Rajendra Pratap Singh Son of late Jagdip Singh v. The State of Bihar

2. It is common case of the parties that on 2.5.1981 the petitioner was appointed on ad hoc basis on the post of Accountant initially for a period of six months only on a consolidated pay of Rs. 500/- per month, which was subsequently extended from time to time. By an order dated

18.5.1987 the service of the petitioner was extended until further orders, and thereafter, he remained in continuous service of the respondent-Bank.

3. It is also admitted case of the parties that though the petitioner was in service of the respondent-Bank, yet the claim made on behalf of the petitioner for regularisation of his service and for regular appointment was not allowed by the respondent-Bank. In the aforesaid background, the petitioner approached the Patna High Court, Ranchi Bench, Ranchi in Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 CWJC No. 2426 of 1995 (R), which was disposed of by a learned Single Judge by an order dated 10.7.1996 (Annexure-2) with certain directions the respondent-Bank and functionaries.

4. However, the respondent-Bank preferred Civil Review No. 57 of 1996 (R) for review of the aforesaid order dated 10.7.1996 (Annexure-2) on the ground that when the aforesaid writ petition was taken up for hearing, the learned counsel appearing on behalf of the respondent-Bank could not be present as his name was not reflected in the daily cause list. Consequently, the aforesaid review petition of the respondent- Bank was allowed, and the original writ petition filed on behalf of the petitioner was ordered to be placed for admission for fresh hearing and decision. However, the aforesaid CWJC No. 2426 of 1995 (R) was finally heard by a learned Single Judge of Patna High Court, Ranchi Bench, Ranchi and was disposed of by an order dated 22.7.1997 (Annexure-5) with similar direction to the respondent-Bank, which was issued earlier. However, the respondent-Bank was further directed to consider the case of the petitioner for regularisation of his service.

5. It is the case of the petitioner that in view of the order dated 22.7.1997 passed in CWJC No. 2426 of 1995 (R ) Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 by a learned Single Judge of Patna High Court, Ranchi Bench, Ranchi, the respondent-Bank and its functionaries were required to consider the claim of the petitioner for regularisation of his service on regular and permanent basis, but, instead of complying the order of this Court, the respondent-Bank became vindictive, and, further instead of considering the claim of the petitioner for regularisation of his service, terminated the service of the petitioner on a flimsy ground by an order dated

19.11.1999 issued under the signature of the Deputy Managing Director (Administration) of the respondent-Bank. However, before passing the aforesaid order discharging the petitioner from service, neither any show cause notice was issued to the petitioner nor any departmental proceeding was initiated with respect to the charges alleged against him. In the aforesaid background, the petitioner challenged the aforesaid order dated

19.11.1999 discharging him from service in CWJC No. 1474 of 2000 (R), which was allowed by a learned Single Judge of Jharkhand High Court at Ranchi by an order dated 14.3.2001 (Annexure-6) and the order of termination of service of the petitioner was set aside with a liberty to the respondent-Bank for passing a fresh order after holding departmental proceeding. Respondent nos. 2 to 5 have admitted in paragraph-6 of their Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 counter affidavit that no departmental proceeding was initiated afresh against the petitioner after the aforesaid order dated

14.3.2001 (Annexure-6) passed by the Jharkhand High Court at Ranchi.

6. It is also the case of the petitioner that, subsequently, the petitioner was transferred and was posted in Kodarma Branch of the respondent-Bank by an order dated

30.8.2001, and lastly he was transferred to Rupauli Branch in the district of Purnea (Bihar), where he is still working.

7. It has been stated in the writ petition that since the claim of the petitioner for regularisation of his service was not being considered by respondent-Bank and functionaries, therefore, the petitioner filed a fresh writ petition vide W.P. (S) No. 1845 of 2003 before the Jharkhand High Court at Ranchi for regularisation of his service. While the aforesaid writ petition was still pending, the Chairman of the respondent-Bank vide letter dated 31.1.2006 recommended to the Registrar of the Co-operative Societies, Bihar, Patna for payment of suitable pay and allowance to the petitioner on the principles of “equal pay for equal work”, whereafter, the Assistant Registrar, Co-operative Societies, Bihar, Patna wrote a letter dated 3.3.2006 (Annexure-8) to the respondent- Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 Managing Director of the Bank asking him to take decision regarding the claim of the petitioner at his own level in accordance with law.

8. It is the case of both the parties that in the aforesaid factual background, the Board of Directors of the respondent-Bank in its meeting dated 5.6.2006 resolved to pay the petitioner’s salary in the minimum scale of pay by following the principles of “equal pay for equal work”. Accordingly, by the impugned office order dated 31.7.2006 (Annexure-9) the petitioner has been appointed with effect from 1.7.2006 on the post of Accountant in the minimum scale of pay with dearness allowance and additional dearness allowance, but has been denied the benefits of annual increment and house rent allowance etc. By the aforesaid impugned order dated

31.7.2006 itself the claims of the petitioner for regularisation of service and for payment of differential amount of salary for the period prior to 1.7.2006 have been rejected.

9. Learned counsel for the petitioner while assailing the validity and propriety of the impugned office order dated

31.7.2006 (Annexure-9) has submitted that the respondent- Bank has regularised the services of similarly situate employees by an order dated 6.10.1987, therefore, the petitioner was also Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 entitled to have similar treatment and privilege. According to him the impugned office order dated 31.7.2006 (Annexure-9) is required to be appropriately modified and direction may be issued to the respondent-Bank to pay the differential amount of salary to the petitioner with effect from 6.10.1987 and his services may also be directed to be regularised with effect from

6.10.1987 instead of 1.7.2007.

10. Learned counsel appearing on behalf of the respondent nos. 2 to 5 by placing reliance on the averments made in the counter affidavit filed on behalf of the aforesaid respondents has opposed the prayer made on behalf of the petitioner. It is submitted that in view of the previous order passed by the High Court, in an exceptional circumstance the claim of the petitioner was considered by the Board of Directors of the Bank, whereafter by the impugned office order dated

31.7.2006 the petitioner has been appointed with effect from

1.7.2006 on the post of Accountant in the minimum scale of pay with dearness allowance, and additional dearness allowance. However, taking into consideration the financial crunch faced by the respondent-Bank, the petitioner has not been given the benefits of annual increment and house rent allowance. It is also highlighted that for valid reasons the claim of the petitioner for Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 payment of prescribed pay scale prior to 1.7.2006 has been rejected.

11. Learned counsel for the petitioner has fairly informed this Court that writ petition vide W.P.(S) No. 1845 of 2003 filed earlier before the Jharkhand High Court at Ranchi was finally withdrawn by an order dated 9.1.2009 (Annexure- 11) with a liberty to move before an appropriate forum/court. It is also pointed out that when the aforesaid writ petition was taken up before the Jharkhand High Court, Ranchi, the service of the petitioner was no longer in the State of Jharkhand and his services had already been transferred to Rupauli Branch in the district of Purnea (Bihar) within the territorial jurisdiction of Patna High Court. According to him, in view of the aforesaid liberty granted by the Jharkhand High Court, the present writ petition has been filed before this Court.

12. After having heard the parties and on consideration of the materials available on record, this Court finds that initial appointment of the petitioner in the year 1981 was on ad-hoc basis on a consolidated pay of Rs. 500/- per month only. Though, the petitioner remained in service of the respondent-Bank in view of the order of extension of his service from time to time, yet the claim of the petitioner for Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 regularisation of his service for one reason or the other was not allowed, and in that background he had approached the Patna High Court, Ranchi Bench, Ranchi for issuance of a direction for regularisation of his service. Though, a learned Single Judge of Patna High Court, Ranchi Bench, Ranchi issued direction for consideration of the claim of the petitioner, but no positive direction was issued by the learned Judge for regularisation of service of the petitioner in the prescribed pay scale from any particular date. In the light of the aforesaid direction, though belatedly, the matter was taken up for consideration by the Board of Directors of the respondent-Bank and in the light of the resolution of the respondent-Bank, by the impugned office order dated 31.7.2006 (Annexure-9) the petitioner has been appointed on the post of Accountant with effect from 1.7.2006 in the minimum scale of pay with dearness allowance and additional dearness allowance excluding the annual increment and house rent allowance etc. The claims of the petitioner for regularisation of his service with effect from 6.10.1987 and for payment of differential amount of salary prior to 1.7.2006 have also been rejected by the impugned order dated 31.7.2006 (Annexure-9).

13. This Court is of the considered opinion that in Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 view of the law crystallised and finally settled by a Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi (3) and others [(2006) 4 SCC 1] particularly in paras 43 and 53, the claim of the petitioner for regularisation of his service with effect from 6.10.1987, now, cannot be allowed at this stage. Therefore, the prayer of the petitioner for issuance of direction for regularisation of his service on permanent basis with all consequential benefits with effect from 6.10.1987 is hereby rejected. Similarly, the prayer for issuance of direction for payment of prescribed salary and other allowances prior to 1.7.2006, in view of the rejection of his claim for regularisation of his service w.e.f. 6.10.1987, is also rejected.

14. However, coming to the impugned office order dated 31.7.2006 (Annexure-9), this Court is of the opinion that this order requires some modification. Admittedly, the Board of Directors of the respondent-Bank in its meeting dated 5.6.2006 has taken a resolution to give prescribed pay scale to the petitioner at its minimum level with effect from 1.7.2006. If the petitioner has been appointed on the post of Accountant in the minimum scale of pay with effect from 1.7.2006, then there is absolutely no justification for denying him the other benefits of Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 annual increment and house rent allowance etc., which are being provided to other regularly appointed employees of the respondent-Bank. Admittedly, respondent-Bank has resolved to pay him “equal pay for equal work” with effect from 1.7.2006, then there is no rationale in denying the benefits of other admissible allowances including annual increment and house rent allowance to the petitioner, which are being paid to other employees of the respondent-Bank.

15. For the reasons recorded above, the present writ petition partly succeeds. The impugned office order dated

31.7.2006 (Annexure-9) issued by the respondent-Managing Director of the Bank is modified and the respondents are directed to pay the petitioner the minimum scale of pay of the post of Accountant with effect from 1.7.2006 along with dearness allowance, additional dearness allowance, annual increment, house rent allowance and other allowances, which are admissible and are being paid to other regularly appointed employees of the respondent-Bank.

16. Accordingly, the respondents shall re-calculate the salary of the petitioner with effect from 1.7.2006 within a period of one month from the date of receipt/production of a copy of this order and shall pay the petitioner the differential Patna High Court CWJC No.21279 of 2012 (6) dt.09-04-2013 amount of salary within a maximum period of three months from the date of production/receipt of a copy of this order. As concluded above, the claims of the petitioner for regularisation of his service with effect from 6.10.1987 and payment of arrears of salary and other allowances prior to 1.7.2006 stand rejected.

17. The parties are left to bear their own costs. RPS/- (Birendra Prasad Verma, J)