IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7270 of 2003 ARUN KUMAR JHA son of Sri Man Mohan Jha, at present posted and working as Lecturer in Government Girls +2 High School, Patnacity. Versus 1. THE STATE OF BIHAR 2. The Commissioner and Secretary, Secondary Education, Government of Bihar, New Secretariat (Vikas Bhawan) Patna. 3. The Director, Secondary Education, Government of Bihar, Vikas Bhawan, Patna. 4. The Principal, Government Girls’ +2 High School, Patnacity District Patna. ----------- 4 23.08.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(i)Issuance of a writ in the nature of Mandamus directing and commanding the Respondents to grant a premature increment to petitioner on a time scale of pay, as incentive for sterilization of his wife after two children, w.e.f. 1.2.1996 i.e. the date of his increment next falling due after such sterilization and thereby to pay him the entire arrears on account of such increment. (ii)Issuance of an appropriate holding that the petitioner is entitled to such advance/premature increment w.e.f. 1.2.1996 as incentive under the provisions made under Tule 86 of Bihar Service Code as well as under the Provisions laid down in Clause-3 of Bihar Government Servants (Special Provisions Relating to Family Planning) Rules 1977 because the petitioner having only two living children got his wife sterilized on 10.3.1995 and his next increment was falling due on 1.2.1996. (iii)Issuance of an appropriate direction to Respondents to re-fix the pay of petitioner after granting one advance/ premature increment and by revising the pay scale on the basis of revision of pay scale w.e.f. 1.1.1996 and there by to pay the entire arrears of difference of pay with interest @ 18% per annum along with adequate amount of compensation. (iv)Issuance of an appropriate declaration that once the name of petitioner has been recommended to Government and entire requisite documents were sent at appropriate stage there is no 2 justification not to grant the premature increment as provided under the Bihar Government Servants (Special Provisions relating to Family Planning) Rules 1977 and causing harassment and mental agony to petitioner followed by monetary loss.” Mr. Durga Nand Jha, learned counsel for the petitioner would submit that there is no dispute that while fcgkj ljdkjh lsod (ifjokj fu;kstu ls lacaf/kr fo”s"k mica/k) fu;ekoyh] 1977 (hereinafter referred to as 1977 rules) was in force, wife of the petitioner having been undergone family planning operation, the petitioner was entitled for incentive under such rule by grant of special increment. He would also submit that soon after operation of his wife the petitioner had filed an application on 21.4.1995 with a declaration giving details of his both sons as also his age to be less than 40 years as on the date of operation of his wife so that to make himself fully entitled for grant of such increment under 1977 Rules. He would also submit that thereafter endless query from the petitioner by the authorities with regard to two aspects, namely, clearance report and declaration of the petitioner was made and even when both the documents were sent by the petitioner, his Controlling authority, namely, Principal of RAJKIYA KANYA UCHCHA VIDYALAYA, PATNACITY had not sent the documents to the authorities and as such the petitioner could not receive payment of such family planning incentive increments in the next seven years, and as such this writ application had been filed on 30.7.2003. Mr. Jha, therefore, would submit that the petitioner is 3 entitled for special increment as has been envisaged by the State Government under the provisions of 1977 Rules. Counsel for the State, on the other hand, would submit that since the scheme of grant of increment by way of incentive had already been substituted by the State Government w.e.f. 1.1.1996 the petitioner would not now be entitled for the benefit under 1977 Rules and in fact the case of the petitioner is governed by the provisions of an amended rules as notified by the Finance Department on 29.4.2002. In the opinion of this Court, as the respondents in the counter affidavit for rejection of the prayer of the petitioner have come out only with the following reasons and grounds:- “That in the provision of revised pay scale from 1.1.96 the letter of Finance Department B/M- 2-5/ 99/ 3387 dated 29.4.2002 point V sub- point 10 deals that the Government servant would not get the benefit of sterilization if he himself is sterilized before 1.1.96 though he did not get benefits till the petitioner’s wife sterilized on 10.3.95 and the date of increment was due on 1.2.1996, so according to new pay Revision, he is not entitled to get one extra increment. That it is also important to mention that the petitioner has not submitted the declaration in proper and prescribed form as mentioned in para 2 of Bihar Govt. Servant (Special Provision relation to Family Planning) Rule 1977.” the writ application is fit to be allowed because the scope of the government circular dated 24.4.2002 would not affect a person who had become entitled for the special benefit under 1977 Rules. There is no difficulty in accepting the submission of counsel for the State that those government servants who had 4 become entitled for incentive increments have to undergo the process of Family Planning operation before 1.1.96 as also envisaged in the circular dated 29.4.2002, but have the wife of the petitioner had admittedly undergone Family Planning Operation way back on 10.3.1995. This requirement has been in fact fully satisfied by the competent authority of the Nalanda Medical College and Hospital. Thus there is no iota of doubt as with regard to entitlement of the petitioner under 1977 Rules. The other ground that the petitioner had not submitted declaration, has to be also understood in the context that the petitioner as per his terms of appointment had to give declaration by following the amendment and that he had done so by filing his declaration dated 22.3.1990 as contained in Annexure 1 which is well within three months of his appointment in keeping with the government rules. Now if all the information as required in the Performa had been sent to the office and the authority had already disclosed the same, mere non filing of such information in the prescribed Performa under 1977 Rules cannot make the petitioner disentitled to get the benefit of special family planning increment. The documents with regard to entitlement of the petitioner have been placed by him before this Court in Annexure 3 and 14 series to this writ application, which have not at all been controverted in the counter affidavit. This Court therefore must hold that for not filing the prescribed information in the Format/ Performa under 1977 Rules, cannot make the petitioner disentitled to get incentive 5 increments which is a beneficial piece of legislative and has to be interpreted liberally specially when its Rules 2 and 3, as quoted hereinbelow clearly lay down, that:- “2./kks"k.kk izLrqr djuk (1) izR;sd ljdkjh lsod bl fu;ekoyh ds izkjEHk gksus ls ;k viuh fu;qfDr dh frfFk ls tks Ik’pkroRrhZ gks] rhu ekg ds Hkhrj bl fu;ekoyh ls layXu izi= esa ,d /kks"k.kk vius fu;qfDr izkf/kdkjh dks izLrqr djus] ftlesa ,slh /kks"k.kk izLrqr djus dh frfFk dks mldh larku ds C;ksjs fn, tk,Wxsa A (2)tc dHkh mifu;e (i) ds v/khu /kks"k.kk i= izLrqr djus ds Ik’pkr~ ljdkjh lsod ds cPpksa esa o`f) gks mlds iUnzg fnu ds Hkhrj vius fu;qfDr inkf/kdkjh dks ,slh o`f) dh lH;d :Ik ls lwpuk nsxk A 3&nks larkuksa ds Ik’pkr ca/;kdj.k ds fy, izksRlkgu& ;fn dksbZ ljdkjh lsod ftldh vk;q 40 o"kZ ls de gS rFkk ftldks nks ls vf/kd thfor lUrku u gks Lo;a ;k ;FkkfLFkfr viuh iRuh ;k vius ifr ;k viuh lHkh ifRu;ksa dk ca/;kdj.k djkrk gS rks mls ,sls ca/;kdj.k ds Ik’pkr~ mldh vxyh ns; osru o`f) dh frfFk ls ,d vfxze osru c`f) nh tk;sxh] ijUrq ;g fu;e fdlh ,sls lsod ij ykxw ugha gksxk] ftlds fo): dksbZ vuq”klfud dk;Zokgh dh xbZ gks ;k ,slh dk;Zokgh dh vis{kkuqlkj fuyfEcr fd;k x;k gS ;k ftls osru o`f) jksdus dh dksbZ ltk nh x;h gS A” Thus when the aforesaid Rules itself go to show that a declaration as with regard to his children has to be given by the employee concerned within three months of his appointment and once that was furnished by the petitioner, the provisions of the Rules stood satisfactorily complied enabling him to draw the family planning incentive increments under 1977 Rules. That being so, this writ application is allowed and the respondents are directed to pay the amount of incentive increment 6 from 10.3.1995 as prescribed under 1977 Rules with all its consequential benefits within a period of three months of receipt/production of a copy of this order. Abhay Kumar ( Mihir Kumar Jha, J.)