IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17180 of 2010 Chandra Mohan Jha, son of Late Ramakant Jha, Resident of Village – Kabilpur, P.S. – Bahadurpur, District- Darbhanga ………………………. Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, Human Resources Department, Government of Bihar, Patna 3. The Director, Higher Education, Human Resources Department, Government of Bihar, Patna 4. Maithili Academy, Shastrinagar, Flat No. 740/800, Patna-23 through its Chairman, Patna-23…Respondents ----------- For the petitioner: Mr. Satish Chandra Jha and Mrs. Puspa Rani, Advocates For the State: Mr. Awadhesh Kumar, AC to SC 17 For the Maithili Academy: Mr. J.N.Thakur, Advocate. ----------- 8. 11.3.2011 Heard learned counsel for the petitioner and learned counsels for the Maithili Academy and the State. The petitioner seeks quashing of the order dated 6.8.2010 passed by the Director, Higher Education by which he has held that the promotion of the petitioner to the post of Personal Assistant is illegal and reiterated the earlier decision dated 5.4.2010 of the Department and further directed recovery of excess amount paid to the petitioner contrary to the Government order dated 8.12.2001. The petitioner further seeks quashing of the order dated 5.4.2010 2 passed by the Director, Higher Education directing the Maithli Academy to cancel the promotion granted to six employees, including the petitioner, and to recover the amount of salary of the promotional post if they have taken the same without the approval of the Government, and other consequential orders. The facts of this case are that the Maithili Academy was created by the State Government by its memo dated 11.3.1976 and bye-laws of the Academy were also framed. The posts in the Maithili Academy were to be those sanctioned by the State Government and it appears from the letter dated 8.1.1977 that a total of 21 posts from that of the Chairman to the Night Guard were sanctioned by the State Government with the pay scales as provided in the said order. By the said letter only one post of Routine Clerk in the pay scale of Rs. 220-350 was sanctioned; immediately above it there were two posts of Typist carrying the pay scale of Rs. 244-356 and two posts of Stenographer carrying the pay scale of Rs. 296-460. The petitioner claims to have been appointed on the post of Routine Clerk on 20.1.1986. Thereafter he claims to have been promoted 3 by order dated 24.9.2000 of the Maithili Academy on the post of P.A. in his own scale of Routine Clerk on the basis of the decision of the Executive Committee dated 27.3.2000 approving the decision dated 11.3.2000 of the Promotion Sub-Committee. The said letter was communicated to the Director, Higher Education by letter dated 8.11.2000 of the Secretary of the Academy seeking the Government’s approval, which has been refused by the impugned order. However, the State Government by its letter dated 8.12.2001 approved the appointment of the petitioner on the post of Routine Clerk with effect from 16.2.2001 on the pay scale of Rs. 975-1540 on the promotion of Shri Raj Kumar Jha till then holding the post of Routine Clerk to that of Assistant with effect from 16.2.2001. The petitioner challenged the said order by filing CWJC No. 2566/2002 but subsequently sought permission to withdraw the same without any further liberty and the same was accordingly dismissed as withdrawn by order dated 17.10.2006 passed by a Division Bench of this Court. In the meantime, on the basis of the said 4 Government letter dated 8.12.2001, the petitioner was granted the pay scale and the necessary increments till 2007 but in April, 2007, the then In-charge, Director increased the original basic pay of the petitioner from Rs. 1125 to Rs. 1770 without the approval of the State Government. The Chairman-cum-Director of Maithili Academy on examining the case of the petitioner found that the pay of the petitioner had been revised from 1.4.2007 without the approval of the Government and accordingly, by his order dated 15.6.2010 directed recovery of excess amount of Rs. 1,21,400/- paid to the petitioner in 35 instalments. The petitioner challenged the said order by filing CWJC No. 10585/2010 which was disposed of by order dated 16.7.2010 of this Court directing the petitioner to file his representation before the Chairman-cum-Director. By the order dated 6.8.2010 after discussing the aforesaid facts it has been held that the Maithili Academy is competent to take a decision for recovery of excess amount paid to the petitioner on the post of Routine Clerk in terms of the Government order contained in letter dated 8.12.2001. Learned counsel for the petitioner submits 5 that the Executive Committee of the Maithili Academy is the supreme body in Maithili Academy which itself is an autonomous body. The only authority of the State Government is to sanction the post and the same having been done by letter dated 8.1.1977 by the State Government sanctioning 21 posts, there was neither any need nor it was open to the Director, Higher Education to interfere with the promotion granted by the Executive Committee and only the Executive Committee was authorized to cancel the same. Learned counsel in this regard relies upon a Full Bench decision of this Court in the case of Braj Kishore Singh & Ors. Vs. The State of Bihar & others: 1997(1) PLJR 509 for the proposition that once staffing pattern is approved no further approval by the Government is required for appointment. It is submitted by learned counsel that the petitioner has been appointed on 20.1.1986 and worked on the post of Routine Clerk from that very day. The pay fixation made on 1.9.2007(Annexure-16) by the then Chairman-cum-Director treating the petitioner as serving on the post of Routine Clerk with effect from 6 20.1.1986 is valid and justified and any order to the contrary by the subsequent Chairman-cum-Director or the Director, Higher Education is uncalled for and unjustified. Learned counsel for the Maithili Academy, on the other hand, submits that the Maithili Academy is creation of the State Government and posts in the Academy are also those which have been sanctioned by the State Government. The State Government has sanctioned only 21 posts from that of Chairman-cum- Director down the line and only one post of Routine Clerk has been sanctioned by letter dated 8.1.1977 of the State Government. It is urged by him that the entire expenditure with respect to the said posts is borne by the State Government and thus any appointment and pay fixation on the posts are subject to the approval of the State Government except with respect to class-IV posts for which the Chairman of the Academy has been specifically authorized to make appointments by the bye-laws of the Academy. For all other posts the appointments, pay fixation, etc. can be made only by the State Government and that was the reason that even 7 in the case of the petitioner the approval with regard to his appointment and pay fixation on the post of Routine Clerk had been earlier sought from the State Government as also the promotion on the post of Personal Assistant which is equivalent to the post of Stenographer sanctioned by the State Government. It is pointed out by learned counsel that by letter dated 5.2.1999, the State Government had refused to fix the pay of the petitioner on the post of Routine Clerk holding that there is only one post of Routine Clerk sanctioned in the Academy on which Shri Raj Kumar Jha was working since 1976 and the appointment of the petitioner as a Routine Clerk was on an unsanctioned post, hence his pay fixation was not being made. It is submitted by learned counsel that even subsequently after the promotion of Raj Kumar Jha to the post of Assistant with effect from 16.2.2001, the State Government by letter dated 8.12.2001 approved the appointment of the petitioner on the post of Routine Clerk with effect from 16.2.2001 in the pay scale of Rs. 975-1540. It is thus, urged by learned counsel that it was not open to the Chairman-cum-Director of the 8 Academy to have on his own granted revised basic pay scale to the petitioner in the year 2007 from Rs. 1125/- to Rs. 1740/- treating the petitioner as holding the post of Routine Clerk from 20.1.1986 when there was no sanctioned post of Routine Clerk available for the petitioner until 16.2.2001. The said order dated 9.1.2007 of the Chairman-cum-Director being on the face of it contrary to the direction of the State Government in its letter dated 8.12.2001, is illegal and void. In support of his stand learned counsels for the respondents rely upon a decision of the Division Bench of this Court dated 29.4.1991 in CWJC No. 6757/1989 and analogous cases (Dr. Akhil Chandra Mishra etc. Vs. The State of Bihar & ors.) in which it was held that under the bye-laws of the Academy the Chairman has been authorized to make appointment of 4th grade employees and with respect to other posts, it is the State Government which can take the final decision. Learned counsel also refers to the proceedings of the Executive Committee dated 14.8.2000 and 29.3.2001 which go to show that the Executive Committee itself was conscious of the fact 9 that any final decision on such matters can only be valid after the approval of the State Government. I have considered the rival submissions of learned counsels for the parties. So far as the submission of learned counsel for the petitioner that the Executive Committee of the Maithili Academy is the supreme body in the Maithili Academy, which is an autonomous body, is concerned, the same does not appear to have any force. It is evident that the Maithili Academy is the creation not under a Statute but under a notification of the State Government. Under the said notification and the bye laws created thereafter the only power conferred with regard to appointment was upon the Chairman of the Academy with respect to appointment to Class IV posts. With respect to other posts, it is evident that the authority was retained by the State Government to take a final decision both with regard to sanction of the posts, the pay scales attached to them as also the approval of the appointments made thereon. The same was also held by a Division Bench of this Court by its order dated 29.4.1991 in the case of Dr. Akhil Chandra Mishra, etc., Vs. The State of Bihar 10 and others: CWJC No. 6757/1989 and its analogous case. It is thus evident that the last word in the matter of appointments rests with the State Government and without the approval of the State Government it cannot be said to have acquired any finality. The same also appears to have been the view of the Executive Committee as is evident from the minutes of the proceedings of the Committee brought on the record. Reliance by learned counsel for the petitioner on the case of Braj Kishore Singh & Ors. (supra) is wholly misconceived. In the said case it was held that once staffing pattern has been approved by the State Government then the appointments to the said post can be made by the University authorities and the State Government has thereafter only a limited jurisdiction to examine the eligibility and suitability of such person and not the absolute discretion of prior approval in the matter of appointment. The said position pertains to the Universities on the basis of the statutory provisions contained in the Bihar State Universities Act, 1976. That is not at all the position so far as the Maithili Academy is concerned which is not a 11 creation of statute but has been formed under the notification of the State Government and even the bye laws do not confer any authority to the Maithili Academy to act in the matter of appointments as it wishes without any reference to the State Government except to the extent of appointment of Class IV staff as pointed out above. The aforesaid being the legal position, it is evident that the status of the petitioner in the Maithili Academy depends entirely on the approvals that had either not been granted or granted by the State Government with respect to him. Evidently in the year 1999 the State Government by its letter dated 5.2.1999 had refused to fix the pay of the petitioner on the post of Routine Clerk holding that there is only one sanctioned post of Routine Clerk in the Academy on which Shri Raj Kumar Jha was already working since 1986 and thus the petitioner’s so called appointment as Routine Clerk being on an unsanctioned post, his pay fixation was not being made. Subsequently, the State Government by its letter dated 8.12.2001 approved the appointment of the petitioner on the post of Routine 12 Clerk with effect from 16.2.2001 in the pay scale of Rs. 975-1540 on the said post falling vacant after the promotion of Raj Kumar Jha to the post of Assistant. The petitioner, as a matter of fact, challenged the said order by filing CWJC No. 2566 of 2002 but subsequently sought permission to withdraw the application and the same was dismissed as withdrawn on 17.10.2006 without granting any further liberty to the petitioner. Thus, the matter of the petitioner’s appointment on the post of Routine Clerk with effect from 16.2.2001 stood finally concluded and it is not open to the petitioner to re-agitate the said issue in the present writ petition and all authorities are expected to act accordingly. In the above circumstances, once it is held that the petitioner became a Routine Clerk only from 16.2.2001 and not from 20.1.1986 when he started working on an unsanctioned post, there can be no justification for the then Chairman-cum-Director of the Academy to have granted him a pay fixation in the year 2007 from Rs. 1125 to Rs. 1740/- treating him as having been appointed in 1986 without there being any 13 approval for the same from the State Government and as a matter of fact, contrary to the earlier approval granted by the State Government. Thus, the respondents are justified in setting aside the said decision of 2007 by the then Director of the Academy and further directing recovery of the excess amount paid to the petitioner. For the same reason it was open to the State Government not to approve the promotion granted to the petitioner to the post of Personal Assistant and direct the Director, Maithili Academy to cancel the promotion granted to the petitioner and to recover the amount of salary of the promotional post, if any paid. In the light of the aforesaid discussions, this Court does not find any merit in the writ petition. It is accordingly dismissed. S.Pandey ( Ramesh Kumar Datta, J.)