IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10107 of 2010 1. Hari Mohan Mishra S/O Ramoudar R/O Vill Kaina, P.S.Kaina, Distt-Samastipur, Bihar 2. Shashi Kant Jha S/O Shri Vishwanth Jha R/O Sarvodaya Nagar, P.S.Begusarai, Distt-Begusarai, Bihar 3. Brijendra Mani S/O Late Rambriksh Choudhary R/O Ghusia Khurd, P.S.Bikramganj, Distt-Rohtas, Bihar 4. Rajesh Kumar Sinha S/O Shri Jaya Nandan Prasad R/O Moh Naya Gaon Near, T.B. Hospital , Agam Kuan, P.S.Alamganj, Distt- Patna, Bihar 5. Niraj Kumar Verma S/O Shri Manohar Prasad Verma R/O 334e Chak Raghunath, P.S.Naini, Distt-Allahabad, Utter Pradesh 6. Prabhat Kumar Singh S/O Late Rameshwar Prasad Singh R/O Dharmapur, P.S.Tarapur, Distt-Munger, Bihar Versus 1. The Union Of India Through Its Secretary, Department Of Agriculture And Coorporation Government Of India, Krishi Bhawan, New Delhi 2. The Secretary, Department Of Agriculture And Cooperation Government Of India, Krishi Bhawan, New Delhi 3. The State Of Bihar, Through Its Chief Secretary Old Secretariat, Patna 4. The Agriculture Production Commissioner Government Of Bihar, Patna 5. The Joint Secretary-Cum-Nodal Officer 'Atma' Yojana Bihar, Patna 6. The Director Agriculture Government Of Bihar, Patna ---------------------------------- 4. 17.11.2011 Heard learned Counsel for the petitioners, the State and the Union of India. The controversy arises from a centrally sponsored scheme to be executed by the State Government. The petitioners are stated to hold the post of Deputy Project Directors. They are aggrieved by grant of a fixed salary in lieu of pay scale granted earlier. The questions involved are answerable both by the Union of India and the State Government. The writ application was filed on 1.7.2010 after serving two copies on the Counsel for the Union of India and the State Government. The State Government has filed more than one affidavit 2 contesting the proceedings. The Union of India has chosen not to assist the Court by filing any counter affidavit. Had it done so it would certainly have facilitated final adjudication possibly bringing the controversy to a finality either ways. It is submitted that the Union of India sponsored a scheme commonly known as Agricultural Technology Management Agency (hereinafter referred to as ‘ATMA’). The aim and object was to ensure stability to agricultural development at the district level to facilitate unification of the activities pertaining to agricultural extension and research and diversification of public Agricultural Technology System management. The State Government in the Department of Agricultural published an advertisement on 1.6.2006 inviting applications inter alia for the post of Deputy Project Director. It specified a pay scale of Rs. 6500-200-10500/-. It also prescribed the qualification and that the appointment was on contract. The petitioners continued working in contractual capacity by annual renewal in the defined pay scale till the financial year 2009-2010. From the financial year 2010-2011 the State Government seeks to replace the pay scale with a fixed pay of Rs. 18000/-. On 16.4.2010 commencing from the financial year 2010-2011 the Central Government has identified inter alia the post of Deputy Project Director as one of the posts to be funded by it inclusive of others specified. The establishment cost on such posts which includes payment of salary has to be borne by the Union of India to the extent of 90% unlike the earlier procedure where it was borne by the State Government alone. The Central Government has fixed the pay scale of Rs. 15,600-39,100/- for Deputy Project Director. While identifying the post of the petitioners as being funded by the Central Government the State decision dated 25.8.2010 excludes the posts 3 of Driver, peon and Chowkidar which are to be exclusively funded by the State Government. The State Government relies on its decision dated 16.2.2010 to grant a fixed pay in lieu of the earlier pay scale granted without adverting to the fresh decision of the Central Government dated 16.4.2010. Counsel for the State Government contended that the petitioners are contractual appointees under a scheme as mentioned in the advertisement itself. They cannot claim parity in status with government servants for a regular pay scale which is given only to the holder of a post. Whether to grant a pay scale or a fixed amount to such contractual employees was a matter of financial management and the State Government has to be given leeway to take appropriate financial decisions based on availability of funds from time to time and other considerations for itself. The decision dated 16.2.2010 at Clause 5 provides that the post of Deputy Project Director was not being funded by the Central Government. The second supplementary counter affidavit filed today at paragraph 24 states that the Central Government has neither sponsored the establishment nor has determined the service conditions of the petitioners. Counsel for the Union of India refers to the State Government decision dated 25.8.2010 and with reference to para 3 of the same submits that it is more than clear that payment of salary to persons like the petitioner have to be borne by the State Government alone from the 10 % contribution to be met by it. No part of the payment of salary for persons like the Deputy project Director shall be borne by the Union of India whatsoever. The advertisement classifies the petitioners as contractual appointees. No doubt it provided for a pay scale. Normally pay scale 4 is granted to a person holding a regular post only. A person on contractual appointment can be appointed on stipend or salary unless the employer decides otherwise. What may or may not have been done by the State Government by grant of pay scale and renewal of the pay scale shall not deviate from the financial authority of the State Government to replace it by fixed salary so long as the source of payment was the State Government itself. Financial management has to be left to them alone. The period prior to the financial year 2009-2010 is therefore not relevant for the present discussion. There appears no controversy that commencing from the financial year 2010-2011 the post of Deputy Project Director is one of the five posts identified by the Central Government and approved for which the Central Government agreed to finance establishment cost to the extent of 90%. This fact becomes apparent from the letter dated 14.6.2010 of the Joint Director, Extension Reforms, Ministry of Agriculture, Department of Agriculture and Cooperation, Government of India which as it has been pointed out at Column B.13(iv) provides for administration/capital expense. Further it appears from the State Government decision dated 25.8.2010, the post of Project Deputy Director has been identified as one of the posts to be funded substantially by the Central Government fixing the pay scale. The posts to be funded by the State Government alone have also been identified. The scheme has now to be funded as was submitted in the ratio of 90:10 for establishment cost by the Central Government and the State Government. Primafacie the Court finds it difficult to appreciate the oral stand of the Union of India that it has nothing to do with the payment 5 of remuneration of the Project Deputy Director and that it was to be paid entirely by the State Government alone. If the Union of India had filed a counter affidavit representing its stand based on interpretation of documents issued by the State Government it may have facilitated final adjudication by the Court. The only question for consideration by the Court remains that if the post of Project Deputy Director is one of the posts approved by the Central Government and pay scale fixed by it which the State Government accepts and the funding of such posts is 90% from the Central Government, what is the justification for the State Government to replace it with a fixed salary. The issues appear purely administrative to be resolved by the Union of India sand the State Government by across the table discussions and the interpretation of their respective documents tobe appreciated by each other. The matter is therefore referred to the Central Government in the concerned Department of Agriculture to decide this issue in consultation with the State Government. Let a reasoned and speaking order be jointly passed by the competent authority of the Central Government and the State Government, within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. The claim of the petitioner shall necessarily have to be abide by the same. Needless to state that depending on such decision necessary consequential action, if any, shall be taken. The writ application stands disposed. Snkumar/- (Navin Sinha,J.) 6