@JUDGMENTTAG-ORDER
Ajay Kr. Tripathi, J.@mdashHeard learned Counsel for the parties.
2. Father of the Petitioner who was working as an Amin in the Consolidation Office, Obera Circle which falls under the district of Aurangabad had
died-in-harness. Petitioner approached the District Compassionate Establishment Committee for his appointment on compassionate basis on the
ground that he had valid education and degree to be appointed on the post of a clerk. The case of the Petitioner was considered by the District
Compassionate Establishment Committee alongwith some others and the recommendation made is Annexure-1 dated 23.8.2000. The pay scale
indicated by the Committee was Rs. 4,000 to 6,000/- so far the Petitioner is concerned.
3. It is the case of the Petitioner that despite the recommendation of the Compassionate Establishment Committee Respondents are giving him
lower pay scale of Rs. 3,050-4,500/-. This has been challenged by the Petitioner in the present writ application to be unfair and arbitrary. He
wants a direction upon the Respondents to give him a pay scale of Rs. 4,000-6,000/-. In support of such a relief learned Counsel representing the
Petitioner submits that the recommendation of the District Compassionate Establishment Committee is binding upon the Respondents. Since
already a recommendation had been made on 23.8.2000 a subsequent policy decision of the State bifurcating the cadre of Assistant into Lower
Division Clerk with lower pay scale and Upper Division Clerk with another pay scale notified on 20th December, 2000 has no application to the
Petitioner. The Respondents have illegally, if not irrationally applied the said notification which is Annexure-B to the counter affidavit filed on behalf
of the State to deny the benefit of higher pay scale to the Petitioner.
4. The stand of the State in the counter affidavit filed in this case is that the Petitioner joined on 29.12.2000 and when he joined, the post of
Assistant stood bifurcated and it could not be filled up. Government of Bihar, Department of Finance had already circulated its decision dated 20th
December, 2000 that appointment will have to be made on the post of Lower Division Clerk which carries a pay scale of Rs. 3,050-4,500/- and
the post of Upper Division Clerk which is promotional post will carry a pay scale of Rs. 4,000-6,000/-. The stand of the State therefore is that the
Petitioner can only be appointed on the post of Lower Division Clerk and he cannot be given a pay scale of promotional post, when he entered the
service first time. The recommendation of the District Compassionate Establishment Committee is only a recommendation for appointment and the
pay scale and other benefits which an employee is supposed to get is dependent on the circular and the rules or any notification issued by the State
specially the Department of Finance.
5. In response to the above submission learned Counsel representing the Petitioner submits that the date of his joining has no consequence as it
must co-relate to the date of recommendation and on the date of recommendation there was no circular contained in Annexure-B dated
20.12.2000. He further submits that in some other cases this Court has allowed pay scale of the higher level of Rs. 4,000-6,000/- where
advertisements were made for appointment by Bihar Public Service Commission and the final appointment can be made much later than the date of
advertisement. In those cases the Court opined that those persons cannot be appointed on the lower post because they have been appointed on
the basis of the advertisement which was issued much earlier.
6. It is further argued on behalf of the Petitioner that letter of appointment contained in Annexure-2 which is dated 12.1.2001 also indicates that the
decision dated 26.12.2000 taken by the District Establishment Committee indicates that the post on which the Petitioner had to be appointed as
Assistant and that should settle the issue.
7. Submission of the Petitioner has to be decided and adjudicated upon on the basis of the circular dated 20th December, 2000 contained in
Annexure-B. After reading Annexure-2 it is clear that the District Establishment Committee was totally oblivious of Annexure-B because
Annexure-B came into effect on 20th December, 2000. The District Establishment Committee made its recommendation for appointment to the
post of clerk on 26.12.2000 and the date of appointment is dated 12.1.2001. The decision of Establishment Committee and the letter of
appointment contained in Annexure-2 are squarely in the teeth of the decision of the State Government dated 20th December, 2000. Since it was
a fresh appointment which had been made and recommended after bifurcation of the cadre which has already been notified, the Petitioner could
only be given a post of Lower Division Clerk and not the higher pay scale of Upper Division Clerk which is a promotional post.
8. The statement has also been made by the State in the counter affidavit that the Service Book which was opened in the case of the Petitioner has
indicated his pay scale of Lower Division Clerk to which he has been appointed. His claim now that the recommendation of the District
Compassionate Appointment Committee shall prevail over the Government decision is unacceptable.
9. This Court has no hesitation in recording that the District Compassionate Appointment Committee is only a recommending body. The final
decision has to be made under the Government rules and circulars and that had been made according to the prevalent circular and rules. Mistake
committed by persons down below shall not bind the Government. Obviously after bifurcation of the post of Assistant no appointment on the post
of Assistant (Upper Division Clerk) could be made. Whether the recommendation made by the District Establishment Committee was due to lack
of knowledge or mischief cannot be certified in absence of further details in this regard. But the Court does certify that the pay scale which is being
given to the Petitioner is in accordance with what is available to the post on which he has been appointed and has to be in the light of circular dated
20th December, 2000 contained in Annexure-B to the counter affidavit.
10. This writ application has no merit and it is dismissed.
