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Jharkhand High Court · body

2008 DIGILAW 1366 (JHR)

Ila Sinha v. State of Jharkhand

2008-11-28

D.G.R.PATNAIK

body2008
Order In this writ application the petitioner has prayed for quashing the letter dated 3227 dated 20.9.2006 issued by the respondent no. 2 whereby the respondents have denied payment of pension and gratuity to the petitioner although such payment has been made to similarly situated other employees. Prayer has also been made for issuance of a direction to the respondents to pay the post retirement benefits including pension, gratuity and leave encashment which has been withheld even after the retirement of the petitioner on 31.1.2003. Prayer has also been made for direction to the respondents to release the payment of salary payable to the petitioner for the period from 16.5.2001 to 31.1.2003 when the petitioner remained idle and no work was offered to him. Further, prayer has also been made to direct the respondents to pay the petitioner the salary for the period from 15.3.1998 to 6.5.1998 during which he was kept on corridor posting. 2. The petitioner was appointed as a Supervisor under the Education Department vide Memo No. 198 dated 20.2.1980 issued by the Director of Adult Education, Bihar, Patna. The petitioner, alongwith other similarly situated employees, was sent for training on 6.3.1980 and after completion of the training, the petitioner was posted as Project Officer, Kathikund, in the district of Durnka, under the Adult Education Department. The Department of Adult Education, Non-Formal Education was merged in' 1990 by the State Government and a unified Department was put under the Directorate of Adult & Non-Formal Education. Later, the State Government abolished a number of posts, including the post of supervisor and consequently several employees working as supervisors including the petitioner were retrenched on 16.6.1992. 3. Being aggrieved with the abolition of the posts, several affected employees moved the Patna High Court in a writ petition being CWJC 5036 of 1992\ for quashing the impugned order of abolition. A Full Bench t of the Patna High Court disposed of the said writ petition by order dated 24.5.1996. Pursuant to the order of the High Court in the aforesaid, writ petition, as many as 452 employees including the petitioner were reinstated in service under the Director of Mass Education, Bihar, Patna, and they were given letters of joining. The petitioner submitted letter of her joining in the Department on 15.3.1998 and she was posted c1s Project Officer, Hiranpur in the district of Pakur, from 8.5.1998. 4. The petitioner submitted letter of her joining in the Department on 15.3.1998 and she was posted c1s Project Officer, Hiranpur in the district of Pakur, from 8.5.1998. 4. After reorganization of the State of Bihar on 15.11.2000, services of the petitioner came under the Government of Jharkhand under the Director of Primary Education Department. Subsequently pursuant to the decision taken by the. Government of India, on 1.4.2001, Mass Education/Non-Formal Education Programme was abolished and consequently the Government of Jharkhand also closed the non Formal Education Programme w.e.f. 15.5.2001 declaring thereby the employees working under the Mass Education/ Non-Formal Programme as excess employees. When such a situation was created, the affected employees under the Mass Education Programme filed Writ Petition (S) No. 298 of 2002 before this Court for issuance of direction to the respondents for absorption of the employees of Non-Formal Education Programme. In the aforesaid writ petition, the respondents had stated that a committee had been constituted for the purpose of absorbing such employees and the scrutiny of the cases of the employees would be completed with a few months. Upon such assurance by the respondent the writ petitioner was disposed of by order dated 16.3.2003. However, during the pendency of the writ petition, the petitioner was superannuated on 31.1.2003. 5. After retirement, the petitioner filed a representation claiming payment of her admissible dues and post retirement benefits. Upon such representation being made. the respondent no. 2 had instructed the respondent no. 5 to disburse payment of the provident fund and group insurance to the petitioner which the petitioner has since received. The grievance of the petitioner is that though the amounts of provident fund and group insurance have been paid to the petitioner, but the respondents have denied payment of pension and gratuity stating that she is not entitled to pension and gratuity although they have acknowledged that the petitioner is entitled to arrears of salary prior to 15.5.2001 i.e. the date on which the petitioner and others employees of the Non-Formal Education Programme were declared as excess employees after closure of the Non-Formal Education Programme. Further case of the petitioner is that a writ petition being WP(S) 45751 of 2003 was earlier filed by one• Bhubneshwar Mahto challenging the order of the respondents denying him the payment of pension and gratuity on the ground that his past service under the Non-Formal Education Programme would not be taken into account for the purpose of pension. This Court by order passed in the aforesaid writ petition had declared that the petitioner Bhubneshwar was a regular employee of the State and was entitled to get pension, gratuity and leave encashment benefits etc. in accordance with the law. It was also observed that if the scheme of the State Government was closed since 15.6.2001, but the employees were not retrenched and the authorities have not taken any work from such employees, there being no laches on the part of the employees, the respondents cannot deny salary to them. It is always open to the State Government not to take work, but they are duty bound to pay salary if the employee is in service. Upon such observation, this Court directed the respondents to pay to the petitioner Bhubneshwar Mahto salary for the period during which he was kept without work, till the date of his retirement alongwith all admitted retirement benefits counting the aforesaid period, for the purpose of pension, gratuity, leave encashment etc. Learned counsel for the petitioner submits that the case of the petitioner is identical to the case of Bhubneswar Mahato (supra). 6. The same facts and issues as raised in this case came up for consideration in several cases filed by other employees similarly situated. Learned counsel in this context refers to the judgment in the case of Bimal Kumar Sinha vs. State of Jharkhand & Others [WP(S) 6440 of 2002] and the case of Jharkhand State Adult and Non-Formal Education Officer Staff Association vs. State of Jharkhand [WP(S) 2115 of 2004] and in all such cases, the observation of the High Court was similar and identical as in the case of Bhubneshwar Mahato. 7. 7. Learned counsel informs that against the judgment of the Single Judge of this Court in Bhubneshwar Mahato, the respondents had preferred LPA No.51.5 of 2004 which was dismissed against which the respondents had also preferred before the Supreme Court SLP, which was also dismissed and by the said order of the Apex Court, law is now well settled that period of service of the employees of the earlier Non-Formal Education Department shall be counted for the purpose of pension. 8. Counter affidavit on behalf of the respondent State has been filed. Learned counsel for the State concedes that the facts of the petitioner's case is identical to the case of Bhubneshwar Mahato and other case(s) referred to by the petitioner. 9. As has been explained by the learned counsel for the petitioner and as appearing from the facts and circumstances, the dispute in the petitioner's case is fully covered by the judgment of this Court in the case of Bhubneshwar Mahato (supra). 10. In view of the aforesaid facts and circumstances, this writ petition is allowed and the impugned order dated 20.9.2006 is quashed. The respondents are directed to calculate and assess the amount of the post retirement benefits to the petitioner including pension, gratuity and leave encashment and shall pay the same to her. The respondents shall also pay to the petitioner her salary for the period from 16.5.2001 to 31 .1.2003, and also the salary for the period from 15.3.1998 till 6.5.1998. All such payments should be made within three months from the date of receipt/production of a copy of this order. With the above observation, "this application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.