IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6610 of 2010 1. Shalini Priyadarshni D/O Late Viveknand Verma, W/O Vijay Kumar Karn R/O Chitragupta Colony, Near Lohianagar P.S.& Distt-Godda, Jharkhand At Present Residing In The House Of Ganganath Jha, Ashram , Ward No.15, P.S.& Distt-Araria Versus 1. The State Of Bihar 2. The Principal Secretary, Personnel And Administrative Reforms Department Government Of Bihar, Secretariat, Patna , Distt-Patna 3. The Special Secretary, Finance Department Government Of Bihar, Secretariat Patna, Distt-Patna 4. The District Magistrate Gopalganj, Distt-Gopalganj 5. The District Magistrate Araria, Distt-Araria ---------------------------------- For the Petitioner: Mr.Atul Chandra, Advocate For the State : Mr.Tej Bahadur Singh, Sr. Advocate with Mr. Syed Huissain Majeed, Advocate ------------- 3. 19.09.2011 Heard learned Counsel for the petitioner and the State. A counter affidavit is stated to have been filed on behalf of the State on 16.9.2011 which is not on record. Likewise rejoinder to the same is stated to have been filed on 19.9.2011 which is also not on record. The office shall place both on the record. The Court therefore requested counsel for the parties to make available their copies so as not to hold up the proceeding on that ground. Let the office retain a Xerox copy of the counter affidavit and the rejoinder submitted on behalf of the parties whereafter their copies may be returned to them. The petitioner has been appointed on compassionate ground as a Lower Division Clerk on 30.12.2000.The letter of appointment states that her case was considered by the Compassionate Appointment Committee on 23.12.2000 in pursuance of which she was being offered appointment in the pay scale of Rs. 4000-6000/-.She is stated to have 2 joined on 5.1.2001. On 20.12.2000 orders were issued for demerger of the post of Clerk into that of Lower Division Clerk and Upper Division Clerk. The petitioner has therefore been paid her salary from the date of appointment in the pay scale of Rs. 3050-4590/-. She represented on 13.11.2006 that she had wrongly been denied the scale of Rs. 4000 – 6000/-. The rejoinder to the counter affidavit encloses a proceeding of the District Compassionate Appointment Committee dated 16.12.1999 in which name of the petitioner figures at Column 24 recommending her for Class III post. Learned Counsel for the petitioner submits that if the recommendation was made by the Committee on 16.12.1999 any delay by the respondents in appointing her as late as 30.12.2000 cannot prejudice her entitlement to the scale as recommended the intervening developments of demerger shall have no effect on the same. He relies upon an order of this Court reported in 2007 (1) PLJR 159 (Ganesh Singh vs State of Bihar). Counsel for the State submitted that the consideration by the Compassionate Appointment Committee has been done on 23.12.2000 and the appointment was offered on 30.12.2000. Both events are subsequent to the demerger effected on 20.12.2000. If the order wrongly mentioned the pay scale of Rs. 4000-6000/-, it shall not vest a cause of action to demand that scale. Even if there is any recommendation on 16.12.1999, a mere recommendation does not amount to an appointment. A mere recommendation for appointment does not amount to appointment. The recommendation may fructify or may not fructify. But if the facts of the case reveal that a recommendation was unreasonably delayed for no justifiable reason causing prejudice to a person, it shall 3 not lie with the respondents to urge that irrespective of all considerations issues shall be governed by the actual date of appointment letter. That shall amount to giving advantage to the respondents for their own lapses causing avoidable prejudice to the citizen. The Court has before it two recommendations of the Compassionate Appointment Committee, one produced by the petitioner dated 16.12.1999 and the other mentioned in the appointment letter dated 23.12.2000. Unfortunately the writ petition does not make any assertion with regard to any consideration done of the case of the petitioner on 16.12.1999. Had it done so the respondents may have had the compulsion to reply. But if what the petitioner contends be correct the counter affidavit leaves the Court disappointed. A citizen may not be in possession of all necessary documents pertaining to the respondents. When a citizen claims relief against the State it is not adversary litigation. The citizen may not be in possession of all relevant materials especially where it may pertain to official documents. In such a case it becomes the bounden duty of the respondents to discharge their constitutional obligation of assisting this Court in dispensation of justice by placing all necessary and relevant materials before the Court, leaving the conclusions for the Court. It is not possible for the Court to hold either ways on the recommendation dated 16.12.1999. The petitioner does have an arguable case for protection of her pay scale if the recommendation had clarity as it appears from the enclosure to the rejoinder. But if for valid reasons the respondents were required by law to re consider that recommendation leading to a fresh recommendation on 23.12.2000 the issue may be entirely different. 4 Conversely if there was a recommendation in favour of the petitioner dated 16.12.1999 and certain others came to be appointed from amongst the person considered in the same meeting, and the recommendation of the petitioner only was not appropriately acted upon for no justifiable reasons, the mere fortuitous date of appointment letter shall not be sufficient to distinguish her case when it has to he held that the petitioner has been subjected to hostile discrimination. The petitioner has not placed any material on record that any other appointees in pursuance of the recommendation dated 16.12.1999 have been granted higher pay scale of Rs. 4000 – 6000/-. The reliance on the case of Ganesh Singh (Supra) is not wholly appropriate as it related to a case where persons came to be recommended and appointed in pursuance of one recommendation and the appointment of the petitioner therein was delayed singularly causing issues of hostile discrimination. It has already been noticed that there are no such allegations in the present case. Additionally in that case the issue had also arisen of an earlier advertisement and the subsequent advertisement without cancellation of the earlier advertisement, all of which are sufficient for distinguishing the case. The Court therefore directs the respondents to first examine if there is a recommendation by the Compassionate Appointment Committee dated 16.12.1999 in favour of the petitioner. If it be so, if any others from the same recommendation been appointed in the pay scale of Rs. 4000 – 6000/-. Even if there was a recommendation in favour of the petitioners and others came to be appointed in pursuance of the same, was the case of the petitioner deferred for any valid reason leading to fresh consideration on 23.12.2000. Was such delay attributable to the petitioner or the respondents. In the former case the 5 petitioner may not have a claim while in the latter she shall have a sustainable claim. In a situation where the pleadings of the parties are not clear, the Court finds it difficult to pass any positive order allowing the claim or rejecting the claim. The matter has necessarily to be referred to Respondent no. 4, who is also the chairman of the District Compassionate Appointment Committee, to examine the matter in light of the present discussion. Matters for grant of a pay scale are a continuing wrong. Every month that the pay scale is reduced furnishes a cause of action. Therefore it cannot be held that the claim of the petitioner is belated. In the event that the District Magistrate finds justification in the claim the Court holds that because the petitioner represented only on 13.11.2006 she shall be entitled to the arrears of the pay scale from that date only and not from the date of appointment. The Court expects the District Magistrate to pass a reasoned and speaking order so hat the petitioner is able to appreciate and understand in the event that she is denied relief so that she may be able to apply her mind to decide whether it would be in her interest to pursue matters further or not. Let the District Magistrate pass such fresh appropriate orders within a maximum period of four months from the date of receipt and/or production of a copy of this order The writ application stands disposed. Snkumar/- (Navin Sinha,J.) 6