IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15956 of 2006 1. UMESH PRASAD 2. SANJAY KUMAR SHARMA 3. SHYAM NANDAN KUMAR 4.RAJIV RANJAN 5. TRILOKINATH SINHA ALIAS LALA TRILOKINATH SINHA Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioners:- Mr. S.P. Parasar & Pramod Kumar Verma,Advs. For the State:- Mr. Sanjay Kumar, AC to AAG X 2 11.03.2011 Heard counsel for the petitioners and the counsel appearing for the State. Counsel for the petitioners is permitted to make necessary correction in the name of petitioner no.5 Triloki Nath Sinha alias Lala Trilokinath Sinha. Petitioners’ prayer is for a direction to the respondent authorities for treating them to be appointed on the post of Clerk in terms of resolution dated 22.8.2000 by District Establishment Committee and to allow them the pay scale of Rs.4500-6000 instead of allowing them the pay scale of Rs. 3500- 4500, on account of issuance of appointment in their favour subsequent to 22.12.2000. Petitioners Umesh Prasad, Sanjay Kumar Sharma, Shyam Nandan Kumar, Rajiv Ranjan and Trilokinath Singh alias Lala Trilokinath Sinha had applied for their compassionate appointment since their fathers working on different posts, had died in 2 harness. Details regarding posts on which petitioners’ father were working and the dates of their death have been mentioned in paragraphs 5,6,7,8 and 9 of the writ application. Applications filed by the petitioners for their compassionate appointment were forwarded by the Compassionate Committee and placed for consideration before the District Establishment Committee in its meeting dated 2.6.2000. No resolution could be passed in this meeting as it was suspended on that date. The meeting of District Establishment Committee was again held on 22.8.2000 in which resolution was made for appointment of all five petitioners on the post of Clerk, which was a class III posts. On account of the resolution dated 22.8.2000 an order contained in Memo No.245 dated 25.11.2000 was issued by the District Magistrate, Nawada in capacity of the Chairman of the District Appointment Committee to all concerned authorities for implementation of the order and submitting compliance report by 31st December, 2000. Instead of complying the direction issued by the Chairman, District Compassionate Committee, petitioners were asked by the Deputy Collector, District Establishment Committee, Nawada vide memo 3 no. 288 dated 27.12.2000 for appearing before the authorities with all their testimonials and certificates. Petitioners in compliance of the direction appeared on the appointed dates with all their documents but the appointment letters was not issued immediately. The matter was again placed before District Establishment Committee on 31.7.2001 and appointment letters were issued in favour of the petitioners vide memo no. 94 dated 6.9.2001. For the surprise of the petitioners, the appointment letters were issued to the petitioners for their appointment as Lower Division Clerk, even though, District Establishment Committee had recommended for their appointment on the post of Clerk on 22.8.2000. The Finance Department Vide letter No. 5206 dated 24.5.1980 had decided for a merger of the post of Upper Division Clerk and Lower Division Clerk working in the Collectoriate and other Muffasils offices. On account of merger the post was renamed as post of Clerk in the pay scale of Rs. 284-372. Subsequently as per the recommendation of the Fitment Committee, the State Government reconstituted the post and cadre in the light of the decision of the Finance Department letter No.6389 4 dated 28.9.1999. The Finance Department through this letter had recommended for de-merger of the post of Clerk into Upper Division Clerk and Lower Division Clerk, which had earlier existed prior to 24.5.1980. The Finance Department Vide letter no. 8826 dated 20.12.2000 passed an order for de- merger of the post of Clerk in Upper Division Clerk and Lower Division Clerk. Clause 3 of this letter indicated that posts of Clerk will be bifurcated in Lower Division Clerk and Upper Division Clerk. For the post of Lower Division Clerk pay scale of Rs. 3050- 4500 was made applicable and for the post of Upper Division Clerk, pay scale of Rs. 4000-6000 was fixed. Clause 4 of this very letter provided that Clerks working on their posts prior to the issuance of this letter will be considered as Upper Division Clerk. As per Clause 5 of this very letter, persons being appointed on the post of Lower Division Clerk and all vacancies against the post of Clerk subsequent to issuance of this letter will be deemed to be vacancy of Lower Division Clerk. Sub-Clause (ii) of Clause 5 provided that process of any appointment initiated prior to issuance of this letter, if completed, but no appointment letter issued shall be cancelled. The 5 candidates will have to undergo fresh appointment process against the vacancy in the Lower Division Clerk post. So far the petitioners are concerned, their process of appointment was initiated on 2.6.2000 when after scrutiny their applications were placed in the meeting of the District Establishment Committee. Finally recommendation for their appointment on the post of Clerk was made on 22.8.2000, only appointment letter was to be issued. The issuance of appointment letter was delayed and finally it was issued on 6.9.2001. Petitioners’ case is that admittedly recommendations for their appointment had been made by the District Establishment Committee for the post of Clerk. At the relevant time, there was one post of Clerk and no such provision for Upper Division Clerk and Lower Division Clerk. Entire process of appointment except issuance of appointment letter had been completed by 22.8.2000. In their case there was no compliance of sub-clause (ii) Clause 5 of letter dated 22.12.2000, issued by the Finance Department. The process of appointment was not cancelled and no fresh process was initiated for their appointment. Only recommendation in their 6 favour for compassionate appointment was dated 22.8.2000 which was for the post of Clerk. In this circumstance, their appointment letters should not have been issued for Lower Division Clerk in the pay scale of Rs. 3050-4500. Their names had been recommended for the post of Clerk prior to 22.12.2000, as such they must be treated to be appointed as Upper Division Clerk in the pay scale of Rs. 4500-6000/-. Counsel for the petitioner has placed his reliance on an unreported judgment passed in LPA No. 522 of 2008. The State of Bihar had preferred this appeal against the judgment of single Judge passed in CWJC No.15417 with CWJC No. 9791 of 2004 (Ganesh Singh & ors Vs. State of Bihar & ors.) reported in 2007(1) PLJR 159. The Single Judge in this reported judgment at Para 28 has held as follows:- “Once it is held that the entire recruitment process was one and the same and 1750 posts were covered by the same advertisement then it has to be held that letter dated 20.12.2000 has no application to the case of the petitioners. The said letter in its own terms is prospective in operation. The letter also clarifies for the benefit of the appointing authorities 7 that they should not make appointment against the post of Clerk even if the selection process is complete but should cancel the same and start a fresh recruitment process in which the appointment should be made against the Lower Division Clerk. No such action has been taken by the authorities in the present case to cancel advertisement No. 1/2000 and issue a fresh advertisement for the post that remained after 110 had been filled up following the first examination, rather the authorities continued to complete the process, which was started pursuant to advertisement no.1 of 2000 against 1750 posts and thus, it must be held that it is same recruitment process under which the petitioners, who qualified in the second and third examination, have been selected.” The LPA Bench dismissed the appeal finding no merit in it. I find that case of these five petitioners is fully covered by the reported decision in 2007(1) PLJR 159 and order passed by the LPA Bench. The process of appointment was initiated and concluded on 22.8.2000. The recommendation in favour of the petitioners was for the post of Clerk. They cannot be denied benefit of this recommendation for the simple 8 reason, that appointment letters were issued subsequent to 20.12.2000. Petitioners could not have been appointed on the post of Lower Division Clerk, since there was no such recommendation of the District Establishment committee. Petitioners could not have been deprived of the same pay scale, which was available for the post, for which they were recommended by the District Establishment Committee. Petitioners’ appointment as such should have been on the post of Clerk prior to its de-merger. Any appointment on the post of Clerk prior to de- merger will be deemed as an appointment on Upper Division Clerks’ post. Persons working on the post of Upper Division Clerk post, as per the Finance Department’s resolution, are entitled for pay scale of Rs. 4500-6000. Petitioners could not have been penalized for the latches on the part of the respondent, if appointment letters were issued subsequent to 20.12.2000. Accordingly, respondents are directed to treat the petitioners’ appointment on the post of Clerk as per resolution dated 22.8.2000. After de-merger the appointment of the petitioners will be treated on the post of Upper Division Clerk with pay scale of Rs. 9 4500-6000/-. Respondents are directed to allow these petitioners all consequential benefits on account of grant of pay scale of Rs. 4500-6000 with effect from the date of their initial appointment. This writ application stands allowed. A. Kumar ( Mridula Mishra, J.)