Remanded

Ashok Kumar And Ors. v. State of Jharkhand And Ors.

Jharkhand HC3 Jul 2019WPC/3735/2009

Case brief

AI extract

What is this about?

Petitioners, originally appointed as peons but working as drivers for decades, sought fixation of driver pay scale. Court found discrimination against them compared to others regularized as drivers following Supreme Court directions and remitted matter to respondent-State for a speaking order.

What did the court decide?

Matter remitted to respondent no. 2 to pass speaking order within six weeks considering observations; if decision favourable, provide pay scale within eight weeks.

Ashok Kumar And Ors. Vs State of Jharkhand… — Pension and Retirement Benefits | Jharkhand HC (2019)

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Page 1 of 5 W.P.(S.) No. 3735 of 2009

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S.) No. 3735 of 2009

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Ashok Kumar, son of late Bijender Singh, resident of Sector-II, SiteV, Quarter No. B-2471, P.S. & P.O. Jagarnathpur, Dhurwa, District: Ranchi.

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Abdul Rashid Alam, son of Md. Subhan, resident of Bariatu Basti, P.S. & P.S. Bariatu, District: Ranchi.

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Ajit Kumar Singh, son of Late Suraj Prasad Singh, Sector-II, Site-IV, Quarter No. B-1959, P.S. & P.O. Jagarnathpur, Dhurwa, District: Ranchi. … ... Petitioners

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Versus

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State of Jharkhand.

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Secretary, Rural Development Department, Government of Jharkhand, Secretariat Building, Dhurwa, Ranchi. 3. Cabinet Secretary and Coordination Department, Government of Jharkhand, Secretariat Building, Dhurwa, Ranchi. 4. Special Secretary, Cabinet and Coordination Department, Government of Jharkhand, Secretariat Building Dhurwa, Ranchi. … … Respondents

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-------- CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mrs. Indrani Sen Choudhary, Advocate For the Respondents : Mr. Prabhat Kumar Sinha, S.C. IV.

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-------- Order No. 10 : Dated: 3^rd July, 2019

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Per Sanjay Kumar Dwivedi, J.:

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1. Heard Mrs. Indrani Sen Choudhary, learned counsel for the petitioners and Mr. Prabhat Kumar Sinha, learned counsel for the respondents.

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2. The petitioners have preferred this writ petition for fixing the pay scale in the pay scale of Rs. 3050-4590 with corresponding 6^th pay revised scale of Rs. 5200-20,200.

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3. The petitioners have been appointed as Grade-IV employees (peon) in the Rural Development Department (herein after referred as “the Department”) by its duly constituted Selection Committee in its resolution dated 02.05.1988 (annexed as Annexure-1 to the writ petition). It was also decided that the preference for appointment will be given to the persons who are having knowledge of driving

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Page 2 of 5 W.P.(S.) No. 3735 of 2009

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and possessing the existing driving license. The petitioners have fulfilled the criteria and selected and panel of 100 successful candidates was prepared on 16.08.1988. The petitioners have been appointed on temporary basis as peon in Class-IV posts and all of them joined the service in September, 1988 and subsequently their service has been confirmed vide order dated 16.02.1999. After reorganization of the State, the services of the petitioner have been placed with the State of Jharkhand. It is contended by the learned counsel for the petitioners that all the petitioners have been appointed in Class-IV post but they are continuously working as driver. Learned counsel for the petitioners further submits that both the posts are Class-IV Post in nature. Relying on Annexure-2 series, which is the certificate issued in favour of the petitioners that they are driving the vehicles of the department. The revised 6^th Pay Scale for peon is Rs. 2650-65-3300-70-4000 and Rs. 4400-7440 respectively while for Driver it is Rs. 3050-75-3950-80-4590 and Rs. 5200-22,000 respectively. The petitioners are drawing the pay scale of peon as Rs. 4400-7440. It is contended that the petitioners are working in the department with effect from September, 1988 as driver. She further submits that no gradation for Class-IV of the employees is prepared. She submits that one Mundrika Singh has been granted the promotional Scale from Peon to Driver by the Department in the erstwhile State of Bihar vide order dated 16.10.1995. The said Mundrika Singh was peon and after that he becomes driver in higher revised pay scale and the petitioners are discriminated by the Department. She further contends that in view of the judgment of Supreme Court rendered in in the case of State of Karnataka Vs. Uma Devi reported in 2006 (4) SCC 1, the Cabinet Secretary and Coordination Department, Government of Jharkhand call for list of daily wage employees from each Department vide letter dated 12.02.2008. The Department pursuant thereto on 18.03.2008 sent the

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Page 3 of 5 W.P.(S.) No. 3735 of 2009

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list of three persons on 18.03.2008 showing the details of their employment. In that the name of Sri Vidyanand Upadhyay and Sri Ambar Kumar Sinha shown working as driver in the Department on daily wage basis since 26.09.2003 and 16.047.2004 respectively i.e. for about 6 / 7 years back. By order dated 18.07.2009 (Annexed at Annexure-7 to the writ petition) regularized the service of the above named two persons as driver and given them higher pay scale ignoring the long standing existing demand of the petitioners for the payment of driver’s scale. She further submits that the petitioners have filed several representations before the authorities but no decision has been taken in this regard.

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4. Mrs. Choudhary, learned counsel for the petitioners relied on the judgment rendered by the Apex Court in the case of Selvaraj vs. Lt. Governor Of Island, Port Blair and Others reported in (1998) 4 SCC 291 has held in paragraph nos. 3 and 4, which reads as under:

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“3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter. However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently, on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.

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Page 4 of 5 W.P.(S.) No. 3735 of 2009

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4. The decision of the Central Administrative Tribunal rejecting the claim of the appellant to the aforesaid limited extent is therefore required to be set aside. The appeals are allowed to the limited extent that the respondents will be called upon to make available to the appellant the difference of salary in the time scale of 1640-2900 during the period from 29-1-1992 to 19-9 1995 during which time the appellant actually worked. It is made clear that the payment of the aforesaid difference amount of salary shall not be treated to amount to any promotion given to the appellant on the said post. It is only on the ground that he had actually worked, as such this relief is being given to him. The difference of salary as aforesaid shall be paid over to the appellant within eight weeks from today. No costs.”

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She further submits that if the employee is required to look after the duties of higher post which is in fact the post of driver they are entitled for salary of that post.

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5. Mr. Prabhat Kumar Sinh, learned S.C. V for the respondents submits that the petitioners are Group D employees in the pay scale of Rs. 2550-3200, 6^th pay revised scale of Rs. 5200-20,200/ 4440-7440, GP-1800/1650, whereas the pay scale of post of driver, which is Group ‘C’ post is Rs. 3050-4590 revised 6^th pay scale 5200-20200/GP- 1900. The petitioners holding the substantive post of peon since they were appointed as peon, which is a Group D post. The qualifications for the post of peon and driver are quite different and therefore, these two posts have separate identity and hence separate cadre. Further, it is admitted in the counter affidavit that the work of driver was performed by the petitioners in the interest of work. The service of Sri Vidyanand Upadhyay and Sri Ambar Kumar Sinha has been regularized on the post of driver vide resolution dated 18.07.2009 (annexed at Annexure-7 to the writ petition) issued by Department of Cabinet, Secretariat and Co-ordination directed the respondents to submit the list of daily wage employees in the light of the order of Hon’ble Supreme Court. He further submits that the petitioners have been appointed on the post on temporary basis as peon Class-IV employees and they joined in September, 1988 and it was subsequently confirmed by the order dated 16.02.1999 by the

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Page 5 of 5 W.P.(S.) No. 3735 of 2009

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Rural Development Department, Patna. It is further contended that the petitioners have got admissible promotion under A.C.P. or M.A.C.P. in their cadre vide order dated 10.03.2006. He further contends that in view of the Rule 103 of Jharkhand Service Code does not allow the additional allowance for performing the additional work in addition to the substantive work. In the light of this the petitioners are not entitled for getting 20% additional allowance to the basic pay. Also submits that he petitioners are being paid their salary in their cadre.

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6. Having heard learned counsel for the parties, this Court finds that the two persons who have been provided the pay scale of driver have regularized later on taking into account the order of Hon’ble Supreme Court in the case of State of Karnataka Vs. Uma Devi. The petitioners are working since 1988 and they are demanding the pay scale of driver as they are peon and working as driver on that post appointed in Class-IV post. They have been discriminated by the Department and as such it needs to be considered at the first instance by the respondent-State. Accordingly, the matter is remitted back to the respondent no. 2 who will pass speaking order taking into account the observation made herein above within a period of six weeks from the date of receipt of a copy of the order. If the respondents take decision in favour of the petitioners, they are directed to provide pay scale as being agitated by the writ petitioner within 8 weeks thereafter.

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7. With the above observations and directions, the writ petition stands disposed of.

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(Sanjay Kumar Dwivedi, J.)

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The Jharkhand High Court, Ranchi Dated: 03/07/2019 MM /AFR/NAFR

Ashok Kumar And Ors. v. State of Jharkhand And Ors.

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Ashok Kumar And Ors. v. State of Jharkhand And Ors.

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