Ashok Kumar And Ors vs State Of Jharkhand And Ors

Heard Mrs. Indrani Sen Choudhary, learned counsel for the petitioners and Mr. Prabhat Kumar Sinha, learned counsel for the respondents.

The petitioners have preferred this writ petition for fixing the pay scale in the pay scale of Rs. 3050-4590 with corresponding 6th pay revised scale

of Rs. 5200-20,200.

The petitioners have been appointed as Grade-IV employees (peon) in the Rural Development Department (herein after referred as “the

Departmentâ€) by its duly constituted Selection Committee in its resolution dated 02.05.1988 (annexed as Annexure-1 to the writ petition). It was also

decided that the preference for appointment will be given to the persons who are having knowledge of driving and possessing the existing driving

license. The petitioners have fulfilled the criteria and selected and panel of 100 successful candidates was prepared on 16.08.1988. The petitioners

have been appointed on temporary basis as peon in Class-IV posts and all of them joined the service in September, 1988 and subsequently their

service has been confirmed vide order dated 16.02.1999. After reorganization of the State, the services of the petitioner have been placed with the

State of Jharkhand. It is contended by the learned counsel for the petitioners that all the petitioners have been appointed in Class-IV post but they are

continuously working as driver. Learned counsel for the petitioners further submits that both the posts are Class-IV Post in nature. Relying on

Annexure-2 series, which is the certificate issued in favour of the petitioners that they are driving the vehicles of the department. The revised 6th Pay

Scale for peon is Rs. 2650-65-3300-70-4000 and Rs. 4400-7440 respectively while for Driver it is Rs. 3050-75-3950-80-4590 and Rs. 5200-22,000

respectively. The petitioners are drawing the pay scale of peon as Rs. 4400-7440. It is contended that the petitioners are working in the department

with effect from September, 1988 as driver. She further submits that no gradation for Class-IV of the employees is prepared. She submits that one

Mundrika Singh has been granted the promotional Scale from Peon to Driver by the Department in the erstwhile State of Bihar vide order dated

16.10.1995. The said Mundrika Singh was peon and after that he becomes driver in higher revised pay scale and the petitioners are discriminated by

the Department. She further contends that in view of the judgment of Supreme Court rendered in in the case of State of Karnataka Vs. Uma Devi

reported in 2006 (4) SCC 1, the Cabinet Secretary and Coordination Department, Government of Jharkhand call for list of daily wage employees from

each Department vide letter dated 12.02.2008. The Department pursuant thereto on 18.03.2008 sent the list of three persons on 18.03.2008 showing

the details of their employment. In that the name of Sri Vidyanand Upadhyay and Sri Ambar Kumar Sinha shown working as driver in the Department

on daily wage basis since 26.09.2003 and 16.047.2004 respectively i.e. for about 6 / 7 years back. By order dated 18.07.2009 (Annexed at Annexure-

7 to the writ petition) regularized the service of the above named two persons as driver and given them higher pay scale ignoring the long standing

existing demand of the petitioners for the payment of driver’s scale. She further submits that the petitioners have filed several representations

before the authorities but no decision has been taken in this regard.

Mrs. Choudhary, learned counsel for the petitioners relied on the judgment rendered by the Apex Court in the case of Selvaraj vs. Lt. Governor Of

Island, Port Blair and Others reported in (1998) 4 SCC 291 has held in paragraph nos. 3 and 4, which reads as under:

“3. It is not in dispute that the appellant looked after the duties of Secretary (Scouts) from the date of the order and his salary was to be drawn

against the post of Secretary (Scouts) under GFR 77. Still he was not paid the said salary for the work done by him as Secretary (Scouts). It is of

course true that the appellant was not regularly promoted to the said post. It is also true as stated in the counter-affidavit of Deputy Resident

Commissioner, Andaman & Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look

after the duties of Secretary (Scouts) as per the order aforesaid. It is also true that had this arrangement not been done, he would have to be

transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said counter.

However, in our view, these averments in the counter will not change the real position. Fact remains that the appellant has worked on the higher post

though temporarily and in an officiating capacity pursuant to the aforesaid order and his salary was to be drawn during that time against the post of

Secretary (Scouts). It is also not in dispute that the salary attached to the post of Secretary (Scouts) was in the pay scale of 1640-2900. Consequently,

on the principle of quantum merit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher

pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee.

This limited relief is required to be given to the appellant only on this ground.

The decision of the Central Administrative Tribunal rejecting the claim of the appellant to the aforesaid limited extent is therefore required to be set

aside. The appeals are allowed to the limited extent that the respondents will be called upon to make available to the appellant the difference of salary

in the time scale of 1640-2900 during the period from 29-1-1992 to 19-9 1995 during which time the appellant actually worked. It is made clear that the

payment of the aforesaid difference amount of salary shall not be treated to amount to any promotion given to the appellant on the said post. It is only

on the ground that he had actually worked, as such this relief is being given to him. The difference of salary as aforesaid shall be paid over to the

appellant within eight weeks from today. No costs.â€​

She further submits that if the employee is required to look after the duties of higher post which is in fact the post of driver they are entitled for salary

of that post.

Mr. Prabhat Kumar Sinh, learned S.C. V for the respondents submits that the petitioners are Group D employees in the pay scale of Rs. 2550-3200,

6th pay revised scale of Rs. 5200-20,200/ 4440-7440, GP-1800/1650, whereas the pay scale of post of driver, which is Group ‘C’ post is Rs.

3050-4590 revised 6th pay scale 5200-20200/- GP- 1900. The petitioners holding the substantive post of peon since they were appointed as peon,

which is a Group D post. The qualifications for the post of peon and driver are quite different and therefore, these two posts have separate identity

and hence separate cadre. Further, it is admitted in the counter affidavit that the work of driver was performed by the petitioners in the interest of

work. The service of Sri Vidyanand Upadhyay and Sri Ambar Kumar Sinha has been regularized on the post of driver vide resolution dated

18.07.2009 (annexed at Annexure-7 to the writ petition) issued by Department of Cabinet, Secretariat and Co-ordination directed the respondents to

submit the list of daily wage employees in the light of the order of Hon’ble Supreme Court. He further submits that the petitioners have been

appointed on the post on temporary basis as peon Class-IV employees and they joined in September, 1988 and it was subsequently confirmed by the

order dated 16.02.1999 by the Rural Development Department, Patna. It is further contended that the petitioners have got admissible promotion under

A.C.P. or M.A.C.P. in their cadre vide order dated 10.03.2006. He further contends that in view of the Rule 103 of Jharkhand Service Code does not

allow the additional allowance for performing the additional work in addition to the substantive work. In the light of this the petitioners are not entitled

for getting 20% additional allowance to the basic pay. Also submits that he petitioners are being paid their salary in their cadre.

Having heard learned counsel for the parties, this Court finds that the two persons who have been provided the pay scale of driver have regularized

later on taking into account the order of Hon’ble Supreme Court in the case of State of Karnataka Vs. Uma Devi. The petitioners are working

since 1988 and they are demanding the pay scale of driver as they are peon and working as driver on that post appointed in Class-IV post. They have

been discriminated by the Department and as such it needs to be considered at the first instance by the respondent-State. Accordingly, the matter is

remitted back to the respondent no. 2 who will pass speaking order taking into account the observation made herein above within a period of six

weeks from the date of receipt of a copy of the order. If the respondents take decision in favour of the petitioners, they are directed to provide pay

scale as being agitated by the writ petitioner within 8 weeks thereafter.

With the above observations and directions, the writ petition stands disposed of.