BIJAY KUMAR SHARMA & ORS. versus RANCHI UNIVERSITY & ORS.

[2021] 7 S.C.R.

BIJAY KUMAR SHARMA & ORS.

RANCHI UNIVERSITY & ORS.

(Civil Appeal No. 2822 of 2012)

MARCH 17, 2021

[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]

Service Law – Merger of pay scales – Permissibility – D.O.letter dated 28.07.1981 of the State Government provided for mergerof pay scales only of Lower Division and Upper Division Assistants/CClerks in the Patna University – The merger was further extendedto other Universities of the erstwhile State of Bihar by letter dated27.01.1982 – Thereafter, communication was issued on 05.10.1989by which the State decided to implement the above-mentionedintegrated pay scale to all the class III employees of the collegesDaffiliated to various Universities of the State – Pursuant thereto,Vice-Chancellor of Ranchi University issued circular to all theaffiliated colleges – Consequently, Principal of college affiliatedto Ranchi University, granted such merger to the appellants subjectto approval of the University by order dated 03.08.1990 – The orderof the principal was reversed by University on 08.03.1995 – WritEpetition challenging order dated 08.03.1995 allowed by the SingleJudge of the High Court – The order of Single Judge of High Courtwas set aside by Division Bench of the High Court – On appeal,held: As per D.O. letter dated 28.07.1981, the category of postssought to be merged were only those which had two or more scalesFof senior and junior incumbents – In the post in question, there isno categorisation of lower division and senior division and theappellants were appointed to sanctioned posts – They were neitherpromoted nor appointed or regularized against the post of LowerDivision and Upper Division Assistants/Clerks – In absence of suchcategories, the letter dated 28.07.1981 would not apply and thereGcannot be mandamus to merge pay scales – However, as regards,the benefit to appellants from 1990 to 1995, the same is not liable tobe recovered.

Dismissing the appeal, the Court

Held: 1. The cause arose from D.O. letter No. 373 dated28.07.1981. In matters which have financial implication so far asthe State or the employees are concerned, there must be rightfor it to be enforced for the employees. This Court is concernedwith merger of scales and if qua the appointments and qua thepost held by the appellants, merger was not to take place, therecannot be mandamus to merge the pay scales. The D.O. itselfstated that only such of the category of posts as of two or morescales of the senior and junior incumbents were sought to bemerged. In the absence of any such categories, there would beno application of this D.O. This is apart from the fact that the payscales were also different from the post held by the appellantswhich are of Typist, Counter Clerk, Routine clerk and StoreKeeper. [Para 17][261-F-H]

2. The denial of the claim by the University is predicated onthe plea that the appellants do not belong to the category of LDClerks/Assistants to the UD Clerks/Assistants in the given payscales. Last three posts in the colleges are of different designationsuch as Headclerk, Accountant, Correspondent Clerk, AccountsClerk, Counter Clerk, Store Keeper etc. which in turn is basedon the number of students in an institution. It is matter of thestaffing pattern for such appointments. In the post in questionthere is no categorization of the post of Lower Division and UpperDivision and these appellants were appointed to sanctioned posts.They were neither promoted nor appointed or regularized againstthe post of Lower Division and Upper Division Assistants/Clerks.[Para 18][262-A-C]

3. The principle of merger of pay scales is to bring uniformityof pattern in grant of pay in pay scales. However, there can beuniformity in respect of the posts for which such uniformity issought to be implemented and not in respect of any other postwhich exists in category III. [Para 19][262-C-D]

4. The communication of the Registrar of the university videletter dated 25.04.1990 only sought w.e.f. to the Govt. letter dated11.07.1989 by communicating it to the constituent colleges. It isin the wisdom of the Principal of the Ranchi Women’s College

Athat she issued letter dated 03.08.1990 but cautiously worded itby stating that if University does not approve the designation inpay scale, they may be reverted in the existing pay scale. Theappellants were paid salaries according to the provisional fixationof pay by the Principal of the College and it is this which did notfind approval from University vide letter dated 09.03.1995 beingBcontrary to the Government letter dated 11.07.1989. [Para20][262-D-F]

5. Unless re-designation of the post takes place, the benefitcannot be available under the G.Os. Such redesignation could nothave taken place without specific sanction of the Vice-ChancellorCof the University and thus the rationale which permeated the orderof the Single Judge of the High Court that no such permission willrequire in view of Section 10(6) of the Bihar Universities Act wouldnot hold water. [Para 21][262-F-G]

6. Lastly turning to the aspect of benefit which is alreadyDaccrued to the appellants from 1990 to 1995, this Court is of theview that persons like the appellants working in category III cannotbe made now to re-pay their benefits after so many years, speciallyand when two of them have even already retired. There was nomisrepresentation on part of the Appellants as to make them refundEthe amount but conditional order passed by the Principal remainedin force on account of large delay on part of the concernedauthorities. Thus, it is made clear that any amounts paid to theappellants under the order of the Principal dated 03.08.1990 or evenunder the order of the Single Judge (if any) will not be sought to berecovered from the appellants. [Para 23][262-G-H; 263-A-C]F

Shyam Babu Verma and Ors. v. Union of India and Ors.(1994) 2 SCC 521: [1994] 1 SCR 700; Sahib Ram v. Stateof Haryana and Ors. (1995) Supp (1) SCC 18: [1994] Suppl.(3) SCR 674; State of Punjab and Ors. v. Rafiq Masih(2014) 8 SCC 883: [2014] 8 SCR 228 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2822 of

From the Judgment and Order dated 26.11.2010 of the High Courtof Judicature at Ranchi in L.P.A. No.576 of 2003.

Ashwarya Sinha, Ambhoj Kumar Sinha, Advs. for the Appellants.

Gopal Prasad, Shalya Agarwal, Advs. for the Respondents.

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

1. An endeavour made by the Respondent-State to give uniformpay scales to Upper Division and Lower Division Assistants/Clerks workingin the University in the then State of Bihar has given rise to this prolongedlitigation which began in the year, 1998.

2. The Government issued letter No. 373 dated 28.07.1981providing for merger of pay scales only of Lower Division Assistants/Clerks with the pay scale of Upper Division Assistants/Clerks staff ofPatna University. Since this is the basic document from which the disputearises, it would be appropriate to reproduce this letter as under:

“Sri K.N Aradhanareeswaran

Education Commissioner

Bihar, Patna

Dated 28th July, 1981

D.O Letter No. 373©

Kindly refer to your letter dated 27 July 1981 in connection withthe sanction of merger scale to lower division and upper divisionassistants 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 withpay fixation benefits in accordance with F.D. letter No. 4144 dated16.3.1977.

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

Athere for that category of post.

As such, in conformity with the Government policy in this regard,only such category of posts assistants as have junior scale ofRs.260–408/– and senior scale of Rs. 348–570/-or junior scaleof 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 categoryof post which is in the scale of Rs. 260–408/–, Rs.296–460/–, Rs.340–490/– without there being senior scale of Rs. 348–570/– forsuch post from before.

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

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

Sd/– K.N. Aradhanareeswaran

28.7.81”

3. bare reading of the aforesaid letter would show that someclarifications were sought in respect of this merger issue and the letterdated 28.07.1981 gave absolute and clear elucidation to the effect thatthe sanction was only for :

a) Such categories of posts as have two or more scales for seniorand junior incumbents;

b) It is not that any category of post which has similar scales thathave been merged with the higher scale but upgraded to the same even ifthe higher scale is not there for that category of post;

c) It is applicable only to such category of posts assistants ashaving 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/-. Thescale of Rs. 348-570/- cannot be given to any other category of postwhich is in the scale of Rs. 206-408/-, Rs. 296-460/-, Rs. 340-490/- withoutthere being senior scale of Rs. 348-570/- for such post from before;

d) The merger of the Lower Division and Upper Division scales isonly for four Secretariats and attached offices. It has not been allowedfor employees of the field offices and thus cannot be made applicable tothe assistants in the constituent colleges,

e) Any revision in the scales would be possible only after publicationof the Fourth Pay Revision Committee report and in its acceptance bythe Government.

4. On the basis of these clarifications, the mergers to variouscategories of Assistants were granted w.e.f. 01.07.1989 with their payfixation 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 FinanceDepartment concurred with the proposal.

5. On 27.01.1982, the Joint Secretary to the State of Bihar issueda communication to all the Registrars of the Universities qua the issue ofintegration of granted pay scales corresponding to lower category andhigher category ministerial employees of those universities. Thecommunication reads as under:

“Under directions given to me, in continuation of the facts ofLetter 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 semi government letter of theDirector of Education corresponding to the integration of pay scalesof the lower cadre and higher cadre employees of the universityof Patna, has now through this order has been made applicable toemployees of the those categories employed in other universitieswithin 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 theCommissioner of Finance, Bihar, Patna in continuation of MemoNo. 373 (C) dated 28.7.1981 of the Department of Education forBdue information.

Sd/-(illegible)

Ramachandra Prasad Varma

Joint Secretary to the State Govt.

Bihar

O/W No. 91 dated 27th January 1982

Copy order copy No. 373 dated 28.7.1981 sent to the Directorof Higher Education, Bihar, Patna/Financial Advisor, Directors ofHigher 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 ofFthe communication dated 28.07.1981, extracted aforesaid.

7. It is the case of the appellants that thereafter communicationwas issued on 05.10.1989 by the Principal Secretary-cum-Commissioner,Department of Human Resources Development, Government of BiharGto the Registrars of all Universities regarding the same subject matter,which reads as under:

“ I am hereby directed to inform you regarding the aforesaidmatter that according to the agreement reached on 26.4.1989 withthe Bihar State University and College Employees Union, that onthe basis of approvals made in State Govt’s letter No. 942 dated

17.8.1985 and Letter No. 156 dated 19.8.1985 respectively, aGovernment order will be released/issued shortly.

2. After due introspection of the decisions taken on the basis ofthe said G.Os regarding paragraph 1(c) of the said G.O. 156 dated19.8.1985, whose particulars are given below, no G.O. could be issued onthe said issue matter:

“In the demand No. 3 among the various demands put up bythe union, it has been requested that the merger pay scales in thecase of all III Grade employees of the universities be made applicablefrom the year 1977 itself as it has already been existing and effectedin the case of the Secretariat Employees and lower grade and uppergrade assets/clerks of the Zonal Officers. It has also been decidedin this regard that under any circumstances, no arrear paymentswill be made or will be admissible.”

3. It’s remarkable here that all the assistants belonging to highergrade and lower grad employed in all the universities of the state has beenintegrated for the purpose of deciding their revised unified pay scales andin this case the pay scales of ministerial employees of third grade will bemade as applicable to them too as mentioned in Departmental letter No.91 dated 27.1.1982 and has been made applicable with effect from01.07.1981 and thereafter vide Departmental Letter No. 562 dated15.4.1985, the unified pay scales have also been implemented in the caseof colleges affiliated to University of Patna too.

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

5. Information and directions in this regard has already been issuedto 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 theappellants on the ground that para 3 specifies that all Assistants belongingto higher and lower grade employee in the University to the State hadBbeen integrated for the purpose of deciding their revised unified pay scales.

9. In pursuance of the aforesaid communication dated 05.10.1989,the Vice Chancellor of Ranchi University issued circular to all the affiliatedcolleges 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 ResourcesDevelopment (HRD), Government of Bihar, the integrated payscale of RS. 785-1210/- applicable to all lower category and HigherCategory Assistant/Clerks of University of Ranchi and all itsaffiliated colleges will be effective from date 01.07.1981, but stillthe actual payment of salary on said basis will be made on 1stFebruary 1990. But at this time arrear amount will not be paid.

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

By the order of the respectedVice 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’sCollege, Ranchi consequently issued an order dated 03.08.1990 in theGfollowing terms in which the names of the appellants were included :

“The following person are designated Office Assistant andplaced in the pay scale….. against…..subject to approval of theRanchi University. If the University does not approve theirdesignation and pay scale, they may be reverted in the existing pay

scale. These entire seniority will be also accepted as per decisionof the Ranchi University.

A26. Sri Rammohan Singh

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

11. It appears that the appellants continued to enjoy the benefit ofthese revised pay scales till the aforesaid decision dated 03.08.1990 wasreversed on 08.03.1995. In this context, we may note that the appellantsbefore us fell in the category of typist, counter clerk, routine clerk andstore keeper.C

12. It is the aforesaid decision dated 08.03.1995 which was assailedby the appellants by filing writ petition bearing No. 1266 of 1998 beforethe Patna High Court. The writ petition was allowed by the learned SingleJudge vide judgment dated 10.07.2003. The reasoning of the learnedSingle Judge was predicated on the fact that though the order issued byDthe Principal of the College was provisional order of reservation subjectto the approval of Ranchi University, and even though the power vestedwith the Vice Chancellor to make appointment to post in view of Section10(6) of the Bihar State Universities Act, the Principal had authority toissue the communication dated 03.08.1990 as the appointments or creationof any uniform cadre was not suo moto action but arose out of theEdirectives of the University dated 25.04.1990. The learned Judge alsonoticed that another learned Single judge of that Court had passed anorder in Writ Petition No. 3585 of 1995 dated 02.07.1996 which had notbeen assailed and had been implemented and thus the acceptance of thatorder would give rise to plea of parity by the appellants.F13. The judgment of the learned Single Judge was assailed before

F13. The judgment of the learned Single Judge was assailed beforethe Division Bench by the Ranchi University vide LPA No. 576 of 2003,which was allowed on 26.11.2010. The reasoning contained in the saidorder which has been impugned before us is that the State Governmenthad only allowed merger of pay scales of Upper Division Assistants andLower Division Assistants/Clerks in the manner as set out in DO letterGNo. 373 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 whichthe appellants were appointed was noted by the court; to opine that eventhe pay scales of these appellants were different from the scales ofHUpper Division and Lower Division Assistants/Clerks. The University

was competent not to approve the re-designation and fixation of paymade and the order issued by the Principal itself made it subject to approvalof the University.

14. The Division Bench rejected the plea of any vested rights infavour of the appellants as the re-designation was subject to approval ofthe competent authority which would be the Vice Chancellor. Insofar asthe aspect of the other writ petitions was concerned, it was noted that theplea of the University was that they were working as cashiers equivalentto the Accountants and had been given the benefit of the said pay scaleand in any case if any mistake had been committed, that cannot give aright of parity. The plea of principle of natural justice was also rejected asthe grant of the scale itself was subject to the orders of the competentauthority which had not been forthcoming.15. We have heard learned counsel for the appellants and learnedcounsel appearing for respondent Nos. 1 to 4 who have taken us to thepleadings. Learned counsel for respondent Nos. 1 to 4 submits that thoughhe had filed counter affidavit on behalf of respondents No 5 the State ofJharkhand and respondent No. 6 but no one represents them. We mayonly note that it was for the State to have made arrangements to put forthits position which they have failed to do. Be that as it may, we have hadthe benefit of the stand of the State Government as reflected in the counteraffidavit.

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

17. The rationale for saying so is that the cause arose from DOletter No. 373 dated 28.07.1981. We have already extracted the terms onwhich it was made applicable which are expressive in its turn. In matterswhich have financial implication so far as the State or the employees areconcerned, there must be right for it to be enforced for the employees.We are concerned with merger of scales and if qua the appointments andqua the post held by the appellants, merger was not to take place, therecannot be mandamus to merge the pay scales. We may also notice theimportant aspect that the DO itself stated that only such of the categoryof posts as of two or more scales of the senior and junior incumbentswere sought to be merged. In the absence of any such categories, therewould be no application of this DO. This is apart from the fact that thepay scales were also different from the post held by the appellants whichare of Typist, Counter Clerk, Routine clerk and Store Keeper.

A18. The denial of the claim by the University is predicated on theplea that the appellants do not belong to the category of LD Clerks/Assistants to the UD Clerks/Assistants in the given pay scales. Lastthree posts in the colleges are of different designation such as Headclerk,Accountant, Correspondent Clerk, Accounts Clerk, Counter Clerk, StoreKeeper etc. which in turn is based on the number of students in anBinstitution. It is matter of the staffing pattern for such appointments. Inthe post in question there is no categorization of the post of Lower Divisionand Upper Division and these appellants were appointed to sanctionedposts. They were neither promoted nor appointed or regularized againstthe post of Lower Division and Upper Division Assistants/Clerks.C

19. The principle of merger of pay scales is to bring uniformity ofpattern in grant of pay in pay scales. However, there can be uniformity inrespect of the posts for which such uniformity is sought to be implementedand not in respect of any other post which exists in category III.

20. The communication of the Registrar of the university vide letterDdated 25.04.1990 only sought w.e.f. to the Govt. letter dated 11.07.1989by communicating it to the constituent colleges. It is in the wisdom of thePrincipal of the Ranchi Women’s College that she issued letter dated03.08.1990 but cautiously worded it by stating that if University does notapprove the designation in pay scale, they may be reverted in the existingEpay scale. The appellants were paid salaries according to the provisionalfixation of pay by the Principal of the College and it is this which did notfind approval from University vide letter dated 09.03.1995 being contraryto the Government letter dated 11.07.1989.

21. On our query learned counsel for the appellants fairly statedFthat unless re-designation of the post takes place, the benefit cannot beavailable under the GOs. Such re-designation could not have taken placewithout specific sanction of the Vice Chancellor of the University andthus the rationale which permeated the order of the learned Single Judgethat no such permission will require in view of Section 10(6) of the BiharUniversities Act would not hold water.G

22. We are thus of the view that the impugned order cannot befaulted with for the aforesaid reasons.

23. Lastly turning to the aspect of benefit which is already accruedto the appellants from 1990 to 1995, we are of the view that if the concernedauthorities take 5 years to decide the issue, persons like the appellantsH

working in category III cannot be made now to re-pay their benefitsafter so many years, specially and when two of them have even alreadyretired. There was no misrepresentation on part of the Appellants as tomake them refund the amount but conditional order passed by thePrincipal remained in force on account of large delay on part of theconcerned authorities. We thus make it clear that any amounts paid tothe appellants under the order of the Principal dated 03.08.1990 or evenunder the order of the learned Single Judge (if any) will not be sought tobe recovered from the appellants. We are following the course of actionas adopted in Shyam Babu Verma and Ors. v. Union of India andOrs. (1994) 2 SCC 521 (para 11) and Sahib Ram v. State of Haryanaand Ors. (1995) Supp (1) SCC 18 (para 5); and as clarified in State ofPunjab and Ors. v. Rafiq Masih (2014) 8 SCC 883 (para 8), in exerciseof the jurisdiction of this Court under Article 142 of the Constitution.

24. The appeal is dismissed in aforesaid terms leaving the partiesto bear their own costs.

Ankit Gyan

Appeal dismissed.