IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.180 of 2002 RAJ BALLABH RAM son of Late Sheo Nandan Ram, Resident of Mohalla-Bishnupuri, P.S. Anishabad, Police Station- Gardanibagh, District-Patna. Versus 1.Vice Chancellor, MAGADH UNIVERSITY, Bodh Gaya, Gaya. 2.Registrar, Magadh Univerasity, Bodh Gaya, Gaya. 3.Assistant Registrar, Magadh University, Bodh Gaya, Gaya. 4.Principal, A.N. College, Patliputra Boring Road, Patna. ----------- 8 05.07.2010 Heard Mr. Gautam Saha, learned counsel for the petitioner and counsel for the Magadh University. Prayer of the petitioner in this writ application reads as follows:- “That this writ application has been filed for quashing the last portion/the last sentence of the office order, issued as per the direction of the respondent no.1, Vice Chancellor, Magadh University, Bodh Gaya, vide Memo No.183/GIC dated 7.8.2000, by the respondent no.2, Registrar, Magadh University, Body Gaya by which it has been directed/ordered, that the petitioner, who have been granted promotion to the post of Store Keeper, in the Department of Physics, A.N. College, Patna w.e.f. 7.4.1981, will not be paid salary from 7.4.1981 to 7.8.2000 to the post of Store Keeper. The petitioner further prays for quashing the last sentence/last portion of the order as contained in Memo No.483/2000 dated 14.8.2000, issued by the Respondent no.4, Principal, A.N. College, Patna by which the said respondent no.4, pursuant to the order dated 7.8.2000 has directed that the petitioner will not be paid the salary from 7.4.1981 till the date of his joining, to the Class III post of Store Keeper, in the Department of Physics, A.N. College, Patna. The petitioner further prays for holding that the petitioner is legally entitled for payment of arrears of salary to the Class-III post of Store Keeper from 7.4.1981 to 14.8.2000 along with appropriate rate of interest. The petitioner prays for other relief as well.” Mr. Saha, learned counsel for the petitioner, with 2 reference to the aforementioned prayer would submit that once the University by order dated 7.8.2000 had notified promotion of the petitioner from the post of Laboratory Boy in Chemistry Department to the post of Store Keeper in Physics Department, it would automatically follow that the petitioner was entitled for also payment of salary w.e.f. 7.4.1981 the date from which such promotion was given to the petitioner by order dated 7.8.2000. Mr. Saha was of the view that the order in part dated 7.8.2000 denying payment of salary in the promotional post of Store Keeper was wholly misleading. Mr. Saha in this context has also referred to the averment made in the counter affidavit to contend that there also the University has admitted claim of the petitioner who has given wrong calculation sheet as with regard to entitlement of the petitioner. He would submit that Annexure-A is actually calculation of the arrears of the petitioner on the basis of holding the post of Laboratory boy and not on the promotional post of Store Keeper. In this case an order was passed on 5.2.2002, relevant portion whereof reads as follows:- “Claim of the petitioner is for monetary benefits of promotion. The petitioner has been granted promotion on Class-III post pursuant to direction of this Court. The basis of the claim was that the persons junior to him were promoted and accordingly petitioner too has been granted promotion from the same date, i.e, 7.4.1981. …………….. The respondents are directed to file counter affidavit bringing on record the policy, regulation etc. in the matter of promotion of Class IV to Class III employees so that the Court may come to a conclusion as to whether the petitioner or 3 others said to be juniors to him, were rightly promoted in their quota, is it appears that such promotions are given on pick and chose basis.” The respondents have filed counter affidavit but the said counter affidavit has not answered the query made by this Court in the aforementioned order dated 5.2.2002. Let it be noted that such counter affidavit came to be filed after a great effort by this Court which had to pass as many as five orders to get such counter affidavit filed. The manner in which the University is contesting its cases, before this Court would only go to show that a mere lip-service has been sought to be extended to this Court in the name of filing of the counter affidavit. Nonetheless, whenever this Court has to issue a writ of mandamus, it has to be satisfied with the legal right of the petitioner and the corresponding legal duties of the Respondents. In the present case it is an admitted position that the petitioner had entered into service of the College as a Class-IV employee, Laboratory Boy in the Chemistry Department. He could pass Intermediate of Science Examination in the year 1985 whereafter one R.K.Singh, Professor and Head of the Department of A.N. College, Patna had assigned the work of Laboratory Incharge to the petitioner. This arrangement made by the Head of the Department had continued till the order in question as contained in Annexure-1 dated 7.8.2000 designating the petitioner on the post of Store Keeper in Physics Department was issued by the Registrar of the University. It is in this order that the 4 aforementioned condition with regard to non payment of salary for the period 7.4.1981 to 7.8.2000 has been passed. The first and foremost question would be, whether promotion of the petitioner holding the post of Lab. Boy in Chemistry Department on the post of Store Keeper in the Physics Department was valid and legal. Learned counsel for the petitioner would immediately answer that it is not in the case of the petitioner, that he was actually promotted on such post would contend that since similar promotion was given in the University on the basis of following promotional policy of the University dated 26.8.1981 reading as follows:- “I am directed to bring the following orders of the Vice-Chancellor to your notice for guidance:- (i)Principals may be asked to examine the claim of lower grade employees whenever vacancy or vacancies arise in upper grade. Their claims may be examined first and then only fresh hands should be appointed. This procedure should be strictly adhered to. (ii)In all appointments of 3rd and 4th grade, reservation quota has to be indicated in the advertisement itself. Candidates belong to the category should be appointed against the reserved quota.” the petitioner's assignment of duty of the post of Storekeeper in Physics department could be also treated at par with promotion. From reading of the letter of the University dated 26.8.1981 it is clear that the same at best was only an instruction by the University to the concerned head of the institution laying down manner of filling up the posts by appointment by internal recruitment. It is clear that the Registrar of the University on being 5 instructed by the Vice-Chancellor of the University had laid down that for filling up any higher posts the persons working in the lower posts have to be considered first before advertising the post of direct recruitment. The letter of the University, therefore, does not talk of promotion but only appointment which may be either direct appointment or by the internal recruitment. Baring this letter there is nothing on the record to show that there is cadre of Class-IV employees of the Constituent College from which one can be appointed by way of promotion on Class-III post of the College. It has to be noted that as per staffing pattern laid down by the State Government vide letter dated 26.8.1981 the Colleges have different posts such as Accountant, Head Clerk, Clerks, Assistant Librarian, Library Incharge as also Lab. Boy and peons For each of the College the staffing pattern has also prescribed, not only the eligibility criteria but also the manner in which such post has to be filled up. To say the least, services of Class-III have been filled up either by way of direct recruitment or by internal recruitment which ever may be more appropriate. A peon holding Class-IV post can not be straight way be promoted on the post of Accountant in Class-III or for that purpose on the post of Laboratory Incharge. Each of the posts therefore having nexus on the educational qualification, the concept of promotion in such services has to be understood in the context that the University has prescribed service condition for the non teaching employees. 6 Judged from this angle this Court would find it difficult to hold that the petitioner was actually promoted on the post of Store Keeper and the more appropriate concept would be that the petitioner would be deemed to have been recruited internally on the basis that he had qualification for the post of Store Keeper. A question would therefore also arise that if the petitioner had come to possess the qualification for the post of Storekeeper only in the year 1985 can he still claim his promotion from retrospective effect from 7.4.1981 when he was not even qualified for the same. Counsel for the petitioner however immediately replied by taking an oral plea that even for the post of Store Keeper qualification was only matriculate which the petitioner had possessed in 1981. Unfortunately, all these aspects have not been understood either in the counter affidavit or even in the writ application. The presumption of the petitioner that since the respondents have admitted certain payments which would mean that part of claim of the petitioner so far promotion is concerned is admitted and only its consequential benefit has been denied, is very difficult to be accepted. Admission has accepted as a whole and there is no such admission in the counter affidavit. Nonetheless, petitioner claims that others were also given similar promotion with the petitioner and yet the petitioner was denied such promotion from the date his juniors were given such promotion and this aspect needs to be examined by the 7 University. Therefore this Court would direct the Vice Chancellor and the Registrar of the University to first examine as to whether the petitioner was possessing the qualification for the post of Store Keeper as on 7.4.1981. If the post of Store Keeper, in fact, in the Physics Department was not sanctioned or vacant on that date or thereafter till 7.8.2000, claim of promotion has to be only date back from the date such vacancy on the post of Storekeeper had came into existence. It is well settled that against one post only one person is eligible. If the post of Store Keeper in A.N. College in the Physics Department had not remained vacant between 7.4.1981 up to any date till 7.8.2000, there cannot be appointment and payment of salary of two persons against the same post. At the same time the University will examine the claim of the petitioner with regard to the alleged junior if any given promotional benefit w.e.f. 7.4. 1981 and if it is found that others were also given such similar promotion with financial benefits from 7.4.1981, the University will then give reasons for denying the financial benefits to the petitioner. Thus the University while examining claim of the petitioner may also go into correctness of the cases of Munna Thakur, Raghubir Singh, Ram Briksh Singh Yadav, Sahdeo Singh, Raj Ballabh Ram (petitioner), Rameshwar Roy and Vijoy Kumar Singh. It is made clear that a Typist being promoted as a Steno-Typist can be understood or peon being promoted to sorter in the Library can be also justified but an Assistant being promoted to the post of 8 Laboratory Incharge cannot be in any manner held to be correct, inasmuch as, an Assistant as per staffing pattern can be promoted on the post of Head Clerk or on the post of Office Superintendent in the Colleges if such posts were sanctioned. Since these examples were relied upon by the learned counsel for the petitioner in justifying the so called promotion of the petitioner and therefore the same needs to be examined in the light of the earlier decision of the University by taking a conscious and fresh decision in the case of the petitioner. If upon all these considerations the University will find that the petitioner was denied promotion on Class-III post with consequential financial benefits in isolation, it would pass an order also for such promotion with financial benefit to the petitioner, but in the event it is found that the petitioner was not entitled for such promotion, the University would reject the claim of financial benefit by passing a reasoned order. In order to expedite the matter, this Court would direct the petitioner himself to file a self contained representation along with documents and the present order of this Court and the Vice Chancellor of the University will take his decision within a period of four months from the date of filing of such representation by the petitioner. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)