IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11257 of 2006 KAILASH PANDIT Son of Late Jamuna Das Resident of Naya Bazar P.O. & P.S. Tetarpur District Bhagalpur. Versus 1. THE STATE OF BIHAR 2. The Secretary, Finance Department, Bihar, Old Secretariat, Patna 1. 3. Additional Finance Commissioner (Exp.), Finance Department, Bihar, Old Secretariat, Patna 1. 4. The Secretary Cum Commissioner, Health Services, Bihar, New Secretariat, Patna 1. 5. Director in Chief, Health Services, Bihar, Patna 1. 6. Additional Director, Health Services (Chi. Shik) Bihar, Patna 1. 7. Principal, Jawahar Lal Nehru Medical College & Hospital, Bhagalpur. ----------- 2 20.08.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(I)Issuance of an appropriate writ/ writs, order/ orders, direction/ directions, commanding the respondents to grant the revised pay scale of modeler like others to the petitioner with effect from 1/4/1981 to till the date of retirement after quashing the Memo No.4360 dated 7/3/06 contained in Annexure 10, whereby reduced Pay scale has been fixed only from 1/1/96 and also to pay all arrears of revised pay scale alongwith penal interest with effect from the due date of payment to till the date of payment.” Learned counsel for the petitioner in support of the aforementioned prayer would submit that the impugned order dated 20.7.2006 Annexure B/5 to the counter affidavit cannot be sustained because the pay scale of Rs. 3050-4590 granted to the petitioner for the post of Modeller held by him in Jawahar Lal Nehru Medical College and Hospital, Bhagalpur cannot be equated with the post of Modeller existing in the Nalanda Medical 2 College and Hospital. In this context attention of this Court has also been drawn towards the initial appointment letter of the petitioner dated 16.11.1971 wherein he was granted the pay scale of Rs.115-195/- as on 16.11.1971 by the Principal of Bhagalpur Medical College, which at that point of time was already a Government Medical College. It is submitted that subsequently also the petitioner was granted revised pay scale of Rs.240 to Rs.396/-, at a point of time when the Modeller in the Nalanda Medical College was given the pay scale of Rs. 220-315/-. It has been also sought to be explained by the petitioner that the prescribed qualification for the post of Modeller in the Nalanda Medical College & Hospital at the relevant point of time when it was a private Medical College was only Middle Pass with diploma, whereas, the petitioner while holdidng the post of Modeller was having qualification of matriculation with diploma. On these submissions counsel for the petitioner would submit that that impugned order dated 7.3.2006 cannot be sustained, inasmuch as, the comparison of the post of Modeller in N.M.C.H. cannot be justified with the post of Modeller in Jawaharlal Nehru Medical College, Bhagalpur. Two counter affidavits have been filed by the respondents in this case and in both of them it has been asserted that the State government for the post of Modeller in Medical Colleges had never fixed any pay scale save and except by the Finance Department’s letter No.4360 dated 7.3.2006 when for the 3 first time pay scale of Modeller for all the Medical Colleges was fixed at Rs. 3050/- to Rs.4590/- w.e.f. 1.1.1996. In the opinion of this Court the claim for revision of pay scale of the petitioner w.e.f. 1.4.1981 is wholly belated inasmuch as the petitioner during service period of 16.11.1971 to 11.8.2004 had continued to draw the pay scale as fixed by the authorities and therefore the claim for revision of pay scale from inception i.e. w.e.f. 1.4.1981 onwards till the date of his retirement i.e. 11.8.2004 by filing the present writ petition on 12.9.2006 is definitely quite belated. It may be noted that appointment of the petitioner was initially made in the pay scale of Rs.115 to 195/- on 16.11.1971 and thereafter the respondents had revised the pay scale of the post of Modeller by order dated 30.4.1974 in the pay scale of Rs.220-315/-. Such revision was made w.e.f. from 30.5.1974 but the petitioner some how had continued to draw his salary in the replacement pay scale of Rs.240-396/- as would appear from the following chart appended to the counter affidavit:- Date Pay Scales. 17.11.1971- Rs. 240 - 396 01.04.1981- Rs. 535 - 765 01.01.1986- Rs.1200 - 1800 01.01.1996- Rs. 3200 - 4900 There is however nothing on the record to show as to how the petitioner in presence of the government order sanctioning the pay scale of Rs.220-315/- to the post of Modeller 4 was placed in the pay scale of Rs.240/- to 396/- and eventually if the government had kept on revising the pay scale in the year 1981, 1986 and 1996 on the basis of earlier fixation made in the year 1974 in the pay scale of Rs.220-315/-, it would be both imprudent and also illegal to direct the government to fix the correct pay scale of the petitioner for the last 30 years of his service only because the Principal of the College had chosen to make payment of salary of the petitioner in a non existing higher scale of pay. Revision of pay scale is the job of expert and such fixations are normally to be decided by the Pay Revision Committee. If the petitioner had any grievance with regard to his existing pay scale he had to approach the Pay Revision Committee/ Pay Anamolly Revision Committee/ Fitment Committee/ Fitment Appellate Committee, but that having been not done in the entire length of service of the petitioner, the writ Court cannot allow the petitioner now to over turn the grant of pay scale which was given from 1971 to the date of retirement of the petitioner, i.e. in the year 2004. This writ application has been filed on 12.9.2006 by creating a cause of action of assailing the order dated 7.3.2006. The said order dated 7.3.2006 was passed by the Finance Department on an analogy that no separate pay scale was provided for the post of Modeller in the revised pay scale introduced w.e.f. 1.1.1996. Thus any relief of the petitioner at best could have taken back to only 1.1.1996 and not earlier as claimed 5 in this writ application w.e.f. 1.4.1981. The State Government, in fact, while fixing the pay scale of Modeller w.e.f. 1.1.1996 had taken into account that even earlier in the year 1974 the pay scale that was sanctioned by the State Government was Rs.220-315/- and therefore if the petitioner could draw salary in the higher pay scale of Rs.240-396/- that could not have bound the State to revise the pay scale of the post of Modeller as such scale of pay had existed in all the Medical Colleges. The analogy in fact given in the impugned order for the post of Modeller in N.M.C.H, which was taken over by the State Government in the year 1979, was only by way of illustration. The claim of the petitioner that he will be entitled for the higher pay scale because he was matriculate with diploma holder at the time of his initial appointment in comparison to Modeller in the N.M.C.H. having Middle pass qualification with diploma will have nothing to do unless such principle was accepted and acted upon by the Pay Revision Committee laying down that every matriculate diploma holder will be entitled for the higher pay scale in comparison to a Middle Pass diploma holder Modeller. Nothing has been however brought on record to show that the State Government had fixed the qualification for the post of Modeller as Middle pass with diploma so that any one with qualification of matriculate with diploma at this stage of appointment had to be granted higher pay scale. Thus the principle of qualification based pay scale can also not be applied on mere 6 ipse dixit of the petitioner. In fact there is nothing on the record to show that for the other post requiring matriculate with diploma in a Medical College there was a higher pay scale in 1974 beyond Rs.220-395. Thus for all these reasons, this Court would not find any merit in this writ application and the same is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)