IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6672 of 2009 Jai Kant Jha Versus The State Of Bihar & Ors 3/ 08/08/2011 Heard learned counsel for the petitioner and learned counsel for the State. The writ petition was filed on 22.5.2009 after serving two copies of the same in the office of the Advocate General on 8.12.2008, the second one to facilitate early filing of a counter affidavit. The Court granted time to the respondents on 24.6.2009. Thereafter it has been taken up for consideration in July, 2011. No counter affidavit was filed despite passage of more than sufficient and reasonable time. The Court however in July, 2011 still granted an indulgence by a short adjournment, passing over the matter. A counter affidavit has then been filed in extreme haste on 5.8.2011. Naturally when it is a counter affidavit in haste, it answers nothing and does not facilitate adjudication with regard to the issues involved. The petitioner was appointed as a laboratory assistant on 31.10.1985 in the pay scale of Rs.535- 765/-. The fourth pay revision committee provided the same pay scale to laboratory assistant and seed 2 technician. The pay scale was separated by the 5th pay revision committee giving laboratory assistants the pay scale of Rs.975-1540/- and seed technicians Rs.1320- 2041/-. Removal of pay anomaly led to grant of separate pay scales to seed technicians who were agriculture graduates and who were non-graduates. On 31.7.1986 the petitioner was assigned duties of seed technician and granted the pay scale of a non- agriculture graduate. On 29.7.2008 he was granted the next higher pay scale of Rs.1320-2041/-. On 13.5.2005 the respondents fixed his pay scale as that of laboratory assistant and simultaneously directed recovery of Rs.1000/- per month from him. The petitioner came to this Court in C.W.J.C. No.15727/05. After noticing an order of this Court on the issue in C.W.J.C. No.9447/04, the writ application was allowed. The respondents preferred L.P.A. No.428/06 against the same. On principles of judicial discipline for having differed with the order of this Court in C.W.J.C. No.9447/04, the order in C.W.J.C. No.15727/05 was set aside granting liberty to the petitioners to pursue their remedies in accordance with law. That has led to this fresh writ application. It is not permissible for this Court to now look into the order of C.W.J.C. No.15727/05. 3 In C.W.J.C. No.9447/04 the grievance was that laboratory assistants had been made to work on the higher post of seed technician, but were wrongly sought to be reverted. The respondents took the stand that juniors had been given promotion ignoring seniors on the post of seed technician. Only officiating charge was given as stop-gap arrangement in the year-1986-87. The Court therefore on 20.6.1965 disposed the writ petition with directions to complete the pending enquiry (question of seniority) and then fill up the higher post in accordance therewith. The present impugned order dated 3.6.2008 directs stoppage of scale of seed technician to the petitioner. It does not make any reference to an enquiry, the report of such enquiry, how persons senior to the petitioner may have been denied the scale of seed technician etc. in terms of the order of the Court in C.W.J.C. No.9447/04. The order dated 9.7.2008 is only a sequel to the same and is of no help. The Court has already noticed that the respondents have filed a counter affidavit in extreme haste. Learned counsel for the State sought to persuade the Court from Annexure-A dated 6.7.2011 that the petitioner has been granted promotion to the post of seed technician with effect from the date of the order after consideration by the promotion committee on 4 16.5.2011. Paragraph-7 of the counter affidavit simply reiterates the order in C.W.J.C. No.9447/04 with directions to fill up the post on regular basis by promotion. The petitioner was given officiating charge for the post of seed technician in his own pay scale of laboratory assistant in 1986. Perhaps, if the respondents had been more careful in filing their counter affidavit and had placed proper materials before the Court with regard to the nature of enquiry held, revelations of how juniors had been given the benefit of the seed technician ignoring seniors, who the seniors to the petitioner were and how they had been overlooked etc., the controversy could have been brought to an end today one way or the other. A casual counter affidavit ensures that the controversy continues. Learned counsel for the petitioner has urged that on the date that the petitioner was given officiating charge, vacancies did exist, the petitioner fulfilled the conditions of eligibility and there was no bar to his substantive assignment of the post of seed technician. These require examination of records and determination of facts. Rather than to keep the matter pending before this Court in the form of a litigation when the respondents have failed to place full and proper 5 materials before this Court for adjudication, the matter is referred back to the Agriculture Production Commissioner, Government of Bihar. The Commissioner shall provide a personal hearing to the petitioner, allow verification of original records in his presence and then fix a date for final hearing, personal or representative, to the petitioner as he may request. After the hearing is concluded, he shall proceed to pass orders in presence of the petitioner. At this stage, learned counsel for the petitioner submitted that at least that part of the impugned order by which recovery has been ordered may be set aside. It was contended that there are no allegations of having obtained the pay-scale of a seed technician by fraud or misrepresentation. That the petitioner discharged duties is not in dispute. Countering the same, learned counsel for the State contended that it is a question of wrong fixation of the pay-scale. If the matter is remanded to the Commissioner, all issues may be left open. Prima facie, it appears that there are no allegations of any fraud or misrepresentation by the petitioner to obtain the pay-scale and duties of a seed technician. The counter affidavit does not appear to be disputing or denying that he has worked in that capacity. 6 That the petitioner may have been given a wrong or erroneous pay-scale is one aspect of the matter. Those who sanctioned the erroneous pay-scale is another aspect of the matter. The petitioner cannot be visited with the consequence alone. The administrative lapse was allowed to continue unhindered for long years also cannot be lost sight of. If the petitioner has to be visited with the consequence, those who granted him the pay-scale are also answerable and accountable. Let this aspect of the matter be also decided by the Commissioner simultaneously. Till such fresh decision by the Commissioner, no further recovery shall be made by the respondents in pursuance of the impugned order. Refund or further recovery shall abide by such fresh order. The writ application stands disposed. KC ( Navin Sinha, J.)