WRIT PETITION 8243 of 2000 on 1 August 1998

ORAL JUDGMENT

Date: 14-08-2012

Whereas the petitioner in C.W.J.C. No. 8243 of 2000 has sought a direction in the nature of mandamus to the respondent-authorities of the State of Bihar for making payment of her retiral benefits, the other writ petition bearing C.W.J.C. No. 3043 of 2001 has been filed for payment of the differential amount of salary admissible to the petitioner against the post of Director, Research and Training as a consequence of pay protection as also following the revision of scale that has taken place over the period.

As any order passed in C.W.J.C. No. 3043 of 2001 would have direct bearing as to the calculation and payment of the retiral benefits, the two writ petitions have been taken up together for hearing and final disposal.

The reliefs prayed for by the petitioner in C.W.J.C. No. 8243 of 2000 runs as follows:- “1. That this is an application praying for issuance of a writ in the nature of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the petitioner her dues towards provident fund, gratuity, leave encashment, arrears of salary etc. which have illegally been withheld and, further, for issuance of an appropriate direction for payment of interest on the said outstanding amounts due to the petitioner ”

The reliefs prayed in C.W.J.C. No. 3043 of 2001 reads as follows:- “1. That this is an application praying for issuance of a writ in the

Facts

nature of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the petitioner the difference in salary between the salary admissible to her in terms of her letter of appointment and the posts held by her and the salary actually paid to her for her service rendered with the State Government i.e. 25[th]May, 1976 to 01.08.1998 during which period she has been continued on a basic salary of Rs. 1,415/- ; and further, for issuance of an appropriate writ, order or direction commanding the respondents to pay her interest on the amounts illegally denied to her for all this period”

For the sake of convenience I shall be referring to the pleadings and annexures in C.W.J.C. No. 8243 of 2000 unless clarified with reference to the second writ petition.

Brief facts essential for disposal of the case is that the petitioner was appointed as a Lecturer in History by the Patna University vide Notification bearing No. G/19750 dated 31.10.1960 and was posted at the Patna Women’s College. The date of birth recorded in the service record of the University is 20.01.1941. Vide Notification dated 20.04.1966 the petitioner was appointed as Lecturer under the University on substantive basis. Vide Notification bearing No. G/3932-46 dated 1.03.1974 the petitioner was promoted to the post of Reader in the then scale of Rs. 700-1,250/-. The Bihar Public Service Commission vide Notification dated 23.11.1974 recommended the case of the petitioner for promotion to the post of Reader with effect from 1.3.1974 and pursuant whereto, she was confirmed on the said post. While the petitioner was holding the post of Reader under the Patna University, an advertisement was issued for appointment on the post of Principal, Government Women’s College, Gardnibagh, Patna under the Bihar Education Service Class-I in the year 1975. The petitioner applied against the said advertisement and her case was recommended by the Bihar Public Service Commission vide letter dated 20.09.1975. The petitioner having been found most suitable, vide Notification dated 5.5.1976 (Annexure-3) of the Education Department, Government of Bihar, was appointed on the post of Principal, Government Women’s College, Gulzarbagh by way of direct recruitment, with effect from her date of joining. The appointment order issued under the signature of the Director (Administration-cum-Deputy Secretary) records the date of birth of the petitioner as 20.01.1941 as well as her salary was fixed in the payscale admissible under the Bihar Education Service Grade-Itogether with a special pay of Rs. 150/- admissible to a Principal. Following the appointment order, the petitioner joined the post of Principal, Government Women’s College, Gulzarbagh on 25.05.1976. While the petitioner was posted under the Government of Bihar holding post of Principal, Government Women’s College, Gulzarbagh as her lien was maintained with the Patna University she was granted promotion to the post of University Professor on 17.02.1984.

Conclusion

As the petitioner was holding the post of Reader in the Patna University at the time of her appointment as Principal, Government Women’s College, Gulzarbagh, drawing a salary of Rs.1420/- which was marginally above the pay admissible to the Principal of the Government Women’s College, the petitioner apart from the special pay of Rs. 150/- attached to the post of Principal, was also granted pay protection and communication in this regard was made by the Director (Administration) to the Accountant General, Bihar, Patna vide letter No. 657 dated 9.4.1980 placed at Annexure-4 of C.W.J.C. No. 3043 of 2001 which was followed by another letter bearing No. 576 dated 1.9.1987 forming part of Annexure-4 series. The petitioner was promoted to the post of Special Director, Research and Training and was holding the said post when after a round of litigations, she was finally made to superannuate under the order dated 1.8.1998 passed by the Director, Administration-cum-Deputy Secretary, Department of Secondary, Primary and Adult Education, Government of Bihar, Patna.

Sequence of events and the documents referred to above manifest that the petitioner upon her appointment as Principal, Government Women’s College, Gulzarbagh, Patna was admitted to pay protection by the Government of Bihar as also to special pay of Rs. 150/- attached to the post of Principal.

While the petitioner continued under the State Government, a dispute was raised as regarding her date of birth, which was sought to be altered from 20.01.1941 to 20.12.1938, relying upon a communication of the Secretary, Bihar School Examination Board and some admission Registers of Rabindra Balika High School. Relying upon the said documents the petitioner was asked to superannuate with effect from 31.12.1996 vide letter of the Director (Administration-cum-Deputy Secretary) Secondary, Primary and Adult Education, Government of Bihar dated 21.09.1996 placed at Annexure-4. The order being questioned in C.W.J.C. No. 12198 of 1996, was set aside by order dated 20.12.1996 forming part of Annexure-4 series. The Letters Patent Appeal preferred by the State of Bihar giving rise to L.P.A. No. 88 of 1997 was also dismissed vide order dated 20.03.1997 but while doing so the Division Bench accorded liberty to the respondents to pass a fresh order in accordance with law.

The said order is placed at Annexure-6 to C.W.J.C. No. 3043 of 2001. Following the liberty granted by the Division Bench a fresh order was passed on 1.8.1998 reiterating the earlier decision as contained in the order dated 21.09.1996 and holding the date of birth of the petitioner as 20.12.1938, the petitioner was superannuated w.e.f. 31.12.1996. Following the order dated 1.8.1998 the University also accepted the date of birth of the petitioner as 20.12.1938 and accordingly superannuated the petitioner with effect from 31.12.1998 upon attaining the age of 60 years. The order dated 1.8.1998 passed by the Director (Administration-cum-Deputy Secretary) Secondary, Primary and Adult Education and the order dated 24.12.1998 passed by the Vice Chancellor, Patna University were questioned by the petitioner by filing C.W.J.C.No.6977 of 1998 and C.W.J.C. No. 11135 of 1999 and which writ petitions were allowed by judgment and order dated 16.5.2012.

Following the order dated 1.8.1998 determining the date of birth of the petitioner as 20.12.1938 and superannuating her with effect from 31.12.1996 upon attaining the age of 58 years, an order was issued on 22.10.1999 requiring the petitioner to refund the salary drawn by her with effect from 1.1.1997 to 31.7.1998 placed at Annexure-8 of the proceedings. The directions were reiterated in a letter dated 30.05.2000 placed at Annexure-12. The matter came up for consideration on 31.8.2000 when a bench of this Court while admitting the writ petition was pleased to stay the operation of the directions contained in the letter dated 22.10.1999 and 30.05.2000. As the petitioner had superannuated , the State Government was directed to pay the entire pensionary benefits.

Following non compliance of the directions contained in the interim order dated 31.8.2000, the petitioner filed a contempt application giving rise to M.J.C. No. 621 of 2001. The contentions of the petitioner were upheld and the contemnors were sentenced to one day simple imprisonment until rising of the Court vide order passed on 8.9.2004. By the same order the respondent authority was directed to grant an appropriate pay scale to the petitioner during her officiation as Director, Research and Training with effect from 29.12.1995 to 31.12.1996 as also for revision of her retiral benefits. The order dated 8.9.2004 passed in M.J.C. No. 621 of 2001 was challenged by the State of Bihar and its

authorities by filing an appeal giving rise to L.P.A. No. 1177 of 2004 which was subsequently permitted to be converted as Misc. Appeal registered as Misc. Appeal No. 43 of 2005. In addition to Misc. Appeal No.43 of 2005, the alleged contemnors namely Anil Kumar the then Commissioner-cum-Secretary, Secondary, Primary and Adult Education, Government of Bihar and Umesh Narayan Panjiyar the then Finance Commissioner, Government of Bihar preferred individual appeals giving rise to M.A. No. 378 of 2004 (Anil Kumar versus the State of Bihar) and M.A. No. 417 of 2004 (Umesh Narayan Panjiyar versus Smt. Ritambari Devi). Whereas Misc. Appeal No. 378 of 2004 filed by Anil Kumar the then Secretary, Secondary, Primary and Adult Education stood dismissed for non compliance of the peremptory order dated 14.07.2008 the other two appeal i.e. M.A.No.43 of 2005 and M.A.No.417 of 2004 were allowed by a Division Bench of this Court by a judgment and order dated 5.10.2009 and the order of conviction and punishment passed by the learned Single Judge in M.J.C. No. 621 of 2001 was set aside.

Although the developments following the passing of the interim order dated 31.8.2000, the filing of the contempt application bearing M.J.C. No. 621 of 2001 and the orders passed in the Misc. Appeals aforementioned would have no bearing on the final determination of the claims raised in the writ petition(s) but since the counter affidavit(s) filed in the two writ petitions except for making reference thereto, does not respond to merits of the claim, this Court felt it expedient to deal with the same.

Reverting to the matter in issue, it is the contention of the petitioner as specifically set out in paragraphs 13 to 15 of C.W.J.C. No. 3043 of 2001 that she was denied the salary admissible to her inasmuch as she never was provided pay protection since after the initial fixation nor given the benefits of the pay revisions

Arguments

that took place from time to time. It is the case of the petitioner that as her claim for pay protection has been admitted by the respondent-department which is manifest from Annexure-4 series to C.W.J.C. No. 3043 of 2001, they could not resile from the same nor can deny the same to the petitioner. It is contended that although the respondents initially provided her pay protection when her pay was fixed at Rs. 1420/- with special pay, in terms of the salary being drawn by her against the post of Reader under the Patna University but thereafter it was frozen and although the petitioner was thereafter promoted to the post of Professor in the then scale of 1500/- - 2500/-as well as pay revision(s) took place with effect from 1.1.1986 and thereafter with effect from 1.1.1996 enhancing the scale of Professor to Rs. 4500/- to 7300/- from the existing 1500/-2500/- and with further revision taking place with effect from 1.1.1996 enhancing the scale to 16400/- 22400/- but no such revision took place in the case of the petitioner, who continued to draw her salary in the pre-revised scale of Rs. 1420 + pay protection + special pay.

Learned counsel in support of his contention has relied upon a salary slip dated 10.12.1987 placed at Annexure-9. The petitioner after having been made to superannuate under the orders of the State Government filed a detailed representation before the Accountant General, Bihar, Patna raising the grievance of denial of proper salary admissible to her after providing pay protection. The said representation dated 8.9.1999 is placed at Anneuxre-7 to C.W.J.C. No. 3043 of 2001. The Accountant General, Bihar Patna vide letter dated 9.2.2000 placed at Annexure-8 of the said writ petition directed the Additional Secretary, Department of Secondary, Primary and Adult Education to send his instructions in the light of the issues raised by the petitioner in the representation.

It is the case of the petitioner that no instructions were ever sent forcing her to move this Court through the writ petition in question for payment of her arrears of salary together with interest and which matters have remained pending since more than a decade.

It is rather unfortunate that despite the matters having remained pending since last 11-12 years, no counter affidavit in response to the averments made inthe two writ petitions and/or to the reliefs claimed thereunder, have been filed by the respondent-authorities of the State Government. A shoddy two pages counter affidavit has been filed in both the applications merely referring to the appellate proceedings arising from the order passed in the contempt application bearing M.J.C. No. 621 of 2001 filed by the petitioner for non compliance of the interim order passed in C.W.J.C. No. 8243 of 2000. Other than that no counter affidavit on merits of the case has been filed by the respondent- authorities, even when indulgence was granted by this Court on more than one occasion since after the matters had been taken up for hearing.

An interlocutory application was filed in C.W.J.C.No.3043 of 2001 bearing I.A.No.5049 of 2001 seeking amendment in the relief portion by incorporating the prayer for quashing the letter No.244 dated 30.07.2001 issued under the signature of Director(Administration) seeking to deny the pay protection admissible to the petitioner on grounds mentioned therein.

A short counter affidavit has been filed by the respondents in response to the interlocutory application and which again refers to the appellate proceedings arising from the contempt proceedings but not a whisper has been made in defence of the order denying pay protection to the petitioner. As the order has been issued during the pendency of the proceedings and has a direct bearing on the issue of pay protection raised in C.W.J.C.No.3043 of 2001, the Interlocutory application is allowed and relief prayed thereunder is taken on record.

There is absolutely no contest to the pleadings made by the petitioner in support of her claim for pay protection and for calculation and payment of retiral benefits on the basis thereof, despite opportunity spreading over 11-12 years being at the disposal of the respondent authorities and several indulgence being granted to them to respond to the claim of the petitioner as raised in the present proceedings.

It does not require reference to judicial pronouncements to hold that in absence of any contest from the respondents as to the merits of the claim advanced in the two writ petitions and their failure to file any counter affidavit controverting the averments in the writ petitions, the pleadings made therein remain untraversed and shall be deemed to be admitted. Even otherwise in view of the admission by the Director(administration) in the communications placed at Annexure-4 series of C.W.J.C. No. 3043 of 2001 accepting grant of payprotection to the petitioner, they cannot resile from the said position and the subsequent order dated 30.07.2001 placed at Annexure-10 of interlocutory application cannot be upheld.

Normally the Courts are slow in granting indulgence in matters relatable to pay scales and reference in this regard is made to the decision of the Supreme Court rendered in the case of Indian Drugs and Pharmaceuticals Ltd Vs. Workmen reported in (2007) 1 SCC 408 but the case in hand is different. The petitioner has placed on records the documents issued by the department concerned, supporting her claim for pay protection.

As this Court in consideration of the said documents which are available on the record of the proceedings, is satisfied that the petitioner indeed was entitled to pay protection and which had in fact also been granted by the respondent-authorities of the Education Department, it is a rather unjust and in fact an act of executive arbitrariness that despite the said position the petitioner was denied the same in her career spreading over twenty years under the State Government, thus forcing her to move this Court for her genuine claims.

As there was no assistance coming from the learned counsel appearing for the respondent-authorities in absence of proper instructions, this Court directed the petitioner to clarify and quantify her claims and pursuant whereto two charts have been submitted by her before this Court, copies whereof were handed over to the learned State counsel, appearing for the respondents. The petitioner by way of the chart(s) has tried to explain the pay fixation at the various stages of her career as also the differential amount which according to the petitioner, is payable to her by reason of the said pay fixation and which is reproduced herein below:

ParticularsRs.

(A) Pay fixed on 01 April 1976 as Reader in the U.G.C. Scale of 1,420 pay of Rs. 1200-50-1300-60-1900 as per HRD letter No.576 Dated 01/09/1987 & next date of increment 1[st] April : Add : 7 increments @ Rs. 60 from (01/04/77 to 01/04/83) (Rs. 60 x 7) 4201,840 Pay as Reader in the U.G.C Scale of Rs. 1200-1900 on 01/04/1983

(B) Promoted as Prof. in Merit Scheme in the U.G.C. Scale of Rs. 1500-60-1800-100-2000-125/2-2500 on 17.02.1984 as per P.U. letter No. G/9281 dated 23/05/85 & Pay to be fixed as under: Rs. 1500-60-1800-100-2000-125/2-2500 on 17.02.1984 as per P.U. letter No. G/9281 dated 23/05/85 & Pay to be fixed as under:

(a) Existing pay as Reader in the Scale of Rs. 1200-1900 1,840on 01/04/1983 or 16/02/1984.

(b) Staging of Pay in the Scale of Rs. 1500-2500 on 1,900 17/02/84 (c)Add : Increment for 01/04/84 100 (d)Add : Increment for 01/04/85 125 Pay on 01/04/85 or 31/12/85 in the Scale of Rs. 1500-2500 2,125

Pay on 01/04/85 or 31/12/85 in the Scale of Rs. 1500-2500 (C) Revision of Pay to be done as Prof. in the U.G.C. Scale of Rs. 4500-150-5700-200-7300 on 01/01/86 as under :

On the basis of the aforementioned exercise, a calculation chart has also been prepared by the petitioner quantifying her dues and which is as follows:- It is also the case of the petitioner that not only has she been denied pay protection and revision of pay scale, she has also been denied her annual increments. It is stated that in the entire service career under the State Government with effect from 25.05.1976 until her superannuation on 31.12.1996, she has not been granted a single increment.

Considering the uncontroverted pleadings made in the writ petition (s), the reliefs prayed thereunder and the chart(s) prepared by the petitioner to qualify and quantify her reliefs, this Court having no other option deems it expedient to direct the concerned respondent authorities of the State Government in its Education department to consider the claim of the petitioner as raised in the two writ petitions and recalculate her arrears of salary and her retiral benefits after grating her the benefits of pay protection, the pay revision(s) that took place during her service under the State Government and increment to which she is found entitled,in the light of the Charts prepared by her as reproduced herein above and make payment of the admissible dues within three months of receipt/production of a copy of this order after adjusting the payment(s) already made to her against the respective heads. If for any reason the respondents do not agree to the stages of fixation of pay/Revision thereof and/or the calculation of the dues as made by the petitioner, the same may be disposed of by a speaking order, also to be passed within the period stipulated above.

The writ petitions are allowed but without any order as to costs.

Patna High Court/the 14[th] August 2012/ Bibhash/ N.A.F.R

(Jyoti Saran, J.)