IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6559 of 2007 AMIT KUMAR son of late Shashi Shekhar Singh, resident of Village- Bind Gaura, P.S. –Barhara, District-Bhojpur, Ara… ….Petitioner Versus 1. THE VICE-CHANCELLOR,VEER KUNWAR SINGH UNIVERSITY, Bhojpur, Ara, 2. The Registrar, Veer Kunwar Singh University, Bhojpur, Ara, 3. The Financial Advisor, Veer Kunwar Singh Univerisity, Bhojpur, Ara, 4. The Finance Officer, Veer Kunwar Singh University, Bhojpur, Ara, 5. The Section Officer, Account, Veer Kunwar Singh, Ara, 6. The Principal, Veer Kunwar Singh University, Bhojpur, Ara, 7. The Director, Higher Education, New Secretariate, Patna, Bihar……. …Respondents For the Petitioner : M/s Gopal Govind Mishra, Kundan Kumar Mishra, Advocates For the State : Mr. Rajiv Roy, GP-V, Mr. Arun Kumar, AC to GP-V, Advocates For the University : Mr. Vinay Kriti Singh, Advocate ----------- 9 10.03.2011 Heard learned counsel for the petitioner, the State as well as the Respondent Nos. 1 to 3. Petitioner seeks fixation of his pay in the replacement scale of Rs.4000-6000. Learned counsel submits that the petitioner was appointed vide Annexure-„1‟ to the writ application as Assistant Librarian on 16.08.1996 in Grade-III post on 2 compassionate ground. He was having the qualification of Intermediate, whereas, the minimum qualification required for appointment in Grade-III was Matriculation. In support of his submission, learned counsel has placed reliance upon a decision of the Government issued under Memo No.3/M-1- 1097/90-11243-Ka dated 6.12.1995 (Annexure-„14‟) to show that for the purpose of appointment on the Grade –III post, minimum educational qualification was Matriculation. Thus, the contention is that at the time of appointment in Grade-III as Assistant, the petitioner was holding the required qualification. At the time of his appointment he was given the Scale of Rs.1200-1800. Upon 5th Pay Revision and on the report of the Fitment Committee, the replacement scales have been notified vide Annexure-2 with regard to the non-teaching employees of the University and constituent colleges. It is urged that while granting the replacement scale, further classification has been made in the Grade-III vide Annexure- 2. Petitioner has been given replacement scale of Rs.3050-75- 3950-80-4590, whereas, a new class under the grade, i.e., the Upper Division Clerk, who was also earlier granted Scale of Rs.1200-1800, has been given replacement scale of Rs.4000- 100-6000. The petitioner is aggrieved by this action. It is 3 contended on behalf of the petitioner that in the remarks column of the petitioner‟s scale, as shown in Annexure-2, it has been recorded that, in future the appointment would be at the post of Library Clerk on minimum qualification being training in Library Science along with Matriculation. Learned counsel further submits that though aforesaid qualification has been set for the future appointment, the petitioner has been deprived of the replacement Scale of Rs.4000-6000. It is urged that there was no such requirement at the time of appointment of the petitioner. Learned counsel drew attention of this Court towards a decision of the State Government as contained in letter No.3-M-2/5-We-Pu. 9/99-8825 Wi(2)/Patna dated 20 December 2000(Annexure-„4‟) that the unified post of clerk stands demerged and classified as Lower Division Clerk in pay scale of Rs.3050-4500 and Upper Division Clerk in the Scale of Rs.4000-6000. However, it has been clarified that all the clerks who were working before the aforesaid decision would be considered as Upper Division Clerk in the Scale of Rs.4000-6000. However, at the time of granting the replacement scale vide Annexure-2, the petitioner has been placed in the scale of Lower Grade Clerk i.e., Rs.3050-4590. Learned counsel pointed out that even the Lower Division 4 Clerk for library, who was earlier being given scale of Rs.975- 1540 has been granted the same replacement scale which has been given to the petitioner whereas he was previously given scale of Rs.1200-1800. Learned counsel also drew attention of this Court towards the statement made in Schedule-„Gha‟ of Annexure-2 to show that for the existing employees, who were working in the scale of Rs.1200-1800, scale of Upper Grade Scale in Rs.4000-6000 category has been allowed. However, learned counsel submits that in spite of the aforesaid decision of the Government the petitioner is being given the Scale of Rs.3050-4590. Learned counsel has also attached the calculation chart as Annexure-„3‟ showing that in spite of 5th Pay Revision, since the petitioner has been given the Scale of Rs.3050-4590, he is getting salary less than the total emoluments which was being received by him in the earlier scale. Thus, the contention is that the petitioner should be given scale of Rs.4000-6000. In support of his submission, learned counsel has placed reliance upon a decision of this Court rendered in Jailendra Pandit and others Vs. the State of Bihar and others {2007(1) PLJR 265}. In the aforesaid case, the learned single Judge of this Court has held that the decision of the Government does not intend to make a 5 distinction on and from the date of its acceptance of the report of the Sixth Pay Fitment Committee in between the same cadre as then was existing on the basis of qualification and, thus, has held that the petitioners of that case are entitled to the pay scale of Rs.5000-8000 which was allowed to better qualification. Learned counsel submits that the principle applied in the aforesaid case would be applicable in the case of the present petitioner also. The Respondent Nos.1 to 5 as well as Respondent No.7 have filed their counter affidavit. Learned counsel appearing on behalf of the concerned University has submitted that vide letter as contained in Annexure-„A‟ to its counter affidavit, the University has sought a clarification from the Government as according to it, putting the Assistants, who were getting scale of Rs.1200-1800, in the replacement scale of Rs.3050-4590 seems to be contradictory in itself. However, learned counsel submits that in the absence of any guidelines given by the Government, the University was not in a position to grant scale of Rs.4000- 6000/- to the petitioner. Whereas, Respondent No.7, Director, Higher Education has taken a stand in the counter affidavit that all powers with regard to grant of scale of pay to the 6 employee of University has been vested with the Pay Fixation Committee under the Chairmanship of the Vice Chancellor of the concerned University and the University is the only competent authority to give proper reply on the merit of the case of the petitioner. However, during the course of argument, learned counsel appearing on behalf of the State sought adjournment for instruction and, thereafter, orally informed this Court that proper guidelines have been communicated to the University stating therein that the scale of Rs.3050-4590 granted to the petitioner is the correct scale. Learned counsel appearing on behalf of the State submitted that government has decided to classify the earlier demerged unified scale of 1200-1800 into cadre of Lower Grade Clerk and Upper Grade Clerk and so far Library Science is concerned, since the persons including the petitioner who are not having a qualification and training in Library Science have been put in the replacement scale of Rs.3050-4590, whereas, those who are having such diploma in training alongwith graduate degree, have been placed in Upper Grade Clerk in the scale of Rs.4000-6000. It has been pointed out that the petitioner is not having even the degree of graduation. Learned counsel has placed reliance upon the decision of the 7 Apex Court rendered in V. Markendeya and others Vs. State of Andhra Pradesh and others { AIR 1989 SC 1308} to impress upon this Court that in the aforesaid case, the Apex Court has held that prescribing lower scale of non-graduate supervisors are not violative of Articles 14 and 16 of the Constitution. Learned counsel has also placed reliance upon a decision of this Court rendered in Bihar Rajya Sahkarita Prabandhak Sangh and Ors. Vs. The State of Bihar and Ors. {1999(3) PLJR 110} to impress upon this Court that pay commission should not be lightly interfered with by the Court unless its recommendation is per se discriminatory. However, in V. Markendeya (Supra) the Apex Court upon considering the decision of the Constitution Bench in Mohammad Shujat Ali and others Vs. Union of India and others, A.I.R. 1974 SC 1631, has held that the Constitution Bench has considered the history of the graduate Supervisors and non-graduate Supervisors under the Andhra Pradesh Rules and thereupon, it has recorded findings that the graduates Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors. Thus, it has been clarified that since the graduates Supervisor and non- 8 Supervisor were always treated as distinct and separate class the claim of the non-graduates Supervisor for grant of parity in the promotion from lower scale would not be tenable. However, apart from the fact that aforesaid case was with regard to claim of parity on promotion whereas the present case is regarding grant of replacement scale, in the case in hand, it is quite clear from the decision of the Government as contained in letter dated 20.12.2000 (Annexure-4) that the earlier post of Grade-III was integrated one and it has been demerged for the purpose of grant of central scale into Lower Grade Clerk in the Scale of Rs.3050- 4500 and Upper Grade Clerk in the Scale of Rs. 4000-6000/- subsequently. However, it has been clarified therein that the clerks who were working in the Grade before the aforesaid decision having been taken by the Government, would be considered to be Upper Grade Clerk in the scale of Rs.4000- 6000. In Jailendra Pandit (supra) case, the learned Single Judge of this Court, has held as quoted under: Para 4. “Petitioners have no Diploma or Degree in Computer Applications. Despite having no such Diploma or Degree, they were not only appointed, but were treated at par with the persons working in the same capacity as that 9 of the petitioners who had additional qualification of Diploma/Degree in Computer Applications. When the Government accepted the report of the Fifth Pay Fitment Committee, it devised that henceforth a person having Degree or Diploma in Computer Applications shall get a higher pay scale. The Government thus made it clear that on and from the date of acceptance of the said report by the Government, if a person joining as Data Entry Operator with such additional qualification, he shall be entitled to the said higher scale. It did not say that the Government intends to make a distinction on and from the date of its acceptance of the report of the Sixth Pay Fitment Committee in between the same cadre as then was existing on the basis of qualification. In law, once a person has been treated as equal to a person having better qualification, the person having lesser qualification is given the same status as that of the person with higher qualification and accordingly if any decision is taken, having regard to such higher qualification at a subsequent date, it is deemed that the person, who has been treated equal as that of the person having higher qualification, by reason of working for years with such status, has also acquired the right to be treated at par with the person having higher qualification.” This Court is in full agreement with the decision taken above. Learned counsel for the State could not point out that even at the time of the appointment of the petitioner also, there was requirement of graduation or any diploma of 10 training in Library Science. Admittedly, the petitioner, having been appointed in the pay-scale of Rs.1200-1800, which was a post in the integrated Grade-III category and in view of the fact that vide Annexure-„4‟, the Government has clarified that such classification upon demerger of the cadre of the Grade- III would be effective prospectively and the clerks who were also working in the scale of 1200-1800 would be accepted as Upper Division Clerk, would be entitled for a scale of Rs.4000-6000. It is well settled that once a person has been treated as equal to a person having better qualification and the person having lesser qualification is given the same status as that of the person with higher qualification and subsequently if any decision taken granting such benefit to the persons of higher qualification from the subsequent date than the employees who have been treated equal to that of the aforesaid person having higher qualification, would acquire the right to be treated at par with the person having higher qualification. In above view of the matter, it is held that the petitioner is entitled to the pay-scale of Rs.4000-6000/- and, accordingly, his salary and remuneration should be fixed and paid to him as quickly as possible but not later than four 11 months. It is made clear that there would be no bar or hindrance for the Government in making any future appointment in the demerged/classified scale as specified in Annexure-„2‟ upon qualifications described therein. Accordingly, this writ application stands allowed. Sanjay-II (Dr. Ravi Ranjan, J.)