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2005 DIGILAW 160 (JHR)

Ashok Madhav Karkhedkar v. State Of Jharkhand

2005-02-18

SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. Mukhopadhaya, A.C.J. 1. This application has been preferred by the petitioner for a direction on the respondents to count the services of his father late M.P. Karkhedkar from 13th November, 1963 and thereby to provide all the consequential benefits to the petitioner. 2. According to the petitioner, his father late M.P. Karkhedkar was initially appointed on 13th November, 1963 in Mahatma Gandhi Memorial Medical College, Jamshedpur, which was a private institute at that relevant point of time. Subsequently, the said institute along with the services of the petitioners father was taken over by the State in the year, 1978 and thereafter, father of the petitioner superannuated from service on 30th September, 1985. After retirement, petitioners father was provided with the retiral benefits but without counting the period of service, rendered by him in the private Medical College. 3. Faced with such situation, late M.P. Karkhedkar moved before Ranchi Bench of Patna High Court vide C.W.J.C. No. 1240 of 1997R, wherein, certain directions were issued, followed by the order dated 27th July, 1999, passed in the contempt application being M.J.C. No. 113 of 1998R. However, before implementation of the Courts order, father of the petitioner died on 27th September, 2000. 4. According to the petitioner, the services rendered by his father in the private Medical College ought to have been counted for the purposes of payment of retiral benefits to him. 5. In this connection, he has relied on a judgment of the Supreme Court in the case of State of Bihar v. S.A. Hassan and Anr., Civil Appeal Nos. 2096-2097 of 2000. Those were the cases in which similar question was raised. The original writ petitioners were in the services of MGM Medical College, Jamshedpur and their services were taken over on 22nd January, 1979. In those cases also prayer was made to count the period of services, rendered by them in the private Medical College, for the purposes of granting them the retiral benefits, which was allowed by the High Court. The State of Bihar, thereafter, moved before the Supreme Court vide Civil Appeal Nos. 2096, 2097 of 2000, as referred to above. In those cases also prayer was made to count the period of services, rendered by them in the private Medical College, for the purposes of granting them the retiral benefits, which was allowed by the High Court. The State of Bihar, thereafter, moved before the Supreme Court vide Civil Appeal Nos. 2096, 2097 of 2000, as referred to above. The Apex Court by its judgment dated 5th March, 2002, held as follows : "We are, therefore, of the opinion that the respondents are not entitled to claim the benefit of the period of their service while they were under the employment of the erstwhile management for the purpose of calculation of their pension and pensionary liabilities. Consequently, we hold that the findings of the High Court are not sustainable in law. Accordingly, appeal are allowed by setting aside the impugned judgment. The judgment rendered by us will come into effect prospectively i.e. apply to the cases of employees who retire on superannuation, after the date of this judgment. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to any employees and also to the respondents. We are giving this direction especially for the reason that the State Government allowed a number of judgments adverse to it to become final and there was consequent uncertainty in legal position. Appeals are allowed by setting aside the judgment. Parties to bear their own costs." 6. Learned counsel for the petitioner submitted that the judgment, rendered by the Supreme Court, having prospective effect, it will apply in the case of the employees, who retired on superannuation after the date of the said judgment. On the other hand, according to the counsel for the State, the finding of the Supreme Court is very clear in the sense that the services rendered under private management/college cannot be counted for the purposes of retiral benefits and the writ petitioner/one of the respondents before the Supreme Court was held to be not entitled for such benefits. 7. The aforesaid decision also fell for consideration before Patna High Court vide L.P.A. No. 24 of 2003, Shankar Nath Chatterjee v. The State of Bihar and Ors., which stood disposed of on 8th January, 2003. 7. The aforesaid decision also fell for consideration before Patna High Court vide L.P.A. No. 24 of 2003, Shankar Nath Chatterjee v. The State of Bihar and Ors., which stood disposed of on 8th January, 2003. In the said case, it was pleaded that the employee having retired prior to 5th March, 2002, i.e. prior to the judgment, rendered by the Supreme Court in the case of State of Bihar v. S.A. Hassan and Anr., (supra), the period, rendered by him in the private Medical College, should have been counted. The Division Bench of Patna High Court having heard the parties made the following observations : "The contention of the learned counsel, in our view, has no leg to stand as the Apex Court has set aside the judgment of the High Court whereby the relief was granted and directed that those, who already got the benefits by virtue of the number of judgments adversed to the State Government was allowed to become final but uncertainty in legal position has been settled saying that the employees shall not be entitled to the benefits of the period prior to the taking over of the institution. The learned Judge has considered the aforesaid aspect of the matter and negatived the claim of the appellant. On consideration, we find nothing wrong in the order to interfere. Thus, this appeal is dismissed." 8. Having heard counsel for the parties and taking into consideration the judgment, rendered by the Supreme Court as also the Patna High Court, I am of the view that the petitioner is not entitled for the benefits, as claimed for, mainly on the ground that his father had retired on 30th September, 1985 i.e. prior to the decision, rendered by the Supreme Court in the case of State of Bihar v. S.A. Hassan and Anr., (supra). As such, prior to the decision of the aforesaid case, he was not entitled for the benefits, no prayer can be made for issuance of a writ of mandamus to grant such benefit to which the employee was not entitled. The effect of the judgment aforesaid, rendered by the Supreme Court, is that recovery from those, who had already been granted such benefits, should not be made. The effect of the judgment aforesaid, rendered by the Supreme Court, is that recovery from those, who had already been granted such benefits, should not be made. But it does not mean that those, who are not entitled for the said benefit under law, can move before a Court of law for issuance of a writ of mandamus for granting such benefits, to which he is not entitled under the law. 9. There being no merit, this writ petition is hereby dismissed.