-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI …. W. P. (S) No. 2087 of 2015 with W. P. (S) No. 2092 of 2015 with W. P. (S) No. 2400 of 2015 with W. P. (S) No. 2727 of 2015 with W. P. (S) No. 2772 of 2015 ….
1. Heeralal Soren 2. Birendra Kumar Sinha 3. Sandeep Kumar Nayak 4. Ajit Prasad 5. Manish Kumar 6. Krishna Kumar Yadav 7. Nikhil Vishwanath 8. Kamlesh Sharma… … Petitioners( W. P. (S) No. 2087 of 2015) 1. Parmanand Das 2. Vijay Kumar 3. Pawan Kumar Sinha 4. Abhinit Anand 5. Manjeet Kumar Raut 6. Naresh Choudhary 7. Md. Taslim Arif … …Petitioner(W. P. (S) No. 2092 of 2015) 1. Ayaz Ahmad 2. Abhijeet Kumar 3. Mukesh Prasad Singh 4. Shabnam Kujur 5. Rakesh Kaushik 6. Devendra Kumar 7. Avilash Raj 8. Amit Kumar 9. Atul Kumar … …Petitioner(W. P. (S) No. 2400 of 2015) 1. Sarita Kumari 2. Banani Adhikari 3. Shweta 4. Ranjana Khalkho 5. Raghuwansi Choudhary 6. Badar Imam 7. Ajay Kumar Sharma 8. Md. Abid … …Petitioner(W. P. (S) No. 2727 of 2015) 1. Subhash Chandra Mahto 2. Priti Kumari 3. Babli Kumari 4. Binita Sorin 5. Veronica Tirkey 6. Shiv Narayan Prasad 7. Janki Munda 8. Mamta Toppo … …Petitioner(W. P. (S) No. 2772 of 2015) Versus -2- 1. The State of Jharkhand 2. The Principal Secretary, Department of Health, Medical Education & Family Welfare, Nepal House, Ranchi 3. The Jharkhand State AIDS Control Society, through its Project Director, Sadar Hospital Campus, Ranchi ... ... Respondents (In all cases) --- CORAM: - HON’BLE MR. JUSTICE APARESH KUMAR SINGH ... For the Petitioners: Mr. Deepak Kr. Prasad, Adv. (In all cases) For the Respondent-State : Mr. Chaitali C. Sinha, JC to AAG M/s Prem Pujari Roy, JC to GA & JC to AG … 04/30.07.2015 Heard learned counsel for the parties. Petitioners in all these writ petitions have common grievances. Since issues and facts involved in these writ petitions are common, for the sake of convenience, facts available in W.P.(S) 2087 of 2015 are being noticed hereinunder:- The grievances of the petitioners as have been taken note in W. P. (S) No. 2087 of 2015 vide order dated 22.05.2015 is quoted hereunder:- “Learned counsel for the petitioners submits that in terms of the office order dated 09.01.2014, Annexure-2, which is a direction to fix revised remuneration of contractual staff under NACP-IV to be implemented from 03.10.2013, the petitioners, who fall in the category of level-V as per Clause-d thereof, they have been granted a particular remuneration as computed by the committee under AIDS Control Organization in Jharkhand vide Annexure-4 dated 27.04.2015. The method of computation of revised remuneration is also evidenced in the sub para of the Annexure-4 and computation chart is also enclosed at page 35 onwards, giving the benefit of increment in calculating the total payable amount. After these amount have been paid, suddenly vide Annxure-8 series, office order dated 20.04.2015, the Additional Project Director has sought to recover the same stating that such payments were not paid in accordance with NACO guidelines and needs to be revised. Therefore, the petitioners have approached this Court as there is no show cause before initiating such recovery neither the petitioners are at fault in computation of their revised remuneration. Learned counsel for the respondent-State prays for and is allowed four weeks' time to obtain instruction on behalf of the respondents and file their response. List this case on 09.07.2015. In the meantime, no recovery be effected consequent to the impugned order at Annexure -8 series dated 20.04.2015 in respect of the petitioners.” These petitioners are on contractual engagement under -3- the Jharkhand State AIDS Control Society on the post of Lab Technician and Counsellor at different places with different length of service. The policy of the respondents to revise remuneration of such contractually engaged employee of the AIDS Control Society was implemented w.e.f. 03.10.2013 as per the Ministry of Health & Family Welfare, Department of AIDS control vide circular dated 09.01.2014, which is enclosed as Annexure- 2 to W. P. (S) No. 2087 of 2015 and Annexure-A to the counter affidavit. This was, however, again modified as per the respondent also on the basis of several representations from contractual staff and their Associations on the basis of recommendation of Committee by the Health Department, Government of India through letter dated 13.02.2014. The revision effected are explained at para-10 of the counter affidavit. Further by another letter dated 24.02.2014, existing provisions were again amended by which the last date for awarding one/two/three annual raise to existing contractual staff, who have reached the maximum of remuneration range was fixed as 02.10.2013. The Health and Family Welfare Department, Government of India, however, again recommended the revision of remuneration for contractual staff at SACS/Facility Level-IV based upon the recommendation of the Anomalies Committee. As per the stand of the respondents, the criteria of fixing revised remuneration for the existing contractual personnel, who are holding positions where the revised remuneration under-IV is lower than the maximum of pre-revised remuneration range under NACP-III stood amended. Pursuant to the aforesaid amendment i.e. on 13.08.2014, a committee of the Jharkhand State AIDS Control Society recommended monthly raise to the working staff of NACP-IV in Jharkhand State AIDS Control Society (JSACS). Consequent thereupon and on approval of the Project Director of JSACS, letter dated 12.03.2015 was issued regarding computation of arrear of ICTCS/PPTCT' s contractual staff. After payments were made by the Jharkhand State AIDS Control Society as per decision dated 12.03.2015, it was found that calculation of arrears of payment was wrong. Thereafter again a committee verified the matter and upon its findings sought to recover the amount paid in excess to the staffs. This recovery of alleged excess payment -4- gave cause of action to these petitioners to come before this Court apart from questioning the new fixation of their contractual remuneration undertaken pursuant thereto. The recovery order dated 20.04.2015 is, therefore, challenged by the petitioners. As would appear from the stand of the respondents, the order of recovery was not preceded by any notice or show cause to the individual petitioners. According to the respondents, after passing of the interim order of stay in the present writ petition, the respondents have received certain instructions from Consultant HR of NACO. The respondents contend that re-fixation of contractual remuneration is in line with the guidelines and amended orders issued from time to time by NACO. It is, however, apparent from the pleadings of the parties that before effecting the order of recovery, no notice or show cause was given to any of these petitioners. The order of recovery of amount paid on the basis of decision of the committee of Jharkhand State AIDS Control Society definitely would entail adverse civil consequences where observance of principles of natural justice is Sine-qua- non. Apart from that the petitioners have their own point of view in fixation of their contractual remuneration stating that erstwhile committee's decision was perfectly in line with Annexure-D to their counter affidavit and the resolution of NACO, which require no rectification. Obviously the respondents have a different point of view relating to computation of contractual remuneration. It, however, appears that at no point of time, it is alleged that the petitioners were responsible on their part for any wrong fixation of pay. Having taken note of the aforesaid relevant facts on record and the submissions of the parties, it, therefore, appears that the respondents are required to give an opportunity to the petitioners' for representing against the proposed order of recovery and re-fixation of their remuneration. This is more necessary as fixation of pay and allowance are in domain of financial experts and one of which recommended in favour of these petitioners while the other has recommended against them. Therefore, before taking any final decision in the matter, the respondent should give an opportunity to the petitioners' and take a decision in accordance with law as also the -5- resolutions/orders issued by the Ministry of Health & Family Welfare, Department of AIDS Control on the subject. Till then, the respondents would not give effect to the impugned orders in respect of the petitioners. The individual petitioners may make a representation or in their representative capacity before the respondent no. 3, Project Director, Jharkhand State AIDS Control Society, Ranchi within a period of two weeks from today. The respondent no. 3, Project Director, Jharkhand State AIDS Control Society, Ranchi would consider the same in accordance with law. It would be open to the respondent no. 3, Project Director, Jharkhand State AIDS Control Society, Ranchi, if necessary, to constitute a new committee to look into the entire matter before taking such decision. In any case, the aforesaid exercise be completed within a period of 10 weeks from the date of representation enclosing a copy of this order. Learned counsel for the petitioners submits that for no reason the petitioners are not being paid their contractual remuneration even at the reduced rate for last two months. If that be so, the respondent no. 3, Project Director, Jharkhand State AIDS Control Society, Ranchi would look into the matter and on being satisfied that one or the other petitioners' have discharged their duties in the aforesaid period release the admissible salary to such petitioners' in the meantime. These writ petitions are, accordingly, disposed of in the aforesaid manner. (Aparesh Kumar Singh, J.) Kamlesh/