IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10006 of 2006 BINOD KUMAR MISHRA, son of Shri Yogendra Mishra, resident of village- Madhurapur, Tanra, P. S. Kalyanpur, District- Samastipur. … Petitioner. Versus 1. THE RAJENDRA AGRI.UNIVERSITY, Bihar Pusa, Samastipur, through its Registrar, having office at Pusa, Samastipur. 2. The Chancellor, Universities of Bihar, Raj Bhawan, Patna. 3. The Vice-Chancellor, Rajendra Agricultural University, Bihar, Pusa, Samastipur. 4. The Director Administration, Rajendra Agricultural University, Bihar, Pusa, Samastipur. 5. The Director, Sugarcane Research Institute, Bihar, Pusa, Samastipur. … Respondents. ----------- 2. 26.08.2010 Heard counsel for the petitioner and counsel for the Rajendra Agricultural University. The prayer of the petitioner in this writ petition reads as follows: “1. (i) Issuance of a writ in the nature of certiorari for quashing office order no. 166 dated 2.8.2004, whereby and whereunder, the pay of Laboratory Assistant-cum-Typist, on which the petitioner was working has been down graded from the pay scale of Rs.4000- 6000(Revised) to Rs.3200-4900 (Revised). (ii) Issuance of appropriate writ for quashing the memo no. 864 dated 25.7.2005, communicated under the signature of Director Administrator, whereby the representation of the petitioner was rejected, without considering the materials on record and without giving proper opportunity of hearing to the petitioner. (iii) Issuance of appropriate writ in 2 the nature of mandamus, commanding/ directing the respondents to grant revised pay scale of Rs.4000-6000/- with effect from the initial date of appointment, i.e. 6.12.1999 from which date, the petitioner is working on the post of Laboratory Assistant-cum-Typist.” As would appear from reading of the aforementioned prayer, the whole issue in this writ application involves only the question of grant of pay- scale of Rs.4000-6000/- to the petitioner pursuant to the revision of pay-scale by the State Government. It is the case of the petitioner that initially he was appointed in the University as a Class IV employee and subsequently in terms of Government decision for filing up 50% posts of Class III from amongst Class IV employees by holding a limited competitive examination, the petitioner‟s appointment was also made on a class III post of Laboratory Assistant-cum-Typist by an order dated 6.12.1999 in the pay-scale of Rs.975-1540. Learned Counsel for the petitioner in this context has placed reliance on the order of grant of new pay-scale by the State Government for the post of Laboratory Assistant-cum- Typist which according to him was Rs.4000-6000 but even than the University had arbitrarily fixed the pay of the 3 petitioner in the pay-scale of Rs.3200-4900/-. The petitioner in fact having found himself to be placed in the lower pay-scale of Rs.3200-4900/- had also filed his exhaustive representation before the Director, Sugarcane Research Institute, Pusa Samastipur, seeking removal of anomaly in his pay fixation and ultimately the impugned order on the same was passed on 2.8.2004 whereby and whereunder while reverting the pay-scale of the petitioner to Rs.3200-4900/- his designation of the post of Laboratory Assistant-cum-Typist was also changed to Laboratory Assistant. The petitioner in fact is aggrieved by the said order and his plea is that when his appointment on Class III post was made on the post of Laboratory Assistant- cum- Typist, he should not have been subsequently reduced to the post of Laboratory Assistant specially when in the University there are sanctioned post of Laboratory Assistant-cum-Typists. It appears that the petitioner had also thereafter moved the Chancellor and the Chancellor after considering the case of the petitioner in the light of comments submitted by the University had rejected the same on 25.7.2005 and when the petitioner again filed 4 another representation to the Chancellor, a letter was communicated by the office of Chancellor that such representation of the petitioner had already been rejected on 25.7.2005 as would be apparent from reading of Annexure-11, the communication of office of Chancellor dated 27.1.2006. As with regard to the aforementioned order of Chancellor, learned counsel for the petitioner has a limited submission that such order of Chancellor is non- speaking and in fact would only reflect the mechanical application of his mind. In this case a counter affidavit has been filed wherein it has been explained that the Incharge Director who had issued the order for appointment of the petitioner on Class III post pursuant to the limited departmental examination had defied the direction of the University issued by Director Administration under the order of Vice- Chancellor of the University. In the said letter dated 11.11.1999, Annexure- A to the counter affidavit it had been clarified by way a direction given to the Director of Sugarcane Research Institute, Pusa Samastipur that he should not make any other appointment on Class III post except those were mentioned in the said letter. For the 5 sake of brevity and clarity of the issue, the contents of the letter being relevant is quoted hereinbelow. “1607 RAU Pusa the 11/11/November,99 From, The Director (Admn.) To The Director Sugarcane Research Institute, Pusa, Samastipur, Bihar Subject:- Appointment on Class-III posts Through Limited Competitive Test conducted on 12.10.1999 Sir As per orders of the Vice- Chancellor, a limited Competitive Test was conducted on 12.10.1999 for Class- IV employees of the different Units for appointment on Class-III posts by the Registrar. On the basis of service experience as well as marks obtained in the written examination, a merit list has been prepared which is enclosed herewith. As per circular of the Government which has been adopted by the Board, these class-IV employees have to be appointed on 50% vacant posts of Routine Clerk in the Headquarters and Clerk/Clerk-cum-Typist-Typist-cum- Clerk Laboratory Assistant/Harbarium assistant and Mobile Unit Workers in the Units. A copy of the circular bearing No.335 dated 16.9.92 issued by the Personnel & Administrative Reforms Department of the Govt. is also enclosed for your ready reference. You may kindly issue appointment orders of the employees strictly according to merit by following the reservation roster of the Govt. only on 50% vacant posts of „Routine Clerk…..in…the…. Headquarters … and) 6 Clerk/Clerk-cum-Typist/Typist-cum- Clerk/Lab. Assistant/Harbarium Assistant and Mobile Unit Workers in the Units. You may also kindly ask the employee to submit proof of passing Matriculation examination as well as reservation certificate, if they claim reservation. After issuance of appointment letter a report may kindly be sent to undersigned for records. Yours faithfully Director (Admn.) The case of the University is that when the local unit and the Incharge Director of the Sugarcane Research Institute Pusa defying the orders of the University had issued an order of appointment of the petitioner on the post of Laboratory Assistant-cum-Typist, the University was not bound to honour the same at least when the issue arose with regard to payment of salary in the prescribed pays-scale inasmuch as the fund released by the Government is also based on availability of the posts as per the budgetary provision. Consequently, if the Incharge Director defying the order of the University on 6.12.1999 had issued the following office order: ÞjktsUnz d`f"k fo'ofo|ky;] fcgkj] iwlk ¼leLrhiqj½ dk0vk0la0 275 @jk0d`0fo0 iwlk fnukad 6-12-99 dk;kZy; vkns'k jktsUnz d`f"k fo'ofo|ky; }kjk vk;ksftr prqFkZoxhZ; deZpkfj;ksa ds chp vk;ksftr lhfer tkWp ijh{kanchan ds vk/kkj 7 ij funs'kd ¼iz'kklu½ jk0d`0fo0 iwlk ds i= la[;k fnukad 11-11-99 ds vkyksd esa bZ[k vuqla/kku laLFkku iwlk ds fuEufyf[kr deZpkfj;ksa dks muds uke ds lkeus vafdr inksa ij ;ksxnku dh frfFk ls fu;qfDr dh tkrh gSA bl lcksa dh fu;qfDr fcydwy vLFkk;h gS rFkk budh lsok lrZ jk0d`0fo0 iwlk ds fu;e ifjfu;e ds v/khu gksxkh A Ø0la0 deZpkjh dk uke vk0 dksfV inuke osrueku ;kstuk dk uke 1- Jh jkec'kh"B jk; fi0oxZ fyfid 1200-1800@& 2- Jh jkelkjx jk; lkekU; fyfid 1200-1800@& 3- Jh egs'k jtd vuq0 tkfr fyfid 1200-1800@& 4- Jh lqjsUnz egrks v0fi0 oxZ fyfid 1200-1800@& 5- Jh feJh yky iSVh fi0 oxZ fyfid 1200-1800@& 6- Jh lR;sUnz Bkdqj v0fi0 oxZ fyfid 1200-1800@& 7- Jh fouksn dqekj feJk lkekU; iz;ksx'kkyk 975&1540@& 8- Jh clqmnhu v0fi0oxZ uewuk laxzkgd 975&1540@& g0 vLi"V d0 funs'kd bZ[k vuqla/kku laLFkkuu] iwlkÞ It would thus become clear that the petitioner will have no right to claim the salary of the post of Laboratory Assistant-cum- Typist which was never sought to be filled up under the order of the University. The order of the University dated 11.11.1999 in fact had authorized the Director of the Sugarcane Research Institute to make appointment on Class III posts including the post of Laboratory Assistant and not on the post of Laboratory Assistant-cum- Typist and that is how at the time of fixation of his pay in the revised pay scale the designation of the petitioner on the same Class III post was sought to be amended as per the order of the University. This court would not find anything wrong in such action of the authority inasmuch as an unjustified order by the local 8 officer in contravention of specific direction of University could not have led to financial loss to the university and the government. The plea of violation of principles of natural justice is also unsustainable because when the petitioner himself had filed a representation, there could be no need to give him an opportunity of personal hearing. Nonetheless as the petitioner is still confident that he can demonstrate before the University that his appointment pursuant to limited departmental examination could have been made on the post of Laboratory Assistant-cum- Typist and for this purpose he has relied on communication of the Director of Sugarcane Research Institute dated 20th September 1999 (Annexure-1) showing also availability of one post of Laboratory Assistant-cum-Typist. Though in the opinion of this Court, the said letter dated 20th September 1999 written by the Director of Sugarcane Research Institute after issuance of direction from the Headquarter of the University in the letter dated 11.11.1999 (Annexure-A) may not have much relevance inasmuch as the ultimate decision of the University was to make appointment on Class III posts including the post of Laboratory Assistant 9 only, but then if the petitioner can still demonstrate that there was a possibility of his being appointed on the post of Laboratory Assistant-cum-Typist despite the director of the University vide letter dated 11.11.1999 (Annexure-A), the authorities will reconsider the issue and decide as to whether the petitioner‟s redesignation on the post of Laboratory Assistant by the impugned order was correct or whether the petitioner would be entitled to be restored on his designation of Laboratory Assistant-cum-Typist. Thus if the petitioner would file a representation enclosing all the relevant documents on which he would like to rely, the Director Administration under the order of the Vice-Chancellor will dispose of such representation within a period of six months from the date of filing of the representation. With the aforementioned observation and direction, this writ application is disposed of. kanchan/- ( Mihir Kumar Jha, J.)