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2000 DIGILAW 745 (PAT)

Dudhnath Tiwari v. Jai Prakash University

2000-05-25

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. Prayer in the writ petition is to direct the Respondents to pay a sum of Rs. 1,84,683.80 paise on account of difference of salary according to new Central Pay Scale from 1.1.1986 to 31.7.1996, which is the date of superannuation of the petitioner. Further prayer is to direct the Respondents to pay a sum of Rs. 25,141.60 being 20% from 10.2.1992 for his working as Accountant in addition to his own work; a sum of Rs. 39,319/- as difference of gratuity money and Rs. 25,490/- as difference of leave salary which were paid in old scale without adding 20% Dearness Allowance and Rs. 10,387/- as difference of Group Insurance in the new scheme with effect from 1.12.1985 and the Provident Fund without deducting the management share which were not deposited from August, 1974 to April, 1976. 2. In short, the relevant facts are that on 18.5.1982 the petitioner joined as Assistant in Accounts Section of Jagdam College, Chapra (Saran), which became constituent unit of Bihar University from 1.4.1975. J.P. University came into existence on 20.11.1990 and started its actual independent functioning from November, 1992 and all Colleges of Saran, Siwan and Gopalganj districts including Jagdam College, Chapra were included under the jurisdiction and control of the said University. It is claimed that on the death of Chief Accountant, Late Kusheshwar Nath Singh on 22.11.1986 one Farooqu Ansari, Assistant Accountant started functioning as Accountant of the College. Later after his death on 10.2.1992, petitioner started discharging the said function from 11.2.1992 in addition to his own work as Senior Upper Division Assistant. On account of his additional duty the petitioner filed representation for sanction of 20% extra allowance as per clause 26 (b) of the Chapter XV-A of the University statutes. However, he was not paid the said allowance and the petitioner superannuated from the University service on 31.7.1996 as already mentioned above. His grievance is that due to indifferent attitude of the Respondents, petitioner has been kept deprived of his aforementioned legal dues amounting to Rs. 3,03,346.84 paise now for almost four years. 3. In view of the ailment of his wife, petitioner filed I.A. No. 11501 of 1998 seeking direction to the Respondents to pay him the admitted dues. His grievance is that due to indifferent attitude of the Respondents, petitioner has been kept deprived of his aforementioned legal dues amounting to Rs. 3,03,346.84 paise now for almost four years. 3. In view of the ailment of his wife, petitioner filed I.A. No. 11501 of 1998 seeking direction to the Respondents to pay him the admitted dues. This Court on consideration of his said application vide order dated 9.10.1998 directed the University to examine his claim afresh on his filing the same before it and dispose it of by a reasoned order and pay the admitted dues within two weeks. He filed another I.A. No. 14077 of 1998 for the same relief and the same was directed to be considered at the time of admission. 4. A counter affidavit was filed on behalf of Respondent nos. 1 & 2 to which copy of the order dated 14.12.1998 passed by the Vice Chancellor has been annexed as Annexure-A disposing of the claim of the petitioner. In the said order, it is stated that no Central Pay scale has been introduced in the University for non- teaching employees during the period in question, as such, his prayer for payment in the central pay scale is rejected. It is further stated that the State Government has implemented the revised scales of pay for various categories of non-teaching employees of the University in the State of Bihar, and those scales were to be implemented notionally from 1st January, 1986 and actual payments were to be made from 1st March, 1989. The Syndicate of J. P. University in its meeting held on 28.6.1998 took a decision to implement the said revised scale of pay of non-teaching employees of its 21 constituent colleges from the month of June, 1998 and payment of arrears for the period 1.8.1989 to May, 1998 was decided to be made only on receipt of the non-recurring grant for the purpose from the State Government. As such, his claim in that regard was disposed of by saying that the same can be settled and cleared on receipt of the grant for which the Government has already been moved. As such, his claim in that regard was disposed of by saying that the same can be settled and cleared on receipt of the grant for which the Government has already been moved. With respect to the balance money in Provident Fund Account, it is stated that the Principal of the College had not sent the said P.F. amount to the University against the employers share to his P.F. account for the period 1974 to 1973, as such the same was not deposited. Accordingly he ordered that the Principal be requested to make over the balance to the University along with the employers share for the period in question, and the rest might be cleared and payment made to the petitioner. As regards 20% extra remuneration for his officiation to the post of Accountant in addition to his own duties, he rejected the said claim in absence of any such order of the Vice- Chancellor, who is appointing authority of non-teaching employees. On 6.7.1999 the petitioner filed reply to the said counter affidavit. 5. This Court admitted the writ petition for hearing. A supplementary affidavit was filed on behalf of the petitioner and a supplementary counter affidavit on behalf of J.P. University has also been filed to which petitioner has also filed reply. Last supplementary counter affidavit was filed on behalf of Bhim Rao Ambedkar Bihar University (Respondent no. 3 on 1.5.2000) i.e. on the last day of hearing, and statement of account in respect of the petitioner was also filed. In the rejoinder filed on behalf of the University to the supplementary affidavit filed on behalf of the petitioner, it is stated that on 18.4.2000 appropriate order has been passed by the competent authority to release the P.F. amount after deducting the employers share for the year 1974 to 1976 along with interest thereon. It is also stated that on receipt of further non-recurring grant from the State Government, the following amount shall be paid : (i) Arrear of pension; (ii) Difference of gratuity amount; (iii) Difference of leave encashment; (iv) Difference of arrears of salary, if any. 6. Hearing of this case started on 13th April, 2000 when it was observed that the admitted dues of the petitioner must be paid before the matter was to be taken up on 20th April, 2000. Pursuant to it a cheque bearing no. 580849 dated 21.4.2000 for Rs. 6. Hearing of this case started on 13th April, 2000 when it was observed that the admitted dues of the petitioner must be paid before the matter was to be taken up on 20th April, 2000. Pursuant to it a cheque bearing no. 580849 dated 21.4.2000 for Rs. 13,464/- was produced which was handed over to the learned counsel for the petitioner. Later another cheque bearing no. 580873 for Rs. 42,879.50 paise with respect to arrear pay, D.A., HRA, MA and IR was produced and the same was also handed over to the learned counsel for the petitioner on 1.5.2000. However, learned counsel for the petitioner has submitted that the petitioner has not been paid the amount of arrears of salary on account of pay revision by the State Government for the period 1.3.1989 to 31.3.1992 and the remaining amount of retirement benefits at the consequence of the recalculations with 20% of Dearness allowance and deferred D.A. for the period 1984-85 up to December, 1985, and interim relief. It has been submitted that the State of Bihar vide letter no. 407 dated 6.3.2000, a photostat copy thereof has been annexed as Annexure-8 to the reply of the petitioner to the supplementary counter affidavit filed on behalf of Respondent nos. 1 & 2, granted funds to different University with respect to the interim relief as is evident from paragraph 14 of the said letter in which it has been specifically mentioned that as per clause 9 of the Government letter no. 2267 dated 30th December, 1999 payment of interim relief will be made and in compliance of the direction of this Court in CW.J.C. No. 7388 of 1994 and in contempt matter arising therefrom being M.J.C. No. 2019 of 1998 and L.P.A. No. 36 of 1994, the same was payable with the pay etc. to the year 1999-2000 against the post sanctioned by the Department, and that by including the required fund in the grant of J.P. University the same was released. 7. Learned counsel for the University has submitted that in view of the Government letter no. 118 dated 18.1.2000, a photostat copy of which has been produced by him, no interim relief is admissible. This Court does not find any substance in the submission of the learned counsel for the University. 7. Learned counsel for the University has submitted that in view of the Government letter no. 118 dated 18.1.2000, a photostat copy of which has been produced by him, no interim relief is admissible. This Court does not find any substance in the submission of the learned counsel for the University. The letter dated 18th January, 2000 produced by the learned counsel for the University will have no bearing in view of the Government letter dated 6th March, 2000, contained in Annexure-8, in paragraph 14 of which it is mentioned that the payment of interim relief shall be made as per clause 9 of the departmental letter no. 2267 dated 30th December, 1999. This provision appears to have been made in the light of the directives of this Court in the aforementioned case, and the fund has also been released along with grant for payment of pay for the year 1999- 2000. Thus, this Court holds that in the light of the letter contained in Annexure-8, petitioner is entitled for interim relief, and the RespondentJ.P. University is directed to pay the same to the petitioner within two weeks. 8. In the supplementary affidavit filed on behalf of the petitioner on 13.4.2000, it is stated that J.P. University vide its order dated 27.10.1999 fixed the pay of its non- teaching employees after giving time bound promotion in view of the order passed by this Court and petitioners name is at serial no. 7 in the fixation chart. As per this pay fixation, petitioners pay has been fixed at Rs. 2450/- on 31.7.1996. A photostat copy of the said chart has been annexed as Annexure-6. Thus, according to the petitioner in view of the said pay fixation his pension, gratuity, leave encashment has to be revised accordingly and the difference of the same has to be paid. It is also claimed that the petitioner has not been paid the amount of differed D.A. for 1984- 85 and 1985-86 upto December, 1985. After December, 1985, new scale was introduced and deferred D.A. was included in the salary itself. 9. In the rejoinder of J.P. University to the said supplementary affidavit, it is stated that vide letter no. 773 dated 16.12.1998 (Annexure-2), the State Government forwarded a list of non- teaching employees of the University showing therein their revised pay with effect from 1.1.1986. 9. In the rejoinder of J.P. University to the said supplementary affidavit, it is stated that vide letter no. 773 dated 16.12.1998 (Annexure-2), the State Government forwarded a list of non- teaching employees of the University showing therein their revised pay with effect from 1.1.1986. However, in the said revised pay scale, benefit of time bound promotion was not added and as such in the light of the decision of this Court passed in C.W.J.C. No. 12502 of 1993 Syndicate of the University decided to further revise the pay of non-teaching employees of the University by adding the benefit of time bound promotion by the Pay Fixation Committee of the University. The Syndicate of the University decided to notify the aforesaid decision. It was also decided to forward the so revised pay scale to the State Government for approval. However, by way of abundant caution, it was also decided that enhanced pay shall be paid subject to the approval of the State Government and in case of non-approval of revised pay scale by the State Government the amount so paid to the non-teaching employee shall be recovered from them. The said decision of the Syndicate was notified vide office order dated 27.10.1999 (Annexure-6). It is further stated that the benefit of time bound promotion is to be given up to 31.12.1995 by obtaining an undertaking from the concerned non- teaching employee that the said benefit is being given subject to the decision in L.P.A. No. 1255 of 1996 and any order passed by the Court in this regard. 10. However, learned counsel for the J.P. University has fairly submitted that if the consequential calculation of admissible retirement benefits have not been done and that 20% of D.A., if admissible on pension has not been paid then the petitioner can make representation, which shall be examined by the University and disposed of without any further wastage of time. With respect to the claim relating to deferred D.A. also it has been submitted by the learned counsel for the University that the petitioner can raise the same before the University-authority, who will examine the same and dispose it of by a reasoned order, and payment of the admitted amount with respect to it shall also be made within the time as is fixed by this Court. 11. 11. Accordingly, this Court directs that the petitioner may raise the aforementioned claims before the Vice- Chancellor of J.P. University (Respondent no. 2) who shall examine himself or get it examined by some responsible Officer of the University and dispose it of by a reasoned order within four weeks of the receipt of the claim. Respondent no. 2 is directed to pay further amount, if any, found payable within the said time. 12. The real dispute appears to be with respect to the arrears on account of pay and allowance for the period 1.3.1989 to 31.10.1992 during which J.P. University had not, in fact, started functioning for payment with respect to the College in question which initially was constituent unit of Bihar University were being mentioned by the said University now known as Bhim Rao Ambedkar Bihar University. (Respondent no. 3). 13. According to the learned counsel appearing for the J.P. University, the entire liability with respect to the said arrear lies with Respondent no. 3 whereas according to the learned counsel appearing for Respondent no. 3 the liability lies with J.R University. Bihar University, however, in the supplementary counter affidavit filed on their behalf has admitted that payment of teaching and non-teaching staff under J.P. University was monitored from Bihar University till October, 1992 and received consolidated monthly grant from the State Government for both the University till October, 1992. The claim of the petitioner regarding payment of arrears on account of revision of pay in the revised pay scale with effect from 1st March, 1989 is also admitted. However, it is submitted that Bihar University implemented the new pay scale to the College non-teaching staff since March, 1996, as such, they cannot be asked to clear the financial liabilities created by the Vice- Chancellor, J.P. University, where it was though implemented in July, 1998 but from due date i.e. 1st March, 1989. It is further submitted that Section 70B of the Bihar State Universities Act, 1976 was inserted by Section 15 of the Bihar State Universities (Amendment) Act, 1993 published in Bihar Gazette (Extraordinary) and came in force at once. Mr. Sinha, learned counsel appearing for the Bihar University submitted that Section 70B begins with a non-obstante clause, which has, therefore, overriding effect on any law or contract. Mr. Sinha, learned counsel appearing for the Bihar University submitted that Section 70B begins with a non-obstante clause, which has, therefore, overriding effect on any law or contract. According to him clauses (c) & (d) makes the position clear that on such appointment, any officer, teacher or servant shall be deemed to have been transferred with effect from the date of passing of the Act i.e. 22.8.1993. Thus, it has been submitted that in view of the said provisions the total liability since after the transfer of such officer, teacher or servant of the University shall lie on J.P. University. 14. In the supplementary counter affidavit filed on behalf of J.P. University on 28.4.2000, photostat copies of agreement arrived at between the two Universities in presence of the State in the meeting held on 25.6.96 and 26.3.1999 have been brought on record as Annexures-C & C/1. In paragraph 2 of the agreement dated 25.6.1996, it is stated that the payment of arrear with respect to the scale prescribed by the University Grants Commission to the teachers shall be made from the same University from where they have retired or will retire, but payment of arrears to the teachers who retired from the College falling within the jurisdiction of the new University after its establishment shall be made by the new University. Annexure-C/1 has no relevance as it deals with the matters relating to contempt filed by some retired teachers. It is contended by Mr. Shivendra Kishore, learned counsel appearing for J.P. University that since the arrear relates to the period before the establishment of J.P. University the entire arrear has to be paid by the parent University, namely, Bhim Rao Ambedkar Bihar University. 15. This Court finds substance in the submission of the learned counsel for J.P. University. It is true that Section 70B will have overriding effect on any law or contract, but the said provision has no bearing to the facts and circumstances of the present case, where it is admitted by the Bihar University that payment of teaching and non-teaching staff under J.P. University was monitored by Bihar University till October, 1992 and the said University also received consolidated monthly grant from the State Government for both the University till October, 1992. The claim of the petitioner regarding payment of arrears on account of pay revision by the State Government with effect from 1st March, 1989 is also admitted by the Bihar University. As such, the liability to pay the same accrued much before the insertion of the provisions contained in Section 70B in 1976 Act. 16. A reliance on the judgment of this Court in the case of Rajendra Prasad & ors. vs. The State of Bihar & ors. (C.W.J.C. No. 7358 of 1999 and analogous cases disposed of on 11th November, 1999) [ 2000 (1) PLJR 423 ] has been placed on behalf of Bihar University. This Court fails to appreciate as to how the said judgment is of any help to the learned counsel for the said University. In the said case, question was completely different that as to whether the State Government is bound to invite representations from the concerned Officers, teachers and other servants while passing an order of appointment and transfer under clause (a) of sub-section (1) of Section 70B and it had nothing to do with the liability to pay arrears in the revised scale accrued prior to insertion of the said provision contained in Section 70B, and that Respondent no. 3 had received consolidated monthly grant from State Government for both University till October, 1992. The case of the Bihar University is not that the Government had not released fund with respect to the arrear on account of revision of pay. Under such circumstances, Bihar University cannot wash off their hands by relying upon the provisions contained in Section 70B for the liability which accrued before the insertion of the said provision. 17. Accordingly, this Court holds that the liability of arrears on account of revision of pay for the period 1.3.1989 to 31.3.1992 is of Bhim Rao Ambedkar Bihar University which they should have discharged. Hence, this Court directs the said University to pay the said arrear to the petitioner within two weeks of the receipt/production of a copy of this judgment. 18. In the result, the writ application is allowed accordingly, but without costs.