IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7004 of 2004 ANIL KUMAR NAYAK, son of Shri Lakhan Nayak, resident of Mohalla Prabhu Thakur, Ward No. 5, P. S. Rosera, District- Samastipur. …. Petitioner. Versus 1. L.N.MITHILA UNIVERSITY through its Registrar, Kameshwar Nagar, Darbhanga. 2. Registrar, Lalit Narayan Mithila University Kameshwar Nagar, Darbhanga. 3. Vice Chancellor, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga. 4. Bihar State University (Constituent College) Service Commission through its Secretary, in front of New Secretariat, Punaichak, Patna. … Respondents. ----------- 4. 16.8.2010 Heard Counsel for the Petitioner and Counsel for the University. I. A. No. 4007 of 2005 Having heard learned counsel for the parties as also taken into account the averment made therein, the prayer for substitution, in view of the right to sue will still survive with the widow of the original writ petitioner, the prayer made in this petition is allowed. The name of original writ petitioner is accordingly directed to be deleted and in his place the name of Smt. Poonam Nayak, the widow of the original petitioner is directed to be substituted. I. A. No. 4007 of 2005 is, accordingly, allowed. I. A. No. 4008 of 2005 - 2 - By this petition, the substituted petitioner has sought amendment in the relief portion of the main writ petition by deleting the relief of paragraph 1(ii) and substituting it by way of another relief regarding approval of the promotion of her husband in the post of Lecturer w.e.f. 14.8.1991 as also its consequential benefit. For the reasons mentioned in this application, such amendment is allowed. I.A. No. 4008 of 2005 also stands disposed of. Coming to the merits of this case, in view of the aforementioned order, the subsisting prayer of the substituted petitioner now remains as follows “1(i) For a direction to the respondents to pay the petitioner arrear of difference of salary of the post of lecturer and demonstrator with effect from 14.8.1991 in pre-revised pay scale of Rs.2200-4000 which has now been revised to Rs.8000-13500 with all consequential benefits. (ii) It is, therefore, prayed that your Lordships may graciously be pleased to direct the respondent no. 4, the Commission, to approve the promotion of the original petitioner to the post of Lecturer w.e.f. 14.8.1991 and be further pleased to direct the respondent no. 1 to 3 to release the difference of salary in pre and post revised scales to the petitioner and be further pleased to direct them to pay the petitioner all death cum - 3 - retirement benefits of original petitioner viz. family pension, gratuity, P.F. leave encashment, group insurance amount along with statutory and delayed interest” In support of the aforementioned prayer, learned counsel for the substituted petitioner would straightway refer to the notification of the University dated 19.12.1997 for claiming promotion of her husband, the original petitioner with all consequential benefits. He would submit that when similar order of promotion in anticipation of approval/recommendation of the Commission was acted upon in cases of other teaches of the College, the original petitioner also being a teacher could not have denied the same benefit. Counsel for the University, however, in absence of counter affidavit has got no answer to the aforementioned submissions. In the opinion of this Court, no right can have said to have accrued at least in law to the original petitioner by a notification dated 19.12.1997 inasmuch as the Vice- Chancellor of the University himself had got no power to give promotion on the post of a teacher unless there was a recommendation of the Commission and also approval of - 4 - the Syndicate. Therefore, merely because the Vice Chancellor, in anticipation of the approval of the Commission and Syndicate, went to issue a conditional order of promotion of original petitioner and two others on the post of Lecturer making their payment of salary subject to receiving the recommendation of the Commission, did not clothe the original petitioner and now the substituted petitioner, widow of the original petitioner for claiming the promotional benefit by way of payment of salary specially when there is no order showing such recommendation of Commission or approved by the Syndicate. Section 57 of the Bihar State Universities Act being absolutely clear with regard to manner of direct appointment or promotion to be made only with the approval/recommendation of the Commission, this Court would find it difficult to issue a mandamus for payment of salary of the original petitioner with retrospective effect i.e. 14.8.1991 in absence of any clear averment that such promotion given by the Vice-Chancellor had ever received concurrence/recommendation of the Commission. Nonetheless, original petitioner is no more and he - 5 - was given such benefit of ad hoc promotion on the post of lecturer, in view of the decision of the State Government abolishing the post of demonstrator and bringing the existing demonstrator on the post of lecturer by way of promotion. That is how three of them namely, Harish Chandra Jha, Shashi Kumar Dubey and the original petitioner are shown to have given the promotional benefit in the different constituent colleges of the L. N. Mithila University by the Vice Chancellor. Therefore, if the case of original petitioner had remained pending for approval of the Commission, the University now having vested with the power of Commission after abolition of the Bihar State Universities (Constituent Colleges) Service Commission, the University itself may decide the such claim of the original petitioner in accordance with law. If by virtue of such decision, the original petitioner is found entitled for promotion with retrospective effect i.e. 14.8.1991 or any other date, the pay fixation of the original petitioner with financial benefit till the date of filing of this writ petition on 30.6.2004 will be allowed on notional basis and after 30.6.2004 the original petitioner will - 6 - be entitled for cash component of such promotion. Nonetheless the entire benefit of death-cum-retirement benefit of original petitioner will be calculated in the promotional pay-scale of lecturer if such promotion is allowed by the University and the substituted petitioner; the widow who has received some payment by way of death- cum-retirement benefit will be entitled for the difference on account of refixation of such benefits. It is also made clear that the widow will be at least entitled for the same benefit in the matter of pay fixation if the promotion of the original petitioner is approved by the University which has been and/or would be extended to Harish Chandra Jha and Shashi Kumar Dubey who too were promoted along with the original petitioner. Since the widow has now only to receive payment and there is no question of any further entitlement of original petitioner after his death, this Court would direct the authorities to take a sympathetic view and decide the case of the substituted petitioner as early as possible preferably within a period of six months from the date of receipt/production of a copy of this order. - 7 - With the aforementioned observations and directions, this writ petition is disposed of. kanchan (Mihir Kumar Jha, J.)