IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.525 of 2003 RAM BRIKSHA BHAGAT Son of Late Doman Bhagat, resident of village-Sohan Bigha, Near Magadh Medical College, Gaya, P.S. Magadh Medical College, District Gaya. Versus 1.THE STATE OF BIHAR through the Commissioner-Cum- Secretary, Department of Health, Govt. of Bihar, Patna. 2.The Superintendent of Annugrah Narain Magadh Medical College and Hospital, Gaya. 3.The Principal, Annugrah Narain Magadh Medical College, Gaya. ----------- 3 02.07.2010 No one appears for the petitioner. Counsel for the State is present. In this writ application prayer of the petitioner reads as follows:- “That this is an application for issuance of an appropriate writ order or direction directing the Respondent to make payment of salary of the post of Mali to the petitioner in the scale of Rs.2650/- to 4000/- instead of 2550/- to 3200/- as has been being given to other Mali namely Ram Pravesh Mali, Raj Kumar Das Mali and Mahesh Prasad, Malakar working in the aforesaid Medical College and without assigning any reason the same is being denied to the petitioner and as such the action of the Respondent is highly discriminatory and thus not permissible in law and the petitioner is entitled to get the aforesaid scale of Mali of Rs.2650/- to 4000/- as he is working on the said post on sanctioned post since 1977 but he is being paid the salary in the scale of Rs.2550/- to Rs.3200/- and for other consequential benefit to which the petitioner is entitled for.” The respondents by filing a counter affidavit have explained such anomaly by taking a clear stand that the petitioner is an employee of a taken over Medical College, Magadh Medical College, wherein there are only three posts of Mali as per sanctioned staffing pattern of the State Government. It has been 2 further stated that three Malis being senior to the petitioner, namely, Ram Pravesh Prasad, Raj Kumar Das and Mahesh Prasad Malakar were adjusted against the three sanctioned posts who were senior to the petitioner. In this regard the respondents have clearly stated in paragraph no.8 of the counter affidavit that by way of grace the petitioner was adjusted temporarily against the vacant Class-IV post as there was no sanctioned post of Mali and since then he is working only against that post. There is no rejoinder to the said counter affidavit filed by the State and therefore the facts mentioned therein will be deemed to have been admitted. In that view of the matter, if there is no sanctioned post left for the petitioner, he being bound by the provisions of Take Over Act cannot claim either the post or the pay scale of Mali as a matter of right. That being so, this application is wholly misconceived and is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)