Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17279 of 2012 ====================================================== Dr. Jyoti Prasad S/O Late Dr. Jawala Prasad Road No.- 10e, Rajendra Nagar, District:- Patna- 16 Versus .... .... Petitioner 1. The State Of Bihar through Chief Secretary, Old Secretariat, Patna 2. The Principal Secretary-Cum-Commissioner, Department Of Health And Family Welfare, New Secretariat, Vikash Bhawan, Patna 3. The Commissioner-Cum-Secretary, Finance Department, Govt. Of Bihar, Main Secretariat, Patna 4. The Accountant General, Bihar, Patna 5. The Treasury Officer, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Rajiv Kumar Verma, Sr.Adv. Mr. Manas Prakash, Adv. For the State : Mrs. Binita Singh, AC to AAGI For the Accountant General: Mr. L.P.K.Rajgrihar, S.C. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 08-01-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(1) For issuance of order/orders, direction/directions, writ/writs particularly in the nature of writ of certiorari for quashing of Notification dated 21.11.2011 as contained in Memo No. 17/Court-66/2004-1183(17) dated 21.11.2011, issued under the signature of the Additional Secretary, Department of Health, Govt. of Bihar, Patna whereby and whereunder the pay scale of the petitioner has been reduced and it has been amended
Legal Reasoning
as, the first financial Progression pay scale from 10000- 15200 to 7500-12000 and second financial Progression from 14300-18300 to 8000-13500. Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 2 (2) For issuance of order/orders, direction/directions, writ/writs particularly in the nature of writ of certiorari for quashing of new Pay Slip that has been issued by the office of Accountant General (A&E) Bihar vide pay Slip No.- 25011202033578 and 25011202033579 having pay scale 7500-250-12000 & 8000-275-13500, which has been issued on the basis of above mentioned notification.”
Legal Reasoning
Mr. Rajiv Kumar Verma, learned Senior counsel appearing on behalf of the petitioner, has submitted that once the petitioner was given the benefit of ACP in the pay scale of Rs.10000-15200 and Rs. 14300-18300 the same could not have been reduced again to the pay scale of Rs. 7500-12000 and 8000- 13500. Mr. Verma in this regard has emphasized on two aspects, namely, one being violation of the principles of natural justice and the other the misconception that there is no cadre of the post of Dental Doctors. He in this regard has also placed reliance on the Scheme of ACP which would be referred at its appropriate place. Mrs. Binita Singh, learned counsel appearing on behalf of the State, having not filed the counter affidavit despite expiry of a period of almost four months has sought to defend the impugned order that even though the petitioner may not have given the notice by way of compliance of natural justice but then if the petitioner as per A.C.P. scheme itself was not entitled to get such Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 3 A.C.P. benefit in the pay scale of Rs. 10000-15200 and Rs. 14300- 18300/- the Government always had a right to revise the same, inasmuch as whatever higher pay scale by way of A.C.P. benefit has to be granted to the petitioner or other Government employees they must be in accordance with the scheme. She has submitted that the fact that there is cadre for Dental Doctors has not been at all established by the petitioner by producing any notification and therefore, the stand of the Finance Department is perfectly correct that the Dental Doctors including the petitioner in absence of cadre will not be entitled for the benefit which were earlier given to them. Learned counsel for the Accountant General has only pointed out that the job of fixation of pay and the payment of salary/ retirement benefit by the Accountant General is based on the Government policy and once the higher pay given to the petitioner by way of ACP was found to be not in accordance with ACP policy, a clarification was sought from the Government whereafter the impugned order has been passed which has also been acted upon by the office of Accountant General by way of issuance of revised pay scale. In the considered opinion of this Court there would be no difficulty in accepting the first submission of Mr. Verma that if Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 4 any financial benefit was extended to the petitioner the same could have been revised to his detriment only after giving opportunity of hearing i.e. by giving him notice of the proposed action. That having been not done, the impugned order seeking to take away the financial benefit of the pay scale of Rs.10000-15200 and 14300-18300 apparently becomes vulnerable. The matter, however, has to be viewed from another angle, inasmuch as if the petitioner was not entitled for such pay scale under ACP of Rs.10000-15200 and 14300-18300 and yet he was granted the same without any rationale, the object of natural justice could have been better fulfilled by giving him notice but then the real crux is as to whether the petitioner was entitled for the higher pay scale of Rs.10000-15200 and 14300-18300? The answer to the aforementioned proposition lies in the Scheme of ACP. The relevant portion of the scheme which would cover the issue reads as follows: “3. Scheme: (1) Under this scheme, such regular employees of Group „B‟, „C‟ and „D‟ of the State Government, who have not got the benefits of any financial progression during their career, shall be granted first financial progression on the completion of 12 years of service and second financial progression on completion of a further 12 years of service, after a total of 24 years of Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 5 regular service. EXPLANATION: (i) Financial progression on account of merger of posts of two levels shall be treated as financial progression for the purpose of ACP scheme and this shall be kept in view while considering sanction of benefits under the Scheme. (ii) If the service of any employee is more than 12 years on the date of application of this Scheme, and if he has been sanctioned first financial progression, then the second financial progression shall be sanctioned on completion of 24 years period of service and for this purpose the condition of completion of additional 12 years period after the 1st financial progression shall not apply. (2) The financial progression shall be sanctioned to the concerned employee into pay scale of the existing hierarchy prescribed for his cadre and for this purpose, the relevant scales of pay would be the scales of pay sanctioned for various posts vide the Finance Department‟s resolutions Wherever the promotional hierarchy is not defined in the Recruitment/ Service Rules or where the promotional hierarchy consists of less than two regular promotional grades, the two financial progression shall be given under the ACP Scheme in the higher scales of pay as listed in schedule attached to this Rules. EXPLANATION: The revised pay scale sanctioned for both the basis grade post of Rs. 1200-1800 and the post of first promotion of Rs.1320-2040 in the unrevised pay Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 6 scale is the same of Rs. 4000-6000. In this case, the first and second financial progression shall be granted in higher pay scales treating the scale of pay of Rs.4000- 6000 as the basic grade.” In order to complete this aspect it would also be relevant to quote the Schedule referred to hereinabove which reads as follows: “ Schedule List of pay scales for purposes of ACP Scheme S.No. Pay Scales (Rs.) 1. S1 2550-55-2660-60-3200 2. S2 2610-60-3150-65-3540 3. S3 2650-65-3300-70-4000 4. S4 2750-70-3800-75-4400 5. S5 3050-75-3950-80-4590 6. S6 3200-85-4900 7. S7 4000-100-6000 8. S8 4500-125-7000 9. S9 5000-150-8000 10. S10 5500-175-9000 11. S12 6500-200-10500 12. S14 7500-250-12000 13. S15 8000-275-13500 14. S19 10000-325-15200 15. S21 12000-375-16500 16. S23 12000-375-18000 17. S24 14300-400-18300” Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 7 From the reading of the aforementioned extracted portion of the Scheme two things become very clear, namely, the fixation of pay on grant of ACP is dependent on the pay scale fixed by the State Government and secondly, it is by way of stepping up the existing pay scale into the promotional post of the cadre. The catch word, therefore, is the „cadre‟ and before this Court may find any difficulty in explaining as to what cadre is, the scheme itself has defined the word cadre under the definition clause 2(i) to mean a service or group of posts as a separate unit. Obviously, if the petitioner wanted to establish that the Dental Doctors had a cadre he had to back it up by producing the notification constituting the cadre. There is however no such notification on record and Mr. Verma very fairly says that now the matter is before the Council of Minister for constituting cadre of Dental Doctors. Even otherwise this Court will have no difficulty in holding that a mere presumption of cadre will not be enough unless it is backed up by a notification under Article 166 of the Constitution of India. This issue in fact stands well settled in the celebrated judgment of this Court in the case of M.G.Sharan & ors. vs. the State of Bihar & ors., reported in AIR 1970 Patna 25. This Court, therefore, will have no option but to proceed on the basis that there is no cadre of Dental Doctors and Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 8 once this aspect becomes clear there would be no difficulty in holding that the petitioner would not be entitled for the two pay scales in which he was given his ACP i.e. 10000-15200 and 14300-18300. Admittedly the petitioner was in the pay scale of Rs. 6500-10500 and the Schedule will go to show that his next stepping up from his existing S12 pay scale of Rs. 6500-10,500/- to S14 i.e. Rs. 7500-12000 and next stepping to S15 being 8000- 13500. There cannot be any other interpretation of the Rules governing the petitioner‟s grant of ACP. The aforesaid discussion, therefore, would make it clear that the petitioner was not entitled to get the pay scale of Rs. 10000-15200 and Rs. 14300-18300 but without there being any fraud or misrepresentation on his part it was the Governmental authorities of the Health Department who had fixed the higher pay scale of Rs. 10000-15200 and Rs. 14300-18300/- after grant of ACP to the petitioner. The petitioner has also drawn such benefit by way of arrears of salary in aforesaid higher pay scale. In absence of any fraud or misrepresentation on his part he having already retired in the year 2006 cannot be now subjected to recovery of the excess amount drawn by him on account of incorrect higher pay scale given to him. None-the-less the petitioner‟s actual entitlement would Patna High Court CWJC No.17279 of 2012 (4) dt.08-01-2013 9 be only in the pay scale which he should have been given by way of ACP. The petitioner has already been paid arrears of salary and therefore, once that cannot be recovered in absence of fraud or misrepresentation on his part, the rest of the action taken by the Accountant General in re-fixing his last pay scale in the revised pay scale of Rs. 7500-12000 and 8000-13500 does not suffer from any infirmity. In other words, the petitioner will be entitled to get all retirement benefit only in the pay scale as fixed by the Accountant General as per revised pay slip produced by the learned counsel for the Accountant General today which is being kept on record. In the result, this application succeeds in part and is
Decision
disposed of with the aforementioned observation and direction. (Mihir Kumar Jha, J) Surendra/-