IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8542 of 2006 1. KAILASH KUMAR ROY son of Surya Narayan Roy 2. Md. Anis Ahmad Son of Sheikh Gujjo 3. Md. Khilafat Hussain s/o Late Md. Belsal Hussain 4. Gauri Shankar Singh s/o Late Chanda Kishore Singh 5. Mithilesh Poddar s/o Sri Jagdish Poddar. 6. Saryug Pd. Yadav s/o Late Bhola Prasad Yadav 7. Siya Ram Singh s/o Late Saryug Pd. Singh. 8. Ashok Kr. Singh s/o Late Jagdish Pd. Singh. 9. Agra Nath Singh s/o Late Baikunth Nath Singh. 10. Bhartendra Prasad Singh s/o Late Mehilal Singh. 11. Md. Saukat Alam s/o Md. Akhtar Hussain. 12. Sudin Prasad Kapri s/o Sri RAj Nath Gope. 13. Jageswar Mandal s/o late Gholtan Mandal. 14. Umesh Thakur s/o Sri Rupan Thakur. All are working in Bihar College of Agriculture, Sabour, Bhagalpur.. … Petitioners. Versus 1. THE RAJENDRA AGRI.UNIVERSITY through its Registrar having office at Pusa, District Samastipur. 2. The Vice Chancellor, Rajendra Agricultural University, Pusa, District- Samastipur. 3. The Director of Administration, Rajendra Agricultural University, Pusa, Samastipur. 4. The Associate Dean-cum-Principal, Bihar College of Agriculture Sabour, Bhagalpur. … Respondents. ------------- 3. 02.8.2010 Heard Mr. A. B. Ojha, learned counsel for the petitioners and Dr. A. K. Upadhaya, learned counsel for Rajendra Agricultural University. The prayer of the petitioners in this writ petition reads as follows;- “1. That this is an application for issuance of a writ of mandamus to treat the petitioners at par with and to place the petitioners in the same scale of pay in which 2 the persons selected at the Limited competitive Test held on 14.3.1988 at Bihar Agriculture College, Sabour for appointment to Class III from Class IV grade employees and in any case in a scale of pay not less than that which has been given to the persons who were not qualified at the limited competitive test held on 14.3.1988 but who were appointed/promoted much after the petitioners in the year 1999, with consequential benefits from due date including personal promotion/as well as the cost of this proceeding.” Though the prayer may not be very clear, the submissions Mr. Ojha are inasmuch he would submit that when in the selection held in the year 1996 class IV employees had an opportunity for competing for Class III posts and the petitioners had at least qualified for the post of Laboratory Assistant but the others (not made party to this writ petition) had neither qualified for the post of Assistant nor for the post of Laboratory Assistant and as such when those discarded or left over Class IV employees when they ultimately were made Assistant in a subsequent internal recruitment in the year 1999, the petitioners holding the post of Laboratory Assistant will be entitled for pay protection or the same salary as was given to the subsequent class IV employees appointed on 3 the post of Assistant. To explain this Mr. Ojha has drawn attention of this Court towards various documents including the result sheets of the year 1996 test and the terms of appointment of the petitioners and those persons who were selected in the year 1999 on the post of Assistant. Mr. Ojha also relied on paragraph 4 of the counter affidavit to contend that when the University itself has accepted that the petitioners were all successful candidates of 1996 recruitment test though placed below in the merit list the benefit of higher pay-scale in the 1999 selection could not have been given to those who had failed in 1996 test. Dr. A.K. Upadhaya, learned counsel for the University would explain that 1996 selection or absorption of Class III posts was under a special scheme as directed by the Apex Court wherein written test for working employees was directed to be held and in that selection test the petitioners were appointed on Class III posts (Laboratory Assistant) as their inter se merit position was below to other Class IV post employee securing higher points on the basis of their performance 4 in the written test as also the experience by virtue of number of years. He would, however, explain that if others had ultimately succeeded in 1999 who could not have been selected it was only because for them the experience clause was not applicable as they had not completed the minimum number of years as prescribed in the Supreme Court order and therefore it cannot be said that those persons who were ultimately selected in 1999 were inferior in merit to the petitioners. He would also submit that the two selection tests on the basis of two different departmental examinations and its result cannot be equated on same paramereter in the matter of fixation of pay of the petitioners specially when they have not assailed the result of second examination nor have made the persons appointed by annexure-4 on the post of Laboratory Assistant as party to this writ petition. This Court would find that there is some misconception in the mind of the petitioners. The parity of pay-scale is only against a particular post. The petitioners admittedly were Class IV employees and were appointed on Class III posts of Laboratory Assistant in the year 1996. At that point of time, the 5 petitioners have accepted the post of Laboratory Assistant without demur or protest. Only because the petitioners in that selection process secured higher marks to those who were subsequently given the post of Assistant on the basis of result of a different departmental examination held in 1999 will not give them any right to claim pay parity. The 1996 transaction came to an end and assuming others could not be appointed on the basis of 1996 departmental examination either on post of Assistant or Laboratory Assistant their future was never sealed for ever. The Government Circular on the subject is very clear that there has to be annual assessment of the vacancies of Class III posts and in this connection the decision of the Personnel and Administrative Reforms Department vide its Circular dated 11.2.1985 also makes it clear that 25 percent posts of Class III have to be year marked and given to Class IV employees by way of limited internal examination. From Annexure 4 and 5 it would be clear that a separate internal limited departmental examination was held on 12.10.1999 and 22 vacant posts of Class III were sought to be filled on 6 the basis of result of such examination in which the persons placed upto serial no. 17 as per roaster were appointed as against the post of Clerk and remaining five posts were filled up by way of Laboratory Assistant. That examination held on 12.10.1999 thus being a separate examination, the petitioners can not have any grievance at least for the purpose of claiming salary given to the subsequent persons appointed on the post of Clerk. The heart burning of the petitioners that since they were successful in 1996 examination and yet given Class-III posts of Laboratory Assistant and the persons who became successful in 1999 examination had been appointed against the higher posts of Assistant in a higher scale of pay is also wholly unjustified inasmuch as at that point of time they in fact got the benefit of Supreme Court order by getting weightage of their experience and thus were appointed on Class III posts of Laboratory Assistant at least three years earlier. The moment, the petitioners had accepted the post of Laboratory Assistant which is a different cadre they cannot claim any benefit including the pay scale of the 7 post in the cadre of clerk. Rule 78 of Bihar Service Code is the only provision which lays down the parity of pay in case some juniors on the same post gets a higher pay- scale. The persons who were appointed in the year 1999 on the post of Assistants cannot be said junior to the petitioners in any respect after the petitioners had been appointed against Class III post of Laboratory Assistant in 1996. The Government decision dated 11.2.1985 also makes it clear that it is not a case of promotion but it is a case of an appointment on a Class- III post and therefore even from that angle the petitioners do not have any case for claiming parity of pay. That being so, this Court must hold that the grievance of the petitioners is wholly misconceived and this writ petition, being devoid of any merit, is, accordingly, dismissed. kanchan/ (Mihir Kumar Jha, J.)