Patna High Court
Smt. Kanchan Sah vs The State Of Bihar on 27 February, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19531 of 2021
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Smt. Kanchan Sah, Wife of late Dr. Nand Lal Sah, Resident of Purab Tola,
(Durga Asthan), P.O. and P.S.- Kahalgaon, District- Bhagalpur- 813203.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Government of Bihar, New Secretariat, Patna.
2. T.M. Bhagalpur University through its Registrar.
3. The Registrar, T.M. Bhagalpur University, Bhagalpur.
4. The Vice Chancellor, T.M. Bhagalpur University, Bhagalpur.
5. The Finance Officer, T.M. Bhagalpur University, Bhagalpur.
6. The Principal, S.S.V. College, Kahalgaon.
7. The Director, Higher Education Department, Govt. of Bihar, Patna.
8. The In Charge Pay Verification Cell, Education Department, Govt. of Bihar,
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shivendra Kishore, Sr. Advocate
Mr. Saroj Kumar, Advocate
For the State : Mr. Rajeev Ranjan, AC to GP- 20
For the University : Mr. Ashar Mustafa, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 27-02-2025
Heard Mr. Shivendra Kishore, learned Senior
Advocate for the petitioner, Mr. Ashhar Mustafa, learned
Advocate for the Tilka Manjhi Bhagalpur University, Bhagalpur
(hereinafter referred to as 'the TMB University'). The State is
represented by Mr. Rajeev Ranjan, learned Advocate.
2. The husband of the petitioner died in harness on
09.02.2005
, while posted as University Professor and Head of
the Department of Botany from S.S.V. College, Kahalgaon
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
under TMB University.
3. The petitioner having qualification of M.A. in
Political Science, applied for her appointment on compassionate
basis; accordingly on recommendation of Compassionate
Committee, the petitioner was appointed on Class-III post in the
pay scale of Rs.1200-1800/- vide Office Order No. 63 of 2005
dated 14.04.2005. The pay scale of the petitioner was further
revised in the pay scale of Rs.4000-6000/- (Grade Pay
Rs.2400/-) in fifth Pay Revision Commission (in brevity
'PRC'). Later on, the said pay scale of Rs.4000-6000/- was
further revised in the pay scale of Rs.5200-20,200/- w.e.f.
01.01.2006 in 6th PRC. Further vide Office Order No. 366/2015
of TMB University, the petitioner was allowed the benefit of 1 st
MACP w.e.f. 14.04.2015, however, the petitioner was not paid
the financial benefit thereof till date.
4. On 31.01.2019, the petitioner stood retired on
attaining the age of 62 years. Notwithstanding the unblemished
service and upon her superannuation, the University has
sanctioned 90% pension to the petitioner along with admissible
dearness relief w.e.f. February, 2019. Simultaneously, the
Registrar of the TMB University vide letter no. 6823 dated
30.01.2019 determined and sanctioned gratuity amounting to
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
Rs.2,51,722/- and ordered to pay 90% thereto.
5. It is the contention of the petitioner that there
was no departmental proceeding/criminal case pending against
her, nonetheless 10% of pension and gratuity were withheld. It
is also contended that from July, 2016, the benefit of 7 th PRC
was made admissible to the teaching and non-teaching
employees of the University, including the TMB University and
in terms thereof, the salary of the petitioner was to be fixed at
Rs.40,400/- as on July, 2016 and on the date of retirement as on
31.01.2019, the petitioner was entitled to be paid at Rs.48,672/-,
however, she was actually paid Rs.38,647/- in 6th PRC.
6. On being aggrieved by the inaction of the
respondent authorities of the TMB University in not according
the rightful due claim of the petitioner, viz, pre and post retiral
benefits she preferred the present writ petition, inter alia, for the
following reliefs:
"(i) For issuance of an appropriate
writ/order/direction in the nature of Mandamus
commanding the respondents to revise pension,
gratuity and leave encashment amount
consequent upon fixation of pay of the petitioner
in 7th Pay Revision w.e.f. July 2016.
(ii) For a direction on the
respondents to pay difference of salary w.e.f. July
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
2016 till the date of retirement i.e. 31.01.2019 in
7th PRC.
(iii) For a direction to the
respondents to pay difference of arrear of salary
in 6th PRC we.f 01.01.2006 to June 2016.
(iv) For a direction on the
respondents to pay difference of pension,
gratuity, and leave encashment amount on
account of fixation of pay in 7 th PRC and for
payment of difference thereto.
(v) For a direction on the
respondents to pay statutory and delayed interest
on all the aforesaid heads."
7. It would be worthwhile to mention that during
the pendency of the writ petition, the petitioner has been paid
arrears of difference of 90% pension in 7 th PRC as well as 90%
of gratuity. The petitioner has also been accorded remaining
90% amount of leave encashment in 7th PRC, however, the
remaining grievance of the petitioner quoted hereinbelow could
not be redressed:
"(i) Difference of arrear of salary in
6th PRC to the tune of Rs.2,14,234/-.
(ii) Difference of pay by allowing
benefit of 1st MACP w.e.f. 20.08.2015 to
31.01.2019.
(iii) Fixation of pay in 7 th PRC and
difference of arrear of salary thereto for the
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
period w.e.f. July 2016 until January 2019 to the
tune of Rs.3,54,203/-
(iv) Revision of pension, gratuity
and leave encashment amount in 7th PRC and
difference of amount to the extent of 100 per
cent."
8. Learned Senior Advocate representing the
petitioner has contended that admittedly the pay of the petitioner
was fixed in the pay scale of Rs.4000-6000/- by the statutory
committee of the University, which was approved and accorded
by the Education Department vide its letter no. 1163 dated
20.05.2014. However, after nine years of such letter, the
petitioner came to learn that the Director, Higher Education,
Government of Bihar vide its letter no. 2792 dated 22.07.2023
directed the Incharge, Pay Verification Cell, Education
Department, Government of Bihar to issue amended verified
Pay Slip on the basis of details provided on portal. The decision
of the Director, Higher Education also had approval of
Additional Chief Secretary of the Education Department,
Government of Bihar. In pursuant to the letter, aforenoted, the
Pay Verification Cell has issued consequential modified Pay
Slip fixing the Pay of the petitioner at Rs.3050 - 4500/- as on
20.08.2005 and at Rs.30,200/- as on 31.01.2019.
9. Consequent to the verified pay slip, fresh
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
calculation of arrears of salary has been made at the level of the
University and it has been found that a sum of Rs.4,71,409/- has
been paid to the petitioner in advance, for which the University
is under process of recovery of the alleged excess payment to
the petitioner.
10. The petitioner, on being aggrieved, preferred an
interlocutory application, bearing I.A. No. 1 of 2024 and
challenged the letter no. 2792 dated 22.07.2023 as well as
consequential verified Pay Slip. The interlocutory application
stood allowed by this Court vide order dated 28.03.2024 giving
liberty to the respondent to respond.
11. Learned Senior Advocate while assailing the
impugned orders and the action of the respondent authorities of
the State as well as University has vehemently contended that
fixation of the pay scale of the Universities employees was
being done by the statutory committee, known as Approval,
Seniority and Pay Fixation Committee. The power of Pay
Fixation of the employees of the University lies with the Pay
Fixation Committee and the Department is not concerned in this
regard is admitted by the State Authority. The Pay Fixation
made by the Pay Fixation Committee of the University are only
audited by the State Auditor and in view of the valid objection
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
of State Auditor, the University makes its correction
accordingly. In this regard, a letter no. 586 dated 19.04.2006,
issued under the Signature of Director, Human Resources
Development Department (Higher Education), Government of
Bihar has been referred. In the light of the decision of this Court
in C.W.J.C. No. 7636 of 2014, the Joint Secretary, Education
Department vide its letter no. 1448 dated 24.07.2015, clarifying
the role of Pay Verification Cell stated that the Pay Verification
Cell will raise only objection, but cannot fix the pay scale
unilaterally; it is the University, who has to entertain the
objection and then within time frame, the University to issue
direction regarding pay fixation.
12. Referring to the various decisions rendered by
this Court, copies of which are marked as Annexures- P/17 and
P/20 Series, it is strenuously argued that this Court has already
held that Pay Verification Cell can only make audit objection
and it is only the Pay Fixation Committee of the University,
which has authority to fix the pay scale of its employees.
Reliance has also been placed on the decision of the Hon'ble
Supreme Court in the case of State of Bihar & Anr. Vs. Sunny
Prakash & Ors., reported in (2013) 3 SCC 559 wherein the
Hon'ble Court directed the State Government to implement the
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
commitment given by it on 18.07.2007.
13. Learned Senior Advocate after taking this Court
through the decision of the Apex Court in the case of Sunny
Prakash (supra) has contended that in compliance with the
decision aforenoted, the respondent State issued notification no.
1163 dated 20.06.2014 and notification no. 1192 dated
23.06.2024 by which Universities were directed to fix the pay
scale of non-teaching employees granting them the benefit of
ACP/MACP, whereupon TMB University issued Office Order
No. 211/2014 whereby pay in the scale of Rs.4000-6000/- was
ordered to be implemented w.e.f. 01.04.1997 for the post of
Library Assistant, Sorter, Correspondence Clerk and Routine
Clerk. The pay of the petitioner was fixed by the University in
the aforesaid premise by allowing the benefit of 1 st MACP w.e.f.
14.04.2015 by the order dated 08.09.2015.
14. Learned Senior Advocate lastly contended that
the impugned letter dated 22.07.2023 as well as Pay Slip are
arbitrary, illegal, apart from in the teeth of the decision of the
Hon'ble Apex Court and the letters issued by the Education
Department, Government of Bihar and thus not sustainable in
the eyes of law.
15. Reliance has also been placed on the decision of
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
this Court in the case of Bimal Kumar Bimal Vs. The State of
Bihar & Ors, reported in 2024 (6) BLJ 521.
16. Refuting the contentions raised hereinabove,
learned Advocate for the State Mr. Rajeev Ranjan contended
that after superannuation of the petitioner, the matter has been
endorsed to duly constituted Pay Verification Cell for report
with respect to admissibility of the pay scale of the petitioner.
The Pay Verification Cell found that the petitioner was entitled
to get pay scale of Rs.3050/- as on 20.08.2005 and in the pay
scale of Rs.30200/- as on 31.01.2019.
17. Pursuant to the direction of this Court, a report
with respect to issuance of the impugned Pay Slip was sought
for and it has been opined that the petitioner was appointed in
Class-III Grade on compassionate ground vide University Office
order no. 63/2005 read with Memo No. 1082 dated 14.04.2005.
In pursuant to the aforesaid order, the petitioner tendered her
joining on 20.08.2005. Notification no. 429 dated 04.03.2014
issued by the Governor's Secretariat clearly explicit that after
20.12.2000, the posts of clerical cadre like Sorter, Library Clerk,
Routine Clerk, Sore Keeper, Typist etc. has been made extinct
and all these posts have been designated as Lower Division
Clerk. The Senior Division clerk had been made the
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
promotional post. Any appointment was to be made on the post
of Lower Division Clrk in the pay scale of Rs.3050-4590/- and
in view thereof the very appointment of the petitioner was done
against the post of Lower Division Clerk on the said pay scale.
The relevant part of the notification dated 04.03.2014 has been
placed on record as Annexure-R/A to the counter affidavit.
18. It is the contention of the State respondent that
the Pay slip has been issued in the light of the provisions
contained in the Statute issued vide Notification No. 429 dated
04.03.2014 by the Hon'ble Chancellor.
19. On behalf of TMB University, Mr. Ashhar
Mustafa, learned Advocate, contended that the pension of the
petitioner was revised with admissible benefits and the
respondent University was paying provisional pension at the
rate of Rs.12,272/- per month along with admissible allowances
to the petitioner, which is 90% of Rs.13,635/-. The aforesaid
payment of provisional pension was being paid subject to
concurrence of Pay Fixation from Pay Verification Cell of the
Government of Bihar. The respondent University further
received a letter from Pay Verification Cell whereby the pay of
the petitioner was fixed at Rs.3050/- as on 20.08.2005 and at
Rs.30,200/- as on 2019. In terms of the Pay slip issued by the
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
Pay Verification Cell, the respondent University fixed the
pension of the petitioner and found that an amount of
Rs.4,71,409/- has been paid in excess to the petitioner.
20. This Court has given anxious consideration to
the submissions advanced on behalf of the respective parties and
also meticulously perused the materials available on record,
including the various letters, notifications and the decisions
rendered by this Court.
21. Before parting with the present case, it would
be proper to discuss the power and role of the Pay Verification
Cell under the Department of Education. The issue with regard
to the authority and role of Pay Verification Cell has been
considered on various occasions by this Court and held that in
the matter of pay fixation, the Statutory Committee has
exclusive jurisdiction. In the case of Dr. Kedar Nath Pandey
and Ors. Vs. The Magadh University, Bodhgaya and Ors.
[2015 (1) PLJR 574], the Court held that the objection of the
Pay Verification Cell cannot have the effect of annulling any
notifications issued by the University, unilaterally, nor can such
objection have the effect of modifying the previous notification
issued in favour of the employees. Such objections will be
treated as audit objections for which notices would be
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
required to be given to the University concerned, which in turn
will issue notice to the concerned affected teachers and
employees, seek their response and the University thereafter
will revert to the Pay Verification Cell. If the response of the
University or the concerned employee is not found to be
satisfactory, the State Government can issue appropriate
direction to the University to issue appropriate order. The final
notification and amendment or corrigendum or clarification of
the previous decision has to be taken by the University because
Pay Verification Cell has no jurisdiction in this regard. The
aforenoted position has been admitted by the State and its
authorities in its letter no. 1448 dated 24.07.2015.
22. The reliance of the petitioner on the decision of
the Hon'ble Supreme Court in the case of Sunny Prakash
(supra) finds substance. In the aforesaid case when the non-
teaching employees of the Universities moved before this Court
by filing Public Interest Litigation, bearing C.W.J.C. No. 10870
of 2008 seeking a direction upon the respondent State
Government to ensure with the commitment given by the State
Government to the Bihar State Universities and Colleges
Employees Association is honoured and it is implemented.
23. The respondent State on being aggrieved by the
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
order of this Court preferred Civil Appeal No. 516 of 2013
(State of Bihar & Anr. Vs. Sunny Prakash & Ors.). The
Hon'ble Supreme Court having considered the entire conspectus
of the matter directed the State Government to implement the
undertaking given by it on 18.07.2007.
24. Suffice it to observe that one of the demands,
which was accepted by the State Government to be acted upon,
was Library Assistant, Sorter, Routine Clerk, Correspondence
clerk may be granted a pay scale of Rs. 4000-6000 at
Departmental level. The Hon'ble Supreme Court while holding
the provisions of Article 166 of the Constitution are only
directory and not mandatory in character and, if they are not
complied with, it can be established as a question of fact that the
impugned order was issued in fact by the State Government, has
directed the State of Bihar to implement the impugned order of
the High Court of Judicature at Patna dated 07.08.2008 within a
period of three months. The appeal filed by the State of Bihar
was thus dismissed with the direction.
25. The judgment of the Hon'ble Supreme Court in
the case of Sunny Prakash (supra) is binding on the University
as well State and in compliance with the aforesaid decision the
respondent State also issued notification no. 1163 dated
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
20.06.2014 and notification no. 1192 dated 23.06.2024 by which
the Universities were directed to fix the pay scale of non-
teaching employees granting them the benefit of ACP/MACP. It
is these letters, in the light of which TMB University issued
Office Order No. 211/2014 vide Memo No. 2601 dated
14.07.2014, whereby pay in the scale of Rs.4000-6000/- was
ordered to be implemented w.e.f. 01.04.1997 of the post of
Library Assistant, Sorter, Correspondence Clerk and Routine
Clerk.
26. It is admitted position that the pay of the
petitioner was fixed by the University by allowing the benefit of
1st MACP w.e.f. 14.04.2015 vide order dated 08.09.2015.
27. Identical issue has raised before this Court in
the case of Indranath Jha Vs. The State of Bihar & Ors
(C.W.J.C. No. 4722 of 2020) wherein this Court placing
reliance upon the decision of the Apex Court in the case of
Sunny Prakash (supra) has allowed the writ petition and
directed to adhere to the determination of the pay fixation made
by the Statutory Committee of the University and further held
that the University is obliged to grant all the benefits available
to the petitioner in terms of the judgment of the Apex Court in
Sunny Prakash case (supra) and ensure payment of entire dues
Patna High Court CWJC No.19531 of 2021 dt.27-02-2025
on the basis of pay fixation made in pursuant thereto.
28. In view of the discussions made hereinabove
and the position obtaining in law, this Court finds that the
impugned order as contained in letter no. 2792 dated
22.07.2023, as also the consequential verified pay slip issued by
the Pay Verification Cell is unsustainable and is hereby set
aside.
29. The writ petition stands allowed with a
direction to the respondent State as well as University to ensure
payment of all the admissible amount treating the petitioner to
be appointed in the pay scale of Rs.4000-6000/-, preferably
within a period of three months from today.
30. Suffice it to observe that the petitioner had
already superannuated on 31.01.2019 and more than six years
have elapsed, thus any delay in disbursing the admissible
monetary benefit shall entail the petitioner to get 6% interest
over the due amount.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.02.2025
Transmission Date NA
