IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11078 of 2007 KAMAL KISHORE PRASAD, son of late Yamuna Prasad, resident of Colony Brahmpura, MIT Laxmichowk, P.S. Brahmpura, District Muzaffarpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Human Resources, Bihar, Patna 3. The Director, Department of Higher Education, Bihar, Patna 4. The Vice Chancellor, B.R.Ambedkar Bihar University, Muzaffarpur 5. The Registrar, B.R.Ambedkar Bihar University, Muzaffarpur 6. The Finance Officer, B.R.Ambedkar Bihar University, Muzaffarpur … Respondents ----------- For the Petitioner : Mr. Bindhayachal Singh, Adv. For the State : Anil Kumar Sinha, A.C. to S.C.-12. For the University : Mr. A.B. Sinha, Advocate. ------------- P R E S E N T HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (27/09/2010) Mihir Kr. Jha, J. Having heard Mr. Bindhayachal Singh, learned counsel for the petitioner and Mr. A.B.Sinha, learned counsel for B.R.Ambedkar Bihar University as also Mr. Anil Kumar Sinha, A.C. to S.C.No. 12, as with regard to the following relief:- "(i) For issuance of a writ in the certiorari or any other appropriate writ for quashing of the notification dated 02.02.2006 issued by the B.R. Ambedkar Bihar University (hereinafter referred to 2 as 'University' only) whereby the pay scale of the petitioner has been reduced from the existing pay scale of Rs. 2200-4000/- (corresponding revised pay scale of Rs. 8000/- to 13500/-) to the revised pay scale of Rs. 6500/- to 10500/- in an erroneous manner. (ii) For issuance of a writ in the nature of mandamus or any other appropriate writ for commanding the respondent to grant pay scale of grade-II to the petitioner after completion of 5 years of service i.e. with effect from 03.04.1980, pay scale of grade-I after completing 10 years of service i.e. with effect from 03.04.1985 and selection grade after completion of 12 years of service i.e. with effect from 03.04.1987 as per norms prescribed by the Inter University Sports Board of India (hereinafter referred to as 'Board' only) vide letter dated 15.07.1975. (iii) For issuance of a writ in 3 the nature of mandamus or any other appropriate writ for commanding the respondents to make the payment of the arrears to the petitioner with admissible interest as per the aforesaid revised scale admissible to him. (iv) For holding that the act of the respondent in not granting the corresponding pay scale to the petitioner as prescribed by the Inter University Sports Board of India mentioned in letter dated 15th July 1975 issued by it to the Sports Officers, Member Universities/Institute as announced by the Ministry of Education and Social Welfare is highly arbitrary, unreasonable, against the settled principles of law as well as violative of the instruction, resolution and circulars issued by the competent authority from time to time." this Court is of the considered opinion that the main grievance of the 4 petitioner in respect of fixation of his pay pursuant to the Government order dated 12.10.2004 to be an order of reversion of the petitioner is wholly misconceived nor this Court finds any merit to the challenge of the impugned pay fixation order dated 2.2.2006 passed by the University to be in violation of the principles of natural justice as was stoutly contended by Mr. Singh while assailing the decision contained in Annexure 7, the impugned order passed by the University. From the reading of Annexure 7, a notification of the University, it would appear that the University as a follow-up measure of the Government decision dated 18.12.1984 revising the pay scale of teaching and non-teaching staff has fixed the salary of all such employees who were in service on the date of issuance of the order wherein pay fixation statement of the petitioner was described as non-teaching employees of the University and the truncated document by the petitioner, as contained in Annexure 7, was given serial no. 29 to 33 as with regard to five persons, 5 whose pay scale were fixed as per the Government order dated 12.10.2004. These five persons, namely, Smt. Shail Devi, working on the post of Routine Clerk, Smt. Abha Kumari, appointed on the post of Routine Clerk, Md. Islam, appointed on the post of Routine Clerk, K.K.Sharma, Cartographer and Kamal Kishore Prasad (Petitioner) as a Football Coach, were given the higher pay fixation on the basis of the Government decision dated 12.10.2004 by showing their existing scale of pay and their revised scale of pay for the purposes of there being placed in the higher pay scale. In the opinion of this Court such exercise may not be to the satisfaction of the petitioner but then on the basis of it the claim of the petitioner that he was infact a teaching employee of the College or that he was granted lower pay in pay fixation beyond his expectation and therefore the said order was passed in violation of the principles of natural justice is wholly misconceived. If every pay fixation made by the authority and 6 particularly in the case of the University implementing the pay scale prescribed by the State Government has to be made after giving opportunity of hearing, it will lead to an endless exercise for the University which is not envisaged in law. The concept of giving notice and/or extending opportunity of personal hearing by way of compliance of principles of natural justice in such cases can only be introduced if someone by way of pay fixation is given a pay which is lesser than what he was drawing before his pay fixation. Thus a person being prejudiced on account of such lower pay fixation, may only have a right of being heard but in a case like this where the earlier entitlement of the petitioner in the pay scale of Rs. 2200- 4000 had led to payment of total gross salary which was much lesser than the pay of the petitioner which was fixed in the pay scale of Rs. 6500-10500 at Rs. 10700 as on 3.4.1998, 10900 as on 3.4.2000 and 11100 as on 3.4.2002, which also has not been described in the application to be lesser than what the petitioner had been drawing before pay fixation, this Court would find 7 it difficult to quash the impugned order of pay fixation of the petitioner only on the ground of alleged violation of the principles of natural justice. Reference in this connection may be made to the following passage of the judgment of Apex Court in the case of Union of India Vs. P.K. Roy reported in AIR 1968 S.C. 850: “The extent and application of the doctrine of natural justice cannot be imprisoned within the strait- jacket of a rigid formula. the application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.” Similarly in A.K. Kraipak V. Union of India, reported in (1969) 2 S.C.C. 262. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case the framework of the law under which the enquiry is held and the constitution of the Tribunal of 8 body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. In R.S. Dass v. Union of India reported in 1986 Supp. S.C.C. 617. “It is well established that rules of natural justice are not rigid rules; they are flexible and their application depends upon the setting and the background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. It is submitted that W.H.R. Wade, Administrative Law,1988 correctly summarises the law thus; It is not possible to lay down rigid rules as to when the principles of natural justice are to apply; not as to their scope and extend. Everything depends on the subject matter, the application for principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject matter of the case. In the application of the 9 concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainants. There is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.” The other overemphasized aspect that the petitioner was holding the post of Football Coach and the Government did not determine any specific pay scale for Football Coach has two facets. The petitioner relies on the decision of Inter University Sports Board of India that the Football Coaches had been given a very high status and their pay scales as per the aforesaid order of Government of India Body has to be on a different parameters. Unfortunately the Government or the University while prescribing the pay scale of a University employee cannot implement muchless adopt the recommendation made by such All India Body which at best could have 10 taken into consideration at the time of framing its policy or issuing an order of pay revision. Once such Government order of Pay Revision and Pay fixation is issued the recommendation of the Government of India Bodies or any sports authority cannot be the barometer for testing the norms of pay fixation. If that could be the criteria for prescribing the pay scale, the pay scales of Indian Football Coach had be automatically made applicable to every person engaged in coaching a College Football team. The State Government prescribing pay scale and norms of pay fixation, has to take many important factors including the responsibility of job, the requirement of the post, qualification etc that is how the pay fixation job has been invariably held to be the job of experts. Reference in this connection may be made judgment of the Apex Court in the case of State of Delhi Veterinary Association Vs. Union of India reported in (1984) 3 S.C.C. 1 wherein it was held as follows:- “The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical 11 requirements, disagreeableness of task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors.” The other submission advanced by Mr. Singh that the petitioner must be treated to be a teacher as per section 2 of the Bihar State Universities Act as the Football Coaches are imparting instructions also cannot be accepted for a simple proposition that if could be so, all the non-teaching post though included by the State Government in the category of non- teaching employees, namely, Photographer, 12 Tabla Vadak, Sitar Vadak, Caliographist, Foreman, Art Teacher, Physical Training Instructor had to be also treated as teachers as they also help the students by some sort of imparting instruction. What then what would be the difference between a person who is a lecturer in Music and the other a mere Tabla Vadak? Obviously the Government has to fix the pay of such employees by taking into consideration the various aspects as held by the Apex Court in the case of Union of India Vs. Tarit Ranjan Das reported in 2003(11) S.C.C. 658 wherein this aspect was explained in the following words:- “In the case of State of U.P. V. J.P. Chaurasia reported in (1989)1 SCC 121 it was pointed out that whether two posts are equal or should carry equal pay, depends on several factors. it does not depend just upon either the nature of work or the volume of work done. Primarily, it requires among others, evaluation of duties and responsibilities of the respective posts by the competent authorities constituted for the purpose and courts cannot ordinately substitute themselves 13 in the place of those authorities The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. V. Pramod Bhartiya reported in (1993) SCC 539 by a three Judge Bench of this Court. In the case of Shyam Babu Verma V. Union of India reported in (1994) 2 SCC 521 a claim for equal pay by a group of pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.” Teaching post, therefore, under section 2 of the Bihar State Universities Act even by applying an extended meaning in any view of the matter would not include the 14 Football Coach and therefore, the submission of the learned counsel for the petitioner that the petitioner should be given all those benefits like a teacher being paid salary in U.G.C. pay scale is not only misconceived but also unsupportable either on fact or in law. As noted above, the sole grievance of the petitioner emerges because at one point of time the University by an order dated 23rd of February, 1991 had given the petitioner first time bound promotion in the pay scale of Rs. 700-1100. Since in the year 1991 the lecturers also were getting the pay scales of Rs. 700-1100 the imagination or expectation of the petitioner swelled to the extent that he too now will have all the benefits alike teaching employee of the University. It has to be noted that under the concept of time bound promotion even if one gets a higher pay scale he remains attached to his original post and in fact such time bound promotion only seeks to compensate an employee in monetary terms. A question would arise where would the University or the College find promotional 15 channel or avenue for the Sports Coach or an Artist or Football Coach or P.T.I.? Simply because there was no promotional avenue for a football coach will not mean that he has to be given the pay scale of a lecturer of the University. The contention of the learned counsel for the petitioner that both the lecturer and the Football coach in the University are doing the same job of imparting instructions to the students and therefore they will have to be given same pay benefit would essentially lead to the concept of equal pay for equal work. This aspect has again been gone in to by the Apex Court in the case of State Bank of India Vs. Mr. Ganesh Babu reported in (2002) 4 S.C.C. 556 wherein law on the subject has been laid down in the following words:- “The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that 16 equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fade, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a 17 valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.” The concept of time bound promotion or subsequently the concept of Assured Career Progression Scheme, in the opinion of this Court, was introduced to provide two higher pay scales which however can not be equated with regular promotion. When the State Government had undertaken to give time bound promotion prior to 1.1.1996 in view of Resolution dated 30.12.1981 the person did not get the promotion by way of higher post but only the benefit of higher pay scale. Therefore, the petitioner’s entitlement to the first time bound promotion is not in question but only the question would be that when he was appointed in the year 1975 what was his pay scale to which he was entitled 18 as per the Government Resolution. The University as is well known and also well reflected from the provisions of the Bihar State Universities Act, is not entitled to fix pay of its employee but to follow the Government norms. If therefore in the year 1975 when the petitioner by virtue of being appointed as a Football Coach in the College was given certain pay scale of Rs. 250-400 and later on revised to Rs. 500-900 that cannot become the yardstick for carrying higher pay alike a lecturer, Reader or Professor in the University, inasmuch as the University or the College will have to seek equivalent post for the petitioner amongst the non-teaching employee and the concept introduced by the authorities of the University giving the petitioner pay parity or pay scale of physical Training Instruction (P.T.I.) can not be dubbed as wholly arbitrary. The P.T.I. does almost the same job as the Football Coach would do except the P.T.I. would make the students aware of the physical standard and physical exercise in all discipline, whereas the Football Coach is supposed to work on a 19 particular aspect for guiding the students in the game of football. As noted above, there are many disciplines in the University which would require help and assistance of non-teaching employees and therefore, this Court would at best hold that the Football Coach is also imparting instructions in the same manner as a P.T.I. does his job. At this stage this Court also must note the submission of Mr. Singh that even though the University has supported the case of the petitioner by filing its counter affidavit but the counsel appearing on behalf of the University has taken a contrary stand. This desperate argument has emerged from the learned counsel for the petitioner only because Mr. A.B.Sinha, learned counsel for the University while making his submissions has raised three of his objections, namely, firstly the petitioner has filed this writ application belatedly seeking the relief of his being placed in the teachers’ pay scale and being given all the facilities alike a teacher in the University as he was also a Football Coach. In this regard he has submitted that 20 the petitioner got appointed in the University in the year 1975 and it was only at the verge of his retirement on 31.8.2007 when this writ application was filed on 27.8.2007 just four days before his retirement and as such the petitioner cannot be allowed to seek a declaration that his entire service benefit beginning from 1975 should become that of a teaching employee. This Court does not find that the said submission of the counsel for the University to be contrary to any of the para of the counter affidavit inasmuch as raising the question of delay by the counsel for the respondents can always be made on the basis of facts on the record. The second submission of Mr. Sinha is that the petitioner’s pay scale of Rs. 700-1100 as granted by way of first time bound promotion was eventually fixed in the new pay scale of Rs. 2200-4000 by the University and at that point of time the petitioner did not raise any objection rather he was satisfied with the same. The said argument, therefore, has also nothing to do with any of the stand taken in the 21 counter affidavit which can said to be contrary inasmuch as the petitioner also had never questioned grant of pay scale of Rs. 2200-4000 to be a lesser pay scale. The grievance of the petitioner in fact came to be fore only when the petitioner in his last pay fixation was made in terms of the order passed by the University on 2.2.2006 wherein as noted above, the petitioner’s such pay scale of Rs. 2200-4000 was revised in the pay scale of Rs. 6500-10500. The University had done such exercise because the petitioner was getting lesser pay in the pay scale of Rs. 2200-4000 and when the new pay scale was implemented for the teaching and non-teaching employees of the University, leaving the case of the petitioner untouched in his pre-revised pay scale could have been itself an injustice to him. Therefore, if the petitioner was given the pay scale which is equivalent to the pay scale of Physical Training Instructor as pointed out by the counsel for the State, no fault can be attributed in taking such decision by the authorities of the University. Counsel for the petitioner may be 22 correct that his parity with the pay scale of P.T.I. was never made in past by the University and therefore, this time the University in absence of a separate pay scale of Football Coach ought to have not taken into account the P.T.I.’s pay scale and should have only given by making replacement of Rs. 8000-13500 as the teachers of the University had got the replacement pay scale of Rs. 2200-4000 in the same pay scale of Rs. 8000-13500. No one can stop the petitioner from assailing the decision of the University but then the crucial question would be, does the petitioner deserve the same? The petitioner cannot be given the pay scale of a teaching employee only because his earlier salary by virtue of time bound promotion became Rs. 700-1100 or was substituted by Rs. 2200- 4000. The petitioner’s salary has to be fixed as of non-teaching employee and therefore, the University was fully justified to find the near possible post for his being given the revised pay scale. That may not be to the satisfaction of the petitioner and he may have the right to 23 assail such decision but to say that the University has supported his case in the counter affidavit is far from truth as may be also noticed from the following relevant averments made in paragraphs 9 to 11 of the counter affidavit reading as follows: “9. That the