IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3947 of 2005 SHIV NARAYAN MANDAL SON OF LATE KARTIK MANAL RESIDNET OF VILLAGE PURANI SARAI, P.S. NATH NAGAR DISTRICT BHAGALPUR. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY CUM COMMISSIONER, DEPARTMENT OF INDUSTRIES, GOVT. OF BIHAR, PATNA. 2. DIRECTOR OF HANDLOOM AND SERICULTURE, DEPARTMENT OF INDUSTRIES, GOVT. OF BIHAR, PATNA. 3. ASSISTNAT DIRECTOR (SERICULTURE), PATNA DIVISION, PATNA. ----------- For the Petitioner :- Mr. Shivendra Kishore. For the State of Bihar :- Mr. Shashi Shekhar Prasad Sinha, A.C. to G.P. IX For the State of Jharkhand :- Mr. Dhrub Mukherjee. ------- 4 08/09/2010 Petitioner was appointed way back in the year 1972 as a Peon in the Directorate of Handloom and Sericulture, Department of Industries, Government of Bihar. When an advertisement was issued for appointment on the post of Expert Reeler/ Eri Instructor/ Overseer having the pay scale of Rs.220-315, petitioner became an applicant and came to be appointed on the post of Expert Reeler vide order dated 8.9.1973. It is his case that there was a common gradation list for the post of Expert Reeler, Overseer and Eri Instructor. They used to be posted across the State depending upon the - 2 - availability of post and exigency of service. For all practical purposes, though there were three different posts but they were overlapping in nature. A fact which the Court can fairly record, looking at the various notifications which came to be issued posting the petitioner and other persons of similar kind to various stations. The three posts were, therefore, interchangeable as well as transferable. There was no problem with the name or the label given to the petitioner as they also carried the same pay scale. To use an old expression a rose was a rose so long as it smell the same. Only when the fragrance for the post of Overseer changed from 1.1.1996, by way of grant of separate pay scale that the clamour for being called an overseer was started by the petitioner. By virtue of the recommendation of the 6th Pay Revision Committee a replacement pay scale of Rs.4000-6000 was given to persons working as Overseers, whereas for other posts the replacement scale was Rs.3050-4590. After the difference in the pay scale was notified by the State of Bihar, petitioner started demanding the higher pay scale on the basis of the transfer/posting - 3 - orders. He also claims that even work was being taken of the post of Overseer. He states that he has the requisite qualification to hold the post of overseer which was matriculation coupled with training having been obtained for a period of nine months. Petitioner has brought the evidence of the two qualifications on record as annexures. Matter dragged on but no decision came to be taken and the State of Bihar got bifurcated. Petitioner demonstrates from the notification, by virtue of which he was allocated State of Jharkhand that he has again been shown to be holding the post of Overseer but despite the said fact when the last pay slip was issued from Bihar it showed that the petitioner was entitled to the pay sale of Rs.3050-4590. This was the reason or the background under which the writ application came to be filed. Stand of the State of Bihar is that since the three posts carried the same pay scale and were interchangeable in nature, posting of the petitioner came to be made depending upon the vacancies to the post at the place of posting. It made no difference whether he was called Expert Reeler, Eri Instructor or Overseers. - 4 - There is nothing to show that the petitioner came to be substantively appointed on the post of Overseer based on which he could be given the pay scale of Rs.4000-6000. According to them the pay scale to which an employee is entitled to is fixed on the recommendation of the Pay Revision Committee and the same can be made available only on the asking. Learned counsel for the State of Jharkhand submits that since the State of Bihar has given the pay scale to the petitioner, they continue to pay him the salary on the basis of the last pay slip. In addition it is also urged that in absence of any clear notification showing substantive appointment of the petitioner as Overseer the benefit to the post on the transfer order cannot be conferred or claimed by him. The maximum which can be derived or inferred from such notification is that if the petitioner had been allowed to shoulder the higher responsibility, he can claim benefit of 20% higher salary over and above the basic pay, for working as Overseer despite being an Expert Reeler. The pay scale cannot be made available to him in absence of any clear notification having been brought on record. - 5 - There is some force in the contention of the learned counsel representing State of Jharkhand but the issue which requires to be adjudicated is whether in absence of a notification being available, the other circumstantial evidence and notification can be treated or taken into consideration to extend the benefit to the petitioner. Petitioner has been labeled or branded as an Overseer in many a notifications extended over a period of decade or the two. Even in the bifurcation notification, he has been shown to be the Overseer working in that capacity while he was last posted at Rohtas before he crossed over to Jharkhand. Obviously, necessary orders have not been passed at any point of time in favour of the petitioner because initially there was no distinction between the three posts but subsequently it seems that because the petitioner had requisite qualification and training, he worked as an Overseer and was posted in that capacity to Jharkhand. Therefore, without insisting for an order of substantive appointment on the post of Overseer, the Court has reasons to presume that the petitioner has worked as a - 6 - Overseer both under the State of Bihar and Jharkhand. Looking at the time frame when the petitioner started working as a an Overseer and the claim which is sought to be made now, the Court is not willing to extend the benefit of the pay scale to the petitioner from the date claimed by him i.e. 12.12.1985. Let the petitioner be treated to be posted on the post of Overseer from the date he has been notified to be such after the bifurcation of the cadre, issued by the Ministry of Home as well as corresponding notification issued by the State of Bihar which have been brought on record as annexures 8 & 9. Petitioner would be treated and would be entitled to the pay scale with effect from the notification dated 7.4.2005 and he will be entitled to the pay scale for the overseer from the said date. This writ application is allowed to the extent indicated above. AMIN/ (Ajay Kumar Tripathi, J.)