IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10838 of 1995 VIKRAMADITYA BHARTI, S/O LATE NAGINA BHARTI, R/O VILLAE SEMARDAH, P.O. SAHARKOLA, P.S. BASANTPUR, DISTRICT SIWAN, AT PRESENT POSTED AS READER IN THE DEPARTMENT OF CHEMISTRY, D.A.V. COLLEGE, SIWAN. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.BABA SAHEB BHIM RAO AMBEDKAR UNIVERSITY, MUZAFFARPUR THROUGH ITS VICE CHANCELLOR. 3.THE REGISTRAR, BABA SAHEB BHIM RAO AMBEDKAR UNIVERSITY, MUZAFFARPUR. 4.JAI PRAKASH UNIVERSITY, CHAPRA, SARAN, THROUGH ITS VICE CHANCELLOR. 5.THE REGISTRAR, JAI PRAKASH UNIVERSITY, CHAPRA, SARAN. ……………………RESPONDENTS. ----------- 16/ 05.07.2011 Heard Mr. Mahesh Narayan Parbat, learned counsel for the petitioner, Mr. Shivendra Kishore, learned counsel for the J.P University, Chapra, and Mr. Rajendra Kumar Giri, learned counsel for the B.R.A University. In this writ application the petitioner has prayed for following relief:- “(I) To issue a writ of certiorari for quashing office order as contained in Memo No. B- 2436 dated 23.11.1995 issued by the Registrar, Baba Saheb Bhim Rao Ambedkar University, Muzaffarpur (Annexure-2) so far it relates to the petitioner through which the pay of the petitioner has been fixed in the scale of Rs. 3,000- 5000/- in arbitrary manner after his promotion to the post of Reader. 2 (II)To issue a writ of mandamus commanding the Respondents to fix the pay of the petitioner in the pay scale of Rs. 3700-5700/- from the date of his promotion to the said post. (III)To issue a further writ of mandamus commanding the Respondents to pay the entire dues amount of arrears of salary of the petitioner after its fixation in the pay scale of Rs. 3700-5700/- from the date of promotion. (IV) To issue a further writ of mandamus commanding the Respondents to count the date of increment to the petitioner as 2nd January, in place of 14th November. Mr. Parbat, learned counsel for the petitioner in support of the aforementioned prayer has submitted that when the petitioner was promoted on the post of reader w.e.f 14.11.1990 by an order dated 09.11.1995 under the time bound promotion statute he could not have been subjected to lesser pay scale of the post of reader and that order of the University passed on 23.11.1995 allowing the petitioner and others promoted after 01.03.1989 on the post of reader in the pay scale of Rs. 3000/- to Rs.5000/- would be wholly arbitrary. He has also contended that the petitioner's promotion had been notified on the post of reader and the pay scale of the 3 reader was Rs. 3700/- to 5700/-and as such the cut of date of 01.03.1989 itself would not have made any difference at least in the matter of payment of salary on the post of reader to the petitioner and to that extent the impugned order dated 23.11.1995 envisaging the promotional pay scale of the petitioner in the pay scale of Rs. 3000/- to 5000/-is wholly unsustainable either in fact or in law. He has also submitted that the State Government circular implementing the new pay scale for the teaching post in the Universities vide letter dated 14/8- 2/09/1987 HRD 1044 dated 07.08.1989 had laid down that there would be requirement of option in writing, prior to fixation of pay scale and as such there is no such consent obtained from the petitioner, he could not have been placed in the pay scale of Rs. 3000/- to 5000/- Per contra, Mr. Shivendra, learned counsel appearing on behalf of the J. P University would submit that the pay fixation by way of revision of pay scale has to always proceed on certain norms and when the State Government in its decision 4 dated 07.08.1989 had prescribed such norms which the University was bound to follow the same. He in this regard has also made it clear that the State Government had literally adopted the UGC norms for implementing the pay scale of teachers of the University and Colleges of the State and the nomenclature was also referable to pay fixation on the basis of the promotion to be so notified, he would further submit that when the order of promotion of the petitioner was under the time bound promotion statutes vide Annexure-1 in the year 1995 giving him the benefit of such promotion w.e.f. 14.11.1998, the University had to also follow the State government decision as with regard to the revised pay scale of Rs. 3000/- to 5000/-. In this context, he has also explained that Appendix-1 of the said government decision dated 07.08.1989 will have to be read in this context, which was sought to be adopted by the State Government for implementing the UGC norms. In the considered opinion of this Court, the revision of pay scale of 5 University and degree college teachers as notified by the State Government vide its letter dated 07.08.1989 would leave nothing for speculation, the State Government had decided to introduce revised scale of pay to the teachers of degree Colleges and Universities as recommended by the University Grants Commission (UGC) w.e.f. 01.01.1986 subject to the conditions laid down in Appendix-1. Thus it would become clear that it was the decision of the State Government to entertain the revised pay scale of course by adopting UGC norms. The UGC norms as specified in Appendix-1 had made a departure from the earlier existing scheme, inasmuch as, both the time bound promotion and the merit promotion as was in vogue prior to 01.01.1986 was sought to be amalgamated and in fact in place of merit promotion a career advancement scheme with certain stipulations were sought to be made. It was in this background that the option clause was introduced in para no.-19 of the Appendix-1, the norms of the UGC in following terms:- 19. The existing teachers in Universities and Colleges where 6 the merit promotion scheme formulated by the U.G.C. In 1983 or any other promotion schemes formulated by the State Govt. are in operation, will have an option to continue to be governed by the provisions of those promotion schemes provided that they exercise their option in writing prior to their pay fixation under this scheme. The will also be entitled to the designations envisaged for various categories of teachers in those schemes, but the scales of pay will be as follows:- (i)Lecturer Rs.2200-4000/- (ii)Reader/Lecturer Rs.3000-5000/- (SelectionGrade) (iii)Professor Rs.4500-5700/- with the reading of the aforementioned provision by itself would make it clear that those persons who wanted to continue for consideration under the merit promotion scheme had to exercise an option of continuing in, under the old scheme but so far the case of the petitioner is concerned he was admittedly covered by the time bound promotion scheme and such time bound promotion scheme did not envisage grant of any soliciting promotion. As a matter of fact the matter of promotion of the petitioner as contained in Annexure-1 would go to show that he had opted and was granted promotion only under 7 the time bound promotion scheme. It therefore, becomes clear that the petitioner was not a candidate for merit promotion so as to become eligible for retaining the old benefit of merit promotion scheme. Once this aspect becomes clear that there would be no difficulty in holding that the petitioner's pay on account of his promotion notified w.e.f. 14.11.1990 could have led to the benefit of payment of pay scale of Rs. 3000/- to 5000/- as admissible in the Government revised pay scale, inasmuch as, in paragraph no. 11 of the government decision it was clearly mentioned that promotion needed or due to teachers on or before 01.03.1989 will not be reopened and since the promotion of the petitioner so notified after the date of 01.03.1989 had to be placed in the pay scale of Rs. 3000/- to 5000/-. In fact this aspect of the matter was considered by this Court in the case of B.R.A Teachers Association and Ors Vs The State of Bihar and Ors reported in 200(2)PLJR 867, wherein, having analysed the entire pay revision of the post of 8 teachers, this Court had held in para 15 which reads as follows:- “I am, therefore, unable to sustain the objection of the State Government on this issue and accepting the view taken by the Committee I find and hold that the higher U.G.C scales of pay of Rs. 3700-5700/- and Rs. 4500-7300/- (in the case of Readers and Professors respectively) will be admissible to all those Readers and Professors who got promotion or whose promotions were due under the time bound promotion scheme before 1.3.1989 and the lower scale of pay of Rs. 3000-5000/- and Rs. 4500-5700/- will apply to such Readers and Professors who got promotion or whose promotion became due under the time bound promotion scheme on or after 1.3.1989.” The moot issue of cut off date w.e.f 01.03.1989 as has been seriously contended on behalf of learned counsel for the petitioner, is also to be understood in this context that whenever a pay revision is made there are two dates for making it enforceable one for the purposes of fixation of salary and the other for the purposes of payment of cash component. The state government which has to bear the entire expenditure had in its own wisdom found that therefore, all the teachers of 9 the University, like other government servants would be also entitled for revision of the pay w.e.f. 01.01.1986 but the cash component will be payable w.e.f., 01.03.1989, it was not in the case of teachers of the University but also in the case of central government and state government employees though such date i.e. 01.03.1989 for payment of cash component was faulted. The cut off date definitely cannot be taken out of hat as was held in the case of D.S Nakara vs. Union of India ad others reported in AIR 1983 SC 130 but then there can always be a rationale for fixation of such cut off date for implementing pay scale of all the employees. Law in this context, in fact so far as the employees and the pensioners of the Government of Bihar are concerned, seems to have been finally settled in the case of State of Bihar & ors. Vs. Bihar Pensioners Samaj, reported in (2006) 5 SCC 65, wherein the Apex Court considering the earlier Pay Revision Committee report and the cut off date had held that fixing of a cut off date for granting of financial 10 benefit is well within the powers of the Government as long as the reasons therefore are not arbitrary and are based on some rational consideration. Financial constraints in fact was held by the Apex Court in the aforementioned judgment to be a valid ground for introducing a cut off date while introducing the pension scheme on revised basis and the Apex Court in that context had held that: “Thus, refusal to make payment of arrears from 1.1.1986 to 28.2.1989 on the ground of financial burden cannot be held to be an arbitrary ground or irrational consideration, Hence, the argument based on Article 14 of the Constitution must fail.” Thus considering all these aspects, this Court would not find any merit in that part of the submission that the fixation of date of 01.03.1989 was arbitrary, inasmuch as, from the decision of the UGC which was adopted by the State Government, it would be clear that the State Government had consciously adopted the date of actual payment of enhanced pay scale as 01.03.1989 for all its employees and thus there could be no exception in the case of employees of 11 the University. That being so, this Court does not find any error in the impugned order fixing the pay scale of the petitioner in the pay scale of Rs. 3000/- to 5000/- and its payment w.e.f. 01.03.1989. In the result, this application is devoid of any merit and is accordingly dismissed. Ranjan (Mihir Kumar Jha, J.)