IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.167 of 2016

IN
Civil Writ Jurisdiction Case No. 1498 of 2011
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1. Avinash Kumar Chakerworty, son of Late Dhurvnaath Pandit, resident of
Village- Bangra (Kumhar Tola) P.S. Daudpur, District- Chapra.
2. Ajay Kumar Dubey, son of Parshuram Dubey, resident of Village- Selaur, P.S.-
Guthni, District- Siwan.
3. Pradeep Kumar, son of Late Bhuneshwar Prasad, resident of VIllage- Sukla toli
Siwan, P.S.- Shukla toli Siwan, District- Siwan.
4. Saurabh Kumar Singh, son of late Dr. Uma Shankar Sinha, resident of Village-
Hariharpur Lalgarh, P.S.- Gautam Budh Nagar, Jarwara, District- Siwan.
5. Meena Verma wife of late Anil Kumar Verma, resident of Village- Patori, P.S.-
Pachgachia, District- Saharsa.

.... .... Petitioners-Appellant/s

Versus
1. The State of Bihar through the Chief Secretary, Main Secretariat, Patna.
2. Principal Secretary Department of General Administration (formely known as
Personnel and Administrative Reforms department) Government of Bihar, Main
Secretariat, Patna.
3. District Magistrate, Siwan.
4. Deputy Collector, Establishment, Collectorate, Siwan.

.... .... Respondents-Respondent/s

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Appearance :
For the Appellant/s : Mr. Kishore Kumar Thakur, Advocate
For the Respondent/s : Mr. AC to AAG-12
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CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 23-06-2017

Seeking exception to an order dated 29th of October, 2015

passed by the writ Court in Civil Writ Jurisdiction Case No.1498 of

2011, this appeal has been filed under Clause 10 of the Letters Patent.

The appellants were working in the establishment of

Collectorate, Siwan. They were appointed as Lower Division Clerks on

compassionate ground. Petitioner Nos. 1 to 4 were appointed on

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06.08.2002 and petitioner No.5 was appointed on 5th October, 2002 as

Lower Division Clerks. At the time of appointment, they were granted

pay in the scale of Rs.3050/- - Rs.4500/-.

Seeking benefit in the pay scale of Rs.4000/- - Rs.6000/- as

has been granted to other Lower Division Clerks working in the same

Department and in the same office in view of the order passed on

17.12.2007 in Civil Writ Jurisdiction Case No.13577 of 2006 and

further claiming the aforesaid pay scale, which has been granted to

various persons, who were initially working as employees in the non-

formal education scheme and who were re-appointed in Class III posts

after retrenchment sometimes in the year 2005 and 2006 and were

granted the benefit of pay in the scale of Rs.4000/- - Rs.6000/-,

petitioners also filed the writ petition and when the writ petition was

dismissed, this appeal has been filed.

The facts, in brief, go to show that prior to 07.04.1977, the

cadres of Lower Division Clerk and Upper Division Clerk were

separate. However, on 07.04.1977, they were merged and a new

nomenclature of Assistant was given to them and they were brought in a

common pay scale of Rs.4000/- - Rs.6000/-. Subsequently, on 20th

December, 2000, vide Annexure-2 to the writ petition, the cadre was de-

merged, revival in creation of two cadres of Lower Division Clerk and

Upper Division Clerk. In the Circular, Annexure-2, dated 20th

December, 2000, stipulation was contained that only such persons will
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be entitled to the pay scale of Rs.4000/- - Rs.6000/- in whose cases the

process of selection is over and the selection has been completed and all

other candidates, where the selection process is not complete, they will

get pay scale of Rs.3050/- - Rs.4500/-.

When this process was going on, the Bihar Public Service

Commission had prepared a panel and had made recommendation for

appointment, but as the appointment could not be made prior to 20th

December, 2000, when the selected candidates were placed in the pay

scale of Rs.3050/- - Rs.4500/-, they filed a writ petition before this

Court being CWJC No.13577 of 2006 and by a detailed order passed, a

Bench of this Court held that as the appointment process had already

commenced and the appointment was delayed due to the act of the State

Government and the Bihar Public Service Commission, vide order

dated 17th December, 2007, (Annexure-3 to the writ petitin), the writ

petition was allowed and all such candidates even though actually

worked after 20th December, 2000 were directed to be paid the pay in

the scale of Rs.4000/- - Rs.6000/-. Claiming parity and contending that

the process of appointment of the petitioners also in the cadre of lower

division clerk on compassionate basis was pending prior to December,

2000 and as they were appointed subsequently, they were also entitled

to similar benefits. Apart from claiming similar benefits as is being

granted to employees in whose cases CWJC No.13577 of 2006 was

decided, the petitioners pointed out that many employees, who were
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working in the non-formal education scheme as Class III and Class IV

employees, they were retrenched prior to December, 2000 and thereafter

vide memos dated 23rd July, 2005 and 20th July, 2006, vide Annexurs-4

and 5 to the writ petition, more than 300 of them were granted afresh

appointment, this appointment was after 12th December, 2000 but they

were all appointed in the pay scale of Rs.4000/- - Rs.6000/-. It was

stated that petitioners are also entitled to similar direction as has been

granted to these two cadres of employees, i.e. employees, who were

retrenched in non-formal education scheme and then re-appointed in the

year 2005 and 2006 and the employees, who were original petitioners in

CWJC No.13577 of 2006.

The learned Writ Court examined the matter and found that

in the case of CWJC No.13577 of 2006, the process of appointment was

commenced and completed much before the Circular dated 20th

December, 2000 was issued and therefore, merely because there was

some delay in issuing the appointment order, the benefit of pay scale

cannot be denied to them and the case of the petitioners is not identical

in nature to the petitioners in CWJC No.13577 of 2006 and therefore,

the benefit cannot be granted to them.

As far as the employees reinstated after they were retrenched

in the non-formal education scheme are concerned, the learned Writ

Court even though took note of the same, but has not adverted to

address the issue in its totality. Learned counsel of the petitioner took us
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through various documents in support of the contentions as are made

hereinabove and tried to indicate that in dismissing the writ petition, the

learned Writ Court has committed an error and invited our attention to

the proceedings held in MJC No.1750 of 2005 and MJC No.2056 of

2005 arising out of CWJC No.9934 of 1999 (Ashok Kumar Sinha Vs.

The State of Bihar & Ors.) and argued that in case of each of the

petitioners, their claim for appointment on compassionate ground was

pending much before 20th December, 2000 and if the Government itself

has held their appointment on compassionate ground, the petitioners are

entitled to similar treatment as was granted to employees in CWJC

No.13577 of 2006. That apart, it was argued that when the employees

working in the non-formal education scheme were retrenched and when

in the year 2005 and 2006, they were given fresh appointment as is

evident from Annexures 4 and 5 filed along with the writ petition dated

23rd July, 2005 and 20th July, 2006, petitioners are also entitled to

similar benefit.

Learned counsel for the State refuted the aforesaid

contentions and argued that in the Circular dated 20th December, 2000,

(Annexure-2) there is a clear cut stipulation that all fresh appointment

made after 20th December, 2000 will be in the pay scale of Rs.3050/- -

Rs.4500/-, and as all the five petitioners herein were appointed after 20th

December, 2000, they are not entitled to any benefit and on

consideration of this aspect of the matter as the writ Court has dismissed
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the writ petition, there is no error in the order.

We have heard learned counsel for the parties at length and

we find that all the petitioners in the writ petition and the employees,

who were appointed by virtue of the order passed in CWJC No.17566 of

2006 and the employees, who were originally working in the non-formal

education scheme and who were given fresh appointment vide

Annexure-4 dated 23rd July, 2005 and Annexure-5 dated 20th July, 2006,

are all working in the same office, namely the Collectorate at Siwan, all

are discharging identical function, but except the five petitioners, the

other employees indicated herein above are getting higher pay in the

scale of Rs.4000/- - Rs.6000/-. The only reason for giving the benefits

are that they were appointed after the circular was issued on 20th

December, 2000. However, the fact remains that even in the case of

employees, who were petitioners in CWJC No.13755 of 2006, they were

appointed after 20th December, 2000, but they have been granted the

benefit in the higher scale of pay of Rs.4000/- - Rs.6000/- on account of

the fact that the process of appointment initiated in the year 1999 was

delayed because of the procedural delay. In the case of the petitioners

also, as is evident from the records, their appointment process was also

initiated in the year 1999-2000 and in the case of the petitioner Ashok

Kumar Sinha, he filed the writ petition claiming compassionate

appointment way back in the year 1999 in CWJC No.9934 of 1999 and

it was only after the order was passed in the aforesaid MJC in the year
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2005 that the appointment order was issued. That being so, we see no

much difference between the employees, who were petitioners in CWJC

No.13577 of 2006 and the present petitioners. Even if for the sake of

argument it may be assumed that the petitioners and the employees, who

were petitioners in CWJC No.13577 of 2006 form two different

categories, there is no justification in the matter of discrimination

between the present petitioners and the retrenched employees who were

working in the non formal education scheme. It is clear that the non-

formal education scheme came to an end and large number of Class-III

and Class IV employees was retrenched and thereafter in the year 2005

and 2006 as is evident from Annexures 4 and 5, they were re-appointed

as a fresh appointee in the year 2005 and 2006, that is much after 20 th

December, 2000 and in their case, they have been granted the higher

pay scale of Rs.4000/- - Rs.6000/-. If that be so, there is a discrimination

in the matter of granting similar benefit to the petitioners when more

than 300 employees have been granted such benefit of higher pay scale

in the grade of Rs.4000/- - Rs.6000/- even after they were appointed in

the year 2005 and 2006, there is no reason as to why similar benefits

should be denied to the petitioners when the petitioners are also doing

similar work and were appointed after 20th December, 2000. To that

effect, there is discrimination in the matter and the petitioners are

entitled to equal treatment. That apart, the petitioners are working in the

Collectorate at Siwan and many employees identically situated, like the

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petitioners, who were appointed after 20th December, 2000, as is

indicated hereinabove, are being granted pay in the scale of Rs.4000/- -

Rs.6000/- and if that be the factual position, there is no reason why a

similar benefit should not be extended to the petitioners.

Keeping in view the aforesaid, this appeal is allowed, the

order impugned dated 29.10.2015 passed in CWJC No.1498 of 2011 is

quashed. The said writ petition is allowed and the petitioners are

directed to be paid the benefit in the scale of pay Rs.4000/- - Rs.6000/-

retrospectively with effect from the date of appointment. However,

arrears of the petitioner are only to be granted with effect from the date

they filed the writ petition before the High Court, i.e. with effect from

21.01.2011.

With the aforesaid, the appeal stands allowed and disposed

of.

(Rajendra Menon, CJ)

(Anil Kumar Upadhyay, J)

Sunil/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30.06.2017
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