IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 3045 of 2009 Rupali Mukherjee, wife of Sri Shubhashis Chakraborty, resident of Flat No. 302A, Moitra Complex, D.V.C. Road, Yarpur, P.O. – G.P.O., Patna, P.S. – Gardanibagh, District – Patna …………………… Petitioner Versus 1. The State Of Bihar through its Commissioner cum Secretary, Higher Education, New Secretariat, Patna 2. Deputy Secretary, Higher Education, New Secretariat, Bihar, Patna 3. Vice Chancellor, Magadh University, Bodh Gaya, Gaya 4. Registrar, Magadh University, Bodh Gaya, Gaya 5. Deputy Registrar (1), Magadh University, Bodh Gaya, Gaya 6. Finance Officer, Magadh University, Bodh Gaya, Gaya 7. Principal, J. D. Women’s College, Bailey Road, Patna ………………….. Respondents ---------------------------- 07. 26.09.2011 Heard learned counsel for the petitioner and the State, as well as counsel appearing for the Magadh University, Bodh Gaya, Gaya. Several adjournments were allowed to the State and the University for filing supplementary affidavit on the point (i) whether prior to 21st of August, 1995, any such circular / notification / resolution of the State Government was in existence, whereby the restriction has been put in the matters of compassionate appointment beyond the pay-scale of Rs. 1200-1800/-. (ii) Secondly why only petitioner has been discriminated, when by the same notification issued under the signature of Registrar, Magadh University, Bodh Gaya, Gaya, dated 30.11.1991, contained in Memo No. 2045, petitioner as well as Vinay Kumar and Pramod Kumar, 2 has also been appointed as Laboratory Incharge on compassionate ground. These two persons have been allowed fixation of their salary in the revised pay-scale of Lab Incharge and they have also been re-designated as Demonstrator in the light of the Order, passed by the High Court in C.W.J.C. No. 872 of 2000 and their salary has been fixed in the pay-scale of Rs. 5500-9000/- only the petitioner has been discriminated. No supplementary counter affidavit has been filed to assign reason behind this discrimination made to the petitioner by the University, neither any document has been produced to show that prior to 21st of August, 1995, any decision was there, not to make compassionate appointment beyond pay-scale of Rs. 1200-1800/-. In this circumstance, the Writ Application is finally being decided. There is no dispute that the petitioner’s husband died in harness from the post of Lecturer in J.N.L. College, Khagaul on 30.08.1986. Petitioner submitted her application for compassionate appointment and she was appointed on Class-III post as Laboratory Incharge in Music Department in J. D. Women’s College, initially on daily wage vide order dated 04.04.1987. She gave her joining on 22.04.1987 on the post of Laboratory Incharge in the Music Department in J. D. Women’s College. Vide notification 3 no. 2045, dated 30.11.1991, the petitioner’s case along with the case of legal heirs of other teaching / non- teaching employees of Magadh University, Bodh Gaya, who died in harness, were considered and given adhoc confirmation on the post. By this notification, petitioner as well as one Pramod Kumar, son of Om Prakash Gupta and Vinay Kumar, son of Mahendra Choudhary, who had also been appointed on compassionate ground on the post of Laboratory Incharge were given adhoc confirmation. Subsequently, vide order dated 01.01.1992, contained in Memo No. 4, they all were confirmed on the post of Laboratory Incharge, on which they had been appointed on compassionate ground. Petitioner had also been confirmed along with Pramod Kumar on the post of Laboratory Incharge in the pay- scale of Rs. 1500-2750/-. It was to the surprise of the petitioner, when vide impugned order contained in Annexure- A/1, dated 22.05.2004, the pay fixation of other compassionate appointees was made on the post of Laboratory Incharge, but so far petitioner is concerned, her pay fixation was kept pending subject to report from University regarding appointment on compassionate ground. Her appointment was shown on the post of Routine Clerk. Her pay fixation was not done in the pay- scale of Rs. 1500-2750/- but in the pay-scale of Rs. 975- 4 1540/-, which is pay-scale of Routine Clerk. Since then the petitioner is continuously approaching the respondents and filing representation but nothing is being done. Subsequently, all those persons who were holding the post of Laboratory Incharge, their post were re-designated as Demonstrator in the light of the Order passed by the High Court in C.W.J.C. No.872 of 2000, dated 05.07.2004 and their salary has been fixed in the pay-scale of Rs. 5500-9000/-. Petitioner’s grievance is that there was no obvious reason for discriminating her, since similarly situated persons, like Vinay Kumar and Pramod Kumar, appointed on compassionate ground as Lab Incharge were duly confirmed on that post and their pay fixation has also been done in the pay-scale of Lab Incharge. They have also been re-designated as Demonstrator in the light of the High Court’s Order. Simply in case of the petitioner, the stand of the University is that compassionate appointment can not be made in the pay- scale beyond Rs. 1200-1800/- as per the direction of the Higher Education Department, as such petitioner could have been appointed on compassionate ground on the post of Routine Clerk, as its’ pay-scale is Rs. 975-1540/- well within the pay-scale Rs. 1200-1800/-. In support of her contention regarding apparent discrimination committed by the Respondent University and its 5 authority, the petitioner has brought a notification issued by Respondents, whereby Vinay Kumar and Pramod Kumar’s pay fixation had been initially done in the pay- scale of Rs. 1500-2750/- and subsequently they were re- designated as Demonstrators and their pay fixation was done in the pay-scale of Rs. 5500-9000/-. In the Counter affidavit of the State, there is no statement with regard to the compassionate appointment of the petitioner as Laboratory Incharge in the pay-scale of Rs. 1200-1800/-, being violative of Government’s decision. Simply it has been stated that the State Government has already issued direction to the University for pay fixation of its teaching / non-teaching employees by constituting a statutory Pay Fixation Committee. The Counter affidavit of the State is that it is the jurisdiction of the University to fix salary of its teaching / non-teaching employees as per the statutory provision. In the counter affidavit of the University, the reference of Higher Education Department’s letter, dated 21.08.1995 has been given in paragraph no. 6 of its counter affidavit, which prohibits compassionate appointment on any post, beyond the pay scale of Rs. 1200-1800/-. The letter dated 21st of August, 1995 of Higher Education Department directions contained in this letter will be effective from the date of its issuance i.e., 6 21.08.1995. No other documents have been brought on record to show that prior to 21.08.1995 also any such direction or resolution of the State Government was there, whereby compassionate appointment mendatoritly had to be made only on such posts, pay-scale of which is well within Rs. 1200-1800/-. Petitioner admittedly was appointed in the year 1987 and confirmed on her post provisionally in the year 1991 and finally in the year 1992. In this view of the matter any restrain / prohibition imposed by the Higher Education Department through letter dated 21.08.1995, being effective from the date of its’ issuance, will not have any application in the case of the petitioner, as she was appointed on compassionate ground much earlier to 21.08.1995. Another reason for holding petitioner entitled for being appointment as Laboratory Incharge and her salary in the pay-scale of Rs. 1500-2750/- is that, Pramod Kumar and Vinay Kumar, who were also appointed on compassionate ground with the petitioner on the post of Lab Incahrge their salary was duly fixed in the pay-scale of Lab Incharge and subsequently they have also been re-designated as Demonstrator and their salary has been fixed in the pay-scale of Rs. 5500- 9000/-. There is no obvious and just reason for discriminating the petitioner. The University has not been 7 able to justify its action in the case of petitioner. Considering these facts, I find that the petitioner’s compassionate appointment on the post of Laboratory Incharge can not be shifted to the post of Routine Clerk. She is entitled for fixation of her salary in the pay-scale of Rs. 1500-2750 /- w.e.f. the date similarly situated appointees’ salary was fixed in this pay-scale of Rs. 1500-2750/-. She is also entitled for being re- designated as Demonstrator and fixation of her salary in the pay-scale of Rs. 5500-9000/-. There is an admission in the counter affidavit of the University that the petitioner is still working on the post of Lab Incharge, this also shows entitlement of petitioner for all these benefits for which she has made a prayer in this Writ Application. The respondent, Magadh University, Bodh Gaya and its authorities are directed to allow these benefits to the petitioner. She must be paid arrears of salary on account of pay fixation of her salary in the pay- scale of Rs. 1500-2750/- and subsequently in the pay- scale of Rs. 5500-9000/-. All payments must be made to the petitioner within 12 weeks from the date of production / communication of this Order. Accordingly, this Writ Application is allowed. SKM (Mridula Mishra, J.)