1. Heard learned counsel for the parties.

2. The Petitioner seeks quashing of Office Order No. 22/Memo No. 452 dated 12.04.2014 (Annexure-6). By this order, three advance increments previously granted to him were deducted while fixing his pay on the promoted post. He claims that this action has resulted in a pay anomaly and is in contravention of Rule 78(a)(i) of the Bihar/Jharkhand Service Code.

Background Facts:

3. The Petitioner was initially appointed as a Messenger by an Office Order dated 22.01.1996 under the erstwhile Bihar State Electricity Board. Subsequently, he was appointed as a Junior Accounts Clerk (JAC) by another office order dated 27.07.2007 issued by the Director (Personnel), Jharkhand State Electricity Board, Ranchi.

                  The Electricity Board introduced a scheme to incentivize employees who cleared the Departmental Examination with three advance increments in the existing scale. The Petitioner appeared for and cleared the Departmental Examination held on 20.05.2012 and was declared successful in the result published in the Office Order dated 30.05.2012.

                  As a result of his passing the departmental examination, the Petitioner was granted three advance increments by Office Order No. 1171 dated 19.06.2012. Soon thereafter, he was promoted from the post of Junior Accounts Clerk (JAC) to the post of Accounts Assistant (AA) by another Office Order No. 2459 dated 30.12.2013. The Petitioner’s name appears at Serial No. 17 of this office order by which promotion was granted to employees posted as Junior Accounts Clerk (JAC) to the next higher post of Accounts Assistant (AA). The natural consequence of promotion is the grant of the pay scale of the promoted post with the applicable Grade Pay. However, while fixing the pay of this Petitioner, the Respondents granted one increment but deducted the three advance increments, which becomes evident from the pay fixation chart dated 12.04.2014 (Annexure 6) to the Writ Petition.

                  It has been submitted by Ld. Counsel for the Petitioner that he was given three advance increments of Rs. 370 + 380 + 390 = 1140, which were added to his pay prior to his promotion to the post of Accounts Assistant. His pay was, therefore, Rs. 13,180 (pre-revised), which was revised to Rs. 13,780 in the revised scale, as is apparent from the pay fixation chart.

                  Thereafter, the Petitioner was given two annual increments for the years 2012 and 2013, and his revised pay prior to promotion was Rs. 14,630/-. However, upon being promoted, the Respondents deducted the three advance increments and reduced his pay to Rs. 13,340/-. The Respondents then gave one increment @ Rs. 300 and the difference of Grade Pay of Rs. 1,200/- making the total pay of this Petitioner as Rs. 14,940/-.

                  The Petitioner, however, is aggrieved by such pay fixation as the grant of one increment and the difference of Grade Pay should have been computed on Rs. 14,630/-, which was substantive pay drawn by him prior to promotion. The grant of increment and difference of Grade Pay on the reduced pay of Rs. 13,340/-, computed by deducting the three advance increments, violates the provisions of Rule 78(a)(i) of the Jharkhand Service Code.

                  Ld. Counsel also relies on the decision in the case of Ishwari Prasad Mandal vs. State of Jharkhand (W.P.S. No. 6166 of 2008), which covers his case squarely. This decision has been affirmed by the Division Bench in L.P.A. No. 315 of 2013, and the S.L.P (C) 16507/2015 preferred by the Jharkhand State Electricity Board was also dismissed.

                  He further submits that the instant case is also covered by the decision in W.P. (S) No. 1004 of 2018; Shambhu Nath Prasad vs. The State of Jharkhand, which was affirmed in L.P.A. 220 of 2019 by order dated 19.09.2022. As a matter of fact, the issue of pay protection has been elucidated in the case of Surendra Kumar vs. Bihar State Electricity Board & others (C.W.J.C No. 6120/1994).

4. Per contra, the Respondents filed their Counter Affidavit and justified the deduction of three advance increments, arguing that the earlier office order allowing three advance increments was superseded by Standing Order No. 401 dated 05.11.1973. It was further argued that Rule 78(a)(i) of the Bihar/Jharkhand Service Code does not apply, as there is no mention of advance increments which were given by way of a special scheme to the employees.

                  The Respondents have also contended that there has been no reduction of pay on promotion and, therefore, the Petitioner has not suffered any loss, and there is no reduction in his pay and allowances upon pay fixation after he was promoted as Accounts Assistant. A further plea regarding financial hardship has been raised by the Respondents in paragraph 20 of the counter affidavit.

                  It was submitted that although similarly situated persons have been given the benefit of three advance increments, JUVNL is under acute financial crisis, and therefore, the Writ Petition should be dismissed.

                  The Respondents has also filed a Supplementary Counter Affidavit and raised an additional plea that "substantive pay" contemplated in Rule 78 (a) (i) of the Jharkhand Service Code does not include special pay or personal pay. It was argued that since the Petitioner was given three advance increments as an incentive to encourage employees to qualify the Departmental Examination, such increments cannot be treated as substantive pay as it was “special pay” under Rule 42 of the Jharkhand Service Code.

5. Having heard learned counsel for the rival parties and after going through the records of the case it transpires that the Petitioner claims that the deduction of three advance increments given to him while fixing his pay on the promoted post violates the well-recognized rule of pay protection, which is also recognised in Rule 78(a)(i) of the Jharkhand Service Code. The pay fixation order (Annexure 6 of the Writ Petition) reflects that three advance increments have been deducted and the pay has been reduced. The benefit of one increment and the difference in Grade Pay have been added to the reduced pay. The Petitioner has already earned three advance increments by clearing the Departmental Examination as per the prevalent scheme. The three advance increments given to this Petitioner are not gratuitous, and the Petitioner has earned these increments.

6. The legal issue in this case has already been examined by the Coordinate Bench of this Court in the case of Ishwari Prasad Mandal vs. State of Jharkhand (W.P.S. No. 6166 of 2008). The same issue was involved and the following pertinent findings explain pay protection:

                  “5. It is an admitted position that before the petitioner was promoted to the post of head clerk, he was getting scale of Rs 9040/- and from 24.08.2006 he was given an increment and he was getting scale of Rs 9205/-. After his promotion his pay was fixed at Rs 8875/- without giving any show cause notice to the petitioner. It is also admitted by the parties that the provisions of Bihar / Jharkhand Service Code applies to Jharkhand State Electricity Board. Rule 78(a) (i) of Bihar / Jharkhand Service Code reads as follows:

                  “Rule-78(a)(i) when appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 89) than those attached to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post;

                  (ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stag of the time scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay, plus personal pay equal to the difference and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for period after which an increment is earned in the time-scale of new post, whichever is less. But if the minimum pay of the timescale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay.”

6. It is clear from the aforesaid rules that the pay of the petitioner on promotion to the higher post is to be fixed at the pay the petitioner was last receiving as his substantive pay in the lower post. I agree with the contention of the learned counsel for the petitioner that if the circular/standing order of the Jharkhand State Electricity Board is given effect to, the statutory Rule 78(a) (i) of the Bihar / Jharkhand Service Code would become redundant besides brining an anomalous situation.”

7. This decision has attained finality as the Respondents were unsuccessful up till the Hon’ble Supreme Court in S.L.P (C) 16507/2015.

                  Moreover, the Respondents have also extended the benefit of three advance increments to several other similarly situated employees, including one Shambhu Nath Prasad in

                  L.P.A No. 220 of 2019. The observations of the Division Bench on this same issue have been ignored leading to multiplicity of litigation. In the said case, the Division Bench held as follows:

                  12. The issue which has been raised and the subject matter of the instant appeal is as to whether the provision of Bihar/Jharkhand Service Code is applicable to the employees working under the appellant-JUVNL or not?

                  13. The aforesaid issue is for consideration in the backdrop of the fact that the writ petitioner is claiming pay-protection in view of the provision of Rule 78(a)(i) which mandates that on promotion to the higher post pay is to be fixed at the pay last received as substantive pay in the lower post. The respondent authorities contrary to the aforesaid provision of law has taken contrary decision by reducing the pay-scale of the writ petitioner when he was promoted to the post of the Head Clerk by passing the impugned orders.

                  14. The question of applicability of the certified standing order by which it has been decided about non-applicability of the Bihar/Jharkhand Service code in favour of the employees working under the appellant JUNVL has been agitated before this court by filing a writ petition by Ishwari Prasad Mandal in W.P.(S) No. 6166 of 2008. The aforesaid writ petition was decided on 08.02.2013 holding that the provision of Rule 78(a)(i) of the Code will be applicable to the employees working under the Jharkhand State Electricity Board (as it then was), now JUNVL before restricting of the Board. Co-ordinate learned Single Judge of this Court came to such conclusion that if the Circular/standing order of the appellant is given effect to the statutory Rule 78(a)(i) of the Bihar/Jharkhand Service Code would become redundant besides bringing an anomalous 2022:JHHC:32327-DB situation.

                  15. The aforesaid order of the learned Single Judge was assailed before the co- ordinate Division Bench of this Court by filing intra-court appeal being L.P.A. No. 315 of 2013. The said intra-court appeal was dismissed vide order dated 10.12.2014 by not accepting the submission advanced on behalf of the appellant in view of the finding recorded by the co-ordinate learned Single Judge and held therein that the Jharkhand Service Code is equally applicable in case of the employees of the Board. In that event, the pay of the petitioner is required to be protected under the provision as contained in Rule 78(a)(i) of the Code. The operative part of the said order reads as under:

                  “… The submission advanced on behalf of the appellants is not acceptable in view of the finding recorded by the Court that the provision of the Jharkhand Service Code is equally applicable in case of the employees of the Board. In that event, the pay of the petitioner is required to be protected under the provision as contained in Rule 78(a)(i) of the Bihar/Jharkhand Service Code. Thus, we do not find any merit in this appeal and hence this appeal is dismissed.”

                  16. It appears from the record that the order passed by the co-ordinate Division Bench of this court in L.P.A. No. 315 of 2013 had been challenged by the Jharkhand State Electricity Board by filing S.L.P. No. 16507 of 2015 before the Hon'ble Apex Court and the same was dismissed vide order dated 11.09.2015.

                  17. This Court, after going through the orders passed by learned Single Judge of this Court as also the order passed by the co-ordinate Division Bench of this Court and taking into consideration the fact that the order passed by the co-ordinate Division Bench of this court has been declined to be interfered with by the Hon'ble Apex Court in exercise of power conferred under Article 136 of the Constitution of India, is of the view that agitating the same issue again about non-applicability of the provision of Rule 78(a)(i) of the Bihar/Jharkhand Service Code on behalf of the JUVNL cannot be considered to be proper.”

                  The concept of pay protection has also been elucidated in C.W.J.C No. 6120 of 1994 (Surendra Kumar vs. The Bihar State Electricity Board).

8. In the Supplementary Counter Affidavit, the additional plea of “special pay” has been taken to deny these three increments while fixing the pay of the Petitioner on promotion to the higher post of Accounts Assistant. Special pay itself has been defined in the Bihar/Jharkhand Service Code as follows:

                  Rule 42

                  "Special pay means an addition, of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of—

                  (a) the specially arduous nature of the duties; or

                  (b) a specific addition to the work or responsibility; or

                  (c) the unhealthiness of the locality in which the work is performed."

                  The special pay referred to above does not cover the case of the Respondent. The three advance increments were not given for performing any arduous work or due to any extreme conditions in the discharge of duties by the employees. The grant of three advance increments required the personal skill of employees who had to clear the Departmental Examination. This does not constitute special pay.

9. Having regards to above, this Court is having no hesitation in holding that the Respondents have committed a grave error of law in reducing the pay of this Petitioner after he was promoted from the post of Junior Accounts Clerk (JAC) to Accounts Assistant (AA). The rule of pay protection applies at each stage of pay fixation, and the Respondents cannot justify such arbitrary deduction of increments already granted on the plea that the total pay package increased by adding the increment for one year and difference of Grade Pay.

10. Accordingly, it is held that the Petitioner is entitled to pay fixation on the post of Accounts Assistant by adding the three advance increments that had been illegally deducted by the Respondents.

                  The Respondents are hereby directed to re-compute the benefits, and pay the difference in pay ought to be paid to the Petitioner. The entire exercise shall be completed within a period of Ten Weeks from the date of receipt/production of copy of this order.

11. As a result, the instant writ application stands allowed. Pending I.A.s if any also stands disposed of.