RENUKA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Contending that the rule for pay fixation introduced by the department with effect from 01.01.1996 after coming into force the 5th Pay Commission Recommendation is ultra vires of the Constitution of India inasmuch as it creates a discrimination between the employees who underwent Family Planning Operation prior to 01.01.1996 and subsequent to 01.01.1996 in the matter of grant of special increment this writ petition has been filed in the year 2007 challenging the pay fixation rule and consequently during the pendency of the writ petition challenge is also made to certain recovery effected in the matter.

(2.) Facts in brief go to show that petitioner was appointed as a Primary Teacher on 10.05.1988 by the District Superintendent of Education, Saran. Petitioner seems to have underwent a Family Planning Operation and, therefore, special increment in accordance to scheme that was in vogue was granted to the petitioner with effect from 10.05.1995. Petitioner was drawing pay in the scale of Rs. 1200-30-2040.00 and the special increment at the rate of Rs. 30.00 was sanctioned to her by the competent authority. However, when the 5th Pay Commission Recommendation was introduced with effect from 01.01.1996 retrospectively after its acceptance in the year 1999 petitioner's pay was fixed in the revised pay-scale of Rs. 4500-125-7000.00 and the benefit of special increment on account of undergoing Family Planning Operation according to the petitioner is being denied.

(3.) It is the case of the petitioner that with effect from 01.01.1996 Rs. 125.00 is recommended as special allowance for undergoing Family Planning Operation but this amount is payable only to such employees who undergo the operation after 01.01.1996 and not to persons like the petitioner who have already undergone the benefit. Inter alia contending that in denying the benefit to the petitioner the advance special increment after 01.01.1996 the pay fixation rule is discriminatory in nature the writ petition has been filed and learned counsel appearing for the petitioner taking us through various aspects of the matter tried to demonstrate that petitioner was receiving an annual increment as special increment for having undergone the Family Planning Operation but after 01.01.1996 it is being denied to the petitioner and the enhanced increment of Rs. 125.00 is not being granted to the petitioner. It is stated that by virtue of the Family Planning Operation undergone by the petitioner in the year 1995 a vested right to receive the benefit has accrued to the petitioner and this right cannot be taken away in the manner done, accordingly, placing reliance on the following two judgments Chairman, Railway Board and others Vs. C.R. Rangadhamaiah and others- (1997) 6 SCC 623 and State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors.- 2015 (1) PLJR 297 an argument was advanced before us to say that retrospective amendment taking away accrued or vested right of a Government employee is invalid. That apart it is argued that after the 5th Pay Commission recommendation was implemented on 01.01.1996 the District Superintendent of Education, Saran continued to pay the benefit of advance increment to the petitioner but the same has been cancelled and recovery ordered on 28.01.2010 which is said to be illegal and, therefore, challenge is also made to the said order. Various circulars with regard to grant of Family Planning Operation benefit and other documents were referred to say that the rule denying the benefit of special increment to the petitioner is ultra vires of the Constitution.