Bijay Kumar Sharma vs Ranchi University

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2822 OF 2012

BIJAY KUMAR SHARMA & ORS. Appellant(s)

VERSUS

RANCHI UNIVERSITY & ORS. Respondent(s)

J U D G M E N T

SANJAY KISHAN KAUL,J.

1. An endeavour made by the Respondent-State to give

uniform pay scales to Upper Division and Lower Division

Assistants/Clerks working in the University in the then

State of Bihar has given rise to this prolonged litigation

which began in the year, 1998.

2. The Government issued a letter No. 373 dated 28.07.1981

providing for a merger of pay scales only of Lower Division

Assistants/Clerks with the pay scale of Upper Division

Assistants/Clerks staff of Patna University. Since this is the

basic document from which the dispute arises, it would be

appropriate to reproduce this letter as under:

“Sri K.N Aradhanareeswaran Education Commissioner Bihar, Patna Signature Not Verified Digitally signed by Anita Malhotra Date: 2021.03.24 Dated 28th July, 1981 18:52:49 IST Reason:

D.O Letter No. 373©

Kindly refer to your letter dated 27 July 1981 2

in connection with the sanction of merger scale to lower division and upper division assistants in your University and sanction of senior scale (Rs. 348–570) to all the categories of posts in the scale of Rs.260–408/–, 296–460/– and Rs.340–490/– with effect from 1.3.1977 along with pay fixation benefits in accordance with F.D. letter No. 4144 dated 16.3.1977.

You are aware that Government have sanctioned merger scale to only such categories of post as have two or more scales for the senior and junior incumbents. It is not that any category of Post which has a particular scales that has been merged with a higher scale got upgraded to the same even if the higher scale is not there for that category of post.

As such, in conformity with the Government policy in this regard, only such category of posts assistants as have a junior scale of Rs.260–408/– and senior scale of Rs. 348–570/-or a junior scale of Rs. 296 –460/ – or Rs. 340–490/– and senior scale of Rs. 348/– 570/– can alone be merged with the scale of Rs. 348–570/–. The scale of Rs. 348– 570/– cannot be given to any other category of post which is in the scale of Rs. 260–408/–, Rs.296– 460/–, Rs. 340–490/– without there being a senior scale of Rs. 348–570/– for such post from before.

I may further point out that Government have merged L.D (Rs. 260–408/–) and U.D. (Rs.348–570/–) scales only four Secretariat and attached offices. This kind of merger has not been allowed for employees of the field offices. In line with the same, this kind, merger cannot be made applicable to the assistants in the constituent colleges. Any revision in their scales shall be possible only after the publication of the Fourth Pay Revision Committee report and in its acceptance by the Government.

The merger scale to the various categories of assistants may be granted subject to the condition of aforesaid with effect from 1st July 1989. Their pay fixation may be made in pursuance of F.D. letter No. 4144 dated 16.3.1977 subject to the condition that no arrear shall be paid until the Finance Department have concurred in the proposal.

Sd/– K.N. Aradhanareeswaran 28.7.81” 3

3. A bare reading of the aforesaid letter would show

that some clarifications were sought in respect of this merger

issue and the letter dated 28.07.1981 gave absolute and clear

elucidation to the effect that the sanction was only for :

a) Such categories of posts as have two or more scales for

senior and junior incumbents;

b) It is not that any category of post which has similar

scales that have been merged with the higher scale but upgraded

to the same even if the higher scale is not there for that

category of post;

c) It is applicable only to such category of posts

assistants as having a junior scale of Rs. 260-408/- and senior

scale of Rs. 348-570/- or junior scale of Rs. 296-460/- or Rs.

340-490/- and senior scale of Rs. 348-570/- can alone be merged

with the scale of Rs. 348-570/-. The scale of Rs. 348-570/-

cannot be given to any other category of post which is in the

scale of Rs. 206-408/-, Rs. 296-460/-, Rs. 340-490/- without

there being a senior scale of Rs. 348-570/- for such post from

before;

d) The merger of the Lower Division and Upper Division

scales is only for four Secretariats and attached offices. It

has not been allowed for employees of the field offices and

thus cannot be made applicable to the assistants in the

constituent colleges,

e) Any revision in the scales would be possible only after

publication of the Fourth Pay Revision Committee report and in

its acceptance by the Government.

4

4. On the basis of these clarifications, the mergers to

various categories of Assistants were granted w.e.f. 01.07.1989

with their pay fixation being made in pursuance to F.D. letter

No. 4144 dated 16.03.1977, subject to the condition that no

arrear shall be paid until the Finance Department concurred

with the proposal.

5. On 27.01.1982, the Joint Secretary to the State of Bihar

issued a communication to all the Registrars of the

Universities qua the issue of integration of granted pay scales

corresponding to lower category and higher category ministerial

employees of those universities. The communication reads as

under:

“Under directions given to me, in continuation of the facts of Letter No. 1217 of the Department of Education dated 29.9.1980, this is to hereby inform you that already an order vide Letter No. 373 (C) dated 26.7.1981 which is a semi government letter of the Director of Education corresponding to the integration of pay scales of the lower cadre and higher cadre employees of the university of Patna, has now through this order has been made applicable to employees of the those categories employed in other universities within the State of Bihar.

Bihar acknowledge the receipt of this letter.

Yours faithfully, Sd/- (illegible) Ramachandra Prasad Varma Joint Secretary to the State Govt.

Bihar

O/W No. 91 Patna dated 27th January 1982. Copy to the Commissioner of Finance, Bihar, Patna in continuation of Memo No. 373 (C) dated 28.7.1981 of the Department of Education for due information.

Sd/-(illegible) Ramachandra Prasad Varma Joint Secretary to the State Govt.

Bihar th O/W No. 91 dated 27 January 1982 5

Copy order copy No. 373 dated 28.7.1981 sent to the Director of Higher Education, Bihar, Patna/Financial Advisor, Directors of Higher Education of all Universities (Higher Education Bihar/Accounts officer in charge, education Department/Section- officer-in-charge: 14x15’s all assisted for necessary proceedings.

Sd/-(illegible) Ramachandra Prasad Varma Joint Secretary to the State Govt.

Bihar”

6. The aforesaid communication shows that it is in the

context of the communication dated 28.07.1981, extracted

aforesaid.

7. It is the case of the appellants that thereafter a

communication was issued on 05.10.1989 by the Principal

Secretary-cum-Commissioner, Department of Human Resources

Development, Government of Bihar to the Registrars of all

Universities regarding the same subject matter, which reads as

under:

“ I am hereby directed to inform you regarding the aforesaid matter that according to the agreement reached on 26.4.1989 with the Bihar State University and College Employees Union, that on the basis of approvals made in State Govt’s letter No. 942 dated 17.8.1985 and Letter No. 156 dated 19.8.1985 respectively, a Government order will be released/issued shortly.

2. After due introspection of the decisions taken on the basis of the said G.Os regarding paragraph 1(c) of the said G.O. 156 dated 19.8.1985, whose particulars are given below, no G.O. could be issued on the said issue matter:

“In the demand No. 3 among the various demands put up by the union, it has been requested that the merger pay scales in the case of all III Grade employees of the universities be made applicable from the year 1977 itself as it has already been existing and effected in the case of the Secretariat Employees and lower grade and upper grade assets/clerks of the Zonal Officers. It has also 6

been decided in this regard that under any circumstances, no arrear payments will be made or will be admissible.”

3. It’s remarkable here that all the assistants belonging to higher grade and lower grad employed in all the universities of the state has been integrated for the purpose of deciding their revised unified pay scales and in this case the pay scales of ministerial employees of third grade will be made as applicable to them too as mentioned in Departmental letter No. 91 dated 27.1.1982 and has been made applicable with effect from 01.07.1981 and thereafter vide Departmental Letter No. 562 dated 15.4.1985, the unified pay scales have also been implemented in the case of colleges affiliated to University of Patna too.

4. Thus all the aspects related to this matter were duly taken into consideration and only thereafter the State Government has decided to implement the aforesaid integrated pay scale to all Class-III, Upper Grade and Lower graded Assts/clerks working in the colleges affiliated to various universities within the state except the said class employees of University of Patna, but as a result of the above, no arrear will be liable to be paid.

5. Information and directions in this regard has already been issued to the Director (higher Education), Bihar.

Yours faithfully,

Sd/-(illegible) B.B. Sahai Principal Secretary-cum-Commissioner Department of Human Resources Development, Bihar, Patna”

8. It is this letter which has been forcefully relied upon

by the appellants on the ground that para 3 specifies that all

Assistants belonging to higher and lower grade employee in the

University to the State had been integrated for the purpose of

deciding their revised unified pay scales. 7

9. In pursuance of the aforesaid communication dated

05.10.1989, the Vice Chancellor of Ranchi University issued a

circular to all the affiliated colleges in terms as under :

“In the perspective of Letter No. 14/M/1-0-0228/791/Sec/1173 dated 5.10.1989 of the Department of Human Resources Development (HRD), Government of Bihar, the integrated pay scale of RS. 785-1210/- applicable to all lower category and Higher Category Assistant/Clerks of University of Ranchi and all its affiliated colleges will be effective from date 01.07.1981, but still the actual payment of salary on said basis will be made on 1st February 1990. But at this time arrear amount will not be paid.

Hence the concerned Principles are hereby directed requestfully to send their payment fixation proforma accordingly within 15-5-90 for due approval.

By the order of the respected Vice Chancellor Sd/- of M.Uraon (Registrar) University of Ranchi, Ranchi Memo: RU./BC. 4120-21”

10. It is the say of the appellants that the Principal,

Ranchi Women’s College, Ranchi consequently issued an order

dated 03.08.1990 in the following terms in which the names of

the appellants were included :

“The following person are designated Office Assistant and placed in the pay scale….. against…..subject to approval of the Ranchi University. If the University does not approve their designation and pay scale, they may be reverted in the existing pay scale. These entire seniority will be also accepted as per decision of the Ranchi University.

8 Name w.e.f. Pay Scale

1. Sri Bhola Paswan 1.7.81 Rs.785-1210

2. Sri Chunu Mahto 1.7.81 -do- 3. Sri Rajendra Mahto 1.7.81 -do- 4. Sri Lalan Pd.Singh 1.7.81 -do- 5. Sri Surajdeo Singh 1.7.81 -do- 6.Sri Shrutidhar Pandey 1.7.81 -do- 7. Sri Ramsudra Sahu 1.7.81 -do- 8. Sri Ashok Kr. Pandey 1.7.81 -do- 9. Sri Kamla Kant Jha 1.7.81 -do- 10. Sri Laloo Lakra 1.7.81 -do- 11. Sri Rajendra Oraon 1.7.81 -do-

12. Sri Kanhai Sahu 1.7.81 -do- 13. Sri Ramakant Sharma 1.7.81 -do- 14. Sri P.S. Bakla 1.7.81 -do- 15.Sri Chandradeo Pd. Rai 1.7.81 -do- 16. Sri Devi Ram Toppo 1.7.81 -do- 17. Miss Laxmi Lakra 785-1210 18. Sri Prabhat Kr. Lal -do- 19. Sri Uma Shankar Singh 730-1080 20. Sri Rameshwar Singh -do- 21. Sri Nanku Sahu -do- 22. Sri M.R. Kalindi -do- 23. Sri Vijay Kr. Sharma 785-1210 24. Sri Budhram Toppo 730-1080 25. Sri Naresh Kr. Singh 785-1210 26. Sri Rammohan Singh 785-1210 27. Sri Vivek Chandra 785-1210

No arrear shall be paid prior to the date of this notification. Payment to Sl.No. 17 to 27 on……..will be made w.e.f. the salary of July 90, will be as per Rule dt.1.1.86.”

11. It appears that the appellants continued to enjoy the

benefit of these revised pay scales till the aforesaid decision

dated 03.08.1990 was reversed on 08.03.1995. In this context,

we may note that the appellants before us fell in the category

of typist, counter clerk, routine clerk and store keeper. 9

12. It is the aforesaid decision dated 08.03.1995 which was

assailed by the appellants by filing a writ petition bearing

No. 1266 of 1998 before the Patna High Court. The writ

petition was allowed by the learned Single Judge vide judgment

dated 10.07.2003. The reasoning of the learned Single Judge

was predicated on the fact that though the order issued by the

Principal of the College was a provisional order of reservation

subject to the approval of Ranchi University, and even though

the power vested with the Vice Chancellor to make appointment

to post in view of Section 10(6) of the Bihar State

Universities Act, the Principal had authority to issue the

communication dated 03.08.1990 as the appointments or creation

of any uniform cadre was not a suo moto action but arose out of

the directives of the University dated 25.04.1990. The learned

Judge also noticed that another learned Single judge of that

Court had passed an order in Writ Petition No. 3585 of 1995

dated 02.07.1996 which had not been assailed and had been

implemented and thus the acceptance of that order would give

rise to a plea of parity by the appellants.

13. The judgment of the learned Single Judge was assailed

before the Division Bench by the Ranchi University vide LPA No.

576 of 2003, which was allowed on 26.11.2010. The reasoning

contained in the said order which has been impugned before us

is that the State Government had only allowed merger of pay

scales of Upper Division Assistants and Lower Division

Assistants/Clerks in the manner as set out in DO letter No. 373 10

dated 28.07.1981 and the Principal was not competent to re-

designate or grant pay scales on new posts under the

Universities Act, though the Vice Chancellor was competent to

do so. The posts to which the appellants were appointed was

noted by the court; to opine that even the pay scales of these

appellants were different from the scales of Upper Division and

Lower Division Assistants/Clerks. The University was competent

not to approve the re-designation and fixation of pay made and

the order issued by the Principal itself made it subject to

approval of the University.

14. The Division Bench rejected the plea of any vested rights

in favour of the appellants as the re-designation was subject

to approval of the competent authority which would be the Vice

Chancellor. Insofar as the aspect of the other writ petitions

was concerned, it was noted that the plea of the University

was that they were working as cashiers equivalent to the

Accountants and had been given the benefit of the said pay

scale and in any case if any mistake had been committed, that

cannot give a right of parity. The plea of principle of

natural justice was also rejected as the grant of the scale

itself was subject to the orders of the competent authority

which had not been forthcoming.

15. We have heard learned counsel for the appellants and

learned counsel appearing for respondent Nos. 1 to 4 who have

taken us to the pleadings. Learned counsel for respondent Nos. 11

1 to 4 submits that though he had filed counter affidavit on

behalf of respondents No 5 the State of Jharkhand and

respondent No. 6 but no one represents them. We may only note

that it was for the State to have made arrangements to put

forth its position which they have failed to do. Be that as it

may, we have had the benefit of the stand of the State

Government as reflected in the counter affidavit.

16. We are of the view that the impugned judgment cannot be

faulted.

17. The rationale for saying so is that the cause arose from

DO letter No. 373 dated 28.07.1981. We have already extracted

the terms on which it was made applicable which are expressive

in its turn. In matters which have financial implication so

far as the State or the employees are concerned, there must be

a right for it to be enforced for the employees. We are

concerned with merger of scales and if qua the appointments and

qua the post held by the appellants, a merger was not to take

place, there cannot be a mandamus to merge the pay scales. We

may also notice the important aspect that the DO itself stated

that only such of the category of posts as of two or more

scales of the senior and junior incumbents were sought to be

merged. In the absence of any such categories, there would be

no application of this DO. This is apart from the fact that

the pay scales were also different from the post held by the

appellants which are of Typist, Counter Clerk, Routine clerk 12

and Store Keeper.

18. The denial of the claim by the University is predicated

on the plea that the appellants do not belong to the category

of LD Clerks/Assistants to the UD Clerks/Assistants in the

given pay scales. Last three posts in the colleges are of

different designation such as Headclerk, Accountant,

Correspondent Clerk, Accounts Clerk, Counter Clerk, Store

Keeper etc. which in turn is based on the number of students

in an institution. It is a matter of the staffing pattern for

such appointments. In the post in question there is no

categorization of the post of Lower Division and Upper Division

and these appellants were appointed to sanctioned posts. They

were neither promoted nor appointed or regularized against the

post of Lower Division and Upper Division Assistants/Clerks.

19. The principle of merger of pay scales is to bring

uniformity of pattern in grant of pay in pay scales. However,

there can be uniformity in respect of the posts for which such

uniformity is sought to be implemented and not in respect of

any other post which exists in category III.

20. The communication of the Registrar of the university

vide letter dated 25.04.1990 only sought w.e.f. to the Govt.

letter dated 11.07.1989 by communicating it to the constituent

colleges. It is in the wisdom of the Principal of the Ranchi

Women’s College that she issued letter dated 03.08.1990 but 13

cautiously worded it by stating that if University does not

approve the designation in pay scale, they may be reverted in

the existing pay scale. The appellants were paid salaries

according to the provisional fixation of pay by the Principal

of the College and it is this which did not find approval from

University vide letter dated 09.03.1995 being contrary to the

Government letter dated 11.07.1989.

21. On our query learned counsel for the appellants fairly

stated that unless a re-designation of the post takes place,

the benefit cannot be available under the GOs. Such re-

designation could not have taken place without a specific

sanction of the Vice Chancellor of the University and thus the

rationale which permeated the order of the learned Single Judge

that no such permission will require in view of Section 10(6)

of the Bihar Universities Act would not hold water.

22. We are thus of the view that the impugned order cannot be

faulted with for the aforesaid reasons.

23. Lastly turning to the aspect of benefit which is

already accrued to the appellants from 1990 to 1995, we are of

the view that if the concerned authorities take 5 years to

decide the issue, persons like the appellants working in

category III cannot be made now to re-pay their benefits after

so many years, specially and when two of them have even

already retired. There was no misrepresentation on part of the 14

Appellants as to make them refund the amount but a conditional

order passed by the Principal remained in force on account of a

large delay on part of the concerned authorities. We thus make

it clear that any amounts paid to the appellants under the

order of the Principal dated 03.08.1990 or even under the

order of the learned Single Judge (if any) will not be sought

to be recovered from the appellants. We are following the

course of action as adopted in Shyam Babu Verma and Ors. v.

Union of India and Ors. (1994) 2 SCC 521 (para 11) and Sahib

Ram v. State of Haryana and Ors. (1995) Supp (1) SCC 18 (para

5); and as clarified in State of Punjab and Ors. v. Rafiq Masih

(2014) 8 SCC 883 (para 8), in exercise of the jurisdiction of

this Court under Article 142 of the Constitution.

24. The appeal is dismissed in aforesaid terms leaving the

parties to bear their own costs.

……………..……………………….J. [SANJAY KISHAN KAUL]

………...…………………………..J. [R. SUBHASH REDDY]

NEW DELHI;

MARCH 17, 2021.

15

ITEM NO.105 COURT NO.9 SECTION XVII

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 2822/2012

BIJAY KUMAR SHARMA & ORS. Appellant(s)

VERSUS

RANCHI UNIVERSITY & ORS. Respondent(s)

Date : 17-03-2021 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE R. SUBHASH REDDY

For Appellant(s) Mr. Ashwarya Sinha, Adv.

Mr. Ambhoj Kumar Sinha, AOR

For Respondent(s) Mr. Gopal Prasad, AOR Mr. Shalya Agarwal, Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is dismissed in the terms of the reportable judgment leaving the parties to bear their own costs.

[CHARANJEET KAUR] [POONAM VAID] ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

[ Signed reportable judgment is placed on the file ]