1994 on 22.9.1993, the State should have safely amended its future course 4 of action by not allowing any further litigation to be continued on this subject. Queer, however, is way of functioning of the State Government inasmuch as the same issue was once again allowed to reopened when in the name of pay revision of 16 categories they were once again sought to be discriminated by granting few of them higher pay scale and others lower pay scale. This time there was a bit of difference that since there was an agreement between the Employees Association and the State Government for extending the benefit of pay scale of Central Government, the resultant disparity was on account of fixation of pay scale as found in the corresponding pay scales of the Central Government. This plea however was also not accepted by this Court inasmuch as final blow has been given in the case of Sunil Kumar (supra) where the Division Bench having considered all aspects of the matter had held as follows: “ We find ourselves in agreement with the views expressed by the learned Singe Judges in the orders under appeal. All those employees of the State who were appointed on different dates through the same combined competitive examination on random basis and when the posts were having same pay scale and were, therefore, admittedly equivalent to each other cannot be made to suffer by the State by placing some of the 16 such services in lower pay scale. This would amount to impermissible classification and discrimination. The purpose of granting central equivalence in pay scales can be achieved without resorting to such discrimination and for this, the 5 option was given by the Fitment Appellate Committee as well as by the learned Single judge in the case of Sunil Kumar & ors. But unfortunately, the State has not opted for such a suggested course of action. Hence in our view, there is no scope to take a different view in the matter. We are also of the considered view that such employees as the writ petitioners belonging to one or other of the 16 services must be given same revised pay scale w.e.f. 1.1.1996 notionally and effective from 1.4.1997.” Learned counsel for the State in fact does not dispute the correctness and the finality of the view of the Division Bench in the case of Sunil Kumar (supra) but he is of the opinion that since the Fitment Committee in the case of the petitioner taking into account the scope of the terms of reference had recommended for a lower pay scale, such view of the Fitment Committee could not be faulted much less disturbed by this Court and for this purpose he would rely on the judgment of the Apex Court in the case of Bihar Veterinary Association (supra). In the considered opinion of this Court the judgment of the Apex Court in the case of Bihar Veterinary Association (supra) is on a entirely different footing, inasmuch as there the issue of parity of the Veterinary doctors of the State and the doctors working in the Central Government service was gone into initially by this Court by holding that if the State Government in principle agreed to grant pay scale of the Central Government in all corresponding rank of the services of the State Government, the Veterinary doctors were also to be given the same pay scale of Rs. 6 8000-13500 in place of Rs. 6500-10500 as originally recommended by the State Government. The Apex Court in that context had held that the parity of pay scale and the fitment has to be made in a similar situation and the Central Government pay scale would not be ipso facto made applicable to the employees of the State Government. It was in that context that the recommendation of the Pay Revision Committee was given prominence. In the present case the petitioners are not claiming any parity of any Central pay scale rather they are only seeking same pay scale for all the 16 categories of post which was based on a common competitive test and consequential appointment made on random basis from such selection in all the categories. In that view of the matter, the case of Bihar Veterinary Association (supra) is completely distinguishable on fact and the ratio laid down by the Apex Court in that judgment would not be at all applicable to the facts of the present case wherein the discrimination among the same set of person and in the same class is writ large on the face of record. That being so, this writ application is also allowed in the same terms as was directed by the Division Bench in the case of Sunil Kumar (supra) wherein it was held as follows: “As to what should be the common pay scale for all the 16 services in the light of recommendations of the Fitment Appellate Committee and our judgment in these cases, should first be decided by the State Government itself. It is required to select between one of the two pay scales i.e. of Rs. 5000-8000 or 7 5500-9000. This exercise should best be left to the State Government to be done in a judicious manner which may require inviting objections from the holders of the post of Labour Inspectors and Labour Officers and Senior Auditor Grade II who are in receipt of the higher pay scale of Rs. 5500-9000. This should be done expeditiously and in any case, within six months from today. If the State Government fails to take a decision within the period of six months, in that event the writ petitioners and others similarly situated would be entitled to be higher pay scale of Rs. 5500-9000 as provided by the writ court.” With the aforementioned observations and directions, this writ application is disposed of. (Mihir Kumar Jha,J.) Surendra/