IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16404 of 2009 1. ANIL KUMAR S/O LATE ARJUN PRASAD VILL/MOH- ENGINEER'S HOSTEL NO.3, N.I.T., PATNA P.S. SULTANGANJ, DISTT. PATNA 2. KAVITA LAL W/O LATE PROF. MITHLESH KUMAR LAL R/O NILAMBAR APARTMENT LANE, EAST BORING CANAL ROAD, PATNA P.S. BUDHA COLONY, DISTT. PATNA-----------PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE SECRETARY SCIENCE & TECHNOLOGY DEPTT. GOVT. OF BIHAR, PATNA 3. THE DIRECTOR SCIENCE & TECHNOLOGY DEPTT. GOVT. OF BIHAR, PATNA 4. THE NATIONAL INSTITUTE OF TECHNOLOGY, PATNA THROUGH ITS DIRECTOR NATIONAL INSTITUTE OF PATNA 5. THE REGISTRAR NATIONAL INSTITUTE OF TECHNOLOGY, PATNA 6. THE PATNA UNIVERSITY THROUGH ITS VICE CHANCELLOR PATNA UNIVERSITY, PATNA 7. THE REGISTRAR PATNA UNIVERSITY, PATNA---RESPONDENTS ----------- For the Petitioner: Mr. Siya Ram Shahi, Advocate. For the University: Mr. A.K.Sinha, Advocate & Mr. Iqbal Ahmad, Advocate For the NIT: Mr. Shashi Bhushan Pd., Advocate For the State: Mr. Shiv Kumar AC to G.A.-7 ------------ 3 27.1.2011 Heard learned counsel for the parties. Some litigations do not seem to end whatever the endeavour which may have been made in past to resolve the issue, at the behest of the High Court with regard to pay which the employee, teaching or non-teaching, is entitled to under erstwhile Bihar College of Engineering now National Institute of Technology, Patna. The two petitioners are before this Court because of the so called alleged discrimination practiced against them in matter of award of pay scale. The notification dated 16.10.2009 contained in annexure-11 is the root cause of the present dispute. The petitioners want quashing of annexure-11 in so far as it relates to them in the following circumstances; The Association of Teachers of Bihar College of - 2 - Engineering and the Patna University Teachers Association had filed CWJC No. 4237 of 1994 in the background of non-payment of salary to the teachers and the staff of the University. Matter was heard and a direction was issued by the High Court to the State of Bihar to constitute a committee to look into the various aspects which were the root cause of non-payment of salary to the teachers and the staff on regular basis. Vide Resolution No. 1194 dated 29.6.1998 a committee head by Mrs. S. Jalja, Secretary, Mines & Geology Department, Government of Bihar along with four other members was set up. A detailed report was presented by the committee where status of each and every staff and teachers as such came to be indicated with the pay scale to which they were entitled to. Since there was some delay in implementation of the recommendation of the said committee even a contempt application bearing MJC No. 1628 of 1996 was filed. The order passed therein is annexure-5 to the writ application and a reading thereof would indicate that the committee report was accepted by the university and only implementation and follow up action remained the issue. Fixing certain time frame the contempt application stood disposed of for implementation of the recommendations including working out the arrears of salary etc. and payment thereof. It is the stand of these two petitioners that Jalja committee also considered their cases and made a - 3 - recommendation to treat these petitioners as assistants since there were no post available of routine clerk under Bihar College of Engineering, though initially these petitioners came to be appointed as a routine clerks by Patna University under compassionate head category. This fact is not in dispute. Contention of learned counsel for these two petitioners is that at least two other persons, namely, Giridhar Gopal and Jyotish Kumar Shah who were similarly situated as two petitioners were also shown to be assistants with pay scale indicated in the said recommendation. Follow up action was there. Patna University issued a notification contained in annexure-6 where that position stood and thereafter even the Bihar College of Engineering now known as National Institute of Technology issued a follow up notification showing these two petitioners along with Giridhar Gopal and Jyotish Kumar Shah to the assistants with a pay scale of Rs. 4000 to 6000/-. But matter did not rest at that because all of a sudden annexure-11 came to be issued by Patna University wherein these two petitioners were given lower pay scale vis-à-vis other two and even their nomenclature were changed as a routine clerk or Lower Division Clerk. The petitioners therefore decided to approach the High Court challenging the said notification. No counter affidavit has been filed on behalf of the National Institute of Technology though counsel of NIT is present in Court and he submits that they have gone by the advice or - 4 - notification issued by the Patna University and they have had no independent application of mind to the issue. In otherwords they have no separate stand on the issue to offer. Counter affidavit on behalf of the Patna University has been filed wherein they have indicated that the reason for downgrading of the post or the pay scale of the petitioners which arose because the pay fixation committee of Patna University met and resolved in terms of annexure-A that since two petitioners were appointed under compassionate head, therefore they will have to be treated as routine clerks/LDC, the extract of the said meeting dated 27.8.2009 (Annexure-A) indicates that position. A rejoinder thereto has been filed by the petitioners rebutting the stand taken by the University alleging therein that it is a totally hostile discrimination practiced by the University and without any basis for reconsideration with regard to the post or pay scale to which they were entitled to. Decision of the committee has to be seen in the light of what had transpired earlier. If the case of these two petitioners were considered extenso by Jalja committee which had the backing of judicial orders and which came to be accepted and notified finally by the University, the same cannot be undone in the manner in which the University has gone about such a decision, contrary to the interest of these two petitioners. The Court does find it strange that when a detailed exercise had been carried out by the Jalja committee constituted by - 5 - the State Government, on the direction of the High Court and the recommendation of the committee was accepted in toto and notified then where was the occasion for the pay fixation committee of the Patna University to sit in review of the said recommendation. If there was a stage for taking objection against the recommendation of the Jalja committee the stage was at the time when the contempt application had been filed and when the notification in furtherance to the recommendation of the committee came to be issued. But there is clear indication from annexure-5 that the university had accepted the report of the Jalja committee, notified it in furtherance thereto, then it is too late in the day now for the so called pay fixation committee of the University to sit and take away the benefit which had granted to the two petitioners only leaving two other persons, namely, Giridhar Gopal and Jyotish Kumar Shah untouched. In the above background and in absence of clear assertion coming forth beyond and what has been indicated by the university and the stand taken by them in the counter affidavit, the Court is of the opinion that it is not open to the University to reopen the recommendation of Jalja committee or to take away the benefit given to the petitioners vis-à-vis similarly situated persons at such a belated stage and that too without any sound basis for rethinking or refixation of their pay which seems violative of Articles 14 and 16 of the Constitution of India. The notification contained in Annexure-11 so far - 6 - as it relates to these two petitioners stands quashed, meaning thereby that earlier notification issued by the Patna University contained in Annexure-6 as well as the notification issued by NIT will operate and these two petitioners will be treated as assistants with the pay scale recommended therein which shall continue to accrue in favour of these two petitioners. It is made clear that if any discrepancy has happened due to notification contained in annexure-11 with regard to payment of salary or the pay scale the same shall be taken care of by the respondents within a reasonable time frame as if annexure-11 was never issued against the petitioners. This writ application is allowed with the above direction. RPS (Ajay Kumar Tripathi,J.)