IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 1235 of 2005 RAM PRASAD SHARMA Versus THE STATE OF BIHAR & ORS ----------- 06. 23.03.2011 Heard learned counsel for the petitioner and the counsel appearing for the State. Supplementary Affidavit and Supplementary Counter Affidavits have been filed on behalf of the petitioner and the State. Petitioner has filed Supplementary Affidavit in order to bring subsequent developments on records of the case. So far the Supplementary Counter Affidavit filed on behalf of State is concerned that is in order to counter the statement made in I. A. No. 2496 of 2005, filed by the petitioner during pendency of the Writ Application. The Interlocutory Application had been filed by the petitioner for a direction to the Respondents to make him payment of his due salary with effect from 19.06.2003, which, despite his regularization order, was not being paid to him and he was facing acute hardship on account of non-payment of his salary. In the earlier Counter Affidavit filed on behalf of the State, the reason for not making 2 payment of salary with effect from the issuance of order of regularization, i.e., 19.06.2003, as disclosed, was non-publication of the Gazette Notification with regard to regularization of the petitioner on Class – IV post. However, petitioner was paid his arrears of salary with effect from 19.06.2003 in the light of the Order, dated 28.06.2003 and continued to get his salary till the date of his superannuation. By filing Supplementary Affidavit, the petitioner has brought this fact before the Court that he superannuated from his service with effect from 01.07.2007. After his retirement, his pension and pensionary benefits were not being paid to him. As such he filed C.W.J.C. No. 13872 of 2007. In the light of the Order passed in the Writ Application, dated 26.09.2008, he was paid 100 per cent provisional pension, provisional gratuity, provisional leave encashment and provisional group insurance amount. But, petitioner’s grievance is that he remained in service for 23 years, as such, he was entitled for first A.C.P. under the Assured Career Progression Scheme. Regarding entitlement of his first A.C.P., entry has been made in his Service 3 Book, but till date its benefit has not been allowed to him for the reason best known to the concerned authorities. In sum and substance, the petitioner’s case is that the Respondents have adopted a discriminatory attitude towards him throughout his service career and even after his retirement. Initially, this Writ Application had been filed by the petitioner for quashing of the part of the Order, contained ion Memo No. 953, dated 19.06.2003, whereby though his service was regularized on Class – IV post with effect from 10.10.1984, but he was debarred from receiving any monetary benefits and the arrears of the due salary with effect from 10.10.1984. For all financial benefits, he was made entitled with effect from the issuance of order of regularization, dated 19.06.2003. Despite issuance of Regularization Order, petitioner was not paid his salary even with effect from 19.06.2003 on account of non- publication of this order in the Official Gazette. Payment of salary started in favour of the petitioner after much effort, when the Order was passed by this Court. Similar was the case of the petitioner with regard to pension, pensionary benefits and now 4 the A.C.P. is also not being allowed to him, despite specific noting in his Service Book in this regard. Counter Affidavit and Supplementary Counter Affidavit filed by the Respondents is silent so far all these issues are concerned. Simply, it has been stated that since petitioner himself has accepted the order of regularization, issued on 19.06.2003 and did not protest with regard to non- payment of salary with effect from the date of regularization, as such now, he can not raise any objection. Counsel for the petitioner has drawn my attention towards the order, issued under the signature of Joint Secretary, Department of Science and Technology, Government of Bihar, dated 19.04.2003, contained in Memo No. 518 (Annexure- 3). In this order, it has been stated that the juniors to the petitioner, who were also working on daily wages, their services have been regularized with effect from 10.10.1984. The certificate issued by the Principal of the Institution also indicates that petitioner is continuously working as daily wager since 1981. It is also there that petitioner also participated in the Interview, held for regularization 5 of daily wagers in the year 1984, but what was the reason for not selecting him for regularization, when juniors to him were selected for regularization has not been dissolved. Considering all these facts, final order of petitioner’s regularization was issued, whereby the petitioner had been given benefit of regularization with effect from 10.10.1984 for all purposes, such as length of service, counting of his pension and pensionary benefits etc. But so far payment of salary is concerned, it was denied to him with effect from 10.10.1984 and only with effect from the date of the issuance of regularization order, dated 19.06.2003, the financial benefits was allowed to him. In the Counter Affidavit and the Supplementary Counter Affidavit, there is nothing to show in order to justify the order, contained in Memo No. 953, dated 19.06.2003 (Annexure-1). Any employee, if regularized on the post with effect from a particular date, then he becomes entitled for all benefits attached to that post, such as salary, increment or any financial benefits for which anyone holding that post is entitled. Persons, who were juniors to the petitioner and regularized with effect 6 from 10.10.1984, they were allowed all benefits including the financial benefits, petitioner was discriminated on that occasion, as without any reason, he was not selected for regularization. Subsequently, when this was noticed by the authorities, they themselves thought it proper that he should be regularized at least with effect from the date his juniors were regularized. Once, it was recognized by the authorities that the petitioner is entitled for regularization with effect from 10.10.1984, there was no justification for not allowing him the benefit of salary and other monetary benefits attached to the post. Petitioner could not have been discriminated on this count that the regularization order was issued subsequently, when there is no denial that for all this period he has discharged his duties against that post. I find no justification for the reason debarring the petitioner for getting financial benefits attached to the post with effect from the date of his regularization. Accordingly, the Respondents are directed to make payment of entire arrears of salary to the petitioner for the period 10.10.1984 to 18.06.2003. This will also include increment and 7 other monetary benefits, for which the petitioner would have been entitled. His pension will be refixed / recalculated and arrears of pension and pensionary benefits in the revised scale will be paidto the petitioner. Petitioner has remained in service for 23 years, as such he is entitled for first A.C.P. that shall also be allowed to him. Finally, giving all financial benefits, petitioner’s salary will be refixed and accordingly his pension and pensionary benefits will also be refixed. The Respondents are directed to complete all these endeavours within three months from the date of receipt / production / communication of the Order. Petitioner must be paid all his dues for which he is legally entitled on account of his regularization on Class – IV post with effect from 10.10.1984. Part of the Order, dated 19.06.2003 (Annexure-1) whereby the petitioner was debarred from getting his salary w.ef. 10.10.1984, is quashed. With the above directions, this Writ Application is disposed of. SKM (Mridula Mishra, J.) 8