Single Judge's order quashing Memo No.8770(S) and awarding higher pay scale to an employee was upheld as the State failed to consider prior settled judgments granting same benefits to similarly situated employees, rendering the rejection discriminatory and unsustainable. Appeal dismissed.
Letters Patent Appeal No.650 of 2019 dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.650 of 2019
… … Respondents/Appellants
Versus
Md. Mustafa, son of late Sahabuddin Khan, R/o village Salempur, P.O. & P.S. Hanspura, District-Aurangabad (Bihar).
… … Petitioner/Respondent
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
For the Appellants : Mr. Devesh Krishna, SC-III (Mines) For the Respondent : Mr. Dhananjay Kumar Dubey, Advocate
ORAL JUDGMENT 19 / Dated 07th September, 2021
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The writ-petitioner/respondent was appointed on ClassIV post in the year 1980. He was granted first time bound promotion in the pay scale of Rs.800-1150. In terms of recommendation of 5th Pay Revision Committee, the pay scale of Rs.800-1150 was revised by resolution dated 08.02.1999 in the pay scale of Rs.2610-3540. The writ-petitioner/respondent along with other persons were not granted the aforesaid benefit. Some of the aggrieved persons preferred writ petition being W.P(S) No.4041 of 2001 and vide order dated 25.02.2003 the learned Single Judge of this Court allowed the writ petition with a direction that the writpetitioners are entitled to get the pay scale of Rs.2610-3540 in place of pay scale of Rs.2550-3200. The State of Jharkhand had challenged the aforesaid order in Letters Patent Appeal being LPA No.92 of 2005 but was dismissed on 26.04.2006. Being aggrieved by the said order, the State of Jharkhand had filed a Special Leave Petition before the Hon’ble Apex Court which also stood dismissed on 16.11.2017 and again being aggrieved by the said order, State
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had filed a review petition being Review Petition (Civil) No.615 of 2009 and on 23.07.2009, the same also stood dismissed on merits and on the ground of delay also.
The writ-petitioner/respondent approached to this Court as the dispute was set at rest after the order passed in W.P(S) No.4041 of 2001 had attained its finality fixing the pay scale of Rs.2610-3540, as such, the writ-petitioner/respondent also claimed the same benefit on the ground that he is similarly situated and when no action was taken, this writ-petitioner/respondent has preferred a writ petition being W.P.(S) No.495 of 2013 which was disposed of on 18.07.2013 by directing the authority to decide the claim of the writ-petitioner/respondent and in turn thereof, a decision was taken but the claim of the writ-petitioner/respondent has been rejected vide Memo No.8770(S) dated 10.12.2014.
Being aggrieved by the said decision, the writpetitioner/respondent has again moved to this Court by filing writ petition being W.P.(S) No.227 of 2016 and the learned Single Judge of this Court after taking into consideration the fact about the order passed in W.P.(S) No.4041 of 2001, having attained its finality up to the level of Hon'ble Apex Court as also the order passed by another learned Single Judge of this Court in W.P.(S) No.495 of 2013 wherein the case of the writ-petitioner/respondent has been found to be identical to those petitioners whose case were decided in W.P.(S) No.4041 of 2001, has allowed the writ petition, which is the subject matter of the instant intra-court appeal.
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employees has been considered by the learned Single Judge of this Court in W.P.(S) No.4041 of 2001 and a specified direction was passed upon the respondents to fix the pay scale of the writpetitioners at Rs.2610-3540 and the said order was challenged in Division Bench of this Court in intra-court appeal but the same was dismissed as also by the Hon'ble Apex Court by dismissal of the special leave to petition and subsequently the review petition.
According to him, once the issue about claiming of the aforesaid pay scale pertaining to other similarly situated employees has been adjudicated and attained finality, there is no reason to deny such claim to the writ-petitioner/respondent otherwise it will hit the Article 14 of the Constitution of India.
He further submits that prior to this another writ petition being W.P.(S) No.495 of 2013 was filed as has been appended as Annexure-10 wherein another learned Single Judge of this Court after taking into consideration the decision of this Court in W.P.(S) No.4041 of 2001 and its affirmation up to the level of Hon'ble Apex Court as also considering the stand of the State in the counter affidavit, came to the conclusive finding about the claim of the writpetitioner/respondent to the pay scale of Rs.2610-3540 to be genuine and accordingly, passed an order for disbursement of arrears of salary but the respondent-authorities, the appellants herein, in a highly arbitrary manner had rejected the claim of the writ-petitioner/respondent without taking into consideration the order passed in W.P.(S) No.4041 of 2001 and the order passed in W.P.(S) No.495 of 2013 and taking into consideration all these
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aspects of the matter the learned Single Judge had quashed and set aside the administrative decision of the authority and as such, the same suffers from no infirmity.
So far as the contention of the learned counsel for the appellants about the applicability of the resolution dated 08.02.1999 is concerned, submission has been made that the said resolution has been considered by the learned Single Judge as would appear from the order dated 25.02.2003 passed in W.P.(S) No.4041 of 2001 and the said order having been affirmed by the Hon'ble Apex Court, there is no reason to apply the said resolution only in the case of the writ-petitioner/respondent while extending the benefit to the other similarly situated persons.
The lis involved in this case is about entitlement of the writ-petitioner/respondent on the pay scale of Rs.2610-3540 which is being denied on the basis of the resolution dated 08.02.1999.
The same issue fell for consideration before this Court in W.P.(S) No.4041 of 2001 wherein the learned Single Judge of this Court while allowing the writ petition vide order dated 25.02.2003 had considered the entire aspect of the matter and had also considered the resolution dated 08.02.1999 and thereafter the writ
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petition was allowed by holding the petitioners entitled to the pay scale of Rs.2610-3540. For ready reference, paragraphs-4, 5, 6 & 7 of the said order is being reproduced hereunder:
“ 4. Learned counsel for the respondents has drawn my attention to Schedule-III of the said resolution and submitted that the pay scale of the orderly peons was Rs.775-1025/- which correspondence to the revised pay scale of Rs.2550-3200/-. Paragraph 11 of the said resolution by which the pay scale of the Government employees has been revised is worth to be quoted hereinbelow:
“The State Government have decided to abolish the existing facilities of Time Bound Promotions and Selection Grades, discussed in Paras 10 and 12 of FD. Resolution No. 6021 dt. 18th December, 1989 and they shall cease to be applicable with effect from Ist January, 1996 and thereafter in the existing pay scales. If any such promotion, however, is due under the Rules before 1st January, 1996, it shall be given and the payment of arrears in the existing scale shall be made only upto 31st December, 1995 after which the promotion would be deemed to have been automatically terminated. While fixing pay in the revised scales, such promotions given after 31st December, 1995 will not be taken into consideration. If such promotions have been given after 31st December, 1995 then the question of adjustment of such additional emoluments obtained in the process, will be decided after the Fitment Committee submits its recommendations on promotion polity. Promotion to any vacancy of a post identified as need based post would be admissible. The procedure for identification of such need based posts has been out in paragraph 12.”
5. From bare perusal of the aforesaid paragraph, it is clear that any time bound promotion given to the employees prior to January, 1996 shall not be affected by the subsequent resolution of the Government.
6. As noticed above, admittedly the petitioners were given time bound promotion in 1991 and 1993 and they were placed in the pay scale of Rs.800-1150/-. In my opinion, therefore, they are entitled to the revised pay scale of Rs.2610-3540/-. The action of the respondents, therefore, in fixing the pay scale of the petitioners at Rs.2550-3200/- is arbitrary and without any basis.
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7. For the aforesaid reason, this writ application is allowed and the impugned order of fixation of the petitioners’ pay is set aside. It is directed that the petitioners shall be entitled to the pay scale of Rs.2610-3540/-.”
“ 7. Learned counsel appearing for the Respondent Nos.2 to 4 submits that since the proposal was sent to the Finance Department in the year, 2006 itself however, as necessary instruction has not been received from the Finance Department, the fixation of pay-scale of the petitioners has not been done. He further submits that since the Department of Finance is not made party here, this issue may not be decided by this Court.
8. A perusal of the documents on record indicates that this Court by order dated 25.02.2003 has already decided that the employees in W.P.(S) No.4041 of 2001 were entitled for the benefit of revised pay scale of Rs.2610-3540/- and in the
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counter affidavit filed by the Respondent Nos.2 to 4, respondents have not denied that the petitioners are not identically situated to the petitioners in W.P.(S) No.4041 of 2001, which was allowed by order dated 25.02.2003. This has also not been denied by them that by the Office Order Dated 18.12.2009, the benefit of recommendation of 5th Pay Revision Committee has been extended to the identically situated persons. The only stand taken by the respondents is that since the proposal was sent to the Finance Department in the year 2006 itself, and necessary instruction has not been received from the Finance Department, therefore, the pay scale of the petitioners has not been revised. I am of a considered opinion that such a stand taken by the respondents is not justified. It was upon to the respondents to seek instruction after the proposal was sent to the Finance Department which admittedly has not been done in this case. The petitioners have been deprived of their lawful dues on account of inaction on the part of the respondents and therefore, the respondents are directed to decide the claim of the petitioners within a period of four weeks from today and pay all the arrears of salary etc., as admissible in law, within a period of further four weeks.”
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every aspect of the matter including the order passed by this Court in W.P.(S) No.4041 of 2001, the order passed in intra-court appeal being L.P.A. No.92 of 2005 as also the reference of dismissal of SLP, then will it be said to be proper action on the part of the State authority in taking action against the writ petitioner/respondent without taking into consideration the order passed by the writ Court in W.P.(S) No.4041 of 2001 having attained finality up to the level of Hon'ble Apex Court. Further, even the learned Single Judge while passing order in W.P.(S) No.495 of 2013 had directed the State Authority to decide the claim and to pay the arrears. The action which ought to have been taken by the concerned competent authority in extending the said benefit in favour of the writ petitioner/respondent otherwise the respondent-authority would have preferred appeal questioning the order passed by the learned Single Judge of this Court in W.P.(S) No.495 of 2013 but having not done so it is not available to the State-appellant to act contrary to the observation made by this Court in W.P.(S) No.495 of 2013.
We are not saying that the State authority is compulsorily required to comply the direction rather option is available to assail the same but if not assailed, it would be incumbent on their part to obey the direction passed by the Court of Law. This Court in W.P.(S) No.495 of 2013 had passed order discussing each and every aspect of the matter including the order passed in W.P.(S) No.4041 of 2001 but without taking into consideration that aspect of the matter, the administrative authority has rejected the claim of
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the writ petitioner/respondent treating the said consideration to be a fresh one.
It is also not that the issue of illegality perpetuated will come because whatever benefit has been given in favour of the petitioners of W.P.(S) No.4041 of 2001 that is in terms of the order passed by the constitutional court, i.e., the High Court, wherein the order has been passed allowing the writ petition in exercise of power conferred under Article 226 of the Constitution of India that too the said order has been affirmed in the intra-court appeal as also under Article 136 of the Constitution of India by dismissal of special leave petition and subsequent thereto, the review petition has also been dismissed, therefore, denial of the claim of the writ petitioner/respondent in such a circumstances will be treated to be discriminatory and if the learned Single Judge by taking into consideration all these aspects of the matter has quashed and set aside the order dated 10.12.2014 contained in Memo No.8770(S),
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the same according to our view, the same cannot be said to suffer from error. Therefore, this Court is of the considered view that the instant appeal lacks merit, accordingly, the same stands dismissed.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh /
A.F.R.
2 issues framed by the court
Whether an employee similarly situated to those in a previous settled judgment can be denied the same pay scale benefits.
Whether the State authority acted arbitrarily by rejecting a pay scale claim without considering prior judicial determinations.
The State of Jharkhand and Others
Md. Mustafa
Sujit Narayan Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
