IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7411 of 2004 RAMESHWAR PRASAD SINGH, son of late Kapileshwar Prasad Singh, resident of village Trimuhan, P.O. Vishanpur, District Madhubani ... Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Higher Education Deptt., Govt. of Bihar, Patna 3. The Director, Higher Education Govt. of Bihar, Patna 4. The Vice Chancellor, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga 5. The Registrar, L.N.M.U. Kameshwarnagar, Darbhanga 6. The Principal, M.K.S.College Trimuhan Chandauna, Darbhanga ... Respondents ----------- 3. 26.11.2010 Having heard counsel for the petitioner and the counsel for L.N.Mithila University as also counsel for the State as with regard to the following relief: “That in the instant writ application the petitioner prays for the issuance of an appropriate writ, order/ direction commanding the respondent authorities to pay the arrears of difference of salary in the scale of Rs. 1320-2040 instead of Rs. 680-965 on the basis of 5th pay scale from 15th Jun 1990 to February 1996 and to pay the arrears of differences of salary, dearness allowance, house rent, interim reliefs and other benefits from March 1996 to till date which is admitted dues to the petitioner on the basis of 5th pay scale 2 prescribed by the State Government. (a) For directing the respondents to count the entire period spent in service for the purpose of consequential benefits. (b) For directing the respondents to grant the first time bound promotion with effect from 1991 in the scale of Rs. 1500-2750 on the basis of the pay scale of Rs. 1320- 30-1560-40-2040 and thereafter to fix and pay all the consequential benefits of the same.” this Court is of the considered opinion that while there would be immense difficulty for the petitioner in claiming the benefit of past service from 28.12.1980 for its being tagged up with his appointment in the College by an order dated 15.6.1990, he would still be entitled for payment of his salary in the pay scale of Rs. 1320-2040 in view of admission of the University in the pay fixation order issued on 9.9.1997 showing the petitioner to be appointed as a Typist with effect from 15.6.1990 in the pay scale of Rs. 1320-2040. Counsel for the petitioner, however, was quite emphatic that following the ratio of the judgment of Full Bench of 3 this Court in the case of Braj Kishore Singh vs. the State of Bihar, reported in 1997(1) PLJR 509, as also in view of law laid down by an order of this Court dated 3.11.2006 in C.W.J.C.No. 12320/2000, Budhadeo Prasad Singh vs. the State of Bihar & ors., the petitioner will be also entitled for counting his previous service ever since he was appointed in the affiliated college, Mahakavi Kalidas Smarak Mahavidyalaya, on 28.12.1980. He in this regard has also tried to capitalize on the issue that the said Mahakavi Kalidas Smarak Mahavidyalaya became a constituent unit of the University with effect from 14.5.1981 and therefore, his services were bound to be recognized by the University for its being counted from the date of first appointment i.e. 28.12.1980. In the opinion of this Court, the petitioner has a lot of misgivings about his credentials. The petitioner came to be appointed on 28.12.1980, a date on which the State Government had already published the names of 103 Colleges including the college of the petitioner for its being made constituent under certain terms and 4 conditions. One of the conditions imposed there was that the appointments made prior to 3.12.1980 would be subjected to screening by a Screening Committee, whereafter the decision will be taken for absorption in terms of section 4(1)(14) of the Bihar State Universities Act. Such absorption in the case of the petitioner was obviously not made, inasmuch as his appointment was made by the Secretary of the governing body of the College on 28.12.1980 when such Committee had been left with no power to make such appointment. Therefore, the University had also never recognized the services of the petitioner much less had passed any order absorbing him in the University service w.e.f. the date of his college becoming constituent unit of the University. As a matter of fact it is also admitted by the petitioner that he alongwith others had filed their application in the University for appointment in the year 1989- 90 in the light of an advertisement issued by the University for filling up the vacant sanctioned posts whereafter a Selection 5 Committee was constituted and in the light of recommendation of the Selection Committee the University had appointed the petitioner afresh alongwith 35 others by an order dated 15.6.1990 on the post of Typist. The right of the petitioner, therefore, for counting his services as a University employee would only commence from 15.6.1990 and no other earlier date. The reliance placed by the learned counsel for the petitioner on the judgment of Braj Kishore Singh (supra) is wholly misconceived. In the said Full Bench judgment only two things were clarified, one that there would be sanctioned post available with the affiliation of the College and secondly that those persons who are working in the affiliated colleges would be entitled for their absorption in University service once such College would become constituent college. The Full Bench in fact had only laid down law that the employees of such college who were appointed in the prescribed manner against the sanctioned post or the post covered by the staffing pattern cannot be denied absorption 6 on the ground of non-availability of sanctioned post, inasmuch as the post covered by the staffing pattern will have to be made available for consideration of absorption of such employees. In the case of the petitioner, however, there is no question of his being absorbed as his earlier appointment was never recognized by the University. The earlier Screening Committee constituted in terms of the Government order dated 3.12.1980 had not found the petitioner fit for absorption and that is how the petitioner’s fresh appointment was ultimately made by the University on 15.5.1990. The petitioner had also accepted such fresh appointment without any demur or protest in 1990. Thus, this Court cannot accept the submission of the learned counsel for the petitioner as with regard to counting previous services of the petitioner from 28.12.1980 to 15.6.1990. To that extent the reliance placed by the petitioner on the order of this Court in the case of Budhadeo Prasad Singh (supra) is also misconceived, inasmuch as the said case does not relate to 7 non-teaching employees and in fact is with regard to teaching employees for whom there is absolutely different provisions in the Act and the Statutes. Let it be also noted that the counsel for the petitioner has himself given up the prayer of his time bound promotion and has not pressed it which would leave this Court now only to decide the claim of the petitioner towards arrears of difference salary in the scale of pay of Rs. 1320-2040 in place of Rs. 680-965 for the period 15th June, 1990 to February, 1996. As noted above, this part of the prayer of the petitioner seems to be squarely covered by the order of the University dated 9.9.1997, whereby and whereunder pay fixation of the petitioner was made in the pay scale of Rs. 1320-2040 by giving him the basic pay of Rs. 1540/- as on 15.6.1997. There is no denial to this aspect by the University which has as usual not filed its counter affidavit. This Court, therefore, would proceed on an assumption that Annexure 7 issued in respect of the petitioner dated 9.9.1997 showing his entitlement of the pay 8 scale of Rs. 1320-2040 with effect from 15.6.1990 is an admitted fact. Once this aspect becomes clear that the fresh appointment of the petitioner was made in the pay scale of Rs. 1320-2040 on 15.6.1990 and the University also had gone to fix his basic pay as on 15.6.1997 as Rs. 1540/-, there being nothing on record to show that the petitioner or others whose pay fixation was made by the University by its aforesaid order dated 9.9.1997 could be deprived in receiving the arrears for the period 15.6.1990 to 9.9.1997. In that view of the matter, this Court would direct the Vice Chancellor of the University to consider the grievance of the petitioner only with regard to payment of his arrears by way of difference of salary in the pay scale of Rs. 1320-2040 with effect from 15.6.1990. Such payment in the case of the petitioner must be made if the order dated 9.9.1997 has not been revised, rescinded or set aside by the University or Chancellor subsequently. It goes without saying that whatever amount is found payable by way of 9 arrears to the petitioner for the period 15.6.1990 onwards must be paid to him, if not already paid, within a period of three months from the date of receipt/ production of a copy of this order. In the event the Vice Chancellor would find the petitioner not entitled for payment of such amount he will not only disclose reasons in his order but would also explain therein as to whether the same treatment of not paying arrears has been given to all other persons covered by Annexure 7, the order of pay fixation dated 9.9.1997. In other words, if the Vice Chancellor would find that others covered by the order, contained in letter no. 16795 dated 9.9.1997, as contained in Annexure 7, has been paid their arrears of salary from 15.6.1990 in the pay scale shown in the aforementioned order, the petitioner will be also paid the same without any further impediment. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/ 10