Letters Patent Appeal No. 1404 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1404 of 2011 In Civil Writ Jurisdiction Case No. 7426 of 2004 With Interlocutory Application No.6817 of 2011 In Letters Patent Appeal No.1404 of 2011 ====================================================== 1. The State of Bihar. 2. The Secretary, Department of Agriculture, Government of Bihar, New Secretariat, Patna. 3. The Director, Department of Agriculture, Government of Bihar, New Secretariat, Patna. 4. The Deputy Director, Agriculture Marketing, Raja Bazar, Patna. 5. The Joint Director, Agriculture-Cum-Controller, Weights and Measures, Raza Bazar, Patna. .... .... Appellants Versus 1. Brajendra Prasad Lal, son of late Ram Pati Lal, resident of village- Dehri, P.S.- Rajpur, District- Buxar. 2. Ramnath Prasad Singh, son of late Gopi Singh, resident of village- Gyaspur, P.S.- Paru, District- Muzaffarpur. 3. Rameshwar Shukla, son of late Ramswaroop Sukla, resident of village - Parataptand , P.S.- Bhaganpur, District- Vaishali. 4. Kalicharan Prasad, son of late Kapildeo Prasad resident of village- Meral, P.S.- Meral, District- Garhwa, Jharkhand. 5. Mahavir Yadav, son of late Charitar Yadav, resident of village- Dahuarha, P.S.- Manigacha, District- Darbhanga. 6. Rajmani Prasad Singh, son of Deo Narayan Singh, resident of village- Mahuari, P.S.- Gotibandh, District- Gaya.
Legal Reasoning
7. Smt. Urmila Devi, wife of Late Saha Shyam Narayan Prasad, resident of village- Sarisab Sarisbathali, P.S.- Pandaul, District- Madhubani. 8. The Bihar State Agriculture Marketing Board, Pant Bhawan, Bailey Road, Patna through its Managing Director (now dissolved and represented by Administrator). 9. The Managing Director, Bihar State Agriculture Marketing Board, Pant Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 2/8 Bhawan , Bailey Road, Patna (now dissolved). ====================================================== .... .... Respondents With Letters Patent Appeal No.1726 of 2011 In Civil Writ Jurisdiction Case No. 7666 of 2005 With Interlocutory Application No.7906 of 2011 In Letters Patent Appeal No.1726 of 2011 ====================================================== 1. The State of Bihar. 2. The Secretary, Department of Agriculture, Government of Bihar, New Secretariat, Patna. 3. The Director, Department of Agriculture, Government of Bihar, New Secretariat, Patna. 4. The Deputy Director, Agriculture Marketing, Raja Bazar, Patna. 5. The Joint Director, Agriculture-Cum-Controller, Weights and Measures, Raza Bazar, Patna. 6. The Bihar State Agriculture Marketing Board, Pant Bhawan, Bailey Road, Patna through its Managing Director (now dissolved and represented by Administrator). 7. The Managing Director, Bihar State Agriculture Marketing Board, Pant Bhawan, Bailey Road, Patna (now dissolved). .... ....Respondents- Appellants Versus 1. Madheshwar Singh, son of late Babu Lal Singh, resident of Postal Park, Indira Nagar Main Road, P.S.- Jakkanpur, District- Patna, at relevant time working as Price Reporter Agriculture Produced Marketing Committee, Patna City. 2. Satya Narain Singh, son of Late Brahmadeo Singh, resident of South Chandmari Road, Near Pani Tanki Road No.2, P.S.-Lohiya Nagar, Patna-20. ====================================================== .... .... Writ petitioners- Respondents. Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 3/8 Appearance : (In both the Appeals) For the Appellants : Mr. D. K. Sinha, A. A. G. – II Mr. Ujjwal Kumar Sinha, Advocate. For the Respondents : Mr. Vijay Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 10 21-10-2013 These two Appeals under Clause 10 of the Letters Patent are preferred by the respondents State of Bihar and others against the common judgment and order dated 1st July 2011 passed by the learned single Judge in CWJC Nos.7426 of 2004 and 7666 of 2005. The respondents-writ petitioners were originally appointed as packers/peons in Class IV service in the State Government under the department of Agriculture in 1961 and 1965. Since their appointment as packers/peons, over a period of time, they were given the benefit of pay revisions from time to time. They were promoted as Price Reporters somewhere in 1971. In 1972, the State Government established Bihar State Agriculture Marketing Board (hereinafter referred to as ‘the Board’). Since then the service of the writ petitioners was transferred to the Board. We may mention here that precise date of the transfer or the terms and conditions of the transfer have not been brought on
Decision
the record of the writ petitions or the Letters Patent Appeals. Since the establishment of the Board, the Board also recruited and appointed certain Price Reporters. Over a period of time, the pay Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 4/8 scale allowed by the Board to the Price Reporters was raised and was higher than the State Government scale. The writ petitioners approached this Court under Article 226 of the Constitution in CWJC No.11071 of 1997. They claimed parity of pay with the Price Reporters recruited by the Board. A similar claim was made by the Marketing Secretaries in CWJC No.6261 of 1985. The said CWJC No.6261 of 1985 was allowed by this Court on 20th September 1997. The said order was confirmed in Letters Patent Appeal and was challenged before the Hon’ble Supreme Court in Civil Appeal No.3534 of 1998. In view of the Civil Appeal No.3534 of 1998 pending before the Hon’ble Supreme Court, this Court (Coram: Mr. Justice R. M. Prasad), under order dated 26th October 1999, disposed of the above referred CWJC No.11071 of 1997 with a direction that the principle that may be laid down by the Hon’ble Supreme Court in pending appeal be followed in the case of the writ petitioners also. It further appears that the Hon’ble Supreme Court, under order dated 16th December 2003, disposed of the Civil Appeal No.3534 of 1998 on the grounds that the writ petitioners had already retired and that the amount involved was nominal. The Hon’ble Supreme Court also observed, “We, therefore, dismiss these appeals, leaving the question of law open to be decided in an appropriate case. This shall not be treated as a precedent.” The claim was revived by the writ petitioners and others before the State Government. The State Government under orders dated 20th June 2007 and 9th August 2007 rejected the claim for parity of pay made by the Price Reporters. The Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 5/8 petitioners, therefore, approached this Court in the above writ petitions. In view of the above order made by the Hon’ble Supreme Court, the learned single Judge has, under the impugned judgment and order, allowed the writ petitions on the premise that the judgment of this Court passed in CWJC No.6261 of 1985 is now a binding precedent. The learned single Judge has set aside the orders dated 20th June 2007 and 9th August 2007 made by the State Government and has directed the State Government that the writ petitioners be paid identical pay scale with that of the Price Reporters appointed by the Board from the date of CWJC No.11071 of 1997. Therefore, these Appeals. Learned advocate Mr. Vijay Kumar Singh has appeared for the respondents-writ petitioners. He has submitted that the respondents-writ petitioners also have filed Letters Patent Appeal No.1302 of 2013 against the impugned judgment and order for a limited relief. He has submitted that the Appeal has been preferred by the writ petitioners to the extent that the relief has been granted by the learned single Judge from the date of the writ petitions and not from 1st July 1979 claimed in the writ petitions. We may note here that the State Government has brought on record certain further materials in respect of the Price Reporters appointed in the State service and those recruited and appointed by the Board and the service particulars of the writ petitioners. The supplementary affidavit filed by the State Government is not controverted by the writ petitioners. It is apparent that the case of the writ petitioners is not comparable with that of the Price Reporters recruited and Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 6/8 appointed by the Board. It has been brought on the record that the appointment of the Price Reporter in the Board was made by direct recruitment and the candidates were required to possess the qualification of Bachelor degree in Arts, Science or Commerce. The service under the Board was not a pensionable service. Whereas the present petitioners, as recorded hereinabove, were appointed as packers/peons in Class IV service in the State Government and were promoted as Price Reporters. Learned advocate Mr. Vijay Kumar Singh has appeared for the writ petitioners. He concedes that none of the writ petitioners possesses the qualification of graduation required for appointment as Price Reporter in the Board. Thus, the mode of appointment of the writ petitioners as Price Reporter in the State service and the mode of appointment of Price Reporters in the Board are totally different. The petitioners do not possess the qualification required for appointment as Price Reporter in the Board. Further, the pay structure in the State service and the one under the Board also are different. Although the scale of pay may be higher, the service under the Board was not pensionable. The employees recruited by the Board would not be entitled to the benefits of pension/family pension which are admissible to the Government servants. The mode/source of appointment, the eligibility and service conditions under the State Government and under the Board were vastly different. Parity of pay claimed by the writ petitioners is, therefore, not sustainable. We may also note that in view of the order of the Hon’ble Supreme Court recorded hereinabove, the question of law having been kept open, the judgment of this Court in CWJC No.6261 of 1985 is not a binding precedent. In our opinion, the Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 7/8 learned single Judge has erred in treating the judgment in CWJC No.6261 of 1985 as a binding precedent and also in overlooking the above referred differences in the service conditions under the State Government and under the Board. We may also note that if the writ petitioners were allowed the higher pay scale as claimed by them, it would lead to a disparity amongst the employees of the State Government i.e. the Price Reporters employed under the State Government will receive their pay in the lower pay scale, whereas the writ petitioners, who were originally appointed in the State service, were transferred to the Board and on dissolution of the Board were absorbed in the State service, would receive pay/pension in the higher pay scale. The Court of Law cannot be instrumental in creating a disparity where there is none. We may also note that many of the writ petitioners had retired from the service of the Board long before the date of the writ petitions as the employees of the Board. Such writ petitioners could not have claimed the parity of pay after retirement from the service. Obviously, by the above referred judgment in CWJC No.6261 of 1985, the writ petitioners were encouraged to lodge a similar claim which clearly was an afterthought. Such a stale claim could not have been entertained by the learned single Judge. Though the Appeal is not before us, we have also heard Mr. Vijay Kumar Singh on Letters Patent Appeal No.1302 of 2013. In the above view that we have taken, the claim of the writ petitioners for parity of pay since 1st September 1979 is not sustainable. For the aforesaid reasons, these Appeals are Patna High Court LPA No.1404 of 2011 (10) dt.21-10-2013 8/8 allowed. The impugned judgment and order dated 1st July 2011 passed by the learned single Judge in CWJC Nos.7426 of 2004 and 7666 of 2005 is set aside. CWJC No.7426 of 2004 and CWJC No.7666 of 2005 are dismissed. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sunil/-