IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13628 of 2007 ASHUTOSH CHANDRA JHA, son of Sri Mani Prasad Jha, Resident of Mohalla Kamalnagar, Mirjanhat, P.S. Mojahidpur, Town and District Bhagalpur. Versus 1. T.M.BHAGALPUR UNIVERSITY, Bhagalpur through its Registrar. 2. The Vice Chancellor, the T.M. Bhagalpur University, Bhagalpur. 3. The Registrar, T.M.Bhagalpur University, Bhagalpur. 4. The Finance Officer, the T.M. Bhagalpur University, Bhagalpur. 5. The Chairman, grievance Redressal Cell, T.M. Bhagalpur University, Bhagalpur. ----------- 2 29.09.2010 Having heard Mr. Purushottam Kumar Jha, learned counsel for the petitioner and counsel for the Tilka Manjhi Bhagalpur University in respect of the following relief:- “I.Issuance of an order, direction or writ in the nature of mandamus commanding the respondents to grant promotion to the petitioner on the post of Sectional officer from the date the post in question fell vacant. Or in the alternative (i)Issuance of an order, direction or writ in the nature of mandamus commanding the respondents authorities to grant the benefits of promotion to the petitioner on the post of sectional officer at least with effect from the date of respondents have been taking work from the petitioner on the said post of sectional officer, i.e. 11.09.04. (II)Issuance of an order, direction or writ in the nature of mandamus commanding the respondent authorities concerned to grant all consequential benefits on grant of said promotion to the petitioner i.e. arrears of salary, fixation of petitioner‟s pensionary benefits etc.” while this Court found it difficult to allow the claim of regular promotion of the petitioner on the post of Sectional officer from the date the said post in question fell vacant, inasmuch as, there is no law requiring the employer to fill up the vacant post by way of regular promotion. This aspect of the matter stands settled 2 in the case of „Bihar State Electricity Board Vs. C.K. Birnaway’ reported in 2001 (3) PLJR (SC) 156 wherein specific direction of this Court to give promotion on the post of Under Secretary of the Board from the date the said post fell vacant, was set aside by the Apex Court. Coming next to the alternative relief that the petitioner would be entitled for salary on the post of Sectional officer from 11.9.2004, inasmuch as, the respondents have taken work on the post Sectional Officer from the petitioner, this Court in absence of counter affidavit would not be in a position to finally decide this dispute. Had the University filed its counter affidavit probably the matter could have been disposed of on merits by this Court. It is, however, found from Annexure-1, the order dated 11.9.2006 the order of transfer of the petitioner, that he was described as Senior Assistant, Incharge of the Establishment section. On this basis of this Mr. Jha submits that the petitioner was actually assigned the duty of the post of Sectional Officer and therefore he would be entitled for payment of salary of the post of Sectional Officer from 11.9.2004. Since the said order dated 11.9.2004 is not on the record and the order dated 11.9.2006 would not fully support the case of the petitioner as projected by his counsel, this Court for the time being would only direct the University to decide the claim of the petitioner as with regard to his entitlement for any officiating allowance for working against the higher post of Sectional officer 3 and if there be any provision alike Rule 103 of the Bihar Service code, in the University Act and/or statutes or the same is itself applicable in the case of the employees of the University he may be allowed officiating allowance subject to there being a clear order by the competent authority authorizing him to work on the higher post of Sectional Officer. It is made clear that such officiating allowance will be on the prescribed rate prevalent in the University. At this stage, Mr. Jha, has referred to some judgment of the Apex Court to contend that in the said judgment law has been laid down that if a person has worked on the higher post, he would be also entitled for payment of full salary as also the benefit of retirement benefit. This Court would fail to understand as to how such reference has been made when the copy of such judgment in question has not even been produced by the learned counsel. That being so, this application is disposed of with the aforementioned observation and direction. Abhay Kumar ( Mihir Kumar Jha, J.)