- (1.) HEARD Shri Abhijeet Kumar Singh, learned counsel for the petitioner and JC to GA for the State of Jharkhand and JC to GA for the State of Bihar.
(2.) THE petitioner has filed this writ application for a direction upon the respondents to give him pay protection as per the provisions of Rule 78 of the Bihar Service Code and also for payment of arrears of salary together with penal interest which had accrued in favour of the petitioner due to the wrong fixation of pay at the time of upgradation of his post from Steno -typist to the post of Personal Assistant in the Department of Personnel, Administrative Reforms and Rajbhasa and further, to pay to the petitioner the difference of salary which accrued to him on account of the lesser amount of pay fixed, than what was due to him. A further prayer has been made for quashing the letter dated 23.10.1992 (Annexure -5) issued by the Additional Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Bihar by which, the respondents have dismissed the representation of the petitioner in respect of his claim of pay protection and payment of arrears of salary. The petitioner's case is that he was originally appointed under the respondent State of Bihar as a Steno -Typist. By office order no. 513 dated 02.04.1991, the Permanent Establishment Committee of the State Government had recommended for grant of Senior Selection Grade to the petitioner with effect from 25.05.1990. Subsequently, by office order no. 551 dated 06.09.1991, the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Bihar, in pursuance to the State Government Notification No. 550 dated 06.09.1991, upgraded 40 posts of Steno Typist under the Secretariat in the pay scale of Rs. 1500 -50 -2150 -60 -2750. The petitioner on his promotion to the post of Personal Assistant, was allowed higher pay scale of Rs. 1500 -50 -2150 - 60 -2750, but his pay was fixed at Rs. 1550 in the higher cadre of Personal Assistant. The petitioner's grievance is that although, he has been promoted to the higher cadre of Personal Assistant and his pay was fixed at higher scale, but the net result of such fixation had the effect of lowering the real pay / substantive pay of the petitioner in as much as, the petitioner's pay while he was posted in the lower post of Steno Typist, was much higher than what was fixed and paid to the petitioner on his promotion to the post of Personal Assistant. Being aggrieved by such anomaly, the petitioner had submitted his representation before the concerned authorities of the respondents to provide him pay protection and to fix his salary properly so that he could derive the benefit of higher pay on his promotion to the higher cadre. Such claim was made by the petitioner in accordance with the Rule 78 of the Bihar Service Code .
(3.) THE representation filed by the petitioner was rejected by the respondent State of Bihar as communicated to him vide letter dated 23.10.1992. The petitioner on receipt of such communication, had found that his claim for pay protection has been refused by misquoting sections 86 and 39(B) of the Bihar Service Code as because, neither of the two sections is applicable to the facts of the petitioner's case. The petitioner's further contention is that the issue, in respect of which the petitioner has raised his grievance, was raised before the Patna High Court by another employee vide CWJC No. 7911 of 1998. By order dated 3.2.1989 passed in the aforesaid writ application, the Patna High Court had directed the respondent State of Bihar to fix the pay of the writ petitioner in terms of Rule 78 of the Bihar Service Codea nd pursuant to such direction, the writ petitioner availed the benefit of re -fixation of his pay scale in accordance with the provisions laid down under Rule 78 of the Bihar Service Code .;