IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13751 of 2004 NIRAJ KUMAR SON OF LATE YATINDRA PRASAD SINHA RESIDENT OF URMILA SADN BOCHACHAK PLY FACTORY ROAD, PHULWARISHARIF, PATNA. Versus 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2. THE SECRETARY, FINANCE DEPTT. GOT. OF BIHAR, PATNA. 3. THE COMMISSIONER-CUM-SPECIAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, BIHAR, PATNA. 4. THE ENGINEER-IN-CHIEF ROAD CONSTRUCTION DEPARTMENT, BIHAR PATNA. 5. THE SUPERINTENDING ENGINEER, ROAD CONSTRUCTION DEPARTMENT, CIRCLE DARBHANGA. 6. THE DISTRICT MAGISTRATE, BEGUSARAI. 7. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, PATH DIVISIOIN, JAI NAGAR. ----------- 4 03/09/2010 Petitioner has a serious grievance against issuance of annexure-7 dated 20.01.2001. By virtue of this order, petitioner has been given pay scale of Rs.3050-4590 by amending the earlier pay scale given by the Compassionate Appointment Committee which was Rs.4000-6000. The background to the present writ application is that the father of the petitioner died in harness who was a Junior Engineer in the department of Road Construction, Government of Bihar. Petitioner made an application for - 2 - appointment on compassion which would be evident from annexure-1. His case was forwarded for consideration by the District Establishment Committee and a letter dated 10.1.2001 has been issued appointing the petitioner on Class III post with a pay scale of Rs.4000-6000 as would be evident from annexure-5 to the writ application. But this letter dated 10.01.2001 stood modified by annexure-7 only to the extent that the appointment of the petitioner made by the Compassionate Appointment Committee would be on the post of Lower Division Clerk and was given pay scale of Rs.3050-4590 in terms of the Department of Finance Letter No. 8825 dated 20.12.2000. Learned Senior Counsel representing the petitioner submits that the unilateral decision of the respondents in withdrawing the pay scale contrary to the letter of appointment without any opportunity of hearing falls foul and requires to be interfered with. He submits that since the process of appointment was initiated before 20.12.2000 when there was division in the cadre of Clerks between Upper Division Clerk and Lower Division Clerk with the different pay scales, the benefit - 3 - of the earlier pay scale given to the petitioner cannot be taken away. State has taken a stand that after the decision of the State to bifurcate the cadre of Clerk into Upper Division Clerk and Lower Division Clerk, two kinds of pay scales were made available to both posts. Upper Division Clerk became a promotional post. An appointment on compassion could be offered to the petitioner only on lower division clerk post. Since there was a period of transition when this decision was taken, the letter of appointment came to be wrongly issued in favour of the petitioner giving him pay scale of Rs.4000- 6000 which is available to the Upper Division Clerk and not to the lower division clerk. The petitioner could never be appointed on the promotional post even if it is on compassionate ground. He has entered into service on the thresh hold and, therefore, when the anomaly was brought to the notice of the authorities based on the decision of the department of Finance, necessary modification or correction had to be done which has been done in terms of annexure-7. It is the stand of the State that an employee is - 4 - entitled to the pay scale which has been made available by the State for the post and the position which they hold. Merely because some subordinate made the mistake of issuing pay scale of a higher post to the petitioner, it does not become un-alterable or it cannot be a case that the pay scale cannot be modified. In fact, if the pay scale of Rs.4000-6000 would continue to be offered to the petitioner, an anomalous situation would arise because the petitioner would be working as Lower Division Clerk but drawing the pay scale of Upper Division Clerk. In the given facts and circumstances, it is not even a case where the petitioner was required to be heard. The respondents have only made a correction in the pay scale of the petitioner dependent upon the notification issued with regard to similarly situated employees holding such a post. Appointment of the petitioner came to be made after the cut off date of 20.12.2000. It is the date of appointment which will have bearing on the pay scale and not his application to the Committee or decision of the Committee to appoint him on compassionate ground. - 5 - Stand of the learned Senior Counsel that the date of initiation or the decision taken by the Compassionate Committee should be the touch stone cannot be accepted by the Court in view of what has been recorded in the earlier part of the order because an employee derives status and position only from the date he is appointed and joins. Earlier period has no implication atleast for the pay scale to which he is entitled to. This writ application has no merit. It is dismissed. AMIN/ (Ajay Kumar Tripathi, J.)