IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12224 of 2001 1. RAM SHARAN MAHTO, son of Late Jagarnath Mahto, resident of Saidpur Canal Road, PS.- Kadamkuan, Mahendru, Patna-6, at present posted as Library Peon, Department of History, Patna University, Patna. 2. Ramjee Singh, son of Late Ram Lagan Singh, resident of Mohalla- Sandalpur Devi Asthan Jay Mahabir Colony, P.S.- Sultanganj, District- Patna, at present posted as Peon, Department of History, Patna University, Patna. …. Petitioners. Versus 1. THE STATE OF BIHAR, through Commissioner-cum-Secretary, Department of Higher Education, Govt. of Bihar, Patna. 2. Deputy Secretary, Department of Higher Education Govt. of Bihar Patna. 3. Patna University, through the Registrar, Patna University, Patna. 4. Vice Chancellor, Patna University, Patna. 5. Deputy Registrar, Patna University, Patna. … Respondents. ----------- 4. 05.10.2010 Having heard Mr. Banwari Sharma, learned counsel for the petitioners and learned counsel for the State as with regard to the following relief; “1. That the present application is for issuance of a writ in the nature of writ of certiorari for quashing the Letter, issued by respondent no. 2 on 2.2.2000 with respect to the petitioners in different papers by which the pay scales of the petitioners have been fixed without any basis rather indirectly from 1981 itself the petitioners have been given lesser scale although these letters have been issued for Budget purpose but the University is giving the scale as sent by respondent no. 2 without any basis and further a writ in the nature of writ of mandamus be issued directing the respondents to pay the scale to the petitioners for which they are entitled and the same was fixed by the University and the petitioners are drawing the salary on a scale which they are entitled and in place of giving equivalent 2 scale from 1999 lower scale has been fixed from 1981 itself and if this scale is allowed to continue petitioners will suffer monetary loss, this amounts to demotion without any show-cause to the petitioners and it is further relevant to state the one scale namely 155-190 which was alleged to have been given to the petitioners from before 1981 was never given to the petitioners.” this Court is of the considered opinion that the real rub lies in the pay-scale statement issued by the Higher Education Department of the Government of Bihar on 2.2.2000 (Annexure-6) wherein the admissible pay of the petitioners right from their first date of appointment has been fixed in the pay scales at a point of time when they had continued in service for more than 30 years. Mr. Sharma therefore would point out that when as many as 7 pay revisions since the date of appointment of the petitioners have been made uptill 2010, the discovery made by the Higher Education Department as with regard to certain anomaly in one of such pay fixation of the petitioners, holding the post of peons in the Universities, at least ought to have been made after following the principles of fair play and natural justice. He would in this regard highlight that the petitioners’ initial appointment was made on the post of peon in the University in the pay- 3 scale of Rs.75-110 which on being revised w.e.f. 1.3.1973 was fixed in the pay-scale of Rs.180-242. Such revision made in the year 1973 for the first time was sought to be questioned by the impugned pay fixation statement of the Higher Education Department dated 2.2.2000 by changing it to pay scale of Rs.155-190/- Mr. Sharma, in this regard has also stressed on the provision made in the same as it was a provisional pay fixation and that too only for the purpose of budgetary allocation and had contained clause for considering the grievance as against pay fixation made. The petitioners infact had also represented their case which was duly forwarded by the University to the Government but no decision has been taken till date but the petitioners on account of impugned order have been down graded in the matter of payment of salary in the further revised pay-scale. In this case, the university has filed a counter affidavit and taken the shelter of the Government decision that the University had to abide by the Government pay fixation statement made as the fund for the same is released by the Government itself. The University has given no further explanation nor has sought to controvert 4 the specific assertion made by the petitioners that the pay scale upon revision in the year 1973 from the existing one of Rs.75-110 was enhanced to Rs.180-242. The University has also not controverted that the petitioners had continued to receive payment of salary on the post of peon in the revised pay-scale of Rs.425-605 and 950-1500 whereas for the same period, the Government has fixed the pay-scale of Rs.375-480 and 800-1150 w.e.f. 1.4.1981 and 1.1.1986. On the other hand, the counter affidavit of the State to say the least is not only vague but also perfunctory inasmuch as it does not answer the basic question raised by the petitioners in this writ application. It appears that respondents, officials of the State of Bihar have not been able to get the answer to the crucial issue raised by the petitioners. As with regard to entitlement of their pay- scale upon revision w.e.f. 1.3.1973 and have made only an empty formality by way of filing of the counter affidavit. In a case like this where the petitioners are the employees of the University and their appointments have been made by the University in a prescribed pay-scale and their revision has been made by the University in the pay scale as per the Government notification, if the 5 Government had found that there was anomaly in the pay revision of the petitioners which had necessitated issuing a second pay fixation statement on 2.2.2000, it was under obligation at least to justify the same by producing the relevant Government notification laying down pay revision for the post of peon in the University before this court which by itself could be sufficient to decide as to whether the petitioners’ pay as fixed by the authorities of the University was in a higher pay-scale and thus against the one approved by the Government in a lower revised pay-scale. That having not been done the counter affidavits can be of no avail to decide the main question. Specially when the University has also not denied the fact of pay fixation of the petitioners in the pay-scale of Rs.180-242, 425-605, 950-1500 w.e.f. 1.3.1973, 1.4.1981 and 1.1.1986 respectively as against the government order showing entitlement of the petitioners of Rs.155-190/-, Rs.375-480 and Rs.800-1150/- from the same dates respectively. In such a situation when neither the Government has not come out with its decisions as with regard to revision of scale of the post of peon nor has 6 passed an order on the representations filed by the petitioners as was required in view of the provisions made in the impugned order itself, this Court will have no other option but to remit the matter back once again to the Director of Higher Education Department who must pass his speaking order on the representation of the petitioner filed by them against the impugned pay fixation statement dated 31.1.2000/2.2.2000 (annexure 5 and 6) to this writ application. It is, however, made clear that while it would be open to the Director Higher Education to pass his order reiterating the earlier pay fixation as per impugned orders but the petitioners will not be subjected to any recovery of any excess amount even if it is found that the University had revised the pay scale of the petitioners in the higher pay-scale w.e.f. 1.3.1973 or 1.4.1981 or 1.1.1986 inasmuch as the petitioners holding the post of peon in the University cannot be said to have misrepresented in the matter of pay fixation of their pay. Therefore it would be open for the respondent- State of Bihar and its officials including the Director Higher Education only to refix the pay of the petitioners as admissible in law till date but 7 without subjecting them to any sort of adverse consequence of recovery of any excess amount already paid to them. That being so, this writ application is disposed of with the direction to the Director Higher Education to pass a reasoned order on the representations filed by the petitioners in the light of the aforesaid observations and as the matter has remained pending before this Court for last nine years, it is expected of the Director, Higher Education that he will do the needful and pass his order within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)