CIVIL APPEAL 2884 of 1996 on 24 May 1996

1. Bihar State Adult & Non-Formal Education Employees Association having its principal office at B-3/23 Officers’ Flat, P.S. Lal Bahadur Shastri Nagar, Patna 23 through its authorized signatory and President Shri Vijay Nath Tiwary. principal office at B-3/23 Officers’ Flat, P.S. Lal Bahadur Shastri Nagar, Patna 23 through its authorized signatory and President Shri Vijay Nath Tiwary.

2. Vijay Nath Tiwary son of Shri Shiv Lagan Nath Tiwary, resident of village & P.O. Mangalpur Gudaria , P.S. Nautan District West Champaran. P.O. Mangalpur Gudaria , P.S. Nautan District West Champaran.

.... .... Petitioner/s

Versus

1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.

2. Shri A. K. Rath, Secetary, Department of Primary, Secondary and Mass Education, Government of Bihar, Patna. Education, Government of Bihar, Patna.

3. Shri Vishnu Kumar, Director, Directorate of Mass Education, Department of Primary Education, Govt. of Bihar, Patna. Primary Education, Govt. of Bihar, Patna.

4. Shri B. K. Haldhar, Secretary, Department of Personnel & Administrative Reforms, Government of Bihar, Patna. Reforms, Government of Bihar, Patna.

.... .... Respondent/s

Appearance :

For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocate, Mr. Nikhil Kumar Agrawal.

For the State of Bihar : Mr. A. R. Pandey, AAG 15

Mr. Priyadarshi Matri Sharan, A/C to AAG 15

For the State of Jharkhand : Mr. Dhruba Mukherjee, Sr. Advocate Mr. Md. Nazir Ansari

===========================================================

CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTAORAL JUDGMENT ORAL JUDGMENT

Date: 14-12-2016

Heard learned counsel for the petitioners, learned counsel for the State of Bihar and learned counsel for the State of Jharkhand.

2. The contempt application has been filed claiming willful disobedience of the order dated 24.05.1996 passed by this Court in C.W.J.C. No. 5036 of 1992 and other analogous cases. By the said order the Principal Secretary of the Adult Education Department was directed to absorb the petitioners in other government departments.

3. In the order dated 01.07.1998 passed by this Court in the present contempt application it was observed that it is evident that the then government of undivided Bihar was obliged to absorb all the surplus employees of the Adult Education/Mass Education on the post equivalent to those from which they had become surplus, i.e. the post of Supervisor in the pay scale of Rs.5000-8000.

4. During the pendency of the contempt proceeding the successor Government of Bihar took steps in the matter and ensured that all the Supervisors, who had been appointed on the lower scale of pay of Rs.1200-1800 of Clerk, equivalent to the revised scale of Rs.4000-6000, were subsequently absorbed on the post carrying the pay scale of Rs.5000-8000, in the equivalent post of Supervisors.

5. The Principal Secretary, Human Resources Department, Government of Bihar also informed to his counter part in the State of Jharkhand in the year 2000 itself requesting him to take similar steps with regard to the employees who fell in the State of Jharkhand after the re-organisation of the erstwhile State of Bihar in November, 2000. It appears that the Government of Jharkhand where 333 such employees were in existence, was able to absorb only 172 of them in the proper pay scale of Rs. 5000-8000 and the remaining 161 employees were absorbed in the lower scale of Rs.4000-6000 as also Rs.3050-4590, as per availability of sanctioned vacant posts which were, in fact, contrary to the order under contempt as observed by this Court by order dated 01.07.1998 passed in this contempt application.

6. By order dated 21.07.2016 this Court upon these facts, made it clear that as per the order under contempt, the employees declared surplus had to be adjusted not only against the existing vacancies but also against the vacancies which would arise in future and they had the first right of absorption against the said vacancies. It was also made clear by the said order that the appointment must be completed at least with regard to those employees, who have not yet retired or are dead.

7. A sixth supplementary show cause has been filed on behalf of opposite party no. 6, the Principal Secretary, School Education & Literacy Department, Government of Jharkhand in which it is stated that by resolution dated 02.12.2016 in terms of the cabinet decision it has been decided that 63 employees out of 161 who were still in service in July, 2016 shall be absorbed on the higher post carrying pay scale of Rs.5000-8000 as per fifth pay revision and -equivalent to 6[th]pay revision’s pay scale of Pay Band III Rs.930034800, Grade Pay Rs.4200. Thereafter directions had been issued to the different departments to take steps pursuant to the resolution dated 02.12.2016.

8. Learned counsel for the State of Jharkhand submits that in view of the aforesaid resolution of the Government dated 02.12.2016 the order under contempt has been fully complied with.

9. Learned counsel for the petitioner, on the other hand, submits that the benefit ought to have been given to 161 employees but has been confined only to the 63 employees who were in service till July, 2016. He has further submitted that the resolution states that the appointment shall be treated as new appointment and the actual benefit on the newly absorbed posts shall be given from the date of their joining.

10. On a consideration of the resolution before us, it is evident that the decision has been taken to grant the pay scale of Rs.5000-8000 as per fifth pay revision and equivalent to 6[th] payrevision in the pay scale of Pay Band III Rs.9300-34800 with Grade Pay of Rs.4200 to 63 employees who were in service till July, 2016. Upon reading of the resolution, it appears that there is some contradiction in the same. The appointment is to be treated as new appointment and further the actual benefit will be given from the date of their joining. It is evident that if the benefits are to be given to all the 63 employees in service in the month of July, the same cannot be from the date of joining as it is possible that in the meantime some of them would have retired and that itself would amount to contempt of this Court. The benefit has to be given from July 2016 so that the benefits are not denied to the employees who have retired or died thereafter.

11. So far as treating the absorption as fresh appointment is concerned, it can only be for the purpose of higher pay scale of Rs.5000-8000 and it appears that in terms of paragraph 13 of the resolution the statement that all other terms and conditions of the earlier absorption resolution dated 30.05.2007 shall be continued to be applied to them would mean that the benefit of past service cannot be denied to those employees for the purpose of pensionary benefits.

12. In view of the aforesaid facts and circumstances,subject to what has been observed above, I am of the view that the State of Jharkhand has substantially complied with the order undercontempt. The contempt application is, accordingly, disposed of.

13. It goes without saying that if the petitioners are aggrieved by the resolution dated 02.12.2016, it is always open to them to seek appropriate remedy before an appropriate forum.

Amin/-

(Ramesh Kumar Datta, J)