IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12250 of 2011 ====================================================== 1. Bhajan Prasad, s/o- Late Saudagar Prasad, r/o- village Chandmari Road, Near Sheo Mandir Back to Chutkulanand Gali, P.s.- Kankarbagh, District- Patna. 2. Bipin Kumar @ Bipin Kumar Lal, s/o- Late Jiwach Lal, r/o- N.I.T. Campus, P.S.- Pirbahore, District- Patna. 3. Lakshman Pd. Arya, s/o- Lakhichand Bhagat, r/o- N.I.T. Campus, P.s.- Pirbahore, District- Patna. 4. Krishnadeo Mahto, s/o- Late Baboo Chand Mahto r/o- village Mohanpur, P.s.- Punpun, District- Patna. 5. Awadesh Kumar Chaudhary, s/o- Late Hiraman Chaudhary, r/o- Mohalla Golakpur, P.S.- Pirbahore, District- Patna-6. .... .... Petitioner/s Versus 1. The National Institute of Technology, Patna through its Director, National Institute of Technology, Patna. 2. The Registrar, National Institute of Technology, Patna. 3. The Board of Governors, through its Chairman, National Institute of Technology, Patna. 4. The Patna University through its Vice Chancellor, Patna University, Patna. 5. The Registrar, Patna University, Patna. 6. The Secretary, Science and Technology, Government of Bihar, Patna. 7. The State of Bihar. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Siya Ram Shahi For the Respondent/s : Mr. Jaishankar Barnwal SC1 Mr. Satish Kr. Sinha (for State) Mr. Iqbal Ahmed( for Patna University) Mr. Rakesh Kumar Singh (for N.I.T.) ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 6 22-11-2011 Five petitioners herein were appointed on Class-IV posts by different orders passed by the authorities of the respondent Patna University and were serving as such in the erstwhile Bihar College of Engineering (for short “ the BCE”).They have approached this Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 2 Court seeking a direction upon the authorities of the respondent Patna University as well as National Institute of Technology, Patna (for short “ the NIT”) to consider their cases for promotion from Class-IV to Class-III post on the ground that similarly situated employees of Patna University had been granted promotion to Class-III post(s). A further prayer has been made that the respondents be commanded to pay them salary of Class-III post on which they have been working since 2004-05. In course of argument, learned counsel for the petitioners has taken a stand that based on pleadings on record, their present employer namely NIT be directed to consider their cases for promotion from Class IV to Class III post in the NIT in the light of document placed at Annexure-11. A brief statement of facts indispensable for disposal of the case may first be noticed. Petitioner Nos. 1, 2 and 4 claimed to have been appointed by order dated 22.8.1989 (Annexure-1) passed by the Deputy Registrar of the Patna University on the recommendation of Selection Committee of the BCE, then a constituent of Patna University. Petitioner No. 3 was appointed as Daftari in the BCE and petitioner No. 5 was appointed as Darban vide order contained in letter dated 4.12.1992 (Annexure-2 and 3 respectively). In due course of time, the Principal of erstwhile Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 3 BCE recommended several employees including the petitioners herein for promotion to Class-III posts. The Registrar of the Patna University vide communication dated 7.8.2003 (Annexure-5) forwarded a gradation list of Class-III and Class-IV employees requesting the Principal of the BCE to circulate the same amongst the employees seeking their objection(s) and correction in the gradation list. The matter was resting there when, by a notification dated 28.1.2004(Annexure-7), the BCE was converted into a fully funded Institute of Central Government and renamed as the NIT, Patna. Thereafter, the matter remained hanging in balance on account of the fact that a stand was taken by the N.I.T. that the Patna University was required to consider and grant promotion since a claim was raised that they are entitled to be granted promotion with effect from the date some of the employees of the Patna University were granted promotion and in the meanwhile the BCE was taken over and made a separate legal entity. It is the case of the petitioner that vide different notifications dated 7.5.2004 and 6.1.2005 (Annexures- 9 and 10 respectively) issued by the NIT, the petitioners have been directed to discharge duties of Class-III posts but without any salary or allowance. The NIT subsequently prepared a list of eligible persons for promotion to the post of Class-III (Annexure-11) incorporating their names but Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 4 no action has been taken which propelled the petitioners to approach this Court seeking the aforesaid relief(s). Counter affidavits on behalf of the respondent Patna University as well as the respondent NIT have been filed. On a perusal of the averments made in the counter affidavit filed on behalf of the respondent Patna University as well as respondent NIT and considering the submissions made by their respective counsels, it appears that the only dispute between the Patna University and the respondent NIT is about the authority who will consider and take the appropriate decision/action on the grievance of the petitioner considering the relief(s) prayed for in this application. Mr. Shahi learned counsel for the petitioners has fairly taken a stand that the petitioners would be satisfied if an appropriate direction is issued to the NIT for the consideration of their cases for grant of promotion in accordance with law and the petitioners be paid minimum of scale of pay admissible to Class III post to the petitioners until they are considered and promoted on regular basis by the NIT on Class III post(s). This submission has been made on the premise that there is no controversy that the petitioners are discharging duties of Class-III posts continuously since 2004-05 under the orders passed by the NIT. Petitioners have relied in this Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 5 regard on a judgment of this Court in the case of Dr. Sachita Kumar Sinha versus State of Bihar since reported in 1995 (1) P.L.J.R. 362 (paragraph Nos. 10, 11 and 12). I have heard learned counsel for the parties at length and perused the materials on record. By virtue of notification dated 28.1.2004 (Annexure-1) issued by the Government of India in the Ministry of Human Resources Development, Department of Secondary and Higher Education, the BCE has been taken over as fully funded institute of the Central Government and made a body registered under the Societies Registration Act, 1860. It has been renamed as the NIT. The personnel(s) serving the erstwhile BCE and the assets both movable and immovable stood transferred to the NIT. The same stand has been taken and explained by the NIT in the communication dated 12.10.2006 (Annexure-8). In view of the aforesaid, this Court has no difficulty in concluding that the authorities of the NIT are now required to take appropriate decision with regard to the claim of the petitioners for consideration and grant of promotion to the cadre/class of Class-III posts as per the rules and circular applicable in the case. This Court, therefore, directs the respondent NIT and its officials to consider the case of the petitioners and other eligible persons for promotion to the posts of Class III in accordance with the rules and Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 6 circulars applicable to their case. It has been contended that petitioners have been discharging duties of the higher post(s) but without any benefit. Learned counsel for the petitioners in this regard has referred to and relied on notifications dated 7.5.2004 and 6.1.2005 (Annexures- 9 and 10 respectively) to support their stand that under the orders of the respondent NIT, they are discharging the duties of Class-III post(s). It is, thus, argued that if they are discharging duties of the higher posts under the orders of the authority, then they are entitled to higher remuneration. The respondent(s), on the other hand, have contended that those notifications contain a clause that they shall not be paid any additional monetary benefit for discharging duties of Class-III posts. In Dr. Sachita Kumar Sinha (supra), a learned Single Judge of this Court relying on A.I.R. 1986 S.C. 1571 and A.I.R. 1991 S.C. 101 held as under in paragraph Nos. 11 and 12: “11. In coming to the aforesaid conclusion this Court is reminded of the ratio flowing from the two decisions of Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly reported in A.I.R. 1986 S.C. page 1571 which was affirmed in the case of Delhi Transport Corporation vs. D.T.C. Mazdoor Congress reported in A.I.R. 1991 S.C. page 101. In both the cases the Hon’ble Supreme Court has held that when an employee is asked by the employer to work against a post on certain terms, the employee concerned, by reason of the unequal bargaining position, cannot object to the terms and conditions of Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 7 service. In fact the employees are bound to accept whatever terms were offered to them. Keeping those principles in mind, I am unable to sustain the objection raised by the learned counsel for the respondents that as the petitioner did not raise any objection to the terms of his appointment as Additional Director and Director of Secondary Education, he is unable to agitate his present grievances before this Court. 12. There is also another aspect of the matter inasmuch as the Supreme Court has repeatedly asked the State to act as a model employer. In a welfare State where the Government is one of laws and not of men, the role of a model employer of the State is not at all compatible with its action in the present case, namely, getting the work for higher posts discharged by the petitioner and at the time of making payment trying to defeat the claim of the petitioner by raising all sorts of, if I may say so, without any disrespect, specious pleas.” State being model employer and the employee(s) being in an unequal bargaining position, it would be highly unjustified to accede to the contention of the respondents that in view of the aforesaid conditions stipulated in those notifications deputing the petitioners to discharge duties of higher post(s), they would not be entitled to any monetary benefit. It is not in dispute that petitioners are discharging the duties of the higher post(s) under the orders of the respondent NIT but without any monetary benefit therefor. Interest of justice, in these circumstances, demands that petitioners are entitled to the minimum of scale of pay admissible to the posts they have been discharging duties against. This Court would, therefore, direct the respondent NIT and Patna High Court CWJC No.12250 of 2011 (6) dt.22-11-2011 8 its officials to calculate and pay the petitioners the minimum of the scale of pay admissible to the posts on which they are discharging their duties for the period(s) they are permitted to discharge the duties of the higher Class-III posts. I order accordingly. Let the respondent NIT calculate differential amounts to be paid to each of the petitioners and authorize payments thereof in their favour within six weeks from the date of receipt/production of a copy of this order. Parties are left to bear their own cost. PANKAJ KUMAR/- (Kishore K. Mandal, J)