IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18367 of 2010 NAWAL KISHORE PRASAD S/O SRI CHANDRA RAM, RESIDENT OF MOHALLA NEW AREA PIRPAITI, P.S. KOTWALI, DISTRICT GAYA---- --PETITIONER Versus 1.THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN, VIDYUT BHAWAN, BAILEY ROAD, PATNA 2.SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 3.JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA 4.FINANCIAL CONTROLLER, BIHAR STATE ELECTRICITY BOARD, VIDYUT BHAWAN, BAILEY ROAD, PATNA----------------------RESPONDENTS ----------- For the petitioner :M/S Ashok Kumar,Amar Nath Singh, Advocates. For the B.S.E.B. :Mr.Ranjit Singh, Advocate. ------ 7. 13.5.2011 Heard learned counsel for the petitioner and learned counsel for the respondent Bihar State Electricity Board. The issue raised by the petitioner in this case is with respect to the fixation of the pay scale of the petitioner in terms of the various Standing Orders, Office Orders and Circulars of the Board issued from time to time. The petitioner’s claim has been rejected by order dated 30.6.2010 which he has impugned in the present writ petition. The petitioner joined the service of the Board on 3.4.1967. On 3.4.1977 he was granted selection grade on the post of Bill Clerk with 12% pay fixation benefit on completion of 10 years of service. Again on 1.12.1980 the 2 petitioner was promoted to the post of Accounts Assistant. It is not in dispute that the scale of pay of the Selection Grade Bill Clerk was lower than the scale of pay of Accounts Assistant. The petitioner was granted benefit of higher pay fixation both at the stage of grant of selection grade and subsequently on being promoted to the post of Accounts Assistant. After the retirement of the petitioner on 30.11.2005 the various pay fixations of the petitioner was reexamined in the Board and it was held that he was not entitled to double pay fixation benefit when he was promoted to the post of Accounts Assistant on 1.12.1980. Being aggrieved by the action of the respondent authorities the petitioner filed C.W.J.C.No. 1138 of 2007 which was disposed of by order dated 28.1.2009. In the said order this Court held that no recovery can be made from the petitioner on account of the mistakes made by the respondent authorities in the fixation of his pay but otherwise the authorities of the Board can rectify the mistakes for the purpose of determining his last pay and pension. The petitioner, however, was given liberty to represent to the appropriate authority in the Board as against the interpretation they have given for allegedly 3 correcting the mistake and the authority was held to be duty-bound to address himself to the representation of the petitioner and pass a speaking order in that regard and communicate the same to the petitioner against which the petitioner may have his remedies as law may provide. The petitioner thereafter represented before the authorities and by the impugned order dated 30.6.2010(Annexure-2) it was held that the petitioner was not entitled to double pay fixation benefit on his promotion to the post of Accounts Assistant on 1.12.1980 in view of the Standing Order No. 515 dated 7.5.1976 of the respondent Board. It was accordingly held in the order that the last pay of the petitioner fixed at Rs.9670/- by the audit is correct. Learned counsel for the petitioner relying upon the various Circulars, Standing Orders and Office Orders of the Board submits that the petitioner was entitled to double pay fixation benefit on 1.12.1980. It is submitted that in terms of the Office Order No. 4562 dated 19.11.1974 the petitioner was entitled to re-fixation of pay by adding 12% (maximum of Rs.150/-) upon his being promoted to the post of Accounts Assistant from the selection grade. According to learned counsel the only bar in the said order 4 is that there must be a three years gap in case of promotion to the higher post which applies to the case of the petitioner as he got his promotion as Accounts Assistant more than three years after the grant of selection grade to him. Learned counsel further submits that the Standing Order dated 7.5.1983 does not debar the petitioner from getting the benefit of double pay fixation as it has been clarified by the Board’s Circular No. 660 dated 9.9.1983 that Board’s Circular No. 125 dated 7.5.1983 has not superseded the existing general circulars, i.e., one dated 19.11.1974 and the other dated 8.8.1975 in regard to fixation of pay on promotion and the Circular dated 7.5.1983 is governed by the said circulars and the benefit of fixation of pay by addition will be admissible only when it is given after three years of the date of selection grade given in accordance with the provision contained in Office Order No. 125 dated 7.5.1983. It is thus urged by learned counsel for the petitioner that the petitioner is entitled to double pay fixation benefit in accordance with the Board’s Circular dated 19.11.1974. Learned counsel for the respondent Board, on the other hand, submits that the grant of double benefit in 5 fixation of pay was prohibited by the Standing Order No.515 dated 7.5.1976 where promotional benefits were available after the grant of selection grade. It is further urged by learned counsel that for the first time by the Circular No. 125 dated 7.5.1983 it was decided to give advantage of adding 12% subject to the maximum of Rs.150/- in fixation of pay on promotion also if the scale of pay of the post to which promotion is given is higher than the scale of pay of the post given earlier by way of removal of stagnation. It is contended by learned counsel that the said Circular was prospective in nature and the same was clarified by the Board’s Order dated 2.8.1985 stating that the said Standing Order No. 125 has been given effect to from the date of Circular dated 7.5.1983. It is accordingly urged by learned counsel that the petitioner having received promotion prior to 7.5.1983 in the year 1980 could not be the beneficiary of the subsequent Circular dated 7.5.1983 and it has rightly been decided by the respondent authorities not to grant him double pay fixation benefit when he was promoted to the post of Accounts Assistant in 1980. 6 At this stage it is appropriate to examine the relevant Circulars/Standing Orders/Office Orders of the Board for the determination of the points in issue. By Office Order No. Lab/DI-1045/73/4562/EB. dt. 19.11.74, procedure regarding fixation of pay of Board’s employees on promotion from one post to another post was fixed. The relevant part of the Circular up to paragraph-2 thereof is quoted below : “In supersession of all previous orders regarding fixation of pay, the Board has, in its Resolution No. 3066 dated 15.10.74 decided that in all cases of fixation of pay on promotion from one post to another, the following procedure shall be followed :- (1) In all cases of promotion from a lower post to a higher post, pay shall be fixed by adding 12% (maximum Rs. 150/-) to the basic pay of the lower post. (2) The pay of a Board’s employee, who is appointed to a higher post after completion of 3 years’ officiating service in the lower post before appointment to a higher post, shall be fixed on the higher post by adding 12% (maximum Rs.150/-) to his officiating pay in the lower post. The pay of a Board’s employee who is appointed to a higher post before completing 3 year’s service in the lower post, shall be fixed in the higher post, in accordance with the normal rules of the Bihar Service Code. But on completion of 3 years’ service in the lower and higher posts combined, his pay shall be re-fixed on the higher post, by adding 12% (maximum Rs.150/- to the pay he would have drawn on the lower post on that date.” 7 In Standing Order No. 515 dated 7.5.1976 the respondent Board resolved to upgrade 15% of the permanent posts in each cadre to the next higher scale of pay. Paragraph-3 of the said Standing Order is relevant in the present context and quoted below : “Where promotional avenues are available, double benefit in fixation of pay shall not be allowed. Deduction from the salary of those workmen who have already been benefited twice in the matter of pay fixation, i.e., once in the Selection Grade and again in promotion shall be made immediately, in twelve equal instalments or at the rate of Rs.60/- p.m. whichever will effect the recovery earlier.” The next important Circular is the one dated 7.5.1983 by which the earlier Standing Order dated 7.5.1976 was modified. The relevant part of the said Circular up to paragraph-3 is quoted below : “In paragraph 3 of the Board’s Standing Order No. 515 dated 7.5.76 it was decided that double benefit of pay fixation that is once at the time of removal of stagnation (Selection Grade) and again on promotion by adding 12% shall not be allowed. 2.After careful consideration of the issue, it has now been decided to give advantage of adding 12% to the maximum of Rs.150/- in fixation of pay on promotion, also if the scale of pay of the post to which promotion is given is higher than the scale of pay of the post given earlier by way of removal of stagnation. 3. However this benefit shall not be admissible to such categories of workman where scale of pay 8 of upgraded post and that of the post to which promotion is made is identical.” Lastly a clarificatory Circular No.660 dated 9.9.1983 with respect to the Circular dated 7.5.1983 was issued which is in the following terms : “Clarification have been sought from different field offices as to whether fixation of pay as stipulated in Board’s Standing order No.125 dated 7.5.83 can be done in accordance with Board’s office order No.4562 dated 19.11.74 or other wise. In this connection it is made clear that Board’s office order No. 4562 dated 19.11.74 and 3992 dated 8.8.75 are existing general circulars in regard to fixation of pay on promotion and have not been superseded by the above circular No. 125 dt. 7.5.1983 and this Circular (No. 125 dt. 7.5.83) is governed by the said two circulars. Therefore there should be no confusion in the matter and fixation of pay on promotion, as mentioned in paragraph 2 of Board’s standing Order No. 125 dt. 7.5.83 may be made in accordance with Board’s office order no. 4562 dt. 19.11.74 and no. 3992 dated 8.8.75 in other words, benefit of fixation of pay by addition will be admissible only when it is given after three years of the date of selection grade given in accordance with the provision contained in office order No.125 dated 7.5.1983.” The case of the petitioner is entirely dependent on the interpretation to be put upon the said Circulars specially keeping in view the mandate of Articles 14 and 16 of the Constitution which provide for equality before the law and equality in the matter of public employment. 9 It is evident that the first Circular dated 19.11.1974 merely provided the procedure and manner in which pay of the Board’s employees was to be fixed on promotion from one post to another post. The said Circular has absolutely no connection to the issue of promotion from selection grade to a regular post as the said issue had not yet arisen before the Board prior to the Circular dated 7.5.1976. This Circular of 19.11.1974 provided that on completion of three years’ service in the lower and higher posts combined, his pay shall be re-fixed on the higher post by adding 12% subject to maximum of Rs.150/- to his pay in the lower post. It was further clarified that in case a person was promoted to a higher post before completing three years’ service in the lower post then he shall not get the benefit of adding 12% to his previous place while fixing the pay scale of the promoted post but on his completing three years’ service in the lower and higher posts combined his pay shall be re-fixed on the higher post by adding 12% (maximum Rs.150/-) to the pay he would have drawn on the lower post on that date. By the subsequent Circular dated 7.5.1976 while creating selection grades it was clarified that in case promotional avenues were available 10 double benefit in fixation of pay shall not be allowed, i.e., there cannot be twice fixation of pay scale, first in the selection grade and again on promotion. By the subsequent Circular dated 7.5.1983 it was decided to give advantage of adding 12% subject to the maximum of Rs.150/- in fixation of pay on promotion where the scale of pay of the post to which promotion is given is higher than the scale of pay of the post given earlier by way of removal of stagnation. The case of the petitioner falls in the said category of an employee whose scale of pay of the promotional post of Accounts Assistant was higher than the scale of pay of selection grade Bill Clerk. However, the view of the respondent Board was that as per the Circular dated 2.8.1985 the said Standing Order dated 7.5.1983 was applied only from the date of issue, i.e., 7.5.1983 and not from any other date. This has been taken to mean by the authorities of the Board that with respect to all promotions granted prior to 7.5.1983 even if the principle of the Circular dated 7.5.1983 applied to them there would be no benefit of grant of double benefit of pay fixation on promotion and only those employees who were promoted from the selection grade on or after 7.5.1983 would be 11 entitled to the benefit of the double pay fixation. The question would be as to how far the said interpretation can be accepted either in terms of the Circulars themselves or keeping in view the wider constitutional aspect of the matter so as to read them in a non-discriminatory manner vis-à-vis different employees of the Board. No exception can be taken to the principle that any benefit under the Circular dated 7.5.1983 can only be derived as and from that particular date and not from a previous date. The question of discrimination, however, can arise if the said date is taken as a cut off date for grant of benefit of double pay fixation only to those employees who are promoted from or after the said date while denying the same to those who are senior to them and have received promotion earlier or may be even a day before the said circular was issued. If the circular is interpreted in that manner the senior employees would not get the benefit of double pay fixation benefit while conferring the said advantage on junior employees. In public employment grant of the said benefit in such manner would lead to discriminatory treatment to senior employees who would get less pay than their juniors promoted on or after 12 7.5.1983. In that view of the matter, the respondent Bihar State Electricity Board being State under Article 12 of the Constitution of India cannot be permitted to do so. In the present matter there is nothing in the circulars themselves that compels the authorities of the Board to interpret them in the said manner as they have been insisting upon in the case of the petitioner. If the circulars are read together they only lead to the conclusion that the benefits under the circular dated 7.5.1983 can be availed of only from that date and not from any prior date. They certainly do not lead to the conclusion that employees who are promoted to the higher post prior to 7.5.1983 will not be entitled to double pay fixation benefit from 7.5.1983. In paragraph-2 of the Office Order dated 19.11.1974, which is quoted above, it is provided that on completion of 3 years’ service in the lower and higher posts combined the pay shall be re-fixed on the higher post by adding 12% subject to maximum Rs.150/- to the pay he would have drawn on the lower post on that date. But it does not say that an employee who is promoted before completing 3 years’ of service in lower post shall not have the opportunity of getting benefit of higher pay fixation on the higher post. 13 In my view, the clarificatory circular dated 9.9.1983 would lead to the conclusion that the grant of benefit of fixation of pay on promotion under the Standing Order No.125 dated 7.5.1983 has to be made in accordance with the Board’s Office Order No. 4562 dated 19.11.1974 and thus the salutary principle laid down in the Office Order dated 19.11.1974 should also be applied so that if an employee has received promotion before 7.5.1983, as in the case of the petitioner who had received promotion to the post of Accounts Assistant in 1980, then he ought to be granted double pay fixation benefit from 7.5.1983 so that he would be entitled to the benefit of the re-fixation of the pay on the higher post by adding 12% subject to maximum Rs.150/- to the pay he would have drawn on the lower post on that date. The application of the said principle is not only in keeping with the different circulars of the Board but also in accord with the principle of equality under Articles 14 and 16 of the Constitution. Thus, in the light of the aforesaid reading of the different circulars of the Board, this Court is of the view that the petitioner is entitled to double pay fixation benefit with effect from 7.5.1983 when the Board’s Circular No. 14 125 dated 7.5.1983 was issued. In that view of the matter, the impugned order dated 30.6.2010 cannot be allowed to stand and it is accordingly quashed. The authorities of the respondent Board are directed to re-fix the pay of the petitioner by giving him double pay fixation benefit with effect from 7.5.1983 in terms of the Board’s Circular dated 7.5.1983 read with Circular dated 19.11.1974 as discussed above. Let the same be done within a period of two months from the date of receipt/production of a copy of this order and any further amount found due and payable to the petitioner on the basis of the said pay fixation shall be paid to him within a further period of two months thereafter. The writ application is, accordingly, allowed in terms of the aforesaid observations and directions. (Ramesh Kumar Datta,J.) Spal/