IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.3228 OF 2007 MD. NASEER USMANI, SON OF LATE NURUL HODA, RESIDENT OF MOHALLA-MAULA BAGH, NAYA TOLA, PHULWARI SHARIF, P.O. PHULWARI SHARIF, DISTRICT-PATNA. ...........PETITIOENR VERSUS 1. THE STATE OF BIHAR. 2. THE VICE CHANCELLOR, MAGADH UNIVERSITY, BODH GAYA. 3. THE REGISTRAR, MAGADH UNIVERSITY, BODH GAYA. 4. THE DIRECTOR, HUMAN RESOURCES DEVELOPMENT DEPARTMENT (HIGHER EDUCATION) GOVT. OF BIHAR, NEW SECRETARIAT, PATNA. 5. THE DY. SECRETARY, PAY FIXATION CELL (HIGHER EDUCATION), GOVT. OF BIHAR, NEW SECRETARIAT, PATNA. 6. THE PRINCIPAL T.P.S. COLLEGE, PATNA. 7. SRI MANOJ KR. SINGH, SON OF NOT KNOWN, ASSISTANT, T.P.S. COLLEGE, PATNA. .........RESPONDENTS ----------- 02/ 10.08.2011 Heard Mr. Nazmul bari, learned counsel for the petitioner and learned counsel for the Magadh University. The prayer of the petitioner in this writ application is for fixation of his salary on the post of Assistant w.e.f 02.05.1977 i.e. the date of his initial appointment on the ground that similarly situated persons have been granted salary of the post of Assistant from the date of their initial appointment. With reference 2 to the aforementioned prayer, Mr. Nazmul Bari would submit that though the petitioner was appointed by the Principal of the T.P.S College, Patna by order dated 27.04.1977 on the post of Card Sorter and Indexur 27.04.1977 on the post of Card Sorter and Indexur but after the college became the constituent Unit of Magadh University in the year 1980, the University had sought to absorb the services of the petitioner on the post of Assistant in absence of sanctioned post of Card Sorter in the College. For this purpose he would refer to a list of employees circulated by the University dated 23.06.1997, wherein, the Registrar of the University while forwarding the said letter no. 75 dated 23.06.1997 had directed the Principal of the College to circulate the letter inviting objection of any such employee whose name was not included in the list for its being sent to the Government for taking a final decision for absorption of the services in the constituent college. He would further refer to paragraph no. 13 of the writ 3 application, wherein, it has been stated that the person alike him namely Jai Ram Sinha and Manoj Kumar Singh had already been adjusted on the post of Assistant and they have been also given salary of the post of Assistant from the date of their initial appointment i.e. 02.05.1977. On the other hand, learned counsel for the University with the help of his counter affidavit would point out that the appointment of the petitioner has been made on the post of Card Sorter which is a post in the Library, an inferior post than the post of Assistant and as such the petitioner cannot claim the higher post of Assistant by way of absorption. It has been explained that the petitioners have been absorbed in the College after it has become constituent on the post of Card Sorter and Indexur and therefore, his next channel of promotion is only to the post of Assistant Librarian and not on the post of Assistant. Referring to the cases of discrimination cited by the learned counsel for the petitioner, he has also explained that Jai Ram Sinha and Manoj 4 Kumar Singh were actually appointed on the post of Assistant and therefore, their absorption on the post of Assistant would not mean that every person who was working in the College on class-III post will have to be absorbed on the post of Assistant. In the considered opinion of this Court, prayer of the present nature in fact seeking retrospective fixation of pay on the higher post of Assistant after 30 years of the appointment of the petitioner in the College must be held to be wholly misconceived. The petitioner with wide open eyes had entered into the services of the College on the post of Card Sorter cum Indexur and there is no order either of the University or of the College by which it can be established that the services of the petitioner had been already absorbed on the post of Assistant. Merely because a list was circulated by the University in the year 1997 in which against the name of the petitioner the designation shown was Assistant, will not mean that the petitioner had become Assistant. In fact in absence of any order of the University 5 either before 23.06.1997 appointing/ absorbing the petitioner on the post of Assistant or even thereafter, it will be difficult for this court to hold that the petitioner's designation had already been changed from a lower post of Card Sorter cum Indexur to the higher post of Assistant. As a matter of fact, Card Sorter cum Indexur is a post in the Library and the post of Assistant in the College is of general cadre. It therefore, does not make any sense for the petitioner to claim the post of Assistant, inasmuch as, his promotion could be made only against the higher post in the Library that is of Assistant Librarian and thereafter to the Librarian, subject to his fulfillment of the requirement of the aforementioned post. The plea of discrimination raised by the petitioner is also not substantiated by producing the appointment letter of Jai Ram Sinha and Manoj Kumar Singh. While the petitioner has claimed that Jai Ram Sinha and Manoj Kumar Singh and he himself had already been placed in 6 the cadre of Assistant but the consequential benefit of pay fixation was given only to Jai Ram Sinha and Manoj Kumar Singh. The Principal of the College in his counter affidavit has however taken a categorical stand that the appointment of Jai Ram Sinha and Manoj Kumar Singh were made on the post of Assistant. In that view of the matter, the plea of discrimination raised by the petitioner also must fail. In that view of the matter, while this Court would not find any merit in this writ application so far it relates to fixation of his salary of the petitioner on the post of Assistant from the date of his initial appointment i.e. 02.05.1977 but keeping in view of the stand taken by the respondents themselves in their counter affidavit that the case of the petitioner for his promotion on the post of Assistant Librarian had already been recommended by the Principal of the College on 01.06.2007, this Court would direct the respondent University and particularly its Registrar to take a final 7 decision as with regard to promotion of the petitioner on the post of Assistant Librarian as early as possible but in any event not later than six months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction this application is disposed of. Ranjan (Mihir Kumar Jha, J.)