CIVIL WRIT JURISDICTION CASE No.3245 OF 1991 1. MD.FATHYAB ALI KHAN , SON OF SHRI MD. S.H. KHAN, RESIDINT AT QUARTER NO. A/31, ADALATGANJ, P.S.- KOTWALI, TOWN AND DISTRICT- PATNA 2. SHRI SHASHI SHEKHAR SINGH, SON OF LATE GOBARDHAN SINGH, RESIDING AT QUARTER NO. A/32, ADALATGANJ, P.S. KOTWALI, TOWN AND DISTRICT- PATNA 3. SHAILENDRA KISHORE SAHAY, SON OF SHRI BRAJ KISHORE SAHAY, RESIDING AT MOHALLA-ANANDPUR, NEAR SAFEWAY GAS GODOWN, BORING CANAL ROAD, P.S.- SHRIKRISHNAPUR, TOWN AND DISTRICT- PATNA 4. MANGAL PANDIT, SON OF LATE PITAMBAR PANDIT, RESIDING AT DORANDA, RANCHI, P.S.- DORANDA, TOWN AND DISTRICT- RANCHI 5. NAND KUMAR NANDKEOLYAR, SON OF LATE RAMJI PRASAD SINHA, RESIDING AT FLAT NO. 23, ADALATGANJ, P.S.- KOTWALI, TOWN AND DISTRICT- PATNA. 6. MADAN MOHAN PRASAD, SON OF LATE MUNSHI SAUDAGAR LAL, RETIRED ASSISTANT REGISTRAR OF THE PATNA HIGH COURT, RESIDENT OF MOHALLA RAMNAGAR ROAD, CHIRAYANTAND, PATNA, DISTRICT- PATNA 7. SHYAM NARAYAN SINHA, SON OF THE LATE SRI BISHNUDAYAL PRASAD, RETIRED DEPUTY REGISTRAR IOF THE PATNA HIGH COURT (NOW AN ADVOCATE), RESIDENT OF VILLAGE BANSKOTHI, P.O.- DIGHA GHAT, DISTRICT- PATNA 8. TARA PRASAD SHRIVASTAVA, SON OF THE LATE MUNSHI DUKHI LAL, RETIRED ASSISTANT REGISTRAR OF THE PATNA HIGH COURT, RESIDENT OF MOHALLA AMLAPATTI, MOTIHARI, P.O.- MOTIHARI, DISTRICT- EAST CHAMPARAN 9. ANANT NARAYAN SINGH, SON OF SRI JOGENDRA NARAYAN SINGH, RETD. ASSISTANT REGISTRAR, PATNA HIGH COURT. 10. SHREE JAGAT NARAYAN SINHA 11. SHREE DINESH CHANDRA 12. SHREE RAJENDHARI SINHA ALL ASSISTANT REGISTRARS OF THE PATNA HIGH COURT 13. SHREE MOHAMMAD YASIN ANSARI,, ASSISTANT REGISTRAR OF THE PATNA HIGH COURT, SINCE RETIRED 14. SHEO MUNI RAM SON OF LATE GHUISH RAM RESIDENT OF VILLAGE BANDPUR POLICE STATION BRAHAMPUR, DISTRICT- BUXAR. 15. MD. EKRAMULLAH KHAN, SON OF ABDUL GAFFAR KHAN, RESIDENT OF VILLAGE KOPA BAZAR, P.S.- KOPA, DISTRICT- SARAN, EX- ASSISTANT REGISTRAR OF THE PATNA HIGH COURT, PATNA. 16. S.M. TAHA QUADRI, SON OF S.M. YASEEN, RESIDENT OF VILLAGE MANJIA, P.O.- BASSAVAN, DISTRICT- VAISHALI, AT PRESENT RESIDENT OF INDRAPURI COLONY, 1-A/4, SAMAPURA, P.O.- VETERINARY COLLEGE, PATNA 14, EX- ASSISTANT REGISTRAR OF THE PATNA HIGH COURT, PATNA 2 17. UMA SHANKAR PRASAD, SON OF THE LATE SHREE RAMCHANDRA PRASAD, RESIDENT OF MOHALLA CHHOTEE BADALPURA, POLICE STATION KHAGAUL, DISTRICT- PATNA AT PRESENT WORKING AS AN ASSISTANT REGISTRAR OF PATNA HIGH COURT, PATNA. ------- Petitioners Versus 1. THE STATE OF BIHAR, THROUGH THE SECRETARY, FINANCE DEPARTMENT, MAIN SECRETARIAT, PATNA. 2. THE ACCOUNTANT GENERAL, BIHAR, BIR CHAND PATEL MARG, PATNA, TOWN AND DISTRICT- PATNA. 3. THE HIGH COURT OF JUDICATURE AT PATNA, THROUGH ITS REGISTRAR, PATNA 4. THE HON’BLE CHIEF JUSTICE OF THE HIGH COURT OF JUDICIATURE AT PATNA. 5. TREASURY OFFICER, SECRETARIAT, PATNA -------------Respondents WITH CWJC No.4437 OF 1991 1. SHYAM NARAYAN SINHA SON OF THE LATE SRI BISHNUDAYAL PRASAD, RETIRED DEPUTY REGISTRAR IOF THE PATNA HIGH COURT, RESIDENT OF VILLAGE BANSKOTHI, P.O.- DIGHA GHAT, DISTRICT- PATNA(NOW AN ADVOCATE) 2. MD. FATHYAB ALI KHAN , SON OF SHRI MD. S.H. KHAN, (NOW AN ASSISTANT REGISTRAR OF THE PATNA HIGH COURT), RESIDING AT QUARTER NO. A/31, ADALATGANJ, P.S.- KOTWALI, TOWN AND DISTRICT- PATNA ------------ Petitioners Versus 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY TO THE GOVERNMENT OF BIHAR, STATE SECRETARIAT, BIHAR, PATNA 2. THE SECRETARY TO THE GOVERNMENT OF BIHAR, DEPARTMETN OF PERSONNEL AND ADMINISTRATIVE REFORMS, STATE SECRETARIAT, BIHAT, PATNA. 3. THE SECETARY TO THE GOVERNMENT OF BIHAR, DEPARTMENT OF FINANCE, STATE SECRETARIAT, BIHAR, PATNA 4. THE PATNA HIGH COURT, THROUGH THE REGISTRAR OF THE HIGH COURT OF JUDICATURE AT PATNA. 5. THE SECRETARY TO THE GOVERNMENT OF BIHAR, LAW (JUDICIAL ) DEPARTMENT, STATE SECRETARIAT, BIHAR, PATNA ------------Respondents For The Petitioner : Mr. R.N. Mukhopadhyay Sr. Advocate For The Respondent nos. 1 to 5 : Mr. Sanjay Kumar No. 2, Advocate For the respondent nos. 3 & 4 : G.A. 9 3 P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar & Kishore K. Mandal, JJ. The two writ petitions raise common issues. The basic facts shall be drawn from C.W.J.C. No. 3245 of 1991. The writ petitions have been preferred by employees of the Patna High Court for grant of replacement pay scale of Rs. 3000-4500/-, w.e.f. 1.1.1986, pursuant to the recommendations of the 5th Pay Revision Commission. Respondent nos. 1 and 5 have placed on record their counter affidavit, oppose the writ petitions, and have taken the stand that they are entitled to the replacement pay scale of Rs. 2400-4150/-. Respondent no. 2 has taken the same stand. Respondent nos. 3 and 4 have supported the petitioners. 2. The relevant facts essential for disposal of the writ petitions may be indicated. The petitioners were appointed on Class-III posts in the establishment of the Patna High Court, known in common parlance as the Registry. It is relevant to state that at this stage that the recommendations of the 5th Pay Revision Commission, set up by the Bihar Government, were enforced w.e.f. 1.1.1986. By order dated 20.3.1987 (Annexure-4), petitioner no. 1 was promoted to act as Assistant Registrar of the Patna High Court in the pay scale of Rs. 1350-50-1700-75-2000/- plus Special pay of Rs. 100/- per month He was in due course given the replacement pay scale of Rs. 3000-4500/- w.e.f. 1.1.1986. Similarly, petitioner no. 2 was promoted to act as Assistant Registrar in the pay scale of Rs. 1350-2000/- with Special Pay of Rs. 100/- per month. He was similarly given the revised pay 4 scale of Rs. 3000-4500/- w.e.f. 1.1.1986. Petitioner no. 3 was similarly promoted to act as Assistant Registrar in the pay scale of Rs. 3000- 4500/- with the special pay of Rs. 100/- per month . Petitioner no. 4 was likewise promoted to act as Assistant Registrar in the pay scale of Rs. 3000-4500/- with special pay of Rs. 100/- per month. Petitioner no. 5 was similarly promoted to act as Assistant Registrar in the pay scale of Rs. 3000-4500/-, with special pay of Rs. 100/- per month. The remaining petitioners were also promoted to act as Assistant Registrar in the pay scale of Rs. 3000-4500/- from due dates. To summarise the position, all the petitioners were substantively promoted to the post of Assistant Registrar and have, during the pendency of the present proceedings, superannuated from service. There is a minor, perhaps inconsequential, difference in the case of petitioner nos. 1 and 2, on the one hand, and the remaining petitioners on the other. The orders of promotion (Annexures- 4 and 9 respectively) of the former were initially in the unrevised pay scale of Rs. 1350-2000, and were given the revised pay scale of Rs. 3000-4500/- with differential amount of salary by subsequent orders with effect from due dates. In so far as the remaining petitioners are concerned, they were given revised pay scale of Rs. 3000-4500/- by the orders of promotion. This was followed by the impugned order dated 26.7.1990 (Annexure-13), issued by respondent no. 2, whereby respondent no. 2 took the stand that the petitioners are entitled to the revised pay scale of Rs. 2400-4150/-, and not Rs. 3000-4500/-. Therefore, recovery was sought to be made by the impugned order. This promptly led to the present writ petitions. By order dated 14.5.1991, passed in the present writ petition, it was directed that until further orders, no recovery from the salary/pension of 5 the petitioners or the intervener petitioners shall be made. The petitioners have, by way of samples, produced the impugned orders with respect to the petitioner nos. 1, 2 and 5, which have been marked as Annexures- 1, 2 and 3 respectively. Respondent no. 2 had issued similar orders with respect to the remaining petitioners. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the posts of Assistant Registrars in the establishment of the High Court have been manned by persons drawn from two different sources, one from Bihar Judicial Service, and the other has been from amongst existing employees of the High Court who initially started on Class-III posts. The petitioners belong to the latter stream. The expression Assistant Registrar in this order shall connote only persons of the latter stream which is in question here. In other words, reference to the Assistant Registrar would mean only those who had originally started on class III posts in the establishment of the Patna High Court.. 4. It appears that, in pursuance of the recommendations of 3rd Pay Revision Commission, the Assistant Registrars in the High Court and Under Secretaries in the Bihar Government were treated at par and were in the pay scale of Rs. 620-1415/-. The same position obtained after the recommendations of the 4th Pay Revision Commission were enforced, and both the posts uniformly carried the pay scale of Rs. 1350-2000/-. The controversy arose with respect to the recommendations of the 5th Pay Revision Commission enforced w.e.f. 1.1.1986. The petitioners have tried to make out a case before us that historically, as well as in view of the terms of the recommendations of the 5th Pay Revision Commission and accepted 6 by the State Government, both the posts have been uniformly assigned the pay scale of Rs. 3000-4500/-. On the other hand, respondent nos. 1 & 5, as well as respondent no. 2, have taken the stand that, in view of the difference in the nature of duties and functions of the two posts, the 5th Pay Revision Commission recommended the pay scale of Rs. 2400- 4150/- for Assistant Registrars of the High Court, and assigned the pay scale of Rs. 3000-4500/- to the Under Secretaries in the State Government. 5. In order to resolve the controversy, we would first of all examine the recommendations of the 5th Pay Revision Commission. A photo copy of the Gazette notification notifying the pay scales relevant in the present context, published in the extraordinary issue of the Bihar Gazette on 19.12.1989, is marked Annexure-5. Schedule-I to the same is headed LIST OF REVISED SCALES. Sl. No. 15 of the same is relevant in the present context and is reproduced hereinbelow: LIST OF THE REVISED SCALES Serial no. Existing scale Normal replacement Scale Sub scale 15 1350-2000 2400-75-2850-100-4150 .. It is on the strength of Sl. No. 15 that respondent nos 1 and 5, and respondent no. 2, have taken the stand that the replacement pay scale of the Assistant Registrars in the Patna High Court, who were enjoying the unrevised pay scale of Rs. 1350-2000/-, is the revised pay scale of Rs. 2400-4150/-. On the other hand, learned counsel for the petitioners 7 relied on the relevant entry of Schedule-II to the Gazette notification (Annexure-5), the relevant portion of which is reproduced hereinbelow COMMON CATEGORIES Secretariat and attached offices, High Court, legislature Secretariat and Public Service Commission (GAZETTED) (Secretariat and attached offices/High Court/Legislature Secretariat) Serial no. Designation Existing pay scale Replacement pay scale 4 Under Secretary (excluding B.P.S.C.) (promoted from Assistant Cadre) 1350-2000 3000-4500 .. On a plain reading of the same, it appears to us that the 5th Pay Revision Commission intended to recommend the revised pay scale of Rs. 3000-4500/- to those of the functionaries who were enjoying the unrevised pay scale of Rs. 1350-2000/- in the Secretariat and attached offices/ High Court/Legislature Secretariat, who were promoted from Assistant Cadre (excluding B.P.S.C.). There is no designation of Under Secretary in the High Court, and the equivalent designation has traditionally been Assistant Registrar, both carrying the same pay scales. Sl. No. 15 of Schedule-I seems to be of a general nature, and the recommendation in Schedule-II is of a specialised nature confined to the said designations promoted from Assistants. Law is well settled that in such a situation, the specialised provision shall apply to the exclusion of the general provision. On a plain reading of the relevant entry of Schedule-II, it is evident that those of the Under Secretaries or officers in the Secretariat and attached offices holding equivalent rank in the High Court, Legislature Secretariat, promoted from the Assistant cadre (excluding B.P.S.C.), in the unrevised pay scale of 1350-2000/-, 8 shall be entitled to the revised pay scale of Rs. 3000-4500/-. All the remaining employees who were earlier enjoying the unrevised pay scale of Rs. 1350-2000/- shall be entitled to the revised pay scale of Rs. 2400-4150/-, being a general provision. In that view of the matter, we are left in no doubt that the 5th Pay Revision Commission intended to recommend the revised pay scale of 3000-4500/- to the Assistant Registrars working in the establishment of the Patna High Court, promoted from the Assistant cadre. 6. Learned counsel for the petitioner has rightly relied on a judgment of the Supreme Court in the case of S.C. Jain Vrs. State of Haryana, reported in 1985 (4) S.C.C. 645, wherein it has been observed that “Rule 3.26(C), which is a special rule applicable to government employees in the Haryana Service of Engineers Class I, will govern the case of the appellant as the special overrides the general…” Mr. Justice G.P. Singh in his Treatise Interpretation of Statutes (Eleventh Edition 2008) has observed that “… To harmonize is not to destroy. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and construe the more general one as to exclude the more specific. The question as to the relative nature of the provision general or special has to be determined with reference to the area and extent of their application either generally or specially in particular situations. The principal is expressed in the maxims Generalia specialibus non derogant and Generalibus specialia derogant. If a Special provision is made on a certain matter, that matter is excluded from the general provision. … (Pages 141-142)…….. “… A law applicable to a locality or to a class of cases or individuals is a special 9 law as distinguished from a general law which applies to the whole community. A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a specialised law…” (page 645). 6.1. Reference may be made to the following judgments of the Supreme Court: (i) Life Insurance Corporation Vrs. D.J. Bahadur A.I.R. 1980 S.C. 2181 (P. 2200) = 1981 (1) S.C.C. 315 (ii) Ashoka Marketing Ltd Vrs Punjab National Bank, A.I.R. 1991 S.C. 855 (P. 877)= (1991) 4 S.C.C. 406. (iii) Allahabad Bank Vrs. Canara Bank, A.I.R. 2000 S.C. 1535 (P. 1548) = (2000) 4 S.C.C. 406. 7. There is yet another circumstance in favour of the petitioners. The State Government, by its letter no. 10406, dated 15.12.1997 (Annexure-16), addressed to respondent no. 2, with copy thereof to the Patna High Court, had sanctioned ten posts of Assistant Registrar to be promoted from the existing establishment of the High Court in the pay scale of Rs. 3000-4500/-. The relevant portion of the letter is reproduced hereinbelow for the facility of quick reference. }kjk %& foRr foHkkx fo’k; %& iVuk mPp U;k;ky; dh fuca/ku “kk[kk ds fy, la;qDr fuca/kd] mi fuca/kd rFkk lgk;d fuca/kd ds inksa dk vLFkk;h l`tuA egksn;] funs”kkuqlkj mi;qZDr fo’k; ij eq>s dguk gS fd iVuk mPp U;k;ky; dh vuq”kalk ds vkyksd esa mPp U;k;ky;] iVuk dh fuca/ku “kk[kk ds fy, jkT; ljdkj us fuEukafdr inksa dks vkns”k fuxZr dh frfFk ls vkxkeh ,d o’kZ ds vUnj vLFkk;h :Ik ls l`ftr djus ds izLrko esa Lohd`fr iznku dh gS %& Øe la[;k in dk uke ,oa osrueku inksa dh la[;k 1- la;qDr fuca/kd ¼3700&125&4700&150&5000½ 03 2- mi fuca/kd ¼3700&125&4700&150&5000½ 06 3- lgk;d fuca/kd ¼3000&100&3500&125&4500½ 10 10 2- mDr inksa ds l`tu laca/kh izlrko esa bl “krZ ds lkFk Lohd`fr iznku dh xbZ gS fd bu inksa ij fu;qfDr oÙkZeku LFkkiuk ls gh dh tk;saxh vkSj mruh gh la[;k esa u;s inksa ds l`tu dh ekax ugha dh tk;xhA The posts were created during the period the recommendations of the 5th Pay Revision Commission were in force, and the recommendations of the 6th Pay Revision Commission were yet to come. Creation of ten posts of Assistant Registrar in the High Court in the pay scale of Rs. 3000-4500 is by itself a strong circumstance to show that the 5th Pay Revision Commission, as well as the State Government, intended to assign the revised pay scale of Rs. 3000-4500/- to Assistant Registrars in the Patna High Court. 8. In the result, this writ petition is allowed. In view of the recommendations, the petitioners are entitled to the revised pay scale of Rs. 3000-4500 with effect from their due dates. The impugned orders marked Annexures- 1 to 3, as well as corresponding orders with respect to other petitioners, are hereby quashed. It goes without saying that the petitioners will be entitled to the post-retirement benefits accordingly. The benefit of this judgment shall be available to all similarly circumstanced Assistant Registrars of the Patna High Court. 9. In view of the foregoing, no separate order is required to be passed in C.W.J.C. No. 4437/1991. In the circumstances of the case, there shall be no order as to costs. Patna High Court 17th April, 2009 (S.K. Katriar, J.) ( Kishore K. Mandal, J. ) 11 AFR/pkj