Sohail Ahmed Vs the State of Jharkhand

2025:JHHC:32920-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(S) No. 5626 of 2025

Sohail Ahmed, aged about 54 years, S/o- Late Md. Ghulam Nabi Ansari, R/O: Bangla Muhalla, P.O+P.S+Dist- Lohardaga, Jharkhand- 835302;

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… … … Petitioner

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Versus

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The State of Jharkhand;

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The Principal Secretary cum Legal Remembrancer, Department of Law, Government of Jharkhand, Project Bhawan, HEC, P.O+P.SDhurwa, Ranchi, Jharkhand- 834004;

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The Secretary, Department of Finance, Government of Jharkhand, Project Bhawan, HEC, P.O + P.S-Dhurwa, Ranchi, Jharkhand- 834004;

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The Lohardaga Judgeship Through The Judge in Charge, Lohardaga Civil Court, P.O+P.S+Dist-Lohardaga, Jharkhand 835302;

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… … … Respondents

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--------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJESH SHANKAR

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--------For the Petitioner: Mr. Rishikesh Giri, Advocate Mr. Rishav Kumar, Advocate For the Resp-State: Mr. Piyush Chitresh, A.C. to A.G.

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02 /Dated: 03.11.2025

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Tarlok Singh Chauhan, C.J. ( Oral)

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1. It was pursuant to an advertisement issued by the Bihar Public Service Commission in the year 1994 that the petitioner after selection was appointed as an Assistant Teacher on 17.08.1994 in the District of Lohardaga and was discharging his duties as such. Thereafter he came across an advertisement floated in the public domain for appointment of Assistants in the Civil Courts of Jharkhand. He accordingly, applied and qualified the same and after getting No Objection Certificate by the DSE, Lohardaga, he joined as an Assistant in Ranchi judgeship on 15.03.2000. As an Assistant Teacher the petitioner was in service from 17.08.1994 to 14.03.2000 placed in the pay scale of Rs. 4500-125-7000/- whereas on his appointment as an Assistant was placed in pay scale of Rs. 4000-1006000/-. Aggrieved thereby, he filed a representation before the Principal

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District and Sessions Judge at Lohardaga on 28.02.2023. The representation was placed before the Screening Committee which rejected the same constraining the petitioner to file the instant writ petition for grant of the following substantive relief:-

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“a. For issuance of an appropriate direction(s) in the nature of "Certiorari" for quashing the Decision taken by the Screening Committee who has rejected the claim of pay protection and consequential benefits arising thereof (Annexure-6, Page no. 22-24).

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b. For further direction upon the respondents to revise the salary and pay the arrears accrued thereof. ”

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2. We have heard learned counsel for the petitioner and gone through

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the materials placed on record.

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3. It is vehemently argued by the learned counsel for the petitioner that in terms of Rule 78 of the Jharkhand Service Code, 2001, the petitioner was entitled to the higher pay scale as the petitioner after submitting a technical resignation from the Education Department had joined the Civil Court and his length of previous services of Education Department from 17.08.1994 to 14.03.2000 was added in his present length of service vide order passed by the learned District Judge dated 18.01.2005 therefore, he was entitled to the pay protection of the previous post.

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4. We however, find no merit in such contention. Rule 78 of the Jharkhand Service Code, 2001 reads as under:

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“78. The initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows:-

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(a) If he holds lien on a permanent post other than a tenure post, or would hold a lien on such a post had his lean not been suspended;

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(i) when appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 89) than those attaching to such permanent post, he will draw as initial pay the stage

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of the time-scale next above his substantive pay in respect of the old post;

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(ii) when appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the timescale which is equal to his substantive pay in respect of the old post, or, if there is no such stage the stage next below that pay, plus personal pay equal to the difference and in either case will continue to draw that pay until such time as he would have received an increment in the Time-scale of the old post or for period after which an increment is earned in the time-scale of new post, whichever is less. But if the minimum pay of the time- scale of new post, is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay;

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(iii) when appointment to the new post is made on his own request under Rule 56 (a) and the maximum pay in the timescale of that post is less than his substantive pay in respect of the old post he will draw that maximum as initial pay..

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(b) If the conditions prescribed in Clause (a) are not fulfilled he will draw as initial pay the minimum of the time- scale; Provided, both, in cases covered by Clause (a) and in cases,

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other than cases of re-employment after resignation or removal or dismissal from the public service covered by Clause (b), that if he

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either-

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(1) has previously held substantively or officiated in-

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(i) the same post; or (ii) a permanent or temporary post on the same timescale, or

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(iii) a permanent post other than a tenure post, on an identical time scale, or a temporary post on an identical time- scale such post being on the same time-scale as a permanent post, or

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(2) is appointed substantively to a tenure post on a time-scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated, then the initial pay shall not be less than the pay, other than special pay, personal pay or emolument classed as pay by the State Government under Rule 34 (a) (iii), which he drew on the last such occasion and he shall count the period during which he drew that

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pay on such last and any previous occasions for increment in the stage of the time-scale equivalent to that pay.

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If however, the pay last drawn by the Government servant in a temporary post has been inflated by the grant of premature increments the pay which he would have drawn, but for the grant of those increments, shall unless otherwise ordered by the authority competent to create the new post, be taken for the purposes of this provision to be the pay which he last drew in the temporary post.”

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5. It would be evidently clear from the aforesaid Rule that the same would not apply to the case of the petitioner as this is applicable only in case where the new post involves the assumption of duties with greater responsibilities/importance. The petitioner voluntarily joined as Assistant /Clerk in the Civil Court (new post) which did not involve responsibilities of greater importance than his earlier post and obviously therefore, Rule 78 of the Jharkhand Service Code would not apply to the case of the petitioner. Further, the petitioner had voluntarily resigned from a job of higher pay scale to join a job having a low pay scale and therefore, cannot claim pay protection.

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6. Moreover, the post of Assistant Teacher is a technical post having a degree of Teachers’ Training either exercised by the Government’s order in Government institution or voluntarily obtained by Teacher Training Institute therefore, also Rule 78 of the Jharkhand Service Code is not attracted to the case of the petitioner.

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7. Lastly and more importantly, the prayer made by the petitioner of pay protection was made after a long lapse of 22 years of his service and there is no explanation for such a belated claim.

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8. The mere fact that the authority is deciding a time barred representation would not revive a belated claim so as to furnish a cause of action to the petitioner to file the present petition. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme -4-

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Court in C. Jacob v. Director of Geology and Mining and another , (2008) 10 SCC 115 wherein it was observed as under:

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“9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realise the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.”

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9. Furthermore, the Hon’ble Supreme Court in Union of India and

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others Vs. M.K. Sarkar, (2010) 2 SCC 59 reiterated the legal position as

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under:-

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“ 14 . The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob v. Director of Geology and Mining : (SCC pp. 122-23, para 9)

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“ 9 . The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any ‘decision’ on rights and obligations of parties. Little do they realise the consequences of such a direction to ‘consider’. If the representation is considered and accepted, the ex-employee

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gets a relief, which he would not have got on account of the long delay, all by reason of the direction to ‘consider’. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.”

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15 . When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.

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16 . A court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct “consideration” without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.”

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10. The ratio decidendi of all the aforesaid judgments is that subsequent rejection of the representation would not furnish a cause of action or revive a dead issue or a time barred dispute.

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11. In view of the aforesaid discussions, we find no merit in this writ petition and the same is accordingly dismissed. Pending application, if any, also stands disposed of.

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(Tarlok Singh Chauhan, C.J.)

03.11.2025

N.A.F.R.

VK

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Sohail Ahmed v. the State of Jharkhand

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Sohail Ahmed v. the State of Jharkhand

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