IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8408 of 2001 1. Smt. Asha Devi, Wife of Sri Rameshwar Das, Qr. No. B-1/6, I.G.I.M.S., Patna-14. 2. Sri Ravishankar Gupta, Son of Sri U.C. Gupta (Uttim Chandra Gupta), Jai Prakash Nagar, G.P.O., Patna-800 001. 3. Sri Chandra Bhushan Sharma, Son of Sri Jugeshwar Sharma, Qr. No. B-2/12, I.G.I.M.S., Patna-14. 4. Sri Ajeet Bhai Simon Tiru, Son of Late Sri Leander Tiru, Qr. No. B-1/2, I.G.I.M.S., Patna-14. 5. Sri Sheel Raj Biplab, son of Sri Raj Kumar Singh, Qr. No. B- 2/4, I.G.I.M.S., Patna-14. 6. Sri Birender Singh, Son of Sri Nandan Singh, Qr. No. B-2/13, I.G.I.M.S., Patna-14. 7. Sri Jiwas Paswan, Son of Sri Ramashish Paswan, Qr. No. B-2/14, I.G.I.M.S., Patna-14. 8. Sri Ramashankar Choudhary, Son of Sri Ram Dip Choudhary, Qr. No. b-2/11, I.G.I.M.S., Patna-14. 9. Sri Ram Kishore, Son of Sri C.P. Sinha, Qr. No. B-1/15, I.G.I.M.S., Patna-14. ---------- Petitioners Versus 1. Indira Gandhi Institute of Medical Sciences, through its Director, Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna-800 014. 2. The Health Commissioner, Government of Bihar, Patna. --------- Respondents ----------- 17 25.11.2010 Heard Mr. Madhuresh Prasad, learned counsel for the petitioners and Mr. Basant Kumar Chaudhary, learned senior counsel for the Indira Gandhi Institute of Medical Science (hereinafter to be referred to as „IGIMS‟) as also counsel for the State. The prayer of the aforesaid nine petitioners in this writ application reads as follows:- “1. That this is an application praying for 2 issuance of a writ in the nature of writ of certiorari or any other appropriate writ, order or direction quashing the office order dated 09.11.1998 bearing Memo No. 3976/Adm. issued under the signature of the Director, Indira Gandhi Institute of Medical Sciences, Patna whereby and whereunder the said Director purporting to act in compliance of the 33rd Meeting of the Board of Governors has infact violated the same in letter and spirit and while converting the scale of pay of the non technical staff from the State Scale to AIIMS Scale has lowered the scale of pay which is being received by the instant petitioners; and further for issuance of a writ in the nature of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents authorities to fix the scale of pay of the instant petitioners i.e. non technical employees in accordance with condition (C) of Resolution No.33/521 of the Board of Governors of Indira Gandhi Institute of Medical Sciences, Patna held on 24th December, 1993 in the AIIMS scale after giving necessary protection to their pay by giving one promotion according to AIIMS criteria.” In order to appreciate the aforesaid prayer, it would be necessary to also quote the impugned order dated 9.11.1998, which reads as follows:- “INDIRA GANDHI INSTITUTE OF MEDICAL SCINECES, PATNA-14 Office Order The Board of Governors after reviewing the 3 scales of pay of non-technical staff/officer’s in the light of Audit report of A.G. Bihar and stipulations made in the 33rd meeting of Board of Governors decided to protect the pay in conversion of state scale to AIIMS scale and not the protection of pay scale and accordingly the cases of pay protection will be as per Annex. enclosed in B.O.G. agenda No. _47/702 at page 139_140 in the following manner. 1. Pay of Non-Technical Staff/ Officer’s as per AIIMS arrived at w.e.f. 01.01.94. 2. Dliterances of basic pay drawn on 01.01.94 will be protected as reducable personal pay wherever applicable. 3. Whatever applicable as per promotion criteria the promotion will be made w.e.f. 01.01.94 or from the date of eligibility. Sd/- Director I.G.I.M.S., Patna Memo No. 3976/Adm Dated: 9.11.1998” As the impugned order also refers to annexures containing the office order of pay fixation, it would also be useful to extract the same at least in respect of petitioners at serial nos. 6, 7, 8, 9, 11, 12, 13, 14 & 16 respectively, which is as follows:- “Sl. No. Name of the employee Date of joining Designation as on 1.1.94 Existing State Scale of Pay as on 1.1.1994 AIIMS Scale of Pay in which conversion is allowed 1 2 3 4 5 6. Smt. Asha Devi 3.9.85 Reference Clerk-cum- Typist 1320-2040 950-1500 7. Sri Sheel Raj Biplab 21.4.86 Clerk-cum- Typist 1320-2040 950-1500 8. Sri Ravi Shanka Gupta Clerk-cum- Typist 1320-2040 950-1500 4 20.6.86 9. Rama Shankar Choudhary 28.10.85 Clerk 1320-2040 950-1500 11. Sri C.B. Sharma 12.11.86 Clerk 1320-2040 950-1500 12. Sri A.B.S. Tiru 14.11.86 Clerk 1320-2040 950-1500 13. Sri Birendra Singh 14.11.86 Clerk 1320-2040 950-1500 14. Sri Jiwas Paswan 21.11.86 Clerk 1320-2040 950-1500 16. Sri Sri Ram Kishore 27.11.86 Clerk 1320-2040 950-1500 Promotional post and scale of pay allowed as per BOG resolution Date of Effectiveness of Promotion Pay drawn in State Scale as on 1.1.96 (pre revised) Pay pre revised in AIIMS scale as on 1.1.96 Difference of pay is RPP Pay in AIIMS revised scale as on 1.1.96 6 7 8 9 10 11 U.D.C. 1200-2040 1.1.94 1640 1230 410 4100+410 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1640 1230 410 4100+410 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp U.D.C. 1200-2040 1.1.94 1600 1230 370 4100+370 pp” Mr. Madhuresh Prasad, learned counsel for the petitioners, would submit that the aforesaid office order dated 9.11.1998 runs contrary to the earlier decision of the Board of Directors dated 24.12.1993 and to that extent, he would point out 5 to resolution no. 33/521, which reads as follows:- “Resolution No. 33/521: To take decision on the matter of scale of pay in respect of non- technical Employee of IGIMS. The Board decided that all the non- technical staff will get the salary and other service condition as per AIIMS. The existing pay scale of non-technical staff was discussion and it was pointed out that they are drawing more salary in the State structure in comparison to AIIMS. If they are converted into AIIMS scale they will be looser. The Board decided that their existing pay will be protected subject to the following conditions:- a) For the fixation of pay and conversion of post the Board gave direction to Director to call a representative from Department of Finance, Govt., of Bihar or representative from Accountant General, Govt. of Bihar to give final shape of fixation and conversion of pay to non-technical post. After the finalization and examination by the Director the salary should be given to non-Technical staff, same will be put up to the next Board for final approval. b) There are few post in non Technical categories whose scale of pay are same in State and AIIMS, and No changes of pay should be declared AIIMS scale of pay. c) For those post whose scale of pay is higher than AIIMS, scale be adjusted by giving once promotion if eligible for promotion according to AIIMS criteria. d) For those employees/officers who are not 6 eligible for promotion to next higher grade, they should be given eligibility of promotion.” The sustained endeavor of Mr. Prasad is towards Clause-C of the aforesaid resolution on the basis of which he would contend that since all the petitioners on the date of the decision taken in the year 1993 were already holding the post of Clerk in the pay-scale of Rs. 1320-2040, the logical outcome of the aforesaid decision of the Board of Directors would be that they had to be given one promotion in a higher pay-scale above the post on which they were working and also drawing their salary. He has also clarified this aspect that since the petitioners were working on the post of Clerk, the next promotional post could be Head Clerk. In the alternative he has submitted that since the pay-scale of Rs. 1320-2040 was that of U.D.C. in the State Government and the State Government pay-scale was being paid to the employees of IGIMS, any adoption of the pay scale of All India Institute of Medical Sciences (hereafter to be referred to as „AIIMS‟) could not have been arrived to their advantage and that is how, the Board of Director of the IGIMS had itself resolved to give one promotion. The net effect of 7 the aforesaid submission of Mr. Prasad is that he would claim pay-fixation of the petitioners in the pay-scale of Rs. 1400-2300, which according to him was the pay-scale of Rs. Head Clerk. In this regard, he has also pointed out that the impugned order, by which the pay of the petitioners have been sought to be fixed initially in the LDC in the pay-scale of Rs. 950-1500 and, thereafter, upgraded by way of one promotion in the pay-scale of UDC of the AIIMS pay-scale of Rs. 1200-2040, could not have been made applicable in the case of the petitioners because they were already drawing their salary in a higher pay-scale of Rs. 1320-2040 and, that is how, he would still insist that the only logical outcome of giving effect to the resolution of the Board of Director of the IGIMS dated 24.12.1993 would be to give petitioners the pay- scale of Rs. 1400-2300 in place of Rs. 1200-2040. Mr. Basant Kumar Chaudhary, learned senior counsel for the IGIMS, on the other hand, would submit that the petitioners have, in fact, misunderstood the concept of the resolution of the IGIMS dated 24.12.1993, inasmuch as, the same was never intended to protect the pay-scale but only the pay. To that extent, he would rely on the opening paragraph of the resolution, already quoted 8 above, to show that the decision taken by the Board was that the existing pay of the non-technical staff will be protected by making certain stipulations one of which was Clause-C. He is, therefore, of the opinion that once the same decision has been taken for adopting the pay structure and other service condition of the AIIMS, the petitioners, holding the first basic post of Clerk as on that day, had to be placed on the post of LDC as provided in the AIIMS structure and, that is how, their initial pay fixation was made in the chart enclosed to the impugned order. He has also explained that since the next promotional post of LDC was UDC under the AIIMS structure, the petitioners were also given the fixation of benefit in the said pay-scale and, as their salary being drawn in the earlier State Government pay-scale, was still more, they were given pay protection by the amount by which it was falling short. That is how, he has explained the rationality and justification of the impugned order and its enclosed pay fixation statement. In order to buttress his aforesaid submission, Mr. Chaudhary has also relied on the subsequent resolution of the Board of Director dated 9.10.1998, which according to him, was of an 9 earlier date to the impugned order dated 9.11.1998, and has submitted that the same has to be also taken into consideration. He, in this context, has pointed out that the Board of Governors of IGIMS in its meeting held on 9.10.1998 had considered and reviewed the whole aspect of the matter as with regard to the earlier decision dated 24.12.1993, wherein, the following resolution was passed:- “Resolution No. 47/702 To consider and approve the scale of pay in respect of non-technical employees of IGIMS vide decision of B.O.G. in its resolution No. 33/521. ------------------------------------------- Resolution regarding the pay scale of Non- Technical Staff/Officer of IGIMS as per AIIMS, scale of pay was reviewed in the light of Audit Report of A.G. and the reply sent to A.G. vide Institute letter No. 3309/Adm. dated 18.09.98. The Board having gone through the Audit Report and stipulations made in the 33rd meeting of B.O.G. arrived at the conclusion that the Board of Governors resolved pay protection in conversion of State Scale to AIIMS scale and not the protection of pay scale and accordingly the cases of pay protections will be as per Annexure enclosed in Board of Governors Agenda No. 47/702 at page No. 139 & 140 in the following manner:- 1. Pay of all non-technical staff/officer as per AIIMS arrived at w.e.f. 01.01.94. 2. Difference of basic pay drawn as on 10 01.01.94 will be protected ad Reducable personal pay where ever applicable. 3. Wherever applicable as per promotion criteria, the promotion will be made w.e.f. 01.01.94 or from the date of eligibility.” He has, therefore, submitted that once the Board of Governors had clarified in the meeting held on 9.10.1998 as with regard to the earlier decision taken in third meeting on 24.12.1993 that the same was only aimed at to protect pay protection in conversion of State scale to AIIMS scale and not the promotion of pay-scale, the entire impression gathered by the petitioners of earning promotion in a higher pay-scale beyond the one which was being drawing by them as on 24.12.1993, was wholly misconceived. Mr. Chaudhary, in this context, has himself pointed out that the resolution of the Board of Governors of the IGIMS dated 9.10.1998 had been sought to be interpreted by this Court in the case of Md. Muneer Hussain & Ors. Vs. State of Bihar & Ors. (CWJC No. 5827 of 1999), wherein, this Court by an order dated 21.8.2003, having noticed that the pay fixation of Md. Muneer Hussain and Others being made with effect from 1.1.1986 in AIIMS pay-scale was in teeth of the decision of the Board of Governors of 11 the IGIMS dated 9.10.1998 providing such pay fixation with effect from 1.1.1994, the pay benefit have been fixed by the IGIMS of the person of the category of the petitioners with effect from 1.1.1994. Mr. Choudhary, of course, has defended the rationality of the impugned order and its enclosed pay fixation statement by taking a plea that since the AIIMS pay-scale was also implemented with effect from 1.1.1996, a decision taken therein would not be vulnerable to any sort of challenge but then he himself was not satisfied with the preparation of such pay fixation statement as contained in the impugned order in view of the wordings of the resolution dated 9.10.1998, which in no uncertain terms, provided that the pay of all non-technical staff as per the AIIMS would be arrived at with effect from 1.1.1994. That being so, one thing would become clear that the pay fixation statement given in the impugned order, seeking fixation of pay of the petitioners with effect from 1.1.1996, is contrary to the decision taken by the Board of Governors in its meeting held on 9.10.1998, and, therefore, this Court would direct the authority of the IGIMS to fix the pay of the petitioners as per norms of AIIMS arrived at with effect from 1.1.1994 as was 12 held in the case of Md. Muneer Hussain (supra), wherein, the learned single Judge of this Court had made following observations in respect of the same issue:- “A copy of the resolution taken by the Board of Governors in its 47th meeting vide resolution no. 47/702 has been produced before me for my perusal. From the resolution passed by the Board of Governors in its 47th meeting, it appears that revised pay of non-teaching staff/officers was fixed with effect from 1.1.1994 in pre-revised scale of pay with pay protection, as per guideline given by the Board of Governors. From the pleadings of the parties, now it is admitted fact that resolution no. 47/702 passed by the Board of Governors in its 47th meeting is not being implemented in its true terms and spirit as it was to be given effect to with effect from 1.1.1994 but as per Financial Advisor’s report, the pay fixation was made with effect from 1.1.1996. The resolution passed by the Board of governors was binding upon the Institute and the same is not subject to revision by any inferior authority in the hierarchy. The Financial Advisor could have sent the report before the Board of Governors to consider the financial crunch of the Institute but once the decision was taken by the Board of Governors, that was no revisable at any stage. So far as annual increments are concerned, the petitioners are entitled in law to get the same and adjustment of annual increments is not permissible in law. The authorities, in this view of the matter, were 13 obliged to act upon the resolution passed by the Board of Governors, as referred to above. Considering the facts and circumstances of the case, respondent nos.3 to 5 are directed to implement the resolution no. 47/702 passed by the Board of Governors in its 47th meeting in its true terms and spirit. The difference of revised pay, however, shall be paid to the petitioners in accordance with law within a period of three months from the date of receipt/production of a copy of this order.” Mr. Prasad, however, would not be satisfied with this order, inasmuch as, he would like to draw a distinction between the case of the petitioners and that of Md. Muneer Hussain and others. His main emphasis in this regard is that the resolution taken by the Board of Governors of the IGIMS in the 33rd meeting was to not only give pay protection but also to give dignified condition of service by giving one promotion beyond the post of which they were working on that day and, that is how, he would read into it the concept of their promotion from the post of UDC (as they were drawing salary of the post of LDC to the next promotional post of Head Clerk). This Court would find it difficult to accept the said submission for more than one reason. The fixation of pay in the event of pay revision committee report or even by way of adopting some other pay revision norms necessarily 14 entails the consequence of fixing pay in the revised pay-scale and the only requirement in law would be that no one would be subjected to fixation of lesser pay on account of such pay fixation. That is how, the Fundamental Rule 22 and Rule 78 of the Bihar Service Code protect the fixation of pay of an working employee in the event of revision of pay-scale. Usually, even the Pay Revision Committee itself provides the manner and mechanism in which such pay fixation has to be done and there also the essential ingredients is protection of pay, which is being drawn by an incumbent prior to the revision of pay-scale. In the opinion of this Court, the IGIMS, an independent body, when it also had for its own reasons, taken a decision to adopt the pay-scale and service condition of the AIIMS, it had correctly taken decision to only protect the pay and that is how, it had passed the resolution with the following aim and object:- “Resolution No. 33/521: To take decision on the matter of scale of pay in respect of non- technical Employee of IGIMS. The Board decided that all the non- technical staff will get the salary and other service condition as per AIIMS. The existing pay scale of non-technical staff was discussion and it was pointed out that 15 they are drawing more salary in the State structure in comparison to AIIMS. If they are converted into AIIMS scale they will be looser. The Board decided that their existing pay will be protected subject to the following conditions:-----“ The sole object of the said decision, therefore, was to ensure that no technical staff of the IGIMS would become looser on account of being subjected to the lesser pay than what he was already drawing. That is how, the preface of the resolution can be read together with the conditions mentioned therein. Essentially, if there was any need to protect the existing pay of the non- technical staff by adopting different modes for different categories of the employees, the first one as in (a) was to seek assistance of Government of Bihar and the office of the Accountant General for preparation of pay fixation statement in order to ensure that everyone was getting at least the existing pay even in the revised pay-scale under the norms of AIIMS. The second was a clarification in case of such persons whose pay-scale in the AIIMS and that of the State Government was the same and for them there was no difficulty in adopting the scale as well. It was only then in the category of the person like the petitioners included under (c) whose scale of pay was higher than that of the 16 AIIMS that their scale of pay was sought to be existed by giving one promotion if eligible for promotion according to AIIMS criteria. The said pay protection, in fact, is further clarified by the provisions made in Clause-(d), inasmuch as, even for giving such pay protection, the promotion could be given on the higher post if they are eligible otherwise such eligibility could be shifted. In the present case, as very strong reliance is placed on Clause-C, which is a condition imposed by the Board of Director of IGIMS only for protecting the existing pay, the same cannot be read in isolation to AIIMS that everyone, who was working in a higher pay-scale or drawing higher pay beyond the one in the AIIMS pay-scale, was entitled to first get promotion on a higher post forgetting such pay protection. The guiding fact of such a decision in Clause-C was again to be gathered by the essence of the decision of the Board of Director of protecting the existing pay and, that is how, the whole issue of the Board of Director has to be read to mean that if the petitioners, in terms of fundamental rule 22, could be given personal pay protection if even after being given higher pay of the post of LDC, they were not reaching to the last pay drawn by them. 17 The condition imposed in Clause-C, therefore, by itself, cannot be read to be another clause introducing another service condition for giving protection to each and every employee of the institute because Clause-D of the same resolution makes it clear that the norms of promotion as per the AIIMS pattern had to be followed and one who did not qualify was not even entitled for such promotion. Essentially, when the Board of Director was considering the matter of giving same service condition and pay-scale to the employees of the IGIMS as applicable in the AIIMS, it had never contemplated to create mode for promotion for giving such pay fixation benefit. Promotion to a higher post essentially connotes grant of higher pay-scale and if the idea was to only adjust the personal pay of the petitioners and others drawing their pay in the higher scale beyond the one provided in the AIIMS pay-scale, it was only to adjust their pay that they had to be given the pay- scale of the promotional post with a view that they could not be made looser in the matter of drawing their existing pay. That precisely is the concept also of Fundamental Rule-22, which talks of personal pay protection. From the chart enclosed 18 with the impugned order, it would be clear that each of the petitioner was given RPP to the extent they could reach to their last pay being drawn by them as on the date of the order i.e. 9.11.1998. This Court, therefore, would find the concept of RPP, which has also to continue till the person would reach to that pay-scale, is one strictly in keeping with the provision of Fundamental Rule 22 and Rule 78 of the Bihar Service Code. The aspect that has been highlighted by Mr. Chaudhary that there is only one post of Head Clerk admissible as per AIIMS norms in the IGIMS and there are 38 persons claiming