Naiyar Nezami Jafri vs The State Of Bihar & Ors.

Heard the learned counsel for Petitioner and learned counsel appearing on behalf of the respondent-State of Bihar.

By way of the present writ application, the petitioner interalia has prayed for the following reliefs:

Learned Counsel for the Petitioner submits that he joined before the then District of Treasury & Accounts on 20.07.1998. The petitioner, in the meantime was transferred and posted as Clerk to the Secretariat Treasury, Sinchai Bhawan, Patna, vide Office Order No. 46 dated 17.10.1998 contained in Memo No. 748 dated 28.10.1998 (Annexure- P/3), where he submitted his joining on 29.10.1998.

Vide Resolution dated 25.01.1999, notified in the Official Gazette on 29.01.1999 (Annexure-P4), the Government of Bihar transferred the administrative control of all Class-III & IV employees of the Treasury cadre to the respective District Magistrates of the districts concerned, expressly clarifying in Clause-4 thereof that there would be no change in the service conditions of such employees.

Consequent upon the eventual dissolution of the Directorate of Treasury and Account, all its employees, including the petitioner, were placed under the control of the District Magistrate vide order dated 04.11.2000 (Annexure-R/B).

The petitioner was again transferred and posted at Nalanda Treasury, Bihar Sharif, vide Memo No. 7724 dated 04.11.2000, and was relieved vide Memo No. 5218 dated 24.01.2001 and he submitted his joining in Nalanda Treasury on 01.02.2001, wherein he continued to work there as Assistant Accountant, a Class-III post under the Finance Department, presently posted at Nalanda Treasury.

It is the case of the petitioner that though he was appointed on compassionate ground, he performs similar duties as those Clerks/Accountants of the Treasury Cadre who had been absorbed by way of option exercised in the year 1979-80, and that all of them constitute one single cadre, their postings being inter-transferable and inter-changeable.

It is averred that despite this position, while similarly situated compassionate appointees of the very same Treasury Cadre have been extended the pay scale of Rs. 5,000-8,000/- with effect from 01.01.1996 or from their respective dates of joining, the petitioner has been arbitrarily denied the said benefit and has been kept confined to the lower pay scale of Rs. 4,000-6,000/-, with a replacement scale of Rs. 5,200-20,200/- + Grade Pay of Rs. 2,400/- with effect from 01.01.2006.

Learned counsel for the petitioner has also taken this Court through the long chequered history of litigation concerning the pay scale of Clerks/Accountants of the Treasury cadre. It is contended by the Learned Counsel for the Petitioner that the 5th Pay Revision Committee's recommendation, was accepted by the Government of Bihar vide Resolution dated 18.12.1989,which extended the pay scale of Rs. 1400-2600/- to Accounts Clerks/Accountants of the Treasury, including those appointed on compassionate ground, with effect from 01.01.1986. Vide letter dated 11.10.1991, however, the Finance Department stated that the replacement scales of Rs. 730-1080/- (w.e.f. 01.04.1981) and Rs. 1400-2600/- (w.e.f. 01.01.1986) were still under consideration, and directed their cancellation.

Aggrieved by the aforesaid act, similarly, situated employees moved before this Hon’ble Court in C.W.J.C. No. 3063 of 1992. Separately, a Resolution dated 21.07.1993 decided to dissolve the Directorate of Treasury and Accounts (the dissolution actually taking effect only in 1999) and it was decided that the services of the Treasury Clerks/ Assistant Accountants will be put henceforth, under the control of Deputy Commissioner and Collector of individual districts.

Since the aforesaid resolution dated 21.07.1993 was directly affecting the rights of the aggrieved persons, the association and members of aggrieved persons therefore, challenged the same in C.W.J.C. No. 7703 of 1993, wherein vide order dated 17.01.1994, it was directed that the service conditions, the nature of work and salary of the writ petitioners therein, which included persons similarly placed to the present petitioner, would not be disturbed or affected in any manner.

Thereafter, upon the Central Pay Scale being made applicable with effect from 01.01.1996, the Government of Bihar, vide Resolution dated 07.08.1999, granted a pay scale of only Rs. 4,000-6,000/- to the Treasury Clerks/ Typists/Assistant Accountants/Accountants. The aforesaid was subsequently, made a subject matter of challenge in C.W.J.C. No. 3063 of 1992 (Dhananjay Sharma & Ors. Vs. The State of Bihar & Ors.). This Hon’ble Court, vide judgment dated 26.07.2001 (Annexure- P/5), allowed the said writ petition and directed the respondent authorities to pay the writ petitioners therein the pay scale of Rs. 5,000-8,000/- with effect from 01.01.1996 in the following terms:

It has been further submitted by the counsel for the Petitioner, that the State of Bihar assailed the order passed in the aforesaid writ application by way of L.P.A. No. 165 of 2002, in which an interim order dated 17.02.2004 directed continuation of payment at Rs. 5,000- 8,000/-, subject to recovery in the event the appeal succeeded. The said appeal, along with L.P.A. No. 859 of 2007, was finally heard on 27.04.2010 and the same was dismissed vide judgment dated 21.04.2010/20.04.2010.

The consequent Special Leave Petitions preferred by the State being S.L.P. (C.C.) No. 19802 of 2010 and S.L.P. (C.C.) No. 1381 of 2011 were dismissed by the Hon'ble Supreme Court on merits vide orders dated 06.01.2011 and 12.05.2011 respectively (Annexure- P/11 series). The judgment in C.W.J.C. No. 3063 of 1992 has, therefore, attained finality up to the Hon'ble Supreme Court.

It is also submitted that the Additional Finance Commissioner (Expenditure) issued Memo No. 1692 dated 13.03.2007 (Annexure- P/9), directing all the Treasury Officers to pay the pay scale of Rs. 5,000 to 8,000/- only to such Accountants who have come to the Treasury / Sub-Treasury in 1979 by way of option and not to pay the said pay scale to other Accountants/ Clerks, who have been inducted through any other source, including those who have been appointed on compassionate grounds.

It has been stated by the Petitioner that the aforesaid is in complete derogation to interim order dated 17.02.2004 passed in L.P.A. No. 165 of 2002; the order passed in CWJC No. 3063 of 1992 and of the Government's own Resolution No. 1096 dated 22.02.2006 (Annexure- P/6), which, while de-merging the Treasury Clerk/Accountant cadre into the Collectorate Clerks cadre, had specifically provided in Paragraph 5(Cha) thereof, that the pay scale and service conditions of Clerks working prior to the dissolution of the Directorate of Treasury would remain unaffected and would abide by the outcome of L.P.A. No. 165 of 2002.

It is contended on behalf of the Petitioner that similarly situated Treasury Clerk of Munger Treasury, who was also appointed on compassionate ground, had his pay scale arbitrarily reduced to Rs. 4,000-6,000/- pursuant to the said Memo No. 1692 dated 13.03.2007, whereupon he approached this Court in C.W.J.C. No. 817 of 2007 (Prabhat Shankar Poddar Vs. The State of Bihar & Ors.).

The Hon’ble Court, vide order dated 20.07.2011 (Annexure-P/12), allowed the said writ petition, quashed the impugned orders, and directed the concerned authorities to grant the pay scale of Rs. 5,000-8,000/-with effect from 01.01.1996.

The State's L.P.A. No. 2006 of 2011 against the said order was dismissed on merits vide order dated 05.12.2013 (Annexure- P/14), and the State's subsequent Civil Review No. 182 of 2014 against the said Division Bench judgment was dismissed vide order dated 23.09.2015 (Annexure-P/15).The relevant extract from the order passed in CWJC No. 817 of 2007 reads as follows:

Furthermore, other similarly situated employees, all appointed on compassionate ground and working as Clerks in various Treasuries/Sub-Treasuries moved before this Hon’ble Court in C.W.J.C. No. 6751 of 2007 for seeking similar nature of reliefs, and the same was allowed on 15.12.2011 (Annexure- P/13 series), holding that the writ petitioners therein, were eligible to receive the pay scale of Rs. 5,000-8,000/- with effect from 01.01.1996, and consequently, Memo No. 1692 dated 13.03.2007, by which the respondent authorities had sought to deny such compassionate appointees the said pay scale, was thereby quashed.

It is not in dispute, that the order dated 15.12.2011 passed in C.W.J.C. No. 6751 of 2007 was never assailed by the State of Bihar and has consequently attained finality. Consequent upon losing the litigation right up to the Hon'ble Supreme Court, the State issued a fresh Resolution contained in Memo No. 8661 dated 16.09.2011, restricting the grant of the pay scale of Rs. 5,000-8,000/- w.e.f. 01.01.1996, only to those Accounts Clerks who had come to the Treasury by way of option in 1980-81 a stand which, according to the petitioner, ignores the binding decisions noticed above.

It is further submitted an identical nature of dispute concerning similarly situated compassionate appointees of the Treasury belonging to the very same list of Class-III/IV employees transferred, vide order dated 04.11.2000 (Annexure-R/C) to which the present petitioner also belonged, approached to this Hon’ble Court by way of C.W.J.C. No. 23781 of 2012 (Syed Reyaz Monir & Ors. Vs. The State of Bihar & Ors.), wherein challenge was made to the rejection of representations of the petitioners for the pay scale of Rs. 5,000-8,000/-. The said writ petition was allowed by this Hon’ble Court vide judgment and order dated 23.08.2017 (Annexure-P18), holding in unambiguous terms as follows:

Aggrieved thereby, the State of Bihar preferred L.P.A. No. 1277 of 2018, which came to be dismissed by a Division Bench of this Court on 04.02.2019 (Annexure- P/20), affirming the view of the learned Single Judge in the following terms:

It is submitted by the counsel for the Petitioner that the judgment dated 23.08.2017 passed in C.W.J.C. No. 23781 of 2012, having been affirmed by the Division Bench of this Court in L.P.A. No. 1277 of 2018, squarely covers the subject matter of dispute involved in the present writ application. Nothing has been brought on record to show that the said judgment, as affirmed by the Division Bench, has subsequently been stayed, set aside or otherwise disturbed. The petitioners therein were similarly situated to the present petitioner, namely, persons appointed in the Treasury establishment on compassionate ground and were denied parity in pay scale vis-àvis those who had come to the cadre by way of option in 1979.

Furthermore, it is also brought to the notice of the court that an independent line of litigation travelled to the Jharkhand High Court, where an exactly similarly situated employee, who was appointed on compassionate ground on 24.04.1982 as a Clerk, successfully assailed a similarly discriminatory Resolution No. 5407 (Fin.) dated 03.09.2002 in W.P.(S) No. 742 of 2004. The Hon’ble Jharkhand High Court, vide judgment dated 22.08.2006 (Annexure-P7), held that the impugned notification, classifying employees on the basis of source of recruitment, notwithstanding that they ultimately comprised the same category of service, could not be sustained, and directed the grant of the pay scale of Rs. 5,000-8,000/- with effect from 01.01.1996. The said judgment was upheld by a Division Bench in L.P.A. No. 515 of 2006, and further affirmed by the Hon'ble Supreme Court in S.L.P. (C.C.) No. 6897 of 2007.

Additionally, one Vijay Kumar Sinha, a similarly situated compassionate appointee, was transferred from the Treasury office to a Block office by the respondent authorities. He challenged the said transfer in C.W.J.C. No. 22147 of 2012, which was dismissed by a learned Single Judge on 28.02.2014, though the Court did uphold that he was to remain a Clerk. Aggrieved by the ground on which the writ petition was dismissed (that he was not an employee of the Treasury cadre), he preferred L.P.A. No. 770 of 2014, which was allowed vide order dated 25.08.2017 (Annexure- P/19) by a Division Bench of this Hon’ble Court, holding that an employee appointed by the Finance Commissioner from the Directorate of Treasury and Accounts has to be treated as an employee appointed in the cadre of Treasury and Accounts, and cannot be transferred out of the Treasury; it was further observed that the appellant's father had himself been working in the Treasury and Accounts cadre and, upon his death, the appellant had been appointed and posted at Gaya Treasury, a fact-pattern materially identical to that of the present petitioner, who too was appointed on compassionate ground in the cadre of Treasury and Accounts by the Director of Treasury and Accounts, after the death of his father, who was himself an employee of the Treasury and Accounts.

In this background, the petitioner submitted a representation dated 16.04.2012 before the Treasury Officer, Nalanda Treasury, seeking parity in pay scale with similarly situated Clerks/Accountants of the Treasury cadre. On there being no response, the petitioner approached this Court in C.W.J.C. No. 6846 of 2013, which was disposed of on 16.05.2016 (Annexure-P16) with directions to the respondent-authorities to consider the petitioner's representation.

In compliance, the petitioner submitted a fresh representation dated 13.06.2016 (Annexure- P/17), enclosing a copy of the said order. The said representation came to be rejected vide the impugned order contained in Memo No. 6168 dated 03.08.2016 (Annexure- P/1) which is under challenge in the present writ application.

The operative portion of the rejection order records that the pay scale of Rs. 5000-8000/- granted to Sri Prabhat Shankar Poddar and others on the strength of C.W.J.C. No. 817/2007 was not proper, and, therefore, the benefit of the said disputed judgment should not be extended to the Petitioner.

Per contra, the Learned Counsel for the state respondents submits that the petitioner was recommended for compassionate appointment on a Class-III post in the pay scale of Rs. 1200-30-1800/- vide letter No. 5841 dated 30.05.1998, and was appointed on 18.07.1998 as Typist in the Treasury and Account Directorate in the said pay scale.

In the year 1979, the Government had decided to fill up the post of Treasury Clerk through option from amongst the Clerks working in different Collectorates, pursuant to which 265 Clerks opted for and were allowed to work on the said post, and that it is only this group of 265 (odd) employees who, pursuant to the recommendation of the Fitment Appellate Committee (Annexure-R/D), and the interim order of this Court dated 02.09.1999, are entitled to the replacement scale of Rs. 5,000-8,000/-, as this pay scale is stated to be available only for the 265 Treasury Clerks who opted for the establishment/directorate of Treasury in 1979, and not to other Clerks of the Treasury.

Placing reliance upon the judgment dated 05.04.2016 passed in C.W.J.C. No. 3165 of 2014 (Baliram Singh Vs. The State of Bihar) in which appeal L.P.A. No. 1970 of 2016, was disposed of on 13.04.2016 without disturbing the finding that a distinction exists between the post of "Treasury Clerk" and "Clerk in Treasury," and that the petitioner, having been appointed as Typist and not as a Treasury Clerk by option in 1979, falls in the latter category and is entitled only to the pay scale of Rs. 4,000-6,000/- w.e.f. 01.01.1996.

Reliance is also placed on the judgment of the Hon’ble Division Bench in Civil Review No. 44 of 2019 on the proposition that there ought not to be any discrimination amongst compassionate appointees for grant of ACP.

The Division Bench, in paragraphs 12 to 16, nonetheless noted the distinction between Treasury Clerk and Clerk in Treasury in the following terms:

Applying the aforesaid, the counsel for the respondent state contends that impugned order dated 03.08.2016 is a reasoned, speaking order which does not suffer from any infirmity, and that the writ petition is liable to be dismissed. Adverting to the same, the counsel for the petitioner has pointed out that the respondents have not furnished any specific para-wise reply either to the writ petition or to the supplementary affidavit, but have filed only a consolidated reply, without dealing at all with the findings recorded in C.W.J.C. No. 23781 of 2012 and L.P.A. No. 1277 of 2018 noticed above, both of which concern persons transferred vide the very same list dated 04.11.2000 (Annexure- R/C) to which the petitioner belongs.

It is further pointed out that the very premise on which the petitioner's representation has been rejected by the impugned order dated 03.08.2016 would depend upon and be affected by the outcome of Civil Review Petition No. 182/2014 is factually incorrect, inasmuch as, Civil Review No. 182 of 2014 already stood dismissed on 23.09.2015, i.e., well before the impugned order dated 03.08.2016 was passed.

The very foundation of the impugned order, therefore, did not survive on the date on which it came to be passed.

Learned counsel appearing for the respondent-State has opposed the writ petition and submitted that the petitioner, having been appointed as a Typist on compassionate ground in the year 1998 in the pay scale of Rs. 1,200–1,800/-, was not a Treasury Clerk appointed through the option exercised in the year 1979 and, therefore, could not claim the pay scale of Rs. 5,000–8,000/-applicable to the latter category.

It has further been submitted that the petitioner was accordingly entitled to the pay scale of Rs. 4,000– 6,000/- with effect from 01.01.1996, and that the impugned order dated 03.08.2016 passed vide Memo No. 6168 is justified.

The respondents have also placed reliance upon the Fitment Appellate Committee Report and the judgment dated 05.04.2016 passed in C.W.J.C. No. 3165 of 2014 (Baliram Singh supra) and the judgment dated 31.07.2019, passed in Civil Review No. 44 of 2019 (Anit Kumar Singh supra) to contend that a distinction exists between a "Treasury Clerk" and a "Clerk in Treasury", and that the petitioner does not fall within the category of employees entitled to the higher pay scale.

This contention, however, does not commend itself to this Court, for more than one reason. In the first place, the very distinction sought to be pressed by the respondents between compassionate appointees performing duties in the Treasury establishment and those who came to the cadre by option in 1979 has been considered and has been answered in negative in C.W.J.C. No. 23781 of 2012, which was affirmed by the Division Bench in L.P.A. No. 1277 of 2018.

Nothing has been brought on record to show that the said decisions have subsequently been stayed, set aside or otherwise disturbed. The respondent-authorities, therefore, cannot be permitted to reagitate the self-same distinction against similarly situated employees.

Secondly, the order contained in Memo No. 1692 dated 13.03.2007, which forms the foundation of the stand taken by the respondents, had already been quashed by this Court in C.W.J.C. No. 817 of 2007 and thereafter in C.W.J.C. No. 6751 of 2007. It is not disputed that the judgment dated 15.12.2011 passed in C.W.J.C. No. 6751 of 2007 was never assailed by the State of Bihar.

It was, therefore, not open to the respondent authorities to rely upon and apply the same order to reject the petitioner's representation.

Thirdly, and independently of the above, the specific ground recorded in the impugned order dated 03.08.2016 that the benefit granted in C.W.J.C. No. 817 of 2007 would be affected by the outcome of Civil Review No. 182/2014 did not survive on the date the order was passed, since Civil Review No. 182 of 2014 already stood dismissed on 23.09.2015. An order passed on a premise that has ceased to exist on the date of the order cannot be sustained.

Fourthly, insofar as reliance has been placed upon the judgment dated 05.04.2016 passed in C.W.J.C. No. 3165 of 2014 (Baliram Singh supra) and the judgment dated 31.07.2019 passed in Civil Review No. 44 of 2019 (Anit Kumar Singh (supra), the same do not persuade this Court to take a view different from the one already taken in the cases of similarly situated compassionate appointees.

The decision in Civil Review No. 44 of 2019 was rendered in the context of the benefit of Assured Career Progression and, therefore, has to be understood in the factual context in which it was rendered. On the other hand, the controversy regarding the distinction between compassionate appointees and employees who had opted for the Treasury cadre has been directly considered in C.W.J.C. No. 23781 of 2012, which was affirmed in L.P.A. No. 1277 of 2018. The said decisions, therefore, have greater relevance to the controversy involved in the present writ petition.

Lastly, the petitioner's case that he was appointed on compassionate ground in the Treasury and Accounts establishment by the competent authority bears substantial similarity to the factual situation considered by the Division Bench in L.P.A. No. 770 of 2014 (Vijay Kumar Sinha (supra)), decided on 25.08.2017, which held that an employee so appointed and posted has to be treated as belonging to the Treasury and Accounts cadre and cannot be treated as a mere outsider posted therein.

The material on record, particularly the decisions rendered in respect of similarly situated compassionate appointees working in the Treasury establishment, indicates that the distinction sought to be maintained solely on the basis of the source or mode of appointment has not been accepted in the earlier decisions referred to hereinabove.

In C.W.J.C. No. 23781 of 2012, the distinction sought to be made between persons appointed on compassionate basis and those who had opted for the Treasury cadre was held to be unreasonable and unsustainable, which view was subsequently affirmed by the Division Bench in L.P.A. No. 1277 of 2018.

The petitioner, therefore, cannot be denied consideration of his claim merely on the ground that his initial appointment was on compassionate basis and not pursuant to the option exercised in the year 1979.

In view of the aforesaid facts and the decisions discussed hereinabove, this Court is of the considered opinion that the respondent-authorities could not have denied the petitioner consideration of his claim for the pay scale of Rs. 5,000–8,000/- solely on the basis of his initial appointment on compassionate ground, particularly when the same distinction has not been accepted in the decisions concerning similarly situated employees of the Treasury establishment. The rejection of the petitioner's claim on such basis is found to be unreasonable and arbitrary, therefore, cannot be sustained.

For the reasons aforesaid, the impugned order contained in Memo No. 6168 dated 03.08.2016 (Annexure- P/1) is unsustainable in the eye of law and is accordingly quashed.

The Petitioner is entitled to the consequential pay scale of Rs. 5,000-8000/- with effect from 20.07.1998, i.e. his date of joining. The respondent-authorities are directed to re-fix the pay of the petitioner in accordance with the aforesaid directions and to compute and pay the consequential arrears of salary within a period of three months from the date of receipt/production of a copy of this order.

The writ petition is accordingly allowed.

There shall be no order as to cost