IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1855 of 1996 MAHESH NATH JHA son of late Gangadhar Jha, resident of village Ujjan Tole Gangauli P.S. Sakatpur District Darbhanga, working as Mali-Cum-Chaukidar mithila Sanskrit Research Institute, Darbhanga at present on deputation in Bihar Rastrabhasha parishad, Patna. Versus 1.STATE OF BIHAR through the Commissioner-Cum- Secretary (Higher Education) Human Resources Development Department, New Secretariat, Patna. 2.The Director, Higher Education, New Secretariat Patna, Bihar. 3.The Director, Mithila Sanskrit Research Institute, Darbhanga. 4.The Director, Bihar Rastrabhasha Parishad Patna. ----------- 12/1/2010 Heard Mr. Durganand Jha, counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this is an application for issuance of a writ in the nature of Mandamus directing and commanding the respondents to grant first and second time bound promotion to the petitioner and also pay the arrears of salary after adding annual increments from 1984 to 1993. The application is further directed for issuance of a direction to the respondents to terminate his deputation and send the petitioner back to Mithila Research Institute (here in after referred as the Institute).” Mr. Durganand Jha, learned counsel for the petitioner before addressing this Court on the aforementioned prayer would submit that the petitioner has also filed interlocutory application I.A. No.6420 of 1998 wherein apart from the aforementioned relief the petitioner has also prayed for additional relief in paragraph-2 of the aforementioned interlocutory application which reads as follows:- “(i)That in addition to the prayer 2 made in the main writ application, the petitioner may be allowed to pray for issuance of an appropriate writ in the nature of Mandamus and/or any appropriate writ, order or direction commanding the respondents to allow the similar relief to the petitioner as has been allowed to similarly situated employees of the Institute in question vided office orders dated 21.6.1997 issued under the signature of the Incharge Director, Mithila Post Graduate studies and research Institute, Darbhanga in pursuant to the order of Director (Higher Education) Human Resources Development Department Government of Bihar, Patna contained in letter No.15/M 1-0264/87 Higher Education 180 dated 6th March, 1997 whereby and whereunder first time bond promotion has been allowed to one Sri Maheshwar Lal Das and Sri Arun Kumar Sinha w.e.f. 1.4.1981 after completion of their 10 years service but the petitioner has been ignored showing a hostile discrimination to petitioner. At this stage it is stated that even the Director, Bihar Rashtrabhasha parishad vide his letter No.581 dated 17.11.95 had recommended the case of the petitioner for both the time bond promotions and had directed the respondent No.3 to communicate the development in the matter but no step has been taken by Respndent no.3 till date. (ii)That the petitioner may be allowed to further pray for issuance of an appropriate declaration that hostile discrimination has been shown to petitioner by not allowing him his first time bound promotion w.e.f. 1.4.1981 and second time bound promotion w.e.f. 5.1.1990 although he has completed the minimum period for aforesaid time bound promotion on the dates stated above but it has been allowed to others vide Annexure-9A and thereby direct the respondents to allow the first time bound promotion and second time bound promotion to petitioner w.e.f. 1.4.1981 and 5.10.1990 respectively and to pay arrears accordingly. (iii)That the petitioner may be allowed to further pray for issuance of a direction to respondents to pay the adequate amount of deputation allowances to petitioner w.e.f. 1.8.1992 in accordance to the Government directives in this regard because admittedly the services of petitioner has been placed on deputation vide order contained in Memo No.466 dated 25.7.1992 (Annexure-13) issued under the signature of Director (Higher 3 Educationz), Human Resources Development Department, Government of Bihar, Patna and also pay to petitioner the adequate amount of traveling allowances which the petitioner incurs every month in receiving his salary from his parent institute to Darbhanga from the place of his deputation at Patna. (iv)That the petitioner may be allowed to pray for issuance of a writ in the nature of certiorari for quashing the office orders dated 30.12.1995 issued under the signature of Director, (Higher Education), Human Resources Development Department, Government of Bihar (Annexure-D to counter affidavit filed on behalf of Respondent No.3) whereby and whereunder the direction contained in Clause-2 of Annexure- 5/Annexure-C has been repealed without hearing the petitioner and was never communicated to petitioner at any point of time and for the first time it has been brought to the notice of the petitioner by annexing it as Annexure-D to the counter affidavit filed on behalf of respondent No.3. Since no notice what so ever was issued to petitioner before issuance of order dated 30-12-95 (Annexure-D to counter affidavit of Respondent no.3), the principles of Natural Justice has been violated and the impugned order is illegal, arbitrary and against the evidence on records. (v)That in alternative the orders contained in Annexure-9A and 13 series be quashed.” It has to be kept in mind that this Court by an interim order dated 9.9.2008, had directed the Director Higher Education for deciding the claim of the time bound promotion of the petitioner in the following terms:- “……….The petitioner has come to this Court claiming several reliefs which have been redressed during the pendency of the writ application. However, the petitioner’s prayer for grant of first time bound promotion and second time bound promotion has not been considered by the Director, Mithila Sanskrit Research Institute, Darbhanga alongwith several representations were filed by the petitioner on this subject. I accordingly direct that the Director, Higher Education will consider the case 4 of the petitioner and pass an order granting him the time bound promotions, if he finds the petitioner entitled for the time bound promotions. The petitioner can file a representation giving the facts surrounding his case for the purpose of consideration of grant of time bound promotions……..” The Director, Higher Education by his order dated 6.11.2009 has passed an order granting first time bound promotion to the petitioner w.e.f. 27.8.1992, wherein it has been held that:- “ekuo lalk/ku fodkl foHkkx fcgkj] iVuk A dk;kZy; vkns” dk0 vk0 la0&14@,e 7&059@09 m0f”0 2243 iVuk] fnukad 06&11&09 ekuuh; mPp U;k;ky;] iVuk }kjk lh0 MCyw ts0 lh0 la0& 1855@96 egs”ukFk >k cuke~ jkT; ljdkj ,oa vU; esa fnukad 09&09&08 dks fuEuor~ vkns” ikfjr fd;k x;k gS& “……..I accordingly direct that the Director, Higher Education will consider the case of the petitioner and pass an order granting him the time bound promotions, if he finds the petitioner entitled for the time bound promotions. The petitioner can file a representations giving the facts surrounding his case for the purpose of consideration of grant of time bound promotions.” mDr U;k;kns” ds vkyksd esa Jh egs”ukFk >k] lsokfuo`r ekyh lg pkSdhnkj }kjk fnukad 10&11&08 dks ,d vkosnu i= miyC/k djk;k x;k A funs”d] fefFkyk LukrdksRrj v/;;u ,oa ”ks/k laLFkku] njHkaxk ds }kjk miyC/k djk;s x;s izfrosnu ls Li"V gS fd Jh >kk dks fnukad 27&08&1982 ls Lohd`r ekyh lg pkSdhnkj ds fjDr in ij osrueku 375&480 esa fu;qDr dj inLFkkfir fd;k x;k gS A fofnr gks fd blds iwoZ os vl`ftr in ij Fks A fu;ekuqlkj dkyc) izksUufr nsus ds fy, vl`ftr in ij fd;s tkus okys dk;Z dh ekU;rk ugha nh tk ldrh gS A vr% foRr foHkkx ds i=kad 10770 fnukad 30&12&1981 esa fufgr izko/kkuksa ds vuqlkj fnukad 27&08&1982 ls 10 o"kksZ dh lsok iwjh djus dh frfFk 27&08&92 ls izFke dkyc) izksUufr ns; gksrk gS A vr,o ekuuh; mPp U;k;ky;] iVuk }kjk lh0 MCyw0 ts0 lh0 la0& 1855@96 egs”ukFk >k cuke~ jkT; ljdkj ,oa vU; esa 5 fnukad 09&09&08 dks ikfjr U;k;kns” ds vkyksd esa ,oa foRr foHkkx ds i=kad 10770 fnukad 30&12&1981 esa fufgr izko/kkuksa ds vuqlkj Jh egs”ukFk >k] lsokfuo`r ekyh lg pkSdhnkj] fefFkyk LukrdksRrh v/;;u ,oa ”ks/k laLFkku] njHkaxk dks Lohd`r in ij fu;qfDr dh frfFk 27&08&1982 ls 10 o"kksZ dh lsok iwjh djus dh frfFk 27&08&92 ls osrueku 825&1200 esa izFke dkyc) izksUufr nh tkrh gS A g0@& (/kuat; dqekj) funs”d] mPp f”{kk] ekuo lalk/ku fodkl foHkkx” Mr. Jha, would however submit that the petitioner has since retired on 31.1.2003 but then the respondents have not given the petitioner first time bound promotion and second time bound promotion with due dates rather he has been given such promotion from much later date. He would further submit that the petitioner would be entitled to compute his entire services for the purpose of first and second time bound promotion on the basis of appointment being made vide letter No.2045 dated 14.12.1964 against the sanctioned and vacant post for Night Watch Man and therefore the petitioner would be eligible for grant of first time bound promotion w.e.f. 1.4.1981 and the second time bound promotion w.e.f. 5.1.1990. Counsel for the petitioner therefore has also submitted that the order passed by the Director, Higher Education on 6.11.2009 granting the petitioner first time bound promotion on completion of ten years service w.e.f. 27.8.1992, is wholly irrational and amounts to depriving the petitioner of his past services rendered between 1965 to 1982. Counsel for the State, on the other hand, with reference to the plea taken in the counter affidavit has submitted that the petitioner 6 was appointed in Mithila Research Institute against an unsanctioned post of Night Guard and that a substantive post for him became available only when one Sri Markandey Thakur, Mali-cum-Chaukidar in the Mithila Research Institute had retired in the year 1982 and for this purpose counsel for the State has referred to Annexure-A, the office order issued by the Director, Higher Education, Government of Bihar, vide memo No.758 dated 25th August, 1992. It has to be noted that this very question was made subject matter of an enquiry as to whether the petitioner was appointed against the sanctioned post and the authorities had directed the petitioner to produce letter no.2045 dated 14.12.1964, which has also been claimed, in the interlocutory application, to be the basis of his appointment in the Mithila Research Institute. The petitioner, however, on 10.3.1994 had given in writing that no such letter dated 14.12.1964 had been issued to him nor the same was available with him. Annexure- E/1 therefore would go to show that the petitioner is now claiming his appointment on the basis of letter dated 5.1.1965. This letter dated 5.1.1965 issued by Sri S. Bagchi, Director, Mithila Research Institute surprisingly does not mention about sanctioned post of Night Guard and would also go to show that the same was bestowed by way of personal favour without following the mandate of Article 14 of the Constitution. It is not in doubt that the said Institute was under the control of the State of Bihar and therefore any appointment made on Class-III and Class-IV post had to be in accordance with the mandate of Article 14 of the Constitution. 7 That apart, when the petitioner in his writ application/interlocutory application has claimed his appointment on the basis of letter no. 2045 dated 14.12.1964, and the same has been withheld by him that by itself would go to show that the petitioner was never appointed against a sanctioned post. The submission of learned counsel for the petitioner that the petitioner’s date of appointment against the sanctioned post cannot be pushed to the year 1982, i.e, 25.8.1982, has to be only noted for its being rejected. There is already an order dated 25.8.1982, Annexure-A to the counter affidavit which goes to show that the petitioner till 25th August, 1992 was found to be working against an unsanctioned post of Night Guard and therefore once he was found to be senior most amongst the casual employees, he was given first available vacancy upon retirement of one Markandey Thakur, Mali-Cum-Chaukidar and that is how permanent post became available to the petitioner w.e.f. 25th August, 2002. The over emphasized reliance of Mr. Jha on either order of fixation of pay by treating the earlier salary of the petitioner vide Annexure-C to the counter affidavit or non compliance of memo portion of the said order of Annexure-C dated 26.8.1993 will have no meaning in this case, inasmuch as, it is well settled that even if a person is working on temporary post, once he is absorbed against the sanctioned post he will have to be given pay protection and that is how the petitioner was given pay protection by the said order dated 26.8.1993 including crossing of efficiency bar. That will however not alter the date of appointment of the petitioner against the sanctioned post vide 8 Annexure-A to the counter affidavit dated 25th August, 1982. Similarly, the submission of learned counsel for the petitioner that certain directions were given by the Director, Higher Education with regard to removal of discrepancies in the service book of the petitioner would not lead to any inference with regard to the petitioner’s appointment against a sanctioned post in the Mithila Research Institute. The all important letter of first appointment of the petitioner having been withheld by him, this Court will not be in a position to hold that the petitioner’s first time bound promotion upon completion of ten years of service had become due w.e.f. 1.4.1981 when the sanctioned post for the petitioner became available only on 28.8.1982. Consequently, this Court must hold the petitioner’s ten years continued service for the purpose of time bound promotion would be counted from 25.8.1982 and therefore the decision taken by the respondents in giving first time bound promotion by order dated 6.11.2009 w.e.f. 27.8.1992 does not suffer from any error. There would be also no question of giving any second time bound promotion to the petitioner because reckoning of 25 years of service for second time bound promotion would become available in the year 2007, whereas, the petitioner had already retired in the month of January, 2003. Consequently, the main prayer in this writ application as with regard to grant of first and second time bound promotion must be and is hereby rejected. So far payment of arrears of salary and granting annual increment from 8.4.1994 is concerned, it would be apparent from the 9 order passed by the Director, Higher Education that the petitioner was allowed to cross his efficiency bar in the year 1993 and consequently it cannot be said that the petitioner was not granted increment for the period 8.4.1993. Coming to the relief prayed for in the interlocutory application, this Court would find that the petitioner has again raised issue of time bound promotion over there by taking plea of discrimination by some of the employee of the Institute, which for the reasons noted above, would not be available to the petitioner as the petitioner got a sanctioned post only w.e.f. 25.8.1982. The plea of the petitioner that he was on deputation in view of order dated 25.7.1992 and thus entitled for payment of deputation allowance, is again wholly misconceived. The petitioner was a employee of the State of Bihar who was working in the Mithila Research Institute and in that capacity he was brought to the headquarters of the department at Patna. The concept of deputation would not therefore apply in terms of Bihar Service Code. The submission of Mr. Jha that the said Institute for some part of time was under the control of Kameshwar Singh Darbhanga Sanskrit University and the petitioner would be deemed to have been borrowed by the Research Institute and therefore the petitioner will be entitled for payment of deputation allowance is only to be noted for its being rejected. The Mithila Research Institute was part and parcel of the State Government establishment and only for the purpose of academic activities Kameshwar Singh Darbhanga Sanskrit University had been given power to govern its affairs. The power of appointment in the 10 Institute was never vested in the University and had always remained in the State Government or the Director of the Institute, being an Officer of Bihar Education Service. Unlike the constituent colleges this Institute was never the part of the K.S.D.S University so as to make the petitioner a member of University Service and his posting in the Secretariat of State Government a deputation in terms of Bihar Service Code. The claim of payment of T.A. bill of the petitioner is in fact still on weaker footing. The petitioner claims the traveling allowance for the purpose of getting his salary from Patna to Darbhanga and back. In the order of the Director dated 25th July, 1992 it has been clearly mentioned that while the petitioner would continue to be posted at Bihar Rastra Bhasa Parishad, another wing of the State Government, payment of salary of the petitioner would be made from the funds of Mithila Research Institute and for this purpose the Director of Bihar Rastra Bhasha Parishad was also directed to send the absentee statement to the Director of Mithila Research Institute. If the petitioner therefore was not getting his salary on account of any non submission of absentee report and for this reason the petitioner had traveled from Patna to Darbhanga for receiving his own salary, it was in his own interest and for this he would not be entitled to claim payment of traveling allowance. Finally, so far the prayer of quashing of Annexure-B to the counter affidavit, the order dated 30.12.1995 is concerned, this Court would find that Annexure-B is only a follow-up action of the 11 order dated 25th August, 1982. As noted above, it was by order dated 25th August, 1982 that the petitioner was sought to be posted against the sanctioned post of Mali-Cum-Chaukidar after the said post had become vacant on account of retirement of one Markandey Thakur. Thereafter when the issue arose with regard to fixation of certain pay benefit, the Director, Higher Education vide memo no. 587 dated 26.8.1993 had directed the Director of Mithila Research Institute to complete the entries in the service book of the petitioner and when the same was complied by the Director, Mithila Research Institute, the authorities had only reiterated the fact with regard to appointment of the petitioner against the sanctioned post w.e.f. 25.8.1982. Once this fact was made known to the Director, Higher Education, there was no difficulty in reiterating this aspect by order as contained in Annexure-B and to that extent this Court would not find any error in the order dated 30th December, 1995. The plea of the petitioner that such order was in violation of principles of natural justice, has to be only noted for its being rejected. The order dated 26.8.1993, in fact, was confined to the petitioner being granted certain financial benefits from the pay scale of Rs. 375-480/- at Rs. 452/- by way of crossing the efficiency bar w.e.f. 27.8.1984. That apart, the said order has not been cancelled. Therefore, paragraph 2 of the said order in the memo portion was only required to make certain verification in the service book of the petitioner as also to make necessary entries for updating them after April, 1981 and that would also not require extending any opportunity of hearing to the petitioner. This being merely a routine clerical exercise of power, for 12 recording as to what was the previous working history of the petitioner, this Court would find no merit in the submission that Annexure-B was passed in violation of principles of natural justice. In that view of the matter, this Court would find that the petitioner’s writ application as with regard to claim of his time bound promotion being considered and allowed by order dated 6.11.2009 granting him such benefit w.e.f. 27.8.1992 has now become infructuous. The petitioner therefore would now be only entitled for any financial benefit on the basis of his first time bound promotion w.e.f. 27.8.1992. Recalculation of his salary, emoluments as also the retirement benefits will be made on the basis of his only time bound promotion admissible to him w.e.f. 27.8.1992. If such payment has not already been made to the petitioner during pendency of this writ application, the respondents are directed to ensure that the benefit of time bound promotion is given to the petitioner. Therefore the monetary benefits for salary and his retirement benefits in terms of memo no. 2243 dated 6.11.2009 must be extended to the petitioner within a period of three months from the date of receipt/production of a copy of this order. Subject to the aforementioned clarifications/directions this application is dismissed. After this order was dictated, Mr. Durganand Jha, learned counsel for the petitioner, would submit that since the time bound promotion to the petitioner has been given w.e.f. 1992 the petitioner should at least be given interest over the amount withheld by the respondents for this period. 13 In the opinion of this Court, once writ application with regard to this very time bound promotion was kept pending before this Court and this Court had kept the same pending for 14 years the Respondents cannot be saddled the burden of paying the amount of interest specially when this Court has not found any merit in the claim originally staked by the petitioner. It has to be noted that the petitioner’s time bound promotion w.e.f. 27.8.1992 has been notified by the Respondents by an order dated 6.11.2009 in view of the earlier interim order dated 9.9.2008, and therefore in a subjudice matter there would be no question of payment of interest on the amount of salary. Thus the prayer for payment of interest is hereby rejected. Abhay Kumar ( Mihir Kumar Jha,J )