Remanded

Jalsu Baraik And Ors. v. State of Jharkhand And Ors.

Jharkhand HC14 Jun 2022WPC/4871/2010

Case brief

AI extract

What is this about?

The court set aside an order dismissing pay scale claims of Field Supervisors because it failed to consider directions from a Patna High Court judgment. citing non-consideration of prior judicial observations as the ground for remand to the Finance Secretary.

What did the court decide?

The impugned order dated 12.04.2010 is set aside and the matter is remitted to the Respondent Finance Secretary to pass a fresh reasoned order within five months.

Jalsu Baraik And Ors. Vs State of… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 4871 of 2010

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Jalsu Baraik, son of Late Chaturgan Baraik, presently posted at and resident of Soil Conservation Office, Khasmahal, Jamshedpur, P.O. Tata Nagar, P.S. Thuthaitanger, District : Singhbhum (East)

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Rajdev Das, son of Late Ramdev Da, presently posted at and resident of Soil Conservation Office, Jamshedpur, District Singhbhum (East)

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Yugal Singh Munda, son of Late Dandu Babu, presently posted at and resident of Soil Conservation Office, Ormanjhi district Ranchi

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Bundel Mochi, son of Late Ram Kishan Mochi presently posted at and resident of Village: Burdungi Station Basti, Chandil, P.O. Tenkocha, District : Saraikela : Kharsawan

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Satish Prasad, son of Sri Mahabir Singh presently posted at and Resident of soil conservation office, Khasmahal, Jamshedpur, district Singhbhum (East)

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Upendra Prasad, son of late Bachho Paswan, presently posted at and resident of Soil Conservation Office, Jamshedpur, District : Singhbhum (East) … … Petitioners

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Versus

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The State of Jharkhand

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The Finance Commissioner, Govt. of Jharkhand, Ranchi

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The Director, Soil Conservation Department, Govt. of Jharkhand, Ranchi

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The State of Bihar through the Secretary, Finance, Govt. of Bihar, Patna

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Principal Secretary, Department of Agriculture Govt. of Jharkhand at Nepal House, P.O. and P.S. Doranda, Ranchi

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The Director, Soil Conservation Directorate, Government of Bihar

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… … Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Rajeev Ranjan Tiwari, Advocate For the Respondents : Ms. Shivani Kapoor, Advocate For the State of Bihar : Mr. Binit Chandra, Advocate ---

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20 /14.06.2022 Learned counsel for the parties are present.

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2. This writ petition has been filed for the following reliefs:-

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(i) For issuance of direction for quashing the order dated 12.04.2010 issued vide Memo No. 14/2009/095 V, issued by Principal Secretary to the Govt. Finance Department, Jharkhand, Ranchi whereby while disposing the representation filed by the petitioners as per direction of this Hon’ble Court, passed in W.P. (S) No. 4069 of 2009 the concerned respondent has dismissed the same without considering the facts, materials and evidences on record, which is wholly arbitrary, unjust and unsustainable in the eye of law.

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(ii) For issuance of direction upon the respondents to remove the anomaly in the pay scale of Field Supervisors, arising out of the recommendation of the 4^th and 5^th Pay Revision of the Field Supervisors and also in view of the fact that Fitment Appellate Committee did not consider the case of Field Supervisor in view of alleged pendency of the matter before the Secretary, Department of Finance, Govt. of Bihar, pursuant to the direction issued by the Hon’ble High Court in CWJC No. 2886 of 1993 (R); although the case of Field Supervisor stood rejected by the Secretary, without considering the direction and observations of the Hon’ble High Court.

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(iii) For issuance of appropriate writ in the nature of certiorari for quashing the order dated 13.12.1997, issued under the Signature of Secretary, Finance, the then Govt. of Bihar by holding it as grossly illegal and arbitrary and without considering the material placed before it and contrary to the observation of the Hon’ble High Court in CWJC No. 2866 of 1993 (R) and also in view of the fact that after the creation of the new State of Jharkhand the Govt. of Jharkhand can separately and independently consider the grievance of the removal of pay anomaly with respect to the Field Supervisors working in the Soil Conservation Office in the Department of Agriculture, Govt. of Jharkhand.

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(iv) For commanding upon and directing the respondents to grant equivalent pay scale to the petitioners post of Field Supervisor by granting them pay scale of Rs. 4000-6000 at par with clerks of the Department and Surveyors:”

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Arguments of the petitioners

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3. Learned counsel for the petitioners submits that the present litigation is the 3^rd round of litigation so far as the petitioners are concerned. The petitioners are Field Supervisors in Soil Conservation Department in the State of Jharkhand. The field supervisors of the department have been fighting for rectification of pay anomaly right from the year 1993.

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4. Learned counsel submits that one writ petition being CWJC No. 2866 of 1993 (R) was filed before Hon’ble Patna High Court by Field Supervisors of the Soil Conservation Department in the then State of Bihar with a prayer to quash the order of the Pay Revision Committee with regard to revision of pay of the field supervisors. A specific prayer was made to fix the pay scale of Rs. 1500-2750 as was made applicable to similarly situated persons in some other government department in some command area development agency. Learned counsel has referred to the entire factual background of the case as has

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been narrated in the order dated 05.09.1997 passed in CWJC No. 2866 of 1993( R ) and submits that the decision of the pay revision committee which was impugned, was quashed and a mandamus was issued to the respondent nos. 2 and 3 of the said case to reconsider the matter in the light of the observations made in the judgment and the relevant facts contained in the writ application and the petitioners were directed to file a fresh representation with a copy of the writ petition with annexures for proper appreciation of the concerned authority.

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5. The learned counsel submits that the matter was also subject matter of consideration before the Fitment Appellate Committee whose report is at Annexure-10 wherein the order of the writ court has been mentioned and at that point of time the matter was pending before the finance department. However, the Fitment Appellate Committee observed that the finance department should perhaps take a decision in the light of the direction of the High Court if the matter is still pending.

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6. Learned counsel submits that the matter regarding compliance of the direction passed by the Hon’ble Patna High Court in CWJC No. 2866 of 1993 (R) dated 05.09.1997 remained inconclusive even before the Fitment Appellate Committee. Thereafter the present petitioners had filed a writ petition before this court being W.P. (S) No. 4069 of 2004 seeking a direction upon the respondents to remove the anomaly in the pay scale of field supervisors arising out of recommendation of 4^th and 5^th Pay Revision and also in view of the fact that the Fitment Appellate Committee has not considered the case of the field supervisors in view of the fact that at that time, the matter concerning the field supervisor was pending before the Secretary Finance, State of Jharkhand, Ranchi pursuant to the direction issued by the High Court in CWJC No. 2866 of 1993. The learned counsel submits that the said writ petition was disposed of vide order dated 07.12.2009 wherein a liberty was given to the petitioner to file a fresh representation individually before the Secretary, Finance, Government of Jharkhand, Ranchi within a period of four months who was to consider the claim of the petitioner in the light of the direction and observation contained in judgment dated 05.09.1997 passed in CWJC No. 2866 of 1993 ( R )

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in that regard and also the grounds raised by the petitioner. Learned counsel for the petitioners submits that the impugned order has been passed pursuant to the order dated 07.12.2009 passed in W.P. (S) No. 4069 of 2004.

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7. The learned counsel has placed the impugned order dated 12.04.2010 passed by the Secretary, Finance department, State of Jharkhand. Learned counsel for the respondent at this stage has submitted that counter affidavits have been filed by the Finance Department as well which is dated 02.08.2019 and 5.09.2019. The learned counsel submits that in the impugned order, the authority has quoted the operative portion of the order passed in CWJC No. 4069 of 2004; thereafter quoted the operative portion of order passed in CWJC No. 2866 of 1993 (R) and thereafter partially quoted the observations made by the Fitment Appellate Committee. He submits that the impugned order does not reflect consideration of observations and directions made in the judgment dated 05.09.1997 passed in CWJC No. 2866 of 1993 (R) and accordingly the impugned order cannot be sustained in the eyes of law. The learned counsel submits that the finance secretary, while passing the impugned order has failed to consider that the appellate authority had clearly indicated that the observations and directions made in CWJC No. 2866 of 1993(R ) was to be considered by the Finance Secretary while passing the order but this aspect of the matter has not been considered and therefore the impugned order is fit to be set aside on account of non-consideration of the observations and directions passed in CWJC No. 2866 of 1993 (R) and the matter be remitted back to the Finance Secretary for fresh consideration.

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Arguments of the Respondents

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8. Learned counsel appearing on behalf of the respondents has opposed the writ petition and submitted that as per the counter affidavit filed by the Finance department, the impugned order has been passed in terms of clause 1.6 of Fitment Appellate Committee report which was binding on the government and also in terms of the order passed by the Hon’ble Patna High Court in terms of the order passed in CWJC No. 2866 of 1993 (R). The learned counsel has also submitted that Director, Soil Conservation Department, has also filed

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a counter affidavit mentioning that there is no post hierarchy as such available with regard to the petitioners and therefore impugned order does not call for any interference.

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Rejoinder arguments of the petitioner

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9. In response, learned counsel for the petitioner has referred to para 11 of the counter affidavit filed by the Director, Soil Conservation Department wherein it has been stated that the pay of Field Supervisor has only been equated to that of Amin by the Finance, Directorate after 4^th Pay Revision introduced in the year 1986 which has been subsequently continued by the 5^th Pay Revision as well as in 1996 implying that the pay of the field supervisor is less than that of surveyor. The matter of pay anomaly is being continued since then when the pay scale was revised by the Finance, Directorate, Government of Bihar after the 4^th pay revision. The learned counsel has also submitted that merely because there is no hierarchy as of now, the same cannot be an excuse for not passing an order in terms of judgment passed by this court in CWJC No. 2866 of 1993 (R).

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Findings of this court

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10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this court finds that the matter regarding pay scale of field supervisor has been subject matter of consideration in CWJC No. 2866 of 1993 (R) which was disposed of by Hon’ble Patna High Court vide 5^th of September, 1997. In the said case the report of the pay revision committee was under challenge and the Hon’ble Patna High court had set aside the decision of the pay revision committee by directing the respondent No. 2 and 3 of the said case to reconsider the matter in the light of the observations made in the judgment and the relevant facts contained in the writ application. It was also observed in the said judgment that relevant facts pointed out by the Director, Soil Conservation, as also report of the anomaly committee had not been touched by the fitment pay revision committee and the reason for rejection given by the committee cannot be said to be a rationale and germane to the issue involved. It was observed that the petitioners had made out a case for interference under Article 226 of the Constitution of India and the petitioners claim was required reconsideration by the respondent Nos.

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2 and 3 of the said case. It further appears that after the passing of the aforesaid judgment dated 05.09.1997 in CWJC No. 2866 of 1993 (R) a Fitment appellate Committee report had come and with regard to the field supervisors following observations was made: -

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“ Field Supervisors has been discussed in paragraph 19.8, Volume II of the Fitment Committee Report. The Fitment Committee noted that there was no post by the designation of Field Supervisor in the Central Ministry of Agriculture. It was also found that the Field Supervisor in the Bihar cannot be compared, both in terms and duties and function of the post as well as recruitment qualification, with post in the All India Soil and Land Use Survey Organization. Therefore, having compared other hierarchical posts in the Centre and the State, the Fitment Committee could fit them in the scale of Rs. 3200-4900. No change, therefore, is necessary. The Director, Soil Conservation has informed vide his letter no. 884 dated 23.8.2000 that the Field Supervisors had filed a Writ in the Hon’ble High Court and the Court had directed the Finance Secretary and the Member Secretary Fitment Committee to decide on the demand of the petitioners. The petitioners have filed an MJC in the Hon’ble High Court regarding this and the matter is said to be pending in the Finance department. However, the Fitment Committee has already given its recommendations which has been implemented by the Government. Still the Finance Department should perhaps, examine the case in the light of the direction of the Hon’ble Court if the matter is still considered pending.”

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11. From the perusal of the aforesaid report of the Fitment Appellate Committee it appears that the Finance Department was yet to examine the case of the Field Supervisors in the light of the directions of the judgment passed by Hon’ble Patna High Court in CWJC No. 2866 of 1993 (R) and the fact that the writ petition was filed and certain directions were issued was brought to the notice of fitment appellate committee. The petitioners had filed a writ petition before this court being W.P. (S) No. 4069 of 2004 raising a grievance as follows:

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“For a direction upon the respondents to remove the anomaly in the pay scale of Field Supervisors, arising out of the recommendation of the 4^th and 5^th Pay Revision and also in view of the fact that Fitment Appellate Committee had not considered the case of Field Supervisors in view of the fact that at that time, matter concerning the Field Supervisors was pending before the Secretary, Finance, State of Jharkhand, Ranchi pursuant to the directions issued by the High Court in CWJC No. 2886 of 1993 (R)”

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12. The writ petition was disposed vide order dated 07.12.2009 with a clear direction that the respondent, Secretary, Finance Government of Jharkhand was to pass fresh order in the light of direction and observation contained in 05.09.1997 in CWJC No. 2866 of 1993 (R) on the grounds raised by the petitioner.

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13. Upon perusal of the impugned order, this court finds that there is no discussion of the directions and observations made by the Hon’ble Patna High Court in CWJC No. 2866 of 1993 (R) in the matter of pay anomaly of field supervisor and the finance secretary has also not taken into consideration that the Fitment Appellate Committee itself indicated that the order passed by the Hon’ble Patna High Court was required to be considered and the order was required to be passed.

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14. This court is of the considered view that the impugned order dated 12.04.2010 passed by the Respondent Finance Secretary cannot be sustained in the eyes of law on account of non-consideration of the observations and directions made by Hon’ble Patna High Court in CWJC No. 2866 of 1993 (R) and accordingly same is set aside. The point raised by the respondent regarding the fact that there is no hierarchy with regard to that of the petitioners by itself cannot be a ground for not complying with the observations and directions made by Hon’ble Patna High Court in the CWJC No. 2866 of 1993 (R) dated 05.09.1997 in letter and spirit.

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15. Accordingly, the matter is remitted back to the Respondent Finance Secretary, to pass a fresh order in accordance with law taking into consideration the directions and observations made by Hon’ble Patna High Court dated 05.09.1997 passed in CWJC No. 2866 of 1993 (R) after granting an opportunity of hearing to one of the petitioners or their authorized representative. The petitioners shall file a detailed representation before the Finance Secretary, Govt. of Jharkhand, raising their claim along with a copy of this order and the document which they seek to rely upon. The petitioners, in their representation should specifically indicate the relevant observations and directions made by Hon’ble Patna High Court in the CWJC No. 2866 of 1993 (R) dated 05.09.1997 which they seek to rely upon in support of their claim. The Respondent Finance Secretary is directed to pass a

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reasoned order within a period of five months from the date of receipt of the representation. The reasoned order should be communicated to the petitioners through speed post at the address which may be given by the petitioners in the representation itself. This writ petition is accordingly disposed of.

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16. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Binit

Jalsu Baraik And Ors. v. State of Jharkhand And Ors.

Case brief

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Jalsu Baraik And Ors. v. State of Jharkhand And Ors.

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