IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8993 of 2007 SHEIKH MANJAR Versus THE STATE OF BIHAR & ORS ----------- 3. 26.08.2008 Heard learned counsel for the petitioners and the State. The petitioners were employed as Warder in the Ranchi Institute of Neuro Psychiatry and Allied Science (hereinafter referred to as „RINPAS‟). Their services were transferred to the Regional Deputy Director, Gaya in the undivided State of Bihar by an order dated 15.9.1998. It is not necessary to take note in detail of the challenges laid out by the petitioners to the order of transfer except to the extent necessary. The erstwhile Ranchi Bench of this Court in CWJC No. 2296 of 1998 (R) and 2989 of 1998 ( R ) while declining to interfere with the challenge to the order of transfer by its order dated 24.3.2000, nonetheless noticing the submission on behalf of the petitioners that some of the persons transferred in like manner had been granted pay protection while the petitioners had simply been directed to join the office of the Regional Deputy Director, Health Services, Gaya Division, Gaya, held that the petitioners would be entitled to pay protection as well as of their seniority in service. In arriving at this conclusion, the Bench relied upon certain directions of the Secretary, Ministry of Health, Government of India and the Secretary, Health Department, Government of Bihar vide his letter no. 458 (10) dated 2.11.1994. A mandamus was then issued in paragraph 9 of the judgment to the following effect : - 2 - “In other words, the petitioners will be entitled to their seniority and they will also be entitled to pay protection.” The issue seems to have cropped up thereafter since there was no post of Warder in the State of Bihar and the petitioners were sought to be posted as Ward Attendant, which are class IV post. This necessarily entailed loss of status and loss of pay which would have been contrary to the directions of this Court as noticed aforesaid. In that background, the Secretary, Department of Health, Government of Bihar by a letter dated 30.8.2001 addressed to the State Advisory Committee constituted consequent to the reorganization of the State of Bihar pointed out that the post of Ward Attendant was a Class IV post, inferior to that of Warder, which the petitioners were holding; that the pay scale of Ward Attendant was Rs. 775-1025/- as per 5th pay revision committee while that of a Warder was Rs. 950-1500/-. He, therefore, suggested that the petitioners be sent back to Jharkhand as per their option. He also noticed that in view of the aforesaid controversy and non-availability of a post equivalent to Warder, their salary payment was pending since 1998. The issue of allocation of their services to the State of Jharkhand did not proceed further as the petitioners are now satisfied with the allocation of their services to the State of Bihar It appears that thereafter orders were issued by the Civil Surgeon concerned on 9.3.2006 revising the pay scale of the petitioners from that of Ward Attendant at Rs. 2550-3200/- to 3050- 4590/- in the revised scale which as per the letter of the Secretary of - 3 - the Health Department dated 30.8.2001 was admissible to the petitioners. In this background, the petitioners came to this Court in CWJC No. 5164 of 2004 when they acknowledged that they had been granted pay protection in terms of the pay scale being given to them on the post of Warder in the RINPAS. The issue now was only with regard to the arrears of their salary as noticed in the letter of the Secretary, Department of Health dated 30.8.2001. Since no counter affidavit was filed on behalf of the Respondents, despite grant of sufficient opportunity, the Court did not think it proper to pass any positive orders on the question of arrears of salary which may involve issues of fact, which obviously meant the period which the petitioner may have worked or may not have worked or whether willing to work and were denied to work etc. only. What has followed thereafter is the impugned order dated 29.3.2007. The impugned order reverts them to the pay scale of a Ward Attendant and deprived them of the benefit of the pay protection granted by order dated 9.3.2006. It seeks to rely upon fresh concurrence sought from the Finance Department. Learned counsel for the petitioners has rightly submitted that the pay protection granted on 9.3.2006 has not been recalled or annulled. It is only in consonance of the decision communicated by the Secretary of the Health Department dated 30.8.2001. The impugned order was not in consonance with the directions of the Court in CWJC No. 5164 of 2004 and was without jurisdiction. This Court did not grant the liberty to the Respondents to reopen the matter of pay protection which stood concluded. The only issue was with - 4 - regard to the arrears of salary in the revised scale. Additionally it has been urged that the impugned order is not an order by the Secretary of the Department of Health but by the Joint Secretary which is apparently in conflict with the orders of the Secretary, a superior officer, dated 30.8.2001. Learned counsel for the State sought to support the impugned order from the counter affidavit. The counter affidavit appears to be a bundle of contradictions apparently made without application of mind. While the Secretary of the Health Department in his letter dated 30.8.2001 states that the post of Warder was superior to Ward Attendant, which is a Class IV post, the counter affidavit at paragraph 7 states that the post of Warder is a Class IV post. Even while the impugned order seeks to reduce the pay protection granted to the petitioners on the post of Warder, the counter affidavit at paragraph 7 states that their pay scales on the post of Warder has been protected. It then seeks to draw sustenance from the orders of this Court in CWJC No. 5164 of 2004. This Court has no hesitation in holding that the impugned order dated 29.3.2007 is far in excess of the orders of this Court in CWJC No. 5164 of 2004. The issue of pay protection granted to the petitioners stood concluded and was not an issue pending. The Respondents have acted malafide in law by seeking to reopen the whole issue of the pay protection without cancelling or annulling their earlier order granting the same in the garb of liberty allegedly granted by this Court when the Court had granted no such liberty. - 5 - On the face of the impugned order dated 29.3.2007, it is apparent that it has been issued in the pen of the Joint Secretary of the Health Department. Quite surprisingly the counter affidavit at paragraph 14 states that it has been issued by the Secretary of the Health Department. How the respondents propose to reconcile the orders dated 29.3.2007 and 30.8.2001 if both have been issued by the Secretary of the Health Department, remains an issue unanswered by the Respondents. In the light of the discussions as aforesaid and the documents on record issued by the Respondents themselves, this Court is satisfied that the impugned order dated 29.3.2007 is wholly unsustainable in law in so far as it seeks to reduce the pay protection already granted to the petitioners and which order stands valid as of date. The order dated 29.3.2007 is, accordingly, quashed. This Court in CWJC No. 5164 of 2004 had directed a decision to be taken on the claim for arrears of salary. The orders and directions of this Court have been ignored and the matter has been left undecided on irrelevant issue. This Court is not satisfied that merely to recite that the petitioners remained unauthorizedly absent without further details of the report of the Civil Surgeon in that context being discussed in the impugned order that part of the order is also not sustainable. The matter is, therefore, remanded to Respondent no. 2 for a fresh decision by the incumbent of the said post alone with regard to the arrears of salary payable to the petitioners in the protected pay scale in terms of the directions contained in CWJC No.5164 of 2004. - 6 - Let such decision be taken within a maximum period of 12 weeks from the date of receipt and/or production of a copy of this order before Respondent no. 2. In the event that the petitioners are held entitled to the arrears or to any part thereof, this Court expects that appropriate time bound orders in that regard shall also be issued by Respondent no. 2 so that the petitioners are not compelled to approach this Court time and again for the same relief. The writ application stands disposed. AKS/ (Navin Sinha, J.)