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Dr.Ajay Kumar v/s State of Bihar

    CWJC 2182 Of 2000

    Decided On, 03 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.N. HUSSAIN

    For the Appearing Parties: Jyoti Saran, Braj Kishore Prasad, Sunita Kumar, Sanjay Kumar, Advocates.



Judgment Text

S.N. HUSSAIN, J.

(1.) Heard learned Counsel appearing for the petitioner and learned Counsel appearing for the State.

(2.) This writ petition has been filed for quashing that part of the Government Notification bearing No. 5 M(3) 104/85-P, Pa. 4329 dated 1.5.1985 (Annexure-3) by which the services of the Block Animal Husbandry Officers have been placed under the Rural Re-Construction and Panchayati Raj Department and the Block Development Officer has been made local controlling authority of the Block Animal Husbandry Officers. It is further prayed that respondents authorities be restrained from utilising the services of the petitioner for any purpose other than those enumerated in the said notification dated 1.5.1985 specially when they do not form part of the regular duty to be performed by a Block Animal Husbandry Officer as envisaged in the said notification.

(3.) Learned Counsel for the petitioner submitted that the petitioner is a Veterinary Doctor having passed the Bachelor of Science and Animal Husbandry examination from Rajendra Agricultural University, Pusa in the year 1996 obtaining 1st Class, whereafter, he was appointed in the Bihar Veterinary Service Class II post in the year 1997 after completion of all the legal formalities. It is further submitted that at the time of filing of this writ petition the petitioner was working on the post of Block Animal Husbandry and Fisheries Officer, Governme

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nt of Bihar, Patna and was working at Motihari in the District of West Champaran and was also doing post graduation from the Bihar Veterinary College, Patna which he subsequently completed in the year 2000.

(4.) Learned Counsel for the petitioner relied upon a decision of this Court dated 20.05.1997 (annexure-5) passed in CWJC No. 12146 of 1996 (Bihar Veterinary Association through its General Secretary and Ors. v. The State of Bihar and Ors.) by which the respondents were directed to give similar treatment to the petitioners of that writ petition in the matter of revised pay scale pursuant to the recommendation of 5th Pay Revision Committee with effect from 1.1.1986 on the basic grade scale of pay of Rs. 2200-4000/-. Thereafter, the said order was implemented by the State Government by memo No. 3M-5-5-70/94 Vi 31/95 dated 27.09.1997 (annexure-6). Hence, learned Counsel for the petitioner submitted that the Block Animal Husbandry Officers were also held to be Class II employees and, therefore, they cannot be placed under the control, supervision and authority of the Block Development Officer who is of the same rank.

(5.) Learned Counsel for the petitioner also submitted that subsequently, in the case of Bihar Veterinary Association and Ors. v. The State of Bihar and Ors. reported in 2005 (3) P.L.J.R 430 it has been held that the recommendation of the Fitment Committee was wrong and it should have recommended the pay scale of Rs. 8,000/-- 13,500/- for the basic grade of the Bihar Animal Husbandry Services and accordingly the resolution of the State Government dated 08.02.1999 was modified to that extent as recommended by the Committee for the basic grade scale of Rs. 6500-10,500/-. In the circumstances, learned Counsel for the petitioner stated that the said scale being Class I grade scale the Animal Husbandry Officers were held to be Class I Officers and as such the notification of the State Government was, more so, not justified as the Block Development Officers continue to be Class II Officers.

(6.) Learned Counsel for the petitioner further submitted that the Bihar Animal Husbandry Officers cannot be legally deputed for non-departmental work and they have to be restricted to the job for which they have been appointed. In this connection, he has relied upon a decision of this Court dated 22.10.2002 in CWJC No. 10132 of 2002 (Dr. Akhilesh Kumar Singh v. The State of Bihar and Ors.). He has also drawn attention of this Court to a circular of the State Government bearing Memo No. 15495 dated 16.12.1976 (Annexure-11) in which it was directed that only in emergent situations the Officers of the Animal Husbandry Department can be asked to perform duties other than the duties of their department.

(7.) On the other hand, learned Counsel for the respondents vehemently opposed the contentions of the learned Counsel for the petitioner and submitted that this writ petition has become infructuous as the petitioner has been transferred from the post and he is now not under any Class II Officer as he is presently working as Junior Research Officer in the Institute at Patna. He further stated that the amendment of the Constitution of India in the year 1993 regarding Panchayat Raj has not been considered in the earlier decisions of this Court and hence, after the said amendments the situation has changed. He also averred that according to Section 61(b) and (c) of the Bihar Panchayat Raj Act, 2006, the Executive Officer shall lay down the duties, supervise and control the officers including the Bihar Animal Husbandry Officers and Staff holding office under the Panchayat Samiti enacted in consonance with Articles 243, 243A to 243-O of the Constitution of India. He submitted that after the 73rd amendment of the Constitution and after enactment of Bihar Panchayat Raj Act, 1993, the Government of Bihar made a resolution about the functions of the Animal Husbandry Department under the management of Panchayat Raj vide resolution No. 5M(i) 304/201/P.Pa 5697 dated 25.9.2001 (Annexure-B to the counter affidavit). He also stated that the Block Development Officer is the Executive Officer of the Panchayat Samiti and he has been given power under the Bihar Panchayat Raj Act after the 73rd amendment of the Constitution to control the officers including the Block Animal Husbandry Officer.

(8.) In view of the aforesaid fact's, learned Counsel for the State averred that the impugned notification is legal and justified and neither there is any occasion to quash the said notification of the Government dated 1.5.1985 nor there is any reason for restraining the respondents authorities from utilising the services of the Block Animal Husbandry Officers for any work other than the duties in their department.

(9.) After hearing the learned Counsel for the parties and after perusing the materials on record, it is quite apparent that facts are not disputed in the instant case and the matter revolves around a few decisions of this Court and the provisions of the Constitution of India and Bihar Panchayat Raj Act and its interpretation as well as certain Notifications/ Circulars of the State Government.

(10.) Learned Counsel for the petitioner has raised a preliminary objection that although the petitioner was, at the time of filing of the writ petition, posted as Block Animal Husbandry Officer with the Block Development Officer as his controlling authority, but he has been transferred from that post and is not now under any Class II Officer as he is presently working as Junior Research Officer in the Institute at Patna. There is neither any averment in the counter affidavit of the respondents, nor any submission has been made by their learned Counsel that in future also the petitioner will not be transferred and posted as Block Animal Husbandry Officer anywhere. In the said circumstances, there is no question of this writ petition becoming infructuous and the points in question have to be decided.

(11.) With respect to the question as to whether the Block Animal Husbandry Officers were Class II employees of the State Government, this Court has already decided the matter in CWJC No. 12146 of 1996 (Bihar Veterinary Association v. the State of Bihar and Ors.) vide order dated 20.5.1997 in which it has been held as follows:

In sum and substance the case of the petitioners is that they are members of Class II service in the Animal Husbandry Department and they are entitled to the aforesaid scales of pay and that they stand exactly on the same footing as the petitioners of CWJC No. 2537 of 1990. My attention was drawn to the notification dated 11.7.1996 contained in Annexure-5 giving the benefit of the revised scales of pay as indicated hereinabove to the writ petitioners of CWJC No. 2537 of 1990 subject to the result of the LPA and the contempt petition. It was suggested that similar order may be passed in this case. In view of the fact that LPA has since been dismissed, I do not think any order is required to be passed in terms indicated in the aforesaid notification dated 11.7.1996. It is not in dispute that the petitioners stand on same footing as the petitioners of CWJC No. 2537 of 1990. In that view of the matter I would direct the respondents to give similar treatment to these petitioners in the matter of revised pay scale pursuant to the recommendation of the Fifth Pay Revision Committee with effect from 1.1.1986. An appropriate notification to this effect should be issued as early as possible preferably within a period of two months from the date of receipt/production of a copy of this order. This writ petition stands disposed of accordingly.

This aspect of the matter cannot be and has not been disputed by the respondents in view of the well discussed judgment of this Court mentioned above. The said order of this Court was also implemented by the State Government vide memo No. 27.09.1997 (annexure-6). In the said circumstances, the Block Animal Husbandry Officers were clearly Class II employees of the Government and hence they could not have been legally placed under the control, supervision and authority of the Block Development Officers who are admittedly of the same rank, namely Class II.

(12.) In addition to the aforesaid averments, learned Counsel for the petitioner has also relied upon another decision of this Court in case of Bihar Veterinary Association and Ors. v. The State of Bihar and Ors., reported in 2005 PLJR 430 in which it has been held as follows:

28. The stand of the State Respondents that this writ application should be dismissed in the light of the orders of this Court dated 8.8.2002, passed in CWJC No. 8741 of 2002 whereunder similar prayer of the Deputy Collectors who belong to the Bihar Administrative Service has been rejected, shall also not persuade this Court to dismiss the present writ application as from the reasons indicated in paragraphs above, it would appear that the Bihar Animal Husbandry Service cannot be compared with the Bihar Administrative Service. The case law relied upon by the State Counsel has no applications to the facts of this case as in view of the terms of reference contained in Resolution dated 2.1.1998, Annexure-2, the Fitment Committee was under legal obligation to recommend exactly the similar scale which was recommended in the 5th Pay Revision Report to the counter part of the State Service.

29. In view of the discussions above, this Court concludes that the Fitment Committee should have recommended the scale of Rs. 8,000-13,500/- for the basic/entry grade of the Bihar Animal Husbandry Service and the Resolution of the State Government dated 8.2.1999, Annexure-4 is modified to that extent. The prayer of the petitioners to grant the scale of Rs. 10,000-15,200, 12,000-16,500 to those serving in Junior/ Senior selection grade of the basic/ entry grade of the Bihar Animal Husbandry Service, however, cannot be allowed as after adoption of the service conditions admissible to the Central Government employees the provision for grant of junior/senior selection grade stood abolished with effect from 1.1.1996 and the members of the Bihar Animal Husbandry Service serving in the junior/senior selection grade of the basic/entry grade until 31.12.1995 should also be fitted/adjusted in the scale of Rs. 8,000-13,500/- after granting them pay protection in the light of the stipulations made in paragraph 11 of the Resolution dated 8.2.1999, Annexure-4.

30. In the result, this application is allowed to the extent indicated above. No cost. The law is thus well settled that the scale of Bihar Animal Husbandry Officer should be Rs. 8,000/- - 13,500/- for the basic grade and accordingly the resolution of the State Government was modified. Thus, the said scale being Class I grade scale, Animal Husbandry Officers were clearly held, to be Class I officers. In this view of the matter, the respondents authorities would be more so not justified in placing the services of Block Animal Husbandry officers under the control, supervision and authority of the Block Development Officers who are still Class II employees of the State Government.

(13.) So far the reliance of respondents counsel upon the provisions of the Bihar Panchayat Raj Act as well as the Constitution of India is concerned, the only two provisions of Section 61, namely Sub-sections (b) and (c), have been referred which only lay down the duty of supervision and control of the officers and staff holding the office under the Panchayat Samiti and execution of the works of the Panchayat Samiti. Articles 243 and 243 A to 243 O of the Constitution of India (as per 73rd amendment) relied upon by the learned Counsel for the respondents also do not speak with respect to the instant matter.

(14.) Thus, the only material left for the respondents' to rely upon remains a resolution No. 5697 of the Animal Husbandry and Fisheries Department, Govt. of Bihar, dated 25th September, 2001 (annexure-B) in Clause 2 of which it has been mentioned that on the approval of the Pramukh of Panchayat Samiti, causal leave and permission for leaving the Headquarters could be given by the Block Development Officers to the Block Animal Husbandry Officers and Touring Animal Veterinary Officers. This is merely a circular of the Government which had been issued on the basis of the provisions of Bihar Panchayat Raj Act of 1993. Now the said Act has been repealed and new Panchayat Raj Act, 2006 has come into force and hence the Circulars or notifications issued under the previous Act cannot have any force of law specifically when the same is clearly in the teeth of the two decisions of this Court, both in case of Bihar Veterinary Association (supra) mentioned above.

(15.) So far the other question with respect to utilising the services of Block Animal Husbandry Officers for any work other than the duties in their department is concerned, learned Counsel for the petitioner relied upon a decision of this Court date
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