IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9923 of 2002 BIRENDRA PRASAD MISHRA, son of Late Anandi Prasad Mishra, resident of Mohalla Bhikanpur, P.S. Isakchak (Kotwali), Bhagalpur, Bihar. Versus 1.THE STATE OF BIHAR through Education Commissioner Cum Education Secretary Department of Human Resources, New Secretariat, Patna. 2.T.M. Bhagalapur University, a body Corporate through Registrar, T.M. Bhagalpur University, Bhagalpur. 3.Vice-Chancellor, T.M. Bhagalpur University, Bhagalpur. ----------- 3 23/6/2010 Heard counsel for the petitioner, counsel for the State as also counsel for the Bhagalpur University. Prayer of the petitioner in this writ application reads as follows:- “(a)To quash the so called reasoned order of the respondent Vice-Chancellor contained in University’s office order no. 197 of 2001 dated 7.10.2001 by which the petitioner has been demoted from Deputy Registrar to Asst. Registrar in the most illegal manner and in violation of the principles of natural justice without any show cause, any departmental proceeding and without any fault on the part of the petitioner merely with a view to illegally reduce the pension and consequentreduction of other retirement benefits after his retirement. (b)To quash the so called reasoned order of the respondent Vice-Chancellor dated 18.6.2002 a copy of which was communicated to the petitioner by the respondent Registrar by his letter dated June 21, 2001 as it is without jurisdiction, and contains errors apparent on the face of the record. ©To direct the respondent no.1 the Education Commissioner to make at least such fund available which may be sufficient to pay by the respondent University the admitted dues of Rs.1,47,019 on A/C of difference of D.A. as mentioned in order no.3 of the order of the respondent Vice-Chancellor (Annexured-2) and also such funds so that the University may not take the defence of paucity of funds in payment of retirement benefits. 2 (d)To direct the respondent University to restore the original basic pension to Rs.1900/- which has been arbitrarily and illegally reduced without any show cause and without any justification. (e)To direct the University to pay the unpaid amount of gratuity. In this connection it may be stated that as per law and the Govt.’s decision, the gratuity has to be fixed on last pay drawn namely, Rs. 3800+73% on the basic pay (as on 1.4.97) by Govt. letter P.C.I. Misc. 42/96/4159 dated 5.5.98. (f)That thus the dues on account of Gratuity comes to Basic pay 3800/- +73 % D.A Minimum 3395/7195x 33/2 for 16-1/2 months which comes to Rs. 1,18,717-5. From this the Univ. contribution to P.F. Given to the petitioner Rs. 25840 is to be deducted which comes to 92872-50 out of which Rs.35818 has been received on this account. The balance of gratuity due is Rs. 50060/- only, and it is prayed that University be directed to pay this amount and if there is shortage of funds the respondent no.1 the State Govt. be directed to make the funds available immediately and the respondents be directs to pay the dues on this account within a fortnight of the receipt of the funds. (f)That the respondents be directed to allow the petitioner commutation right and its denial in Annexure no.-2 on the ground that there was no provision in the budget for this year. This is patently a flimsy ground. It is none of the duty of the petitioner to get the budget passed and this shows the negligence of the respondent University and a direction by this Hon’ble Court in this matter will protect the petitioner’s right in this respect.” From reading of the impugned order it is, however, clear that the petitioner’s main grievance was flowing from the fact that he had been officiating on the post of Deputy Registrar but then such officiation was cancelled under the direction of the Vice-Chancellor of the University on the grounds disclosed by him in the reasoned order as contained in Annexure-2 to this writ application. 3 Counsel for the petitioner however is not in a position to support the order of promotion of the petitioner from the post of Assistant Registrar to the post of Deputy Registrar in absence of material showing observance of the prescribed procedure including mandatory prior approval of the Bihar State Universities (Constituent Colleges) Service Commission. As a matter of fact, there is also no averment even in the writ application that the petitioner’s case had either been recommended by the Commission for grant of promotion on the post of Deputy Registrar. Once this aspect becomes clear, the claim of the petitioner to get the benefit either in terms of money or promotion on the post of Deputy Registrar becomes unsustainable in law. It is well settled that if a procedure for appointment/promotion is laid down which would require prior recommendation of the Commission as a condition precedent, the absence thereof by itself will be good enough for refusal of such relief of promotion claimed in a Court of law. Once this aspect becomes clear the petitioner cannot also claim emoluments by way salary of the promotional part and/or retirement benefit on the basis of holding the post of Deputy Registrar on officiating basis. The petitioner infact will be deemed to have been working only on the substantive post of Assistant Registrar and his entire retirement benefit or any other entitlements of the service period will have to be confined in the pay scale of the post of Assistant Registrar. 4 Therefore, while holding that the petitioner will be only entitled for the emoluments on the post of Assistant Registrar and not that of the Deputy Registrar, this Court would give liberty to the petitioner to approach the University by filing a compact representation confining his claim for arrears of salary/retirement benefits if any only on the basis of his holding the substantive post of Assistant Registrar. It however goes without saying that if the petitioner files a representation claiming any monetary benefit of the post of Assistant Registrar, the same shall receive immediate attention of the University and necessary payment as admissible to him in law will also be made to him expeditiously. With the aforementioned observation/direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)