IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7906 of 2003 Mostt. Jagawali Singh W/O Late Satish Kumar Singh, resident of village/Mohall Mithanpura behind Chandrashekhar Bhawan, Post Office Mithanpura, District Muzaffapur. Versus 1.THE STATE OF BIHAR 2.The Commissioner Cum Secretary, Department of Commercial Taxes, Government of Bihar, Patna. 3.The Deputy Commissioner, Commercial Taxes, Muzaffarpur Circle Muzaffarpur. 4.The Assistant Commissioner, Commercial Taxes, Muzaffarpur Circle, Muzaffarpur. 5.The Accountant General (A E) II Bihar, Birchand Patel Path Patna. ----------- 4 14/12/2009 Heard counsel for the petitioner, counsel for the State as also counsel for the Accountant General. In this writ application prayer of the original petitioner Satish Kumar Singh who is said to have died during pendency of this writ application was to the following effect:- “That this is an application for issuance of an appropriate writ/writs, order/orders or direction/directions to the respondents for fixing the pay of the petitioner in the revised pay scale in view of the Government resolution issued in the Department of Finance vide Memo No.3M-2-5-VE. PU. 01/99-660 (F/2) dated 8.2.1999 in clause 11 and 12 in the pay scale of 5500-9000 for which the representation of the petitioner filed before the respondent No.2 is pending and further give the direction to the respondent no.5 to revise the pension fixed to the petitioner vide P.P.O. No. 302640 of 2000 that has been illegally fixed in the lower pay scale on account of none fixation of the pay of the petitioner by the respondent no.2 and the arrears 2 of the salary and revised pension alongwith interest upon the arrears be paid to the petitioner.” After his death the present petitioner, his wife has been substituted by order dated 13.3.2008 while allowing such prayer in I.A. No.887 of 2008/ The issue which now therefore gets confined to certain entitlement of the original writ petitioner in the matter of fixation of pay upon revision of the pay scale w.e.f. 1.1.96. While the respondents have fixed the pay and emoluments of the husband of petitioner in the pay scale of Rs.4000 to 6000, the husband of the petitioner had claimed that he was entitled for the pay scale of Rs.5000 to 8000. In this context reliance has been placed on the resolution of the State Government dated 8th February, 1999 (Annexure-3). On the other hand, counsel for the Accountant General has filed counter affidavit, wherein the following stand has been taken in justification of the action taken by the office of the Accountant General in fixation of pay scale of Rs.4000 to 6000:- “That in this connection it is stated that the answering respondent is concerned with the revision of pension in the scale of pay fixed by the State Govt. The answering respondent neither frames the scale nor revises any scale. That the answering respondent does not deny that the petitioner’s husband had been allowed selection grade. It will, but, have to be accepted 3 that the State Govt. had not prescribed replaced scale corresponding to the selection grade. The State Govt. after careful consideration of the recommendation of the Fitment committee regarding postwise central scales of pay, have accepted the revised pay scale. Meaning thereby that replaced pay scales have been accepted postwise and not scale wise, and where there is no corresponding prescribed scale, the pay in replaced scale will be fixed on the need based scale. That in the instant case, the petitioner’s husband was allowed selection grade, but since there was no scale corresponding to be scale of selection grade, the petitioner’s husband pay was fixed in need based scale of Rs.4000-6000/- but his pay was protected by allowing reducible personal pay (RPP) and pension had been raised. That the answering respondent has, however, written a letter to the Asstt. Commissioner, Commercial Tax, Muzaffarpur vide no.Pen- 14-G-353-56 dated 25.4.04 seeking instruction, if there had been any change or modification in the pay scale of the petitioner’s husband in view the writ petition filed by the petitioner’s husband. The copy of the letter had been endorsed to the Financial Commissioner Bihar, Patna, Commercial Taxes Commissioner and to the petitioner also and on receipt of the clarification, the pension will be raised, if needed.” None of the parties, however, seem to be aware as to what had happened in the reference made by the office of the Accountant General vide its letter dated 25.4.2004 sent to the State Government in the Finance Department. Such being the fluid position on facts, now when 4 the original writ petitioner has also died, this Court would direct the concerned respondents to take a final decision as with regard to entitlement of fixation of salary and emoluments of the original writ petitioner, husband of the present petitioner, and if it is found that the husband of the petitioner was entitled for fixation of his pay and emoluments in terms of the resolution of the State Government being dated 8.2.1999 in the pay scale of Rs.5000-8000/-, the present petitioner being widow of the original writ petitioner, will not be only given the difference of salary but also the benefit of refixation in the pension/family pension on the basis of revised last pay of husband of the petitioner. Let it be however made clear that this Court has not expressed any opinion on the merits of the claim of the petitioner and therefore it would be open for the respondents to take a decision which must be in the form of a speaking order after taking into account the grievance which had been raised by the original writ petitioner in his representation. In order to expedite the matter, the petitioner, widow of the original writ petitioner, is given liberty to file a copy of aforesaid representation filed by her husband along with a copy of this order and thereafter the competent authority, namely, the Principal Secretary of the 5 Finance Department will pass an appropriate final order and would get it communicated to the petitioner within a period of six months from the date of production of a copy of this order. With the aforementioned observation/direction this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)