IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15504 of 2006 AKHILESHWAR PRASAD OJHA, son of Late Paras Nath Ojha, resident of mohalla Damuchak, P.S. Kaji Mohammad, Muzaffarpur, District Muzaffarpur. Versus 1. THE STATE OF BIHAR through the Commissioner Cum Secretary, Department of Humarn Resources Development, Government of Bihar, Patna. 2. Baba Saheb Bhimrao Ambedkar (B.R.A.) Bihar University, through the Vice Chancellor, B.R.A. Bihar University, Muzaffarpur. 3. Registrar, B.R.A Bihar University, Muzaffarpur. 4. Finance Officer, B.R.A. Bihar University, Muzaffarpur. with CWJC No.13322 of 2007 RAGHUBANSH NARAYAN SINGH @ Raghubans Narayan Sinha, son of late Banke Bihari Singh, resident of mohalla Damochak, P.S. Kari Mahmadpur, district Muzaffarpur. Versus 1. THE STATE OF BIHAR, through the Commissioner Cum Secretary, Human Resources Development Department, Government of Bihar, Patna. 2. Baba Saheb Bhimrao Ambedkar Bihar University, through the Vice Chancellor, B.R.A. Bihar University, Muzaffarpur. 3. Registrar, B.R.A. Bihar University, Muzaffarpur. ----------- 10 27.09.2010 Heard Mr. Banbari Sharma, learned counsel for the petitioner, Mr. A.B. Sinha, learned counsel for the B.R.A. Bihar University and Mr. Amarnath Deo, learned counsel for the State. Pursuant to the earlier order of this Court Mr. Anjani Kumar Singh, the Principal Secretary, Human Resources Development Department is present before this Court and has filed his explanation. For the reasons mentioned in such explanation, the same is accepted. It is, however, made clear that the order of this Court pertaining to filing of the counter affidavit or specific affidavit in answer to any query should be complied in time so that the authorities are not required to appear before this Court only to justify such delay in filing of their affidavits. This Court hopes and 2 believes that in future there would be no recurrence of a similar embarrassment for the authorities. Coming to the merits of this case, this Court would find that the following prayer of the petitioners in both the writ application, namely, In C.W.J.C. No.15504 of 2006:- “That the present application is for issuance of a writ in the nature of writ of certiorari for quashing the part of the notification dated 16.10.2004 issued under the signature of the Registrar, Respondent no.3 on the basis of the State Government letter issued vide memo no.1972 dated 12.10.2004 by which the petitioner has been redesigned as junior Engineer with effect from 1.1.96 and accordingly his scale has also been fixed in the lower scale of 5500-9000 although the petitioner is appointed to the post of assistant Engineer and he is entitled for the replacement scale of Rs.6500-10500 w.e.f. 1.1.96 which is given to the Assistant Engineer working in the different departments of the State of Bihar and further a writ in the nature of writ of mandamus directing the respondents authority to fix the pay scale of petitioner in the replacement scale of Rs.6500-10500 w.e.f. 1.1.96 as given to the Assistant Engineer working in the State of Bihar and accordingly all the consequential benefits be given to him and further the petitioner be also given the benefit of Assured Career Promotion (ACP) as per the State Government circular as he has already completed 30 years of service but he has not been given the benefit till the date. And/or pass such other order or orders, as your Lordships may deem fit and proper.” In C.W.J.C. No. 13322 of 2007:- “That the present application is for issuance of a writ in the nature of writ of certiorari for quashing the part of the notification dated 16.10.2004 issued under the signature of the Registrar, Respondent no.3 on the basis of the State Government letter issued vide memo no.1972 dated 12.10.2004 by which the post of Assistant Engineer on which the petitioner has been working, has been redesigned as junior Engineer with effect from 1.1.96 3 and accordingly his scale of pay has also been fixed in the lower scale of 5500-9000 although the petitioner was working as Assistant Engineer from 7.6.1977 itself and he is entitled for the replacement scale of Rs.6500-10500 w.e.f. 1.1.96 which is given to the Assistant Engineer working in the different departments of the State of Bihar and further a writ in the nature of writ of mandamus directing the respondents authority to fix the pay scale of petitioner in the replacement scale of Rs.6500-10500 w.e.f. 1.1.96 as given to the Assistant Engineer working in the State of Bihar and accordingly all the consequential benefits be given to him for which he is legally entitled and his pension be also fixed accordingly as he has already been superannuated from service w.e.f. 31.7.2004 and further the petitioner be also given the benefit of Assured Career promotion (ACP) as per the State Government circular as he has already completed 39 years of service but the benefit of ACP has not been given to him till the date. And/or pass such other order or orders, as your Lordships may deem fit and proper.” Contain a legitimate grievance of the petitioners at least with regard to their pay fixation. It is not in doubt that the petitioners were appointed on the substantive post of Assistant Engineer in the University on 20.4.1976 in the pay scale of Rs.325-925 and such pay scale was revised by the State Government by a specific order dated 6th July, 1981 placing the petitioners and others in the pay scale of Rs.510- 1150 w.e.f. 1.4.1976. There is also no dispute that subsequently in terms of revision of pay scale of Rs.510-1150, the pay scale of the petitioners was revised to Rs.1000-1820 and it was only at this stage that as the petitioners had already completed ten years of service, they were given time bound promotion in the next higher pay scale of Rs.1350-2000 as is manifest from the averment made by the petitioners in the writ application and also accepted by the 4 University. The only hitch is that whether the petitioners were given such time bound promotion by order dated 7.12.1989 w.e.f. 20.4.1986 in the pay scale of Rs. 1350-2000 or in the pay scale of Rs.2400-4150/-. It appears that the petitioners' case in this regard in that they were given time bound promotion only in the pay scale of Rs.1350-2000 and therefore if the University also in the supplementary counter affidavit in paragraph 6 has taken a plea of grant of first time bound promotion to the petitioners in the pay scale of Rs.2400-4150 that too w.e.f. 20.4.1986 that may not be strictly in consonance with the Government decision, inasmuch as, next pay scale of Rs.1000-18200 was Rs.1350-2000 and the petitioners time bound promotion therefore if notified w.e.f. 20.4.1986 would not have been either of the pay scale but only in the pay scale of Rs. 1315-2000. In fact, the petitioners also accept this fact. Now this pay scale of the petitioners of Rs.1350-2000 which has to be refixed in the revised pay scale and the State government in the impugned order has shown such pay scale of Rs. 2000-3800 is definitely incorrect, inasmuch as, the revised pay scale of Rs.1000-1820 was Rs.2000-3800 and therefore it appears that from this stage there has been certain gaps between the decision of the University and the pay fixation made by the government in the case of the petitioners. While this Court may not like to go strictly as with regard to the actual entitlement of the petitioners, but then the 5 matter has to be reconsidered by the University and the State Government in the department of Higher Education. It is however made clear that the revised pay of the post of Assistant Engineer on which the petitioners were working with the time bound promotion as on 20.4.1986 in the pay scale of Rs.1350-2000 shall be accordingly fixed and to that extent the government decision in replacement scale of pay of Rs.1350-2000 shall be extended to the petitioners as on 1.4.1986 as was duly notified by the State Government for the post of Assistant Engineer of the University from time to time. At the same time, it is also made clear that the petitioners' post will not be re-designated as Junior Engineer as has been done by the impugned order even when in future there would not be the post of Assistant Engineer. Such post of Assistant Engineer therefore shall continued and kept in existence till the petitioners had remained in the employment of the University. It has to be noted that the two petitioners have already retired from service in the year 2004 and 2008 respectively and therefore pay fixation of the petitioners will have to be made treating them to be in the pay scale of Rs.2400-4150/- only w.e.f. 20.4.1986 and on that basis their present salary will be fixed in the replacement pay scale of Rs.2400-4150 which appears to be Rs.6,500-10,500/- and to that extent the pay fixation made by the authorities in Annexure-3 has to be revised by the authorities of the State Government and the University. 6 This Court however is not going to make any exercise as with regard to further grant of any financial benefit to the petitioners inasmuch as, the relief sought for in these writ applications remain confined to their challenge to Annexure-3, but then it is made clear that nothing said in this order shall also stand in the way of the petitioners in claiming the benefit in the Government Resolution dated 4.9.2010 by which further pay revision has been made with retrospective effect making it applicable in the cases of the petitioners who have retired in the years 2004 and 2008 respectively. Before parting with, this Court would also express its total disapproval in the manner in which the University is passing the incorrect orders while granting the revised pay scale to the employees of the University. It is really shocking to learn that the Vice Chancellor of the University who is supposed to be most qualified person of the University has passed the order for grant of ACP in anticipation of the government approval even when there was no order of the State Government to grant ACP to the employees of the University. Such benefit of service to the University employees could not have been granted unless the government had passed such specific order for grant of A.C.P. also in respect of the University employees. In that view of the matter, the claim of the petitioners for being granted A.C.P. would not to be taken into account till the government takes a conscious decision as with regard to the benefit of A.C.P. also to the 7 employees of the University. That being so, necessary corrections in pay fixation in the impugned order so far it relates to the petitioners and also extending financial benefits as per pay revision order, if any, to them must be extended to them within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions these applications are disposed of. Personal appearance of the Principal Secretary is also dispensed with. Abhay Kumar ( Mihir Kumar Jha, J.)