IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11755 of 2005 NAND LAL MANDAL Versus THE TILKAMANJHI BHAGALPUR UNIVERSITY, BHAGALPUR & Ors. ---- For the petitioner : Mr. Purushottam Kumar Jha, Advocate For the respondents : Mr. Ashok Kumar Keshri, Advocate Mr. Rajeev Ranjan Kumar, J.C. For the State : Mr. Sanjay Kumar Pandey, J.C. to G.P. XV **** 18 03.09.2008 Petitioner, who retired from the services of the Sundarwati Mahila College, Bhagalpur on 31st of January, 2005 from the post of Peon, has filed the present writ application for directing the authorities concerned to settle his post retiral dues and also for payment of other admissible benefits after getting the calculation done. During the pendency of the writ application, the post retiral dues as well as the arrears were settled and payments were made as detailed in sub-paragraph (i) (ii) (iii) (iv) (v) (vi) & (vii) of paragraph 4 of the third supplementary counter affidavit filed on behalf of the respondent-University along with the calculation Chart, as contained in Annexure-E to the said affidavit. It is the case of the petitioner that initially he was appointed as Peon in the aforesaid Sundarwati Mahila College, Bhagalpur on purely temporary basis vide office order dated 31.07.1967, as contained in Anneuxre-1 to 2 the writ petition followed by the confirmation as per the office order dated 28.02.1981, as contained in Annexure-2 to the writ petition. Petitioner claims to have been promoted on the post of Office Assistant, a Class III post, as per office order dated 01.05.1981, as contained in Annexure-3 to the writ petition on condition of its approval by the University. Petitioner continued to work on the aforesaid promoted post and received due salary, however, his payment was stopped with effect from 31st of August, 1999. Later on, the services of the petitioner was regularized by the College as per the office order no. 36/2004 dated 09.12.2004, as referred in paragraph 8 of his representation dated 02.07.2005, as contained in Annexure-8 to the writ petition. The said office order, although was sent to the University for approval, however no decision was taken. The petitioner, as such, filed the above detailed representation dated 02.07.2005 through his advocate before the respondents as per Annexure-8. Since the same remained pending for considerable period of time, the present writ application was filed for the aforementioned direction for payment of retiral dues with penal interest @ 18 per cent per annum. The respondent University filed counter affidavit followed by three supplementary counter affidavits. The stand of the University is that the retiral 3 dues of the petitioner, who retired from Class IV post, have been settled as detailed in paragraph 4 of the 3rd supplementary counter affidavit along with calculation chart vide Annexure-E. Further stand of the University is that the promotion of the petitioner to class III post, as claimed by him, was never approved by the University, and as a matter of fact, after the enactment of the Bihar Universities Act, 1976, the University is not competent to make appointment or create any post without prior approval of the State Government. The University having not approved the promotion of the petitioner, as claimed by him, his retiral dues were settled as per Class IV post from which he retired. Learned counsel for the University submits that the salary of the petitioner on class III post was approved by the Vice Chancellor as per letter no. B/19071 dated 03.12.1983 on the condition that in case his promotion on Class III post is found not as per law, the payments made to him would be adjusted as reiterated in its order dated 29.06.2008 (Annexure-I). As such, neither the promotion of the petitioner was approved by the University nor the payment of salary on class III post was finally approved and the petitioner retired from class IV post as Peon on 31.01.2005, and accordingly, his post retiral dues were settled. 4 The respondent state has also filed a counter affidavit stating to the effect that retiral dues are settled by the University, however necessary funds are released by the State Government from time to time as per requisition made by the University. In rejoinder the petitioner asserted to the effect that upon promotion he continued to work on class-III post and retired accordingly. It is further stated that he received his salary of Class III post till 31.08.1999 and for a part period from August, 2004 to November, 2004. It is further stated that the respondent College vide office order no. 36/2004 dated 09.12.2004 absorbed his services in class III post and sent the same to the respondent University for its approval. Petitioner claims that getting the benefits/retiral dues of the promoted post is his vested right and he can not be deprived from getting the same. Mr. Purushottam Kumar Jha, learned counsel for the petitioner has fairly submitted that in case the stand of the University that the petitioner retired from Class IV post is accepted, no claim on account of retiral dues remains pending now save and except the University is bound to pay the interest, as claimed by him, over the payments made to him long after his retirement without any valid justification that too after filing of the present writ application. Reliance is made on the decision of the 5 Apex Court in the case of Harendra Nath Ojha Vs. The State of Bihar & Ors, reported in 1987 P.L.J.R. 32 (SC). Another decision relied upon in the case of Ram Sumer Ahair Vs. Union of Indian & Ors., a Division Bench judgement of this court, reported in 2004 (1) P.L.J.R., 158 { relied on the decision in the case State of Kerala Vs. N.Padmanabhan Nair, reported in (1985) 1 S.C.C., 429} allowing interest at the rate of twelve per cent per annum. Mr. Ashok Kumar Keshri, learned counsel for the University submits that admittedly the respondent University never approved the promotion granted to the petitioner on Class III post by the respondent College without obtaining the prior approval of the Vice Chancellor. He further submitted that the petitioner could not have been promoted to the post of Office Assistant as the post was neither sanctioned nor created as the same could not had been done without the approval of the State government. As regards the approval of the payment of salary of Class III post is concerned, it is submitted that the same was conditional that in case his promotion on class III post is not found as per law the amount paid to him would be adjusted. According to the learned counsel for 6 the University, neither the promotion of the petitioner was approved nor was the payment of salary of Class III post finally approved. Therefore, the claim of the petitioner that his post retiral dues be settled taking the petitioner to have retired from Class III post can not be accepted in law. In of course of hearing of the case on several occasions it was submitted on behalf of the petitioner that he had filed a detailed representation through his advocate vide his representation dated 02.07.2005 (Annexure-8) before the respondents. The same having not disposed of for a considerable period, the petitioner had no option but to file the present writ application. The petitioner in his representation basically represented his case for confirmation/approval of his promotion from class IV post to Class III post. Considering the above submissions, this court by order dated 27.02.2008 directed to respondent no.3, the Registrar of the University to dispose of the representation of the petitioner as contained in Annexure- 8 by a reasoned order. The same has been disposed of as per memo no. 288-90/VCR/08 dated 29.06.2008 ( Annexure-I) whereby the representation of the petitioner for approval of his promotion to class III post was rejected stating therein to the effect that after enactment of Bihar Universities Act, 1976 the University was not competent 7 either to appoint or to create a post without prior approval of the State Government and since the petitioner was promoted by the Principal of the College to class III post of Office Assistant which was not a sanctioned post. After having considered the rival submissions of the parties and upon perusal of their pleadings, it is no longer in controversy with regard to payment of retiral dues of the petitioner on his retirement from services from Class IV post. The counsel for the petitioner also submitted that if it is taken that the petitioner has retired from Class IV post, he has no further claim save and except payment of interest on delayed payment of retiral dues. So far as the claim of the petitioner that he was promoted to class III post by the Principal of the College as per the office order dated 01.05.1981 on the post of Office Assistant vide Annexure-3 along with one Deo Narayan Sharma is concerned, it would appear from the aforesaid office order that his promotion was subject to the condition of approval of the University. It is not in dispute that the University did not issue any order approving the promotion granted to the petitioner on Class III post, however, the payment of salary of Class III post was approved for payment provisionally as would appear from the memo dated 29.06.2008, as contained in Annexure-I to the counter affidavit filed by the University on 8 01.07.2008. Therefore, the claim of the petitioner that he was promoted on class III post can not be accepted in absence of any valid order issued in this regard by the University. The submission of the petitioner that the order issued as per the memo dated 29.06.2008 (Annexure-I) is not legal and the same deserves to be quashed, in my opinion, it will be open for the petitioner, if so advised, to assail the aforesaid order before an appropriate forum in an appropriate proceeding in accordance with law on proper pleading and documents in support thereof, which can not be done in the present proceeding in absence of any pleading and relevant document with regard to promotion. A fresh cause of action has accrued on issuance of the order dated 29.06.2008 (Annexure-I). However, as regards the claim for interest, it is not in dispute that the petitioner retired from service on 31.01.2005 which is evident from the letter dated 05.01.2005 issued by the Principal of the College (respondent no.5) as contained in Annexure-6 and most of the retiral dues have been paid in the year 2007. Although it is submitted on behalf of the University that the delay in settling the claim was due to the own action of the petitioner on account of filing representations without just cause, I find it to be just and expedient in the interest of justice in the facts and circumstances of the present case 9 that interest at the rate of ten per cent be paid over the amount paid calculating from the date of retirement till the date of payment to the petitioner by the respondents within a period of two months on receipt/production of the certified copy of the present order. The writ application is, accordingly, disposed of with the above observations/directions. In the facts and circumstances of the case there shall be no order as to costs. Manish/- ( Shailesh Kumar Sinha,J.)