Letters Patent Appeal No.1300 of 2010 ---------- Against the order dated 12.7.2010, passed by a learned Single Judge of this Court in C.W.J.C. No. 2686 of 2004. -------------- Krishna Kumar alias Krishana Kumar, S/O Late Kanhaiya Lal R/O Vill.- Deorath, P.S.- Bahara, Distt.- Bhojpur, Ara, at present posted as Clerk in Sub-Divisional Establishment, Daudnagar, Distt.- Aurangabad (Bihar) Petitioner.... .... Appellant Versus 1. The State of Bihar through its Chief Secretary Govt. of Bihar, Old Secretariat, Patna 2. The District Compassionate Establishment Committee, through its Chairman, Aurangabad (Bihar) 3. The District Magistrate, Aurangabad (Bihar) 4. The Sub-Divisional Officer, Daudnagar, Aurangabad (Bihar) .... .... Respondents ------ Respondents. ----------------- For the Appellants : Mr. Syed Aalamdar Hussain, Mr. R.C.P. Bharti & Mr. Ajay Kumar. For the Respondents : Mr. Sanjay Prakash Verma, A.C. to G.A. V. -------------- P R E S E N T HONOURABLE MR. JUSTICE SUDHIR KUMAR KATRIAR and HONOURABLE MR. JUSTICE VIKASH JAIN S.K.Katriar,J. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by the petitioner of C.W.J.C. No. 2686 of 2004, 2 and is aggrieved by the order dated 12.7.2010, whereby the writ petition has been dismissed, and the decision of the respondent authorities declining him the benefit of pay-scale of Rs. 4000-6000, has been upheld. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. The appellant’s father was an Amin in the services of the Bihar Government, a class III post, and died in harness. The appellant was then a graduate. The appellant’s application for appointment on compassionate ground on a class III post was considered by the District Compassionate Establishment Committee, and was recommended for appointment as a clerk in the pay-scale of Rs.4000-6000, vide letter of recommendation dated 21.8.2000. Respondent no.3, being the appointing authority, accepted the report and issued Order no. 93/2000-2001, dated 23.8.2000, whereby the appellant was appointed as a clerk in the pay-scale of Rs.4000-100-6000 in the District Establishment Section, Aurangabad. It was an order appointing six persons, four of whom were appointed to the posts of clerk on the same pay-scale, the other two were appointed on class IV posts. None of the other five 3 persons are before us not relevant in the present context, and is only for the sake of completion of record. 2.1. The appellant had ultimately joined on 29.12.2000. His service book was opened wherein it is, inter alia, stated that he has been given the pay-scale of Rs.3050-4500, whereas his appointment letter states that he was being appointed on the pay-scale of Rs.4000-100- 6000. Aggrieved by this situation, the appellant preferred the writ petition which has been dismissed by the learned Single Judge mainly on the ground that the cadre of clerks has been bifurcated by order dated 20.12.2000, which created the cadres of lower division clerks carrying pay-scale of Rs.3050-4500, and the upper division clerks carrying the pay-scale of Rs.4000-6000. The vacancies in the cadre of upper division clerks would be entirely filled up by promotion. Paragraph 5 of the order is relevant in the present context and is reproduced hereinbelow: “5. bl Lohd`R;kns'k ds fuxZr gksus ds ckn mi;qZDr dafMdk 3 esa of.kZr i`FkDdhdj.k ds vuq#i fuEu oxhZ; fyfid ds inksa ij gh lh/kh fu;qfDr dh dkjZokbZ dh tk,xh vkSj mPp oxhZ; fyfid dk in iw.kZr% izksUufr dk in ekuk tk,xk” 2.2. In other words, the learned Single Judge has 4 dismissed the writ petition on the ground that the appellant had joined on 29.12.2000, after the cadre had been bifurcated. He is, therefore, entitled to the lower pay-scale of Rs.3050-4500, and also for the reason that the higher pay-scale of Rs.4000-6000 to the upper division clerk will be on promotion. 3. While assailing the validity of the order of the learned Single Judge, learned counsel for the appellant submits that enforceable rights have been created by order dated 23.8.2000. He could not join within the stipulated time for reasons attributable to the authorities and indicated in paragraph 8 of the writ proceedings, and so inadequately answered in paragraph 14 of the counter affidavit. 4. Learned Government Counsel has supported the order of the learned Single Judge, and submits that due importance has to be given to the order of de-merger dated 26.12.2000, and the rights of the appellant flow from the order dated 20.12.2000, which is fully applicable in the appellant’s case because of his later joining. He submits in the same vein that the order dated 23.8.2000 has to be read harmoniously with the order 5 dated 20.12.2000, otherwise it will bring administrative complications and will open flood gates. 5. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It is evident on a perusal of the order notifying the order of appointment of 23.8.2000, that he was appointed as a clerk in the pay-scale of Rs.4000-100- 6000. Paragraph 7 of the same reproduced hereinbelow clearly states that the appointee had to submit his joining within 15 days of the receipt of the order. “7-lacaf/kr O;fDr viuk ;ksxnku i= izkfIr ds iUnzg fnuksa ds vanj ftyk LFkkiuk 'kk[kk vkSjaxkckn esa nsaxs] vkSj lsok dh x.kuk ;ksxnku dh frfFk ls nh tk;sxhA ” The date of receipt of the order is not to be found on the records. It is stated in paragraph 8 of the writ petition that he had reported for joining on 1.9.2000, but the same did not become possible and his joining was ultimately accepted on 29.12.2000. Paragraph 8 of the writ petition is reproduced hereinbelow: “8. That it is further stated that after receipt of the appointment letter in the month of August 2000, the petitioner approached the District Establishment Section, Aurangabad for joining since the first day of September 2000, but the joining could become possible, after about three months on 29.12.2000, although, there was a clear stipulation in the appointment letter 6 to join within a fortnight after the receipt of the same.” The counter affidavit does not answer the question as to really why the delay in joining had occurred and who was responsible for the same. Paragraph 14 of the counter affidavit is reproduced hereinbelow: “14. That, with regard to the statement made in paragraph no.8 of the writ petition under reply it is stated that the averments made in this paragraphs are not true. The petitioner joined in Establishment Section on 29.12.2000.” In such a situation, we conclude that the delay in joining was attributable to the respondent authorities. This has to be read with the second part of paragraph 7 of the order of appointment that the date of joining was relevant only for the purpose of determining the length of service of the candidate and not by necessary implication in so far as entitlement of pay-scale is concerned. 6. We must now consider the order dated 20.12.2000, being the order of de-merger of the cadre of clerks. It is evident on a perusal of the same that, prior to the order of appointment, there was a unified cadre of clerks which, if read with the order of 23.8.2000, carried the pay-scale of Rs.4000-6000. By the order of 20.12.2000, the State 7 Government took the decision of de-merger of the cadre of clerks, and divided it into two cadres, namely, the cadre of lower division clerks carrying pay-scale of Rs.3050-4500. It is evident from paragraph 5 of this order that all appointments to the posts of lower division clerks shall be made by direct recruitment. It is further evident that this order also created a cadre of upper division clerks carrying pay-scale of Rs.4000-6000, and all the posts shall be filled up by promotion. It is thus evident that, prior to the order of de-merger of the unified cadre of clerks there was only one pay-scale of Rs.4000- 6000 for clerks to which the appellant was appointed. The appellant had reported for joining in time, and if he was allowed to join immediately, the present problem would not have arisen, in which situation he would have started with the pay-scale of Rs.4000-6000, and continued thereafter even after de-merger. Therefore, the contention advanced on behalf of the respondents that the pay-scale of Rs.4000-6000 to the appellant can not be allowed because he had joined after the order of the merger will create administrative complications is without any force. Apart from the un-controverted 8 statement in paragraph 8 of the writ petition, the very fact that the concerned authorities allowed the appellant to join on 29.12.2000 means that he was allowed under the order of appointment of 23.8.2000 and the delay, if any, had not come in his way in joining. The contention advanced by the learned Government Counsel is hereby rejected. 7. In the result, the appeal is allowed. We disagree with the order of the learned Single Judge, and C.W.J.C. No. 2686 of 2004 is hereby allowed. The appellant (the writ petitioner) shall be entitled to the unrevised pay- scale of Rs.4000-6000 with effect from 29.12.2000, subject to revision of pay-scales from time to time. He shall be entitled to all consequential benefits including the deferential amount of salary. In the facts and circumstances of the case, there shall be no order as to costs. ( S. K. Katriar,J. ) Vikash Jain, J. I agree. ( Vikash Jain, J.) High Court Patna, Dated 13th July, 2011. Vinay/ A.F.R.