JUDGMENT
S.B. Sanyal, J.
1. In this writ petition, the petitioner, seeks quashing, of an order dated 21st July, 1987 (Annexure-7) by which the petitioner’s pay scale was reduced from the scale at which he was being paid his monthly salary, with a further direction to recover payment of excess pay with effect from 1.3.1986. The petitioner further prayed for a direction to quash the order dated 27th July, 1987 (Annexure-8) by which he was transferred from the Directorate of Sainik Pixnerbas, Old Secretariat Hutment to District Sainik Punerbas Karyalaya, Hazaribagh.
2. On 21.8.1987 a Bench of this Court directed hearing of the writ petition only against the order dated 21.7.1987 (Annexure-7) reducing the pay-scale of the petitioner. So far as the order of transfer (Annexure-8) is concerned, it was not entertained since the petitioner’s earlier writ petition (C.W.J.C. No. 3420 of 1987) with the same prayer was withdrawn after argument on 12.8.1987. The hearing of the writ petition, therefore, is confined only to the validity and/or legality of the order dated 21.7.1987.
FACTS
3. According to the petitioner’s case pursuant to a request from the Ministry of Defence, New Delhi, on 7th February, 1963, for making the District Soldiers’ Sailors’ and Airmen’s Board Organisation a permanent State Government Organisation, the Secretary to Political (General and Transport) Department, informed the Ministry of Defence on 28th February, 1964, that the State Government had decided in principle to make the Soldiers’ Sailors’ and Airmen’s Board Organisation in Bihar permanent and to treat its employees as State Government employees. Their pay-scales would brought on to the scales of pay approved by the State Government, but for the time being in view of the unfavourable financial condition the employees of the Board would be treated as temporary Government servant-vide Annexure-10. On 12th August, 1969 the Political (General and Transport) Department, General Branch, isued an order making the Soldierse’ Saliors’ and Airmen’s Board. Permanent Organisation of the State Government and the State Government took over the entire Organisation as a permanent Department of the State Government with effect from 1st March, 1969 and all the employees of the Organisation as permanent Government servants from 1st March, 1969 with their conditions of service as regulated by the rules of the State Government. They were allowed all facilities as admissible to other State Government employees, namely, C.L.A., P.F. etc. The composition of the State Soldiers’ Sailors’ and Airmen’s Board and that of District Soldiers’ Sailors’ and Airmen’s Boards are indicated in Appendix ‘C’ to the said letter. In the case of State Board the President will be the Chief Minister or the Minister nominated by him and the Vice-President will be G.O..C-in-C of the Command in which the State is situated, and other members as described in the said appendix. Similarly in the District Soldiers’ Sailors’ and Airmen’s Board the President will bi the Collector or the Deputy Commissioner and the Vice-President will be a Senior Ex-Service Officer. In the State Soldiers’ Sailors’ and Airmen’s Board only four posts were created, namely, Secretary, Accountant, Steno-Clerk and Orderly Peon with their scales of pay indicated therein, whereas in the District Soldiers’ Sailors’ and Airmen’s Board seven posts were sanctioned indicating their pay scales along with fixed travelling allowances applicable to them, since the Secretary of the District Soldiers’ Sailors’ and Airmen’s Boards and welfare workers have to undergo regular tour in their area. Twelve districts were earmarked for the District Soldiers’ Sailors’ and Airmen’s Board and the posts were sanctioned for each of the District from 12.8.1969. All these will be evident from the letter of the Government dated 12.8.1969-Annexures 11, 11/1 (Appendix-B) and 11/2 (Appendix-C) The Government of Bihar in the Department of Home passed a Resolution some-time in February 1984 (Annexure-E to the counter-affidavit of respondent No. 3) as to the reconstitution of the State Soldiers’ Sailors’ and Airmen’s Boards and sanctioned posts for offices in different districts The Secretary of the Rajya Sainik Board was directed to enjoy the status of the Head of the Department with all the financial and administrative powers and he would be known as Director, Sainik Punerbas The new name of the State Board would be Directorate of Soldiers’. Welfare Board and it would be a part of the Home Department functioning independently. The Secretary, District Soldiers’ Board would henceforth be known as District Soldiers’ Punerbas Officer and his office would be known as District Soldiers’ Punervas Office. The employees of District Soldiers’ Board would be given actual travelling allowance like any other State employee.
4. On 28.1.1982 the Secretary, Rajya Sainik Board appointed the petitioner as temporary typist under the Board on a scale of pay of Rs. 580-860 (Annexure-1). By order dated 29th November, 1984 he was confirmed as a typist under the Directorate from 28.1.1984. The letter of confirmation reads as follows:
Sainik Punervas, Nideshalaya, Bihar, Patna, Me Tankak Ke Pad Par Karjyarat Sri Krishna Nand Verma Ko Usi Pad Par Dinank 28.1.1984 Seampust Kiya Jata Hai
5. The recommendation of the Fourth Pay Revision Committee as to the salary payable to the Typists in the Secretariat and attached offices and those in the Mufassil Offices was referred by the Government along with some other posts to Anomaly Removal Committee, On the basis of the recommendation of the Anomaly Removal Committee the State of Bihar in the Finance Department issued a Resolution on 8.4.1987 that the Typists of the Secretariat and attached office would get the scale of Rs. 680-965 instead of Rs. 580-860 vide Annexure 4 and 16. This scale was payable from 1.3.1986. On 5th May, 1987 the petitioner was allowed to draw salary on the basis of new scale of pay i.e. Rs. 680-965 on and from 1.3.1986. This order was passed by Mr. R.N. Prasad designating himself as Assistant Secretary to the Government-Vide Annexure-5. The petitioner started getting new pay-scale and subsequently by order No. 971 dated 3.6.1987 he was allowed one increment with effect from 1.3.1987 and his pay was raised to Rs. 695 vide Annexure-6. On 21st July, 1987, the new Director who is stated to have joined in the month of February, 19 87, ordered that the petitioner has been allowed revised scale without the recommendation of the Department and, therefore, the order by which the revised pay scale was made available to the petitioner was recalled, and the petitioner was directed to discharge the excess payment received-vide Annexure-7, and on 27th July, 1987, he was transferred from Patna Directorate to District Soldiers Punervas Office-Vide Annexure-8.
6. It is relevant to state here that Bihar Sainik Board Employees Association had filed a writ petition bearing C.W.J.C. No. 1278 of 1984 (R) at Ranchi Bench challenging disparity in the pay-scales between the persons working in Rajya Sainik Board and those who are in Zila Sainik Board and a learned single Judge directed that the employees. Both in Rajya Sainik Board and Zila Sainik Board should receive the same pay-scale, as the State had not been able to show why it decided to give the employees and officers posted in the office of Rajya Sainik Board higher pay than those posted in the office of Zila Sainik Board. On 17.7.1986 a writ of mandamus was issued for giving the same pay-scale to the employees of Zila Sainik Board as are enjoyed by the Raiya Sainik Board. The Judgment has been marked as Annexure-B to the counter affidavit of respondent No. 3. As against the said judgment a letters Patent Appeal was filed by the State of Bihar and others bearing Letters Patent Appeal No. 48 of 1986 (R). A Bench of this Court set aside the said judgment and remanded the matter back to the learned single Judge by observing thus:
Our attention was drawn to the statements made in these paragraphs and some other paragraphs and we find that facts have been disposed to show the basis for giving higher pay scales to the persons posted in the office of the Rajya Sainik Board from those posted in the office of the Zila Sainik Board. It appears that the attention of the learned Single Judge was not drawn to these statements made in the counter-affidavit and an erroneous concession was made by the then learned Government Pleader No. 2 at the time of the hearing of the writ petition.
In paragraph No. 4 of the memo of the said letters Patent Appeal respondent No. 3 took the stand as hereinbelow:
That the employees of the Rajya Sainik and Zila Sainik Board are not of the same cadre, but both are of different cadres. The Rajya Sainik Board is working under control of the Secretariat and the Secretariat pay scale is applicable to its staff, while the staff posted in the Zila Sainik Board are under the control of the Mufassil Officers.
This has been stated in the supplementary affidavit filed on behalf of the petitioner on 12.9.1989 which has not been controverted.
7. On behalf of the respondents two counter-affidavits have been filed-one sworn by an Assistant of the Bihar Rajya Sainik Board and the supplementary counter-affidavit has been sworn by the Joint-Secretary in the Department of Home (Police), Government of Bihar. It has been stated that Soldiers’ Sailors’ and Airmen’s Board consisted of two wings, namely. State Soldiers’ Sailors’ and Airmen’s Board and the District Soldiers’, Sailors ‘and Airmen’s Board prior to March 1969 as autonomous body. The Government of India directed the State Government to make the District Soldiers’ Sailors’ and Airmen’s Board a permanent Department of the Government, but the Government instead decided to make Solidiers’, Sailors’ and Airmen’s Boards Organisation a permanent of the Government of Bihar and renamed it after merger of both as Directorate of Sainik Welfare, a complete and compact unit of the entire State consisting of the respective district units. The Directorate of Sainik Welfare is functioning as an independent Department of the Government of Bihar and is headed by the Director of Sainik Welfare, who is in command of the entire State administration including its district units. The Directorate of Sainik Welfare was placed under the administrative control of the Department of Political (General and Transport) Department and later on under the control of the Department of Home (Police), but it was never treated as a Secretariat Department and the employees of the Directorate including its district units were never treated as Secretariat employees. All the employees are given similar scales of pay, both State and District Units and they belong to the same cadre and stand on the same footing. It has been further stated that Class III employees of the Political (General and Transport) Department and that of the Home (Police) Department are appointed through Bihar Subordinate Services Selection Board and come under the Secretariat Cadre, whereas Class III employees of Soldiers’, Sailors and Airmen’s Board Organisation, now known as the Directorate of Sainik Welfare are appointed as per the instruction contained in Annexure-H and do not come under the Secretariat cadre. The Steno Clerk of the State Board and the Clerks of the District Board are in same pay-scale and used to perform the same duty. The petitioner was appointed as Typist in the pay-scale of Rs. 580-860 against the newly created post of Typist in the Rajya Sainik Board (State Board) through the selection committee of Rajya Sainik Board in January 1982 for which applications were invited through Employment Exchange, whereas the Assistants and Typists of the Secretariat cadre used to be appointed through Bihar Public Service Commission and later on by Bihar Subordinate Services Selection Board. In paragraph No. 5 of the supplementary counter-affidavit of respondents it has further been stated as hereunder:
…It is reiterated that the employees of the Directorate of Sainik Welfare such as the Assistants and Typists etc. have never been treated as employees either of the Secretariat cadre or an office attached to the Secretariat.
In paragraph No. 10 of the supplementary counter-affidavit it has also been stated that the Directorate of Sainik Walfare was placed under the administrative control of the Political (General and Transport) Department, but the employees of the Political (General and Transport) Department and that of the Directorate of Sainik Welfare are on two different footings and do not belong to the same Secretariat cadre. The creation of post of Typist either in the Head Quarter of the Directorate of Sainik welfare or any of its District unit makes no difference for the purpose of pay-scale since the posts of typists in both the offices of Headquarter and district unit belong to the same cadre nor to the cadre of any attached office to the Secretariat. In reply to the statement of the petitioner that the State Board employees draw their pay and allowance from the Secretariat head, namely, Sachivalaya Mukha Sirs 252-Sachivalay Samanya Seva-ya-Anna Karyalaya which is inclusive of the Directorate and the pay of the district offices is drawn under the head-Mukha Sirs 288-Samajik Suraksha Aur Kalyan, the repondents’ stand is that the salary of all employees including that of the petitioner posted in the headquarter of the Directorate are drawn from the budget head allotted to the headquarter, which is located in the premises of old Secretariat. Mere control and disbursement of salary from the budget head as mentioned by the petitioner does not entitle him to declare himself a Typist of Secretariat cadre, because the typists in the Secretariat cadre are appointed through different mode. The Government of India is stated to have been bearing 50 per cent, of the expenditure incurred on pay and allowance of the employees posted at the headquarter and district offices. It has further been stated that since there is a parity of salary, both at the Directorate level and District level, when the employees are transferred from one place to another, they draw their salary from the respective budget head and till this date auditors have not raised any objection. The recommendation of the Anomaly Removal Committee (Annexure-4) has no application to the petitioner, since the petitioner is neither a Typist of the Secretariat cadre and that of the attached offices of the Secretariat nor he had ever been so declared. The petitioner has been wrongly granted the revised pay-scale by a person not authorised to do so. Such other persons to whom the higher salary has been allowed, the Government is proposing to direct respondent No. 3 to cancel and withdraw the order issued vide Annexure 19/2. It is said that wrong action of respondent No. 3 granting pay-scale to Sri Sah cannot justify the claim of the petitioner and the illegality cannot be allowed to perpetuate.
8. I have purposely referred to the counter-affidavits in extenso in order to bring out the contradictory stand of the Director in regard to the staffs attached to the Directorate in Secrariat and those posted in the district headquarters. In the Letters Patent Appeal dealing with some how the same question respondent No. 3 took the stand that the State cadre is different and distinct from the District cadre and, therefore, there is a disparity in the salary of employees of the State Board and the District Board, whereas the same respondent No. 3 has taken a stand in this writ petition that the State Board and the District Board have a common cadre and the employees of the State Board is not a part of the Secretariat cadre or belong to the attached offices of the Secretariat.
9. Mr. Mukherjee, learned Counsel appearing on behalf of the petitioner, apart from showing the apparent contradictory stand of respondent No. 3, urged that from the very begining the State Board, as indicated by Annexure 11/1, was shown as a part of the political (General and Transport) Department, which was later changed to Home Department of the Government, whereas the District Boards were shown separately in the same Annexure. The details of the staff–both for the State Board and the District Board–are separately set out in the said Annexure, which is a Resolution of the Government of Bihar in the Department of Political (General and Transport) Department, General Branch. By this resolution the Board was taken over as a permanent Organisation of the State Government. Learned counsel, therefore, contended that from the very begining the State Board was treated as a part of the Secretariat. The composition of the two Boards–State and District–are also different as would be evident from Annexure-11/2. Initially there was no post of Assistant or Typist. Different posts were sanctioned including Clerk and Typist for the Directorate separately by the Home Department as would be evident from Annexure-12. Learned Counsel strongly relied upon the Resolution of the Home Department dated 1st February, 1984 (Annexure-E) which declared the State Board as part of the Home Department and the Director as Head of the Department. According to the learned Counsel therefore, the Directorate of State Board is a Department attached to the Secretariat and as such the employees of the Directorate are entitled to the same pay-scale as is payable to the employees of the Secretariat, as per the recommendation of the Anomaly Removal Committee. This has also been the stand of the respondents before the Letters Patent Appeal Bench which will be evident from the grounds of Letters Patent Appeal, as also the judgment in Letters Patent Appeal, setting aside the decision of the single Judge giving reason for different pay scale for the employees of State Board and the District Board.
10. Mr. Masoom Ali Rahmani, learned Standing Counsel tried to impress upon me that the petitioner can never be treated to be belonging to the Secretariat cadre since his mode of appointment is altogether different than the selection process through which the Secretariat staffs have to pass through. He also submitted that the staffs of the Directorate have never been declared to be the employees of an office attached to the Secretariat and, therefore, the petitioner is not entitled to the same scale of pay as is payable to the Secretariat staff’s.
11. After having heard the arguments of the learned Counsel in great details as also on going through the written arguments, I am constrained to hold that the Directorate of Soldiers’ Sailors and Airmen’s Board situated in the Secretariat complex is an attached office of the Secretariat, even though they do not belong to the Secretariat cadre. It is true that the mode of appointment of the Secretariat employees and that of Directorate of Sainik Board is different, but that by itself is of no consequence. The higher scale to Secretariat Typist and attached offices, as is evident from Dayal Committee Report is because of higher assessment of their work and, therefore, Secretariat Typist and those working in attached offices were placed at a level higher than the Mufassil Typists and Mufassil Clerks. According to the State’s own counter-affidavit in the instant case the Directorate of Sainik Welfare was placed under the administrative control of the Department of Political (General and Transpor) Department and later on under the control of the Department of Home (Police), but it was never treated as Secretariat Department. This averment shows that the office of the Directorate, even though attached to the Department of Home and under its administrative control, was not adopted as a Department of the Secretarial nothing more and nothing less. But, that by itself cannot go to show that it is not attached office of the Secretariat so as to deprive the Directorate staff from the recommendation of Pay Revision Committee or for that matter implementation of the Anomaly Removal Committee report (Annexures 16 and 4). According to the respondent, Secretariat cadre is different from that of the cadre of the Directorate. The sols question in this writ petition is whether those persons working in ttu Directorate of the State Board with its office in the Secretariat complex and
under the administrative control of the Home (Police) Department are entitled to the recommendation of the Pay Revision and Anomaly Removal Committee, which recommends higher pay-scale for Typists of the Secretariate and attached offices from Rs. 580-860-to Rs. 680-965. The scheme of take over, the constitution of Rajya Sainik Board and the District Sainik Boards, separate sanctions of posts from time to time. Separate acting and dealing of the two Boards, control of the Directorate by the Home Department leave no doubt for a moment that the office of the Directorate of Rajya Sainik Board is an attached office of the Secretariate. The mere fact that the employees were never declared as to be belonging to the Secretariate cadre is beside the question. The expression ‘Secretariate Department and attached offices’ are significant. The persons working in the attached offices may not constitute the cadre of Secretariate, but the Pay Revision Committee thought that the persons working in the attached offices of the Secretariate do arduous work than their counter-part in the mufassil and, therefore, they are entitled to higher scale of pay. This has been the stand of respondent No. 3 before the Letters Patent Appeal Bench as well, where the disparity in the salary was sought to be justified by saying this:
Rajya Sainik and Zila Sainik Board are not of the same cadre, but both are of different cadres. The Rajya Sainik Board is working under control of the Secretariat and the Secretariate pay scale is applicable to its staff, while the staff posted in the Zila Sainik Board are under the control of the mufassil Officers.
Respondent No. 3 cannot be permitted to blow hot and cold as and when suits him. Further, the different documents already referred earlier clearly establish that the Directorate of Rajya Sainik Board is an office attached to the Secretariate; it operates from the Secretariate and it works under the overall control of the Department of Home (Police) as an autonomous body and their incumbents are ex-service men selected and appointed by a different selection Board. This is so because of the nature of duties to be performed by them with respect the welfare of ex-servicemen. Merely because it is autonomous in character does not justify inequality of pay scale vis-a-vis who are in the Secretariate cadre. The Pay Revision Committee has found that the Secretariat Department and their attached offices render more arduous work than their counter-part in the mufassil and, therefore, they are entitled to higher scale of pay.
12. As I have held that the Directorate of Rajya Sainik Board is an attached office of the Department of Home (Police) situated in the Secretariate, the petitioner who is an employee of the Directorate is entitled to the scales of pay recommended by the Pay Revision Committee for the Secretariate staff and its attached offices.
13. The dispute that Sri R.N. Prasad was not competent to extend the said recommendation, as he was never the Assistant Secretary to the Government, is beside the point. I do not propose to determine the said question, whether he was at all Assistant Secretary to the Government or a subordinate officer in a collateral proceeding. The right to get higher pay-scale by petitioner is justified on other materialss already referred to above and not on the ground that it was so extended by Mr. R.N. Prasad. Some other staffs of the Directorate attached to the Secretariate have also been given the higher scales of pay by respondent No. 3, but it is now said that steps are being taken to cancel the illegal conferment of higher pay. That issue is not before me calling for a decision, but those cases were cited by the petitioner to illustrate discriminatory action of respondent No. 3 by extending to some, the Secretariate scale and to deny the same benefit to the petitioner.
14. In the result, Annexure 7 is quashed and the respondents are directed to pay the petitioner the higher scale of pay as recommended for the Secretariate staff and its attached offices from 1.3.1986 and the respondents are further directed not to realise the payment of salary already made to the petitioner on the basis of the new scale i.e. Rs. 680-965 of the writ petition is, accordingly, allowed with costs. Hearing fee is assessed at Rs. 500.