Babita Prasad vs State of Jharkhand

Pramath Patnaik, J

In this writ application, the petitioner has prayed for issuance of writ of certiorari for quashing the impugned order dated 09.05.2011 (Annexure-11)

passed by the respondent no.3 by rejecting the claim of the arrears of salary on account of contractual appointment as Personal

Assistant/Stenographer and the petitioner has further prayed for direction upon the respondents for payment of following amount to which he is duly

entitled to:-

(a) To pay the difference of arrears of salary on account of increasing monthly contractual amount with effect from 27.12.2007 to May, 2008 in view

of Finance Department Resolution dated 27.12.2007.Â

(b) To pay the arrears of salary from November, 2008 to 24.03.2009.Â

(c) To fix the contractual amount on the basis of 6th Pay Revision with effect from 01.01.2009 and pay the arrears of revised contractual amount

from 25.03.2009 to May, 2009.

(d) To pay the difference of arrears of contractual amount between unrevised and revised pay-scale on account of revision of pay from 01.06.2009 to

31.10.2009 as also contractual amount from 01.11.2009 to 08.11.2009.Â

The petitioner has further prayed for direction upon the respondents for payment of statutory interest upon the arrears of contractual amount to which

the petitioner is duly and legally entitled.   Â

The factual matrix as revealed in the writ application in a nutshell is that earlier the petitioner approached this Court in W.P.(S) No.4655 of 2010

praying for various relief including contractual amount and the said writ petition was disposed of vide order dated 23.11.2010 with direction to the

petitioner to file detailed representation before the respondent no.3 and the respondent no.3 was directed for taking decision. Indeference to direction

of the Hon’ble Court dated 23.11.2010, the petitioner submitted representation. Since, no decision was taken on the representation filed by the

petitioner, the petitioner has filed a Contempt Case No.162 of 2011 and during the pendency of the Contempt Case, the impugned order dated

09.05.2011 has been passed vide Annexure-11 to the writ petition. Admittedly, the petitioner was appointed on contract basis as Personal Assistant

vide letter dated 05.06.2002 and the appointment of the petitioner was made as per the request of the respondent no.3 to respondent no.2 for

appointment against the sanctioned post of Personal Assistant. Appointment of the petitioner was extended from time to time in a regular manner vide

various extension letters. While continuing as such, there was enhancement of the contractual amount in view of the Finance Department Resolution

dated 27.12.2007 and in pursuance to the said resolution, the contractual amount of the petitioner was enhanced to Rs.10,075/-. The Finance

Department Resolution dated 18.10.2008, the dearness allowance was raised by 54% and once again vide resolution dated 30.09.2009, the dearness

allowance was raised from 22% to 27% of the basic salary. Once again vide Finance Department Resolution as contained in memo dated 25.03.2009

the contractual amount of contractual appointees has been revised with effect from 01.01.2009 in view of 6th Pay Revision. Despite the resolution of

the Finance Department, the respondent no.3 rejected the claim of the petitioner vide order dated 09.05.2011 vide Annexure-11. Though, the petitioner

is entitled to huge arrears of salary to the tune of Rs.2.50 lakhs only a meagre amount of Rs.50,375/- has been paid to the petitioner as evident from

letter dated 18.01.2012 issued by respondent no.3 vide Annexure-12 to the writ petition. Being aggrieved by the impugned order dated 09.05.2011 vide

Annexure-11 the petitioner has been constrained to approach the Court seeking direction to the respondents for relief as stated hereinabove under

Article 226 of the Constitution of India.

Learned counsel for the petitioner has vehemently submitted that the action of the respondent in passing the impugned order dated 09.05.2011 is

tainted with arbitrary and discriminatory exercise of power because the respondent no.3 has not followed the relevant resolution of the Finance

Department, so far as revision of the contractual amount and payment of revised salary is concerned. Learned counsel for the petitioner further

submits that the action of the respondent no.3 appears to have been taken not in consonance with Government Finance Departmental Circular.

Therefore, the said action of the respondent is violative of Article 14 and 16 of the Constitution of India.Â

Controverting the averments made in the writ application, a counteraffidavit has been filed on behalf of the respondents. It has been submitted in

the counter-affidavit that in pursuance to resolution dated 27.12.2007 of the Finance Department, Jharkhand an office order has been issued vide

order dated 17.06.2008 whereby the amount of contractual payment has been fixed from the date of issuance of the aforesaid resolution of the

Finance Department. It has been fixed at Rs.10,075/- per month with effect from June, 2008. Further it has been submitted that difference of pay of

the petitioner with effect from 27.12.2007 to May, 2008 for five months and four days and arrears of pay for the month of November, 2008 and

December, 2008 is payable to the petitioner and the contractual payment of Rs.10,075/- per month since January, 2009 to May, 2009 has already been

paid to the petitioner vide letter dated 18.01.2012 issued by the State Consumer Dispute Redressal Commissioner, Jharkhand, Ranchi as per

Annexure-E to the counter-affidavit. So far as, the claim of the petitioner for payment in accordance with the recommendation of the Sixth Pay

Commission is concerned, the same is not payable since, the petitioner was appointed under contract and a person appointed under contractual basis

cannot claim pay/salary which is payable to a regular employee.Â

Learned counsel for the State by reiterating the submissions made in the counter-affidavit has assiduously submitted that since the petitioner has

been appointed purely on contractual basis and the benefit of pay revision is applicable to regular employees and in view of the separate notification

meant for contractual appointee vide memo dated 02.07.2007 the contractual remuneration has been enhanced. Accordingly, the reasoned order has

been passed vide order dated 09.05.2011 vide Annexure-11 to the writ petition.    Â

After hearing learned counsel for the respective parties at length and on perusal of the documents on records, the impugned order dated 09.05.2011

vide Annexure-11 warrants interference due to the following facts and reasons:-

(I) Admittedly, the petitioner has been continuing work on contractual basis but the monthly contractual amount of the petitioner has been enhanced in

view of the Finance Department Resolution dated 27.12.2007. Accordingly, in view of the Finance Department Resolution dated 18.10.2008, the

dearness allowance on the basic salary has been raised. It would be relevant to mention that as per Finance Department Resolution as contained vide

memo dated 25.03.2009 vide Annexure-10 to the writ application, the contractual amount of the appointee has been revised with effect from

01.01.2009 in view of the Sixth Pay Revision. Therefore, on perusal of the impugned order dated 09.05.2011 vide Annexure-11, it would appear that

the same has been passed without considering the resolution of Finance Department dated 25.03.2009 which cannot be sustained. Moreover, the

petitioner continued till 08.11.2009 and the petitioner is entitled to be revised contractual amount from 01.01.2009 till the date of retirement i.e.

08.11.2009 as per the Finance Department Resolution dated 25.03.2009 Annexure-10 to the writ application.Â

(II) In view of the reason stated in the foregoing paragraphs this Court is inclined to hold that the impugned order vide Annexure-11 warrants

interference. Accordingly, the same is quashed and set aside and the respondents are directed to consider the case of the petitioner for payment of

revised contractual amount as per the Finance Department Resolution dated 25.03.2009 (Annexure-10) within a period of eight weeks from the date

of receipt/communication of the order.Â

(III) It is needless to mention that on consideration of Annexure-10 if the petitioner’s claim appears to be genuine, the legally admissible arrears on

revised pay be paid to the petitioner as expeditiously as possible preferably within a period of eight weeks thereafter. Â

7. With aforesaid direction, the writ petition stands allowed to the aforesaid extent.Â

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