IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.10126 OF 2005 MADAN KUMAR PANDEY, SON OF LATE KAPILDEO PANDEY, RESIDENT OF MOHALLA BIHARI SAO LANE, POLICE STATION PIRBAHORE, DISTRICT PATNA VERSUS 1. PATNA UNIVERSITY THROUGH ITS REGISTRAR, ASHOK RAJ PATH, PATNA-800005 2. THE VICE CHANCELLOR, PATNA UNIVERSITY, ASHOK RAJ PATH, PATNA-800005 3. THE REGISTRAR, PATNA UNIVESITY, ASHOK RAJ PATH, PATNA-800005 4. THE PRINCIPAL, BIHAR NATIONAL COLLEGE, ASHOK RAJ PATHA, PATNA 800005 ********* 3 21/01/2011 The petitioner was appointed as a Laboratory Bearer in the year 1973 by the Patna University and was posted in the Bihar National College, Patna. As per Annexure-2, the College authorities had posted him as an Assistant on monthly allowances of Rs. 50/- to be paid by the College on 14th March, 1984. The assertion of the petitioner is that, till today, he continues to work as a Correspondence Clerk in the Bihar National College, Patna. It is submitted on behalf of the petitioner that he has passed his matriculation examination whereas for the purpose of promotion to Class-III posts, the qualification has been enhanced in the year 1990. The candidates who seek promotion from Class-IV to Class-III are now required to have the I.A./I.Sc degree. The prayer of the petitioner is that since he has been working for more than two decades as a 2 Correspondence Clerk, he ought to be given the salary of the Correspondence Clerk. A prayer has also been made on behalf of the petitioner that the University authorities ought to consider his case for promotion from Class-IV to Class-III as were granted to persons who were similarly situated to the petitioner. Counsel for the University submits that the petitioner does not possess the required qualification for promotion from Class-IV to Class-III as envisages for the employees in the Patna University. It is further submitted that the University would not be bound by the decision of the College to take work from the petitioner as a Correspondence Clerk. After considering the rival contentions of the parties, this Court finds that the stand of the University that it is not bound by the decision of the Principal of the College in question by which the petitioner was asked to work as a Correspondence Clerk cannot be justified. The fact is that the College requires someone to do the work on the post and has been taking the work for the past 26 years, it cannot now take a stand that the petitioner is not entitled to the salary of the higher post. For this purpose, I may refer to a decision of the Supreme Court in the case of Kumutham vs. Kannappan [AIR 1999 SC 838], wherein the Apex Court 3 held that an employee who is working although on temporary basis or on officiating basis on a higher post should be given salary of the higher post. It has also been clarified in the said decision that grant of salary of the higher post does not amount to promotion. I, therefore, direct that the Patna University should take into consideration the fact that the petitioner has been working for 26 years as a Correspondence Clerk in the Bihar National College, Patna and grant him the pay scale of the higher post. After the Patna University passes the required order for granting the higher pay scale to the petitioner, the current salary of the petitioner should be paid immediately and the arrears of salary should be paid within a period of six months from the date of receipt/production of a copy of this order. As far as the claim of the petitioner for grant of regular promotion on Class-III post in the Patna University is concerned, it would depend on the date of entitlement of the petitioner and the rules on the date of his entitlement. The respondent no. 2 is, therefore, directed to consider whether the petitioner is duly qualified and is entitled for grant of regular promotion on the Class-III posts. 4 This writ application is allowed in part and is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )