IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14934 of 2007 Dr. Udai Shankar Bhagat, son of late Kapildeo Bhagat, 109, Ratan Jyoti Apartment, Sector-3, Vasundhra, Ghaziabad (U.P.).(Since dead and substituted by L.Rs.) ------- Petitioner Versus 1. The State of Bihar. 2. Secretary-cum-Commissioner, Deptt. of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 3. Joint Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna. 4. Additional Secretary-cum-Enquiry Officer, Department of Health, Govt. of Bihar, New Secretariat, Patna. 5. Deputy Secretary, Deptt. of Health New Secretariat, Patna. 6. Director-in-Chief, Health Services, Bihar, Patna. 7. Deputy Director, Administration, Deptt. of Health, New Secretariat, Patna. 8. Regional Deputy Director, Health, Darbhanga. 9. Divisional Commissioner, Darbhanga. 10. Senior Accounts Officer, A.G. Office, Birchand Patel Path, Patna. 11. Treasury Officer, Vikas Bhawan, Bailey Road, Patna. -------- Respondents ----------- 2 25.11.2011 No one appears on behalf of the petitioner. Counsels for the State as also counsel for the Accountant General are present. From I.A. No. 2055 of 2009 filed in this case, it would transpire that the original petitioner died on 24.11.2008 leaving behind the heirs and legal representatives named in paragraph no.3 thereof. Since the writ application involves monetary relief, the right to sue will survive to the heirs and legal representatives of the deceased main writ petitioner and accordingly the prayer 2 made in I.A. No. 2055 of 2009 is allowed and the following persons named in paragraph no.3 are substituted in place of the deceased original writ petitioner. (i) Leela Shankar (Wife of Dr. Bhagat) (ii) Abhishek Bhagat (son of Dr. Bhagat) (iii) Mamta Mishra (daughter) (iv) Diva Kant Mishra (son-in-law of Dr. Bhagat) Learned counsel for the State in relation to the following prayer:- (i) To direct the state govt. and A.G. Bihar firstly to fix the pay scale of the petitioner in the corresponding scale of Rs. 12000- 16500/- in the prescribed manner which has been given to the petitioner vide F.D. Resolution number 5989 dt. 16-8-2004 (Annexure-14) and notification no.29(3) dt. 02.02.05. (Annexure- 15) and then (ii) Direct them to grant and allow the corresponding scale of Rs. 14300-18300 admissible to holder of the need based post for which the petitioner has been found eligible vide notification no. 140(3) dt. 20.2.2007 (Annexure- 18) but the same has been withheld under misconception and 3 nonest ground which is due with w.e.f. 1-1-96 when junior officers to him have been granted the same, this is bad in law. In light of govt. resolution no. 660 dt. 8-2-99 para 11, 12(ii) & (iii) read with resolution no. 3277/F2 dt. 2-6-99 and addendum and corrigendum to resolution no. 660 (Annexure-12) and FD letter no. 5552 dt. 23-7-2003 (Annexure- 17) relevant para 3(d) ([k) (x) (?k) and (M+) (iii) Direct them to pay arrear salary in cash with interest E.B. and other allowances arising out of pay fixation in the corresponding new enhanced scale as per provision made in clause 9 of the said resolution no. 660 dt. 8-2- 99 and in light of govt. circular content in F.D. No. 230 (F-2) dt. 12-1-2004 (para 4) and F.D. resolution no. 11556 dt. 22-12-99 and judicial decision with interest at the rate of 15% from 1-1-96 till actual payment for delayed payment and further. (iv) Allow exemplary cost for harassing the retire petitioner, physically and financial and mentally and dragging him in unnecessary litigation and carelessness and negligence committed by the respondent in this regard.” would submit that the original petitioner had also filed another writ application CWJC No. 4 5709 of 2008 in which he had assailed an order dated 20.2.2007 withholding pay-scale of Rs. 14,300-18,300/- and a consequential prayer for grant of the said pay-scale of Rs. 14,300-18,300/-. He has also submitted that in this case, the counter affidavit was filed clarifying the whole aspect. In this regard, he has referred to paragraph nos. 7 to 11, which reads as follows:- “7. That the petitioner has filed the instant writ petition for quashing the notification No.14 dated 20.02.2007 to the extent relating to withholding the pay scale of Rs. 14,300.00 to 18,300 of the petitioner. He has also prayed that he should be given the benefit of Rs. 14,300-18,300 in the light of relevant provision of resolution no.660 dated 8.2.1999. The petitioner further stated that after the need based post in the promotional scales are identified the cadre controlling authority should take up the seniority list of the employed and scale of the need based would be assigned to the employee with effect from 01.01.1996 the actual payment of which will be made from 01.04.1997. 8. That the petitioner has rightly stated that as per the provision laid down in resolution No. 660 dated 8.2.1999 the petitioner with many other person has been assigned 5 the need based pay scale of Rs. 12,000-16,500/- against the identified need based post with effect from 01.01.1996 as per their seniority. Here it is clarified that the petitioner was not entitled for need based scale of Rs. 14,300-18,300 with effect from 01.01.96 as per his seniority and as per identified need based post. Only up to 864/T of the seniority list were entitled for the identified need based scale of Rs. 14,300-18,300 with effect from 01.01.96 whereas petitioner’s name stand at sl. no. 905/T of the seniority list. 9. That after assigning the need based scale with effect from 01.01.1996, the process of promotions against the vacancy created in each scale after 11.01.1996 was taken up and after completing all the formalities (required for promotion) promotion were given. The petitioner’s case for promotion in the scale of Rs. 14,300-18,300 with effect from 01.01.1996 was also considered by the Departmental Promotion Committee held on 17.10.2006 with so many other persons but the Departmental Promotion Committee found the petitioner unsuitable for promotion as a notice under Section 10(1)(k) of the relevant provision of Lokayukt Act was issued against the petitioner and a Departmental Proceeding was also pending against 6 him. Hence his case was recommended to be kept in pending by the Departmental Promotion Committee till the finalization of the Lokayukt Notice and departmental proceeding. 10. That Departmental Proceeding against the petitioner has been concluded and 100% pension of the petitioner had been withheld. It is evident from the punishment that charges were very grave in nature. 11. That in the light of the above facts and circumstances of this case the petitioner is not at all entitled for the benefit of need based scale of Rs. 14,300-18,300 and hence the writ petitioner is fit to be dismissed.” It would thus appear that the respondents have also considered the grievance of the original petitioner as with regard to grant of promotion and final decision had been kept pending for disposal of a departmental proceeding initiated against him. In the changed situation, when the original petitioner has already died, if the departmental proceeding has not been concluded, the same has to be now treated to have been abated. In that view of the matter, whatever final decision has to be taken in the case of the deceased original writ petitioner as with 7 regard to grant of financial benefit either by way of consideration of promotion of the deceased writ petitioner for the recommendation of the Department Proceeding Committee dated 17.10.2006 or even otherwise must be taken within a period of three months from the date of receipt/production of a copy of this order keeping in view that the deceased writ petitioner was also deprived of even provisional pension, which as a matter of fact ought to have paid @ 90% of pension as per his last salary drawn as laid down in the Resolution of the Finance Department dated 31.7.1980. As a matter of fact, the deceased original petitioner was always entitled for 90% of the provisional pension till conclusion of the departmental proceeding even if his other retirement benefits were sought to be withheld on account of pendency of the departmental proceeding. Considering all these aspects, this application is disposed of with a direction to the respondents to do the needful so that whatever order has to be passed in relation to the pending claim of the deceased petitioner either with regard to his 8 promotion or grant of pension/family pension must be taken in the aforementioned period of three months and the payment of consequential financial benefit with arrears also must be made to the wife of the deceased original writ petitioner or any person nominated by her. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)