Deepak Kumar v. The State Of Bihar

Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 2 (petitioner being selected for Class III post) and it was further directed that the compliance of the said resolution be made immediately.

3. Learned counsel for the petitioner further submits that the matter was unnecessarily delayed by the authorities concerned and much subsequently on 27.12.2000 interview letter was sent to the petitioner, whereafter he appeared before the authorities along with his certificates, but appointment letter was not issued immediately, rather it was issued much subsequently on

06.09.2001, whereafter the petitioner joined the post.

4. Learned counsel for the petitioner submits that five other persons, namely, Rajiv Ranjan, Sanjay Kumar Sharma, Shyam Nandan Kumar, Umesh Prasad and Lala Trilokinath Sinha were also selected in the same batch as that of the petitioner and their cases were exactly similar to the case of the petitioner and they filed C.W.J.C. No. 15956 of 2006 for treating their date of appointment to be 22.08.2000 and for payment of their salary accordingly. The said writ petition was allowed by a Bench of this Court vide order dated 11.03.2011 (Annexure 4), directing the respondents to treat the appointment of those petitioners on the posts of Clerk as per resolution dated 22.08.2000 and after de- merger their appointments were to be treated on the posts of Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 3 U.D.C. in the pay scale of Rs.4500-6000/- with effect from the date of their initial appointments. Learned counsel for the petitioner states that his case is exactly similar and hence he must be given the same benefits as have been given to the said petitioners.

5. Learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that the petitioner has not stated as to when he filed his application for compassionate appointment after the death of his father nor he had stated anywhere with respect to the date of his joining and as such his service can be counted only from the date of his initial joining and definitely not from 22.08.2000, on which date the meeting for the compassionate appointment was held by the District Establishment Committee.

6. Learned counsel for the respondents submits that in case of compassionate appointment the date of recommendation cannot be treated as the date of initial appointment and no benefit of prospective employment/service can be given from the date of the recommendation by the Committee. The compassionate appointee can only claim any benefit arising out of the service from the actual date of his/her initial appointment and joining thereof on the concerned post and not from the date of Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 4 recommendation by the Committee.

7. Learned counsel for the respondents also avers that the purpose of compassionate appointment is only to mitigate the hardship suddenly caused after the death of the employee, which is not a vested right rather it is a favour by the State being a nodal employer. In this connection, learned counsel for the respondents relies upon a decision of a single Bench of this Court in case of Sriman Narayan Singh and another vrs. State of Bihar and others (C.W.J.C. No. 3516 of 2011 and other analogous cases) dated

14.02.2012, in which the decisions of the Apex Court in this regard had been considered, in which it was held as follows :- “Having said so, the Court must notice the contention that persons appointed as Lower Division on 11.3.2011 (after the date of de- merger) by way of absorption from the Primary Agriculture Credit Societies have been given the pay scale of Rs. 4000-6000/- based on certain orders of this Court and of the Supreme Court. As observed earlier, the pleadings are lacking and even the representation in this regard appears vague. There are no names and no details of any Court orders with the case number etc. The necessary foundational facts are lacking with regard to the nature of the original appointment, qualifications, protection, nature of duties etc. It is not possible for the Court to hold that the petitioners are entitled to parity in treatment simply on account of the fact that their appointment as Lower Division was also made after de-merger. That debate is therefore left open for the petitioners to pursue before the respondents. absorption, In conclusion, the Court holds that the Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 5 petitioners being appointees on the post of Lower Division after the date of de-merger, there is no error in the decision granting them the pay scale of 3050-4590/- calling for interference.”

8. Learned counsel for the respondents claims that vide letter no. 8825 & 8826 dated 20.12.2000, the Finance Department has made it crystal clear that the vacancies of the post of Assistant shall be considered at par with the vacancies of Lower Division Clerk in pay scale of Rs.3050-4500/- for the initial/direct recruitment and the appointment has only to be made to the post of Lower Division Clerk in the said pay scale after due bifurcation of the cadre as per the recommendation of the Fitment Committee. Thereafter, vide letter no. 3385 dated 20.06.2011, Personnel and Administrative Reforms Department, Government of Bihar has also categorically directed that the appointment on compassionate ground for Class III posts shall only be made in the pay scale of Rs.3050-4500/- i.e. the replaced scale of Rs.1200-1800/-, amending the notification as contained in memo no. 13293 dated

05.10.1991 in the light of the aforesaid notification of the Finance Department dated 20.12.2000.

9. Learned counsel for the respondents also argues that this case has been filed by the petitioner at a very belated stage because he was appointed in 2001 and for about ten years he had Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 6 accepted the scale paid to him without any objection. He further submits that the petitioner did not even file any writ petition when his other colleagues, who, according to him, are similarly situated, had filed their writ petition bearing C.W.J.C. No. 15956 of 2006. Hence he asserts that this writ petition is fit to be dismissed as it sans merit.

10. Considering the averments made by learned counsel for the parties and the materials on record, it is apparent that the case of the petitioner is exactly similar to the case of Umesh Prasad and others ( C.W.J.C. No. 15956 of 2006), which was decided on 11.03.2011, but the difference here is the time of raising of their claim by filing of the writ petition. It is not in dispute that the petitioner was issued appointment letter on

06.09.2001 for Class III post in the pay scale of Rs.3050-4500/- and sometime thereafter other persons raised their objection, which were finally raised before this Court vide C.W.J.C. No. 15956 of 2006, but there is nothing to show that the petitioner ever raised any objection to the scale and salary given to him on the basis of his appointment letter and joining and only after about a decade this writ petition has been filed by the petitioner raising the aforesaid grievances. In the writ instant petition, no reason for such an inordinately delay has been explained. Patna High Court CWJC No.220 of 2011 (5) dt.22-01-2013 7

11. Apart from the said order dated 11.03.2011 passed in C.W.J.C. No. 15956 of 2006, there appears to be no other valid ground available to the petitioner as the law is well-settled by the Apex Court that fixation of pay scale is a delicate mechanism, which requires various considerations and in any view of the matter the candidate can be entitled to payment of salary and scale only from the date of his joining.

12. It transpires that on the basis of the aforesaid principle of law, the petitioner did not challenge the same for a decade and has moved this Court now without giving any reason for such a long and inordinate delay in raising of his claim. In the aforesaid circumstances, this Court does not find any merit in this writ petition, which is, accordingly, dismissed. (S.N. Hussain, J) MPS/-