CIVIL WRIT JURISDICTION CASE No.12799 OF 2002 In the matter of an application under Article 226 of the Constitution of India. ------ Naseer Ahmad Ansari son of late Israil Ansari, resident of village – Mohabbat Chapra, P S – Mahesi, District – East Champaran; At present Store Keeper in Field Machinery Sub-Division No.1, Kahalgaon, P.S. Kahalgaon, District - Bhagalpur __________ Petitioner Versus 1. The State of Bihar, represented through the Commissioner, Irrigation Department, Bihar, Patna. 2. The Engineer-in-Chief, Water Resources Department, Bihar, Patna. 3. The Chief Engineer, Mechanical, Water Resources Department, Bihar, Patna. 4. The Superintending Engineer, Mechanical Circle, Mithapur, Patna. 5. The Executive Engineer, Field Machinery Division, Bhagalpur. __________ Respondents For the petitioner : Mr. Tara Nath Jha. For the respondents: M/S.Prabhat Kumar Singh,SC-21 and Amitabh Bhardwaj,AC to SC-21. _______ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI ____ Ajay Kumar Tripathi,J: Petitioner raised a big hue and cry when an office order dated 23.6.2002 contained in Annexure-5 was communicated to him. This is the order by virtue of which his pay has been re-fixed and because of the said re-fixation it has the effect of lowering the scale which the petitioner was drawing as an interim measure. An order for recovery as well, as indicated in the said impugned order, has been passed. Petitioner therefore wants quashing of this 2 order on many a grounds, which would be taken note of in the subsequent part of the order. 2. Petitioner came into service in the year 1975 in the Work Charge Establishment as a Work Sarkar. He continued on that post, which was not permanent engagement or appointment because engagement in the work charge establishment has never been treated to be the part of the establishment. But since large number of persons similarly situated had been working in the State of Bihar for various number of years, a policy decision was taken by the State to bring them in the regular establishment by appointing them on certain posts which included the post of Store-keeper, to which the petitioner belonged. 3. Petitioner too came to be appointed as a Store-keeper as would be evident from the letter of appointment contained in Annexure-4, which is dated 27th of May, 1981. By virtue of this appointment letter petitioner came into the regular establishment of the respondents i.e. Water Resources Department, Government of Bihar. At the time when the petitioner was appointed on the post of Store-keeper, there is no dispute that cadre of Accounts Clerk and Store-keeper was being treated as one and there is evidence in this regard which is Annexure-1. The two posts of the accounts clerk and store-keeper carried the same pay scale. 4. A significant development thereafter took place in the sense that the State Government had set up a Pay Revision Committee which was known as 4th Pay Revision 3 Committee. This was to make recommendations as to the salary or pay-scale which employees of the State would be entitled to. Recommendations were made and the 4th Pay Revision Committee came to a considered opinion that the pay-scale to which a store-keeper would be entitled to, would be lesser than that of an accounts clerk. Some hue and cry was raised. Matter was referred by the State Government to the Pay Revision Committee/Anomaly Committee to consider the cases of such employees including the case of store- keepers with regard to the pay scale to which they ought to be given in this background. Respondents have brought evidence that the issue was referred. The Fitment Committee looked into the matter but struck to its earlier recommendation that the store- keepers would be entitled to the pay-scale which will not be at par with the accounts clerk. 5. At the relevant time and based on the recommendations, certain litigations travelled to the High Court. After hearing the parties decisions were rendered and based on the adjudication made by the High Court, the Department of Finance issued a letter No. 6316 dated 6.8.2002, which is Annexure-D to the counter affidavit filed on behalf of the State. Para-3 of the said communication of the Finance Department categorically states that store-keepers who were appointed after 1.4.81 would be entitled to the pay-scale of 580-860 and this decision is based on the declaration made by the High Court in CWJC No. 618 of 1990. It was the 4 case of Sushant Krishna Ghosh Mallick and others. The said decision was further upheld in LPA No.1984 of 1995. Based on the law laid down by the Courts, the State notified that the pay-scale recommended by the 4th Pay Revision Committee i.e. from 1.4.81 would be put into effect for such appointees who were appointed after 1.4.1981. 6. The issue for adjudication now which has been raised by the petitioner is based on certain facts which transpired at the relevant time. Petitioner does not dispute that he was appointed as a store keeper on 27.5.1981 but he relies upon the notification of the State which has been brought on record as Annexure-7, with the supplementary affidavit to show that the State Government took a decision to shift all the dates of appointment to 21.3.81 to bring uniformity as to the date of joining. The notification of the State had the effect of pushing back the date of appointment of the petitioner to 21.3.81. If that was so he could not fall foul of the so-called cut off date i.e. 1.4.81. Petitioner’s appointment/absorption, according to him, ought to be considered from 21.3.81 for all purposes and the pay-scale which was being given to him earlier ought to be maintained and not taken away. His further contention is that unless there was a formal notification of de-merger of the cadre of accounts clerk and store keeper, merely giving a separate pay-scale will not amount to de-merger. The benefit cannot be taken away till a formal 5 notification of de-merger is made by the State. He has some decisions to support which will be taken note of. The third contention on behalf of the petitioner is that the petitioner drew the advantage of the higher pay-scale for almost 22 years and now that benefit cannot be taken away specially when the petitioner had no role in acquiring that benefit and there was no fraud or misrepresentation played by him in begetting that benefit. 7. Stand of the State is that it is within the domain of specialized committee, which is Pay Revision Committee, to make recommendations. It was not a case of oversight that a separate pay-scale came to be recommended by the Pay Revision Committee with regard to the store keeper which the petitioner was. There were many rounds of consultations and deliberations and it is the outcome of those deliberations that the pay-scale recommended came to be notified by the State. It is that pay scale which has now been fixed in terms of Annexure-5. 8. At one point of time learned counsel for the petitioner tried to draw support from as well as rely on a decision rendered in the case of Nakul Kumar Mishra vs. State of Bihar which is CWJC No.2947 of 1995, disposed of on 8.8.1995 to show similarity. The Court was taken through the judgment meticulously many a times but the petitioner has no explanation to offer with regard to a clear finding recorded by the learned single Judge, which is reproduced hereinbelow: 6 “The persons, who have been appointed after 1.4.81 to the post of storekeeper, with respect to them though the respondents may give a lower scale of Rs.580-860/-. But the persons who were in the joint cadre of accounts clerk appointed prior to 1.4.81 with respect to them the respondent State cannot make any discrimination by giving two scales of pay, otherwise the same will be violative of Articles 14 and 16 of the Constitution of India.” This finding of the Court does indicate that all those storekeepers who came to be appointed after 1.4.81, would be entitled to pay-scale recommended by the Pay Revision Committee. The distinction with regard to appointments prior to 1.4.81 and after 1.4.81 has been made by the learned single Judge himself. This decision has also come to be upheld by the Division Bench and this fact cannot be denied by the petitioner. 9. It was in this background and the declaration of law that Annexure-D came to be issued by the Department of Finance and the fall-out of the same is Annexure-5, which is troubling the petitioner. 10. On the question of merger and de-merger the case of the petitioner does not hinge on such a declaration or notification in the given background that in an identical, similar matter learned court had already declared that there are two class of persons with regard to pay-scale which they could draw, one 7 appointed prior to 1.4.81 and the other after 1.4.81. Since the petitioner was an appointee of 27.5.81, there was no question of begetting him higher pay- scale merely because at one point of time a policy decision was taken by the State to push back the date of engagement to 21.3.81 to bring uniformity with regard to reckoning the seniority. This was done as several persons came to be appointed on the post on several dates and this could have created problems in fixing their seniority in future. The notification in question categorically records or states that this shifting of date would be for the purpose of reckoning the seniority and no person can claim benefit of money etc. on account of shifting of that date. 11. If this is the declaration in the notification issued, how can petitioner claim that he came to be appointed on a date prior to issuance of Annexure-4. There cannot be two dates of appointment. Petitioner’s date of appointment remains to be 27.5.81 but only for the purposes of reckoning within the cadre seniority the referable date of 21.3.81 was given. This aspect of the matter also goes against the petitioner. 12. Coming to the final contention of the petitioner that the benefit given to the petitioner cannot be taken away after so many years also seems to be misplaced because the State counsel has brought on record the extracts of the service book of the petitioner where it is categorically recorded that the pay scale being given to the petitioner is subject to 8 confirmation and if there was any discrepancy in the same or any dispute arose on the same, it was liable for change or re-fixation. The continuity of the earlier pay-scale being given to the petitioner over the period was because of the litigations which were going on in this Court as well as the deliberation which was being made by the Pay Revision Committee or the Fitment Committee. Merely because a long period of time had elapsed before Annexure-D came to be issued in the year 2002, it does not mean that petitioner had acquired a vested right to sit over the advantage of the higher pay-scale given to him, when the entitlement of the petitioner or a class of such people remained in flux in the above stated circumstance. The conditional grant of pay scale with due entry in the service book of the fact does not make it case of pay scale being wrongly given by the State for a long time and will not fall or be governed by such line of decisions where recovery cannot be made. 13. In the totality therefore, no case for interference with Annexure-5 is made out. The decision contained in Annexure-5 is based on the decision rendered by this Court earlier, many a decades ago and is the culmination of the final pay-scale which has come to be given to the class of store-keepers who have been appointed after 1.4.1981. It is not a case of arbitrariness which requires interference in any manner. 9 14. The writ application is dismissed since it is devoid of merit. (Ajay Kumar Tripathi, J) Patna High Court; The 30th September, 2010. R K Pathak (NAFR)