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2010 DIGILAW 861 (PAT)

Ganesh Ram v. State of Bihar

2010-04-20

MRIDULA MISHRA

body2010
ORDER DATED 20.4.2010 An application was filed by the petitioners for initiating a proceeding of contempt against the Vice-Chancellor, Jai Prakash University, Chapra, the Registrar, Jai Prakash University, Chapra, Principal-cum-Professor Incharge, Gopeshwar College Hathwa, Distt. Gopalganj and Secretary-cum-Commissioner, Department of Higher Education, Government of Bihar, New Secretariat, Patna, since they violated the direction issued by the High Court in order dated 3.2.2008 passed in CWJC No. 1584 of 2007 (Ganesh Ram anr. Vs. Jai Prakash University, Chapara & ors.). 2. The writ application filed by the petitioners for payment of arrears of salary, pension, pensionary benefits and other dues admissible in law, was disposed off by order dated 3.2.2008, along with other analogous cases. The direction in the writ application was to the Vice-Chancellor, the Registrar and Finance Officer of the University to consider the representation of the petitioners, in view of the decision reported in 2006(4) PLJR 369 as well as different statutory provisions applicable in the case of the petitioners, to pay all admitted dues to the petitioners within three months from the date of filing of the representation by them. In case of any disputed facts, the direction was issued to dispose of representation assigning reason for the same. A direction had also been issued to the State Government to release necessary funds to the concerned University; in case requisition for making payment is submitted, giving details of the amount. Petitioners’ case is that they sent their representations through registered post dated 12.5.2008 but the Opposite parties are not eager to comply the direction of this Court. Petitioners have not been paid their pension, due to which the petitioners are on the verge of starvation. 3. Before dealing with the show cause filed by the Opposite parties-contemnors, it is desirable that the background, giving a cause to the petitioners for filing contempt application, with a prayer to initiate a proceeding of contempt, be discussed. 4. Two petitioners had earlier moved before this Court by filing CWJC No. 7388 of 1994 challenging the order of the State Government refusing to regularize their service. The writ application was allowed and the order of the State Government refusing to regularize the service of the petitioners was quashed. In the order allowing the writ application, it was directed that the petitioners will be entitled for the same treatment as allowed to the petitioners’ in the case of Braj Kishore Prasad Vs. The writ application was allowed and the order of the State Government refusing to regularize the service of the petitioners was quashed. In the order allowing the writ application, it was directed that the petitioners will be entitled for the same treatment as allowed to the petitioners’ in the case of Braj Kishore Prasad Vs. State of Bihar and ors. reported in 1997 (1) PLJR 509 . In Braj Kishore Singh’s case the Full Bench has decided the case of regularization of teaching and non-teaching employees in the constituent Colleges, in conformity with the staffing pattern. The Full Bench held that persons appointed on the post of Class III and Class IV in the constituent Unit of the University, in conformity with the staffing pattern, are entitled for regularization with consequential benefits. It was held that, where initial appointments, though not made in accordance with the Rule, but the appointee continued in service uninterruptedly for a long period till regularization, entire periods spent in service will be counted for the purpose of consequential benefits. Such persons, will be entitled to have their service regularized with all consequential benefits, against such posts within the staffing pattern. After disposal of CWJC No. 7388 of 1994, Office order No.663 dated 6.7.1998 was issued by the University regularizing service of the petitioners with effect from the date of the issuance of notification i.e. 16.7.1998. This notification of regularization was approved by the State Government vide its Letter No. 260 dated 26.8.1998. Petitioner No.1 Ganga Ram whose services were regularized on class IV posts of Lab Boy in the Department of Chemistry in Gopeshwar College, Hathwa, stood retired on 28.2.2000 and petitioner No.2 Dhrubdeo Ram, whose services were regularized on Class IV post of Lab Boy in the Department of Zoology, Gopeshwar College, Hathwa, retired with effect from 31.10.2004. Both the petitioners approached the University and its authority for payment of arrears of salary, fixation of pension, payment of arrears of pension and the Pensionary benefits as well as other admissible dues along with interest but there was no response from the University authority, as such they have to file CWJC No. 1584 of 2007 for a direction to the respondents to pay all dues admissible to them. This writ application was disposed of vide order dated 3.2.2008, giving direction to make payment of entire dues, since, there was no compliance, present contempt application has been filed for initiating a proceeding of contempt. 5. Show cause has been filed on behalf of the Vide-Chandellor and Registrar of J.P. University, Chapra i.e Opposite Party Nos. 2 and 3. In the show cause, it is stated that the representation of the petitioners’ were considered by the Finance Officer and the Registrar of the University and it was found that none of the petitioners are entitled for arrears of salary since their services were regularized with effect from 16.7.1998. Accordingly, their claims were rejected. Similarly they were not entitled for pension and pensionary benefits as they remained in service after regularization for less than ten years and on that count, there services are not pensionable. Other amounts such as, G.P.F., Gratuity and the difference of arrears of salary have been paid, as such no case of contempt is made out. 6. The question which arises for consideration whether non-payment of arrears of salary, pension and pensionary dues to the petitioners, on account of the notification issued by the University and its approval by the State Government, regularizing the services of the petitioners with effect from 16.7.1998, ignoring entire period spent in service, makes it a case of contempt or in view of such notification, it should be deemed that the University and its authorities have properly complied the direction of the Court. 7. Mr. Shivendra Kishore, counsel appearing for the Jai Prakash University, Chapra has placed reliance on several decisions of the Supreme Court as well as the statutory provisions under the Universities Law. To substantiate the plea of the Opposite party that it is not a case of contempt. It has been submitted by the counsel appearing for the University that in the first writ application the direction of the Court was to pass an order of regularization and that was done by issuing a notification by the University, the same was also approved by the State Government. It has been submitted by the counsel appearing for the University that in the first writ application the direction of the Court was to pass an order of regularization and that was done by issuing a notification by the University, the same was also approved by the State Government. In case the petitioners had any grievance on account of regularization of their service with effect from the date of the notification, they could have challenged that order, since it was never challenged and it became final, as such petitioner cannot claim for arrears of salary, pension and other pensionary benefits, on the basis of his entire period spent in service. 8. Counsel for the University has also submitted that while dealing with an application for contempt it would not be permissible for a Court, to examine the correctness of earlier decision which has not been annulled and to take a view different than taken in the earlier decision. In CWJC No. 1584 of 2007, only direction was to consider the representation of the petitioners, for payment of pension and pensionary benefit, in view of the decision reported in 2006(4) PLJR 369. Since, the services of the petitioners were not pensionable, as such even this decision could not have made applicable in the case of the petitioners. Counsel for the University in support of his contention has placed reliance on a decision reported in 2005 (3) PLJR (SC) 239. 9. On the other hand, the Counsel for the University, has placed reliance on a decision reported in 1997(1) PLJR 509 (Braj Kishore Singh Vs. State of Bihar) and the decision reported in the case of Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra ( AIR 1990 SC 1607 ). Counsel for the petitioners has submitted that even though the Office Order order 663 dated 16.7.1998, regularizing the services of petitioner with effect from 16.7.2998, and it was approved by the State Government vide its letter No. 260 dated 26.8.1998, remained unchallenged, the right of the petitioners to receive arrears of salary, pensions, pensionary benefits with all consequential benefits, could not be deemed to have taken away, ignoring entire period spent by them in service. The Full Bench in the case of Braj Kishore Singh has already decided and the law is settled, on the issue. The Full Bench in the case of Braj Kishore Singh has already decided and the law is settled, on the issue. Persons, whose services have been regularized against posts, within the staffing pattern, after remaining in uninterrupted service, continuously for a long period till the date of regularization, their entire period spent in service will be counted for the purposes of all consequential benefits. The Opposite party, cannot be allowed to perpetuate illegality taking advantage of the date mentioned in the Office order of regularization and its’ approval by the State Government. 10. I find that decision referred by the University Counsel, 2005 (3) PLJR (SC) 239 has no application in the present case. Petitioners were regularized in service, in the light of order/direction passed in the writ application. The direction was to regularize petitioner’s service in the light of Braj Kishore Singh’s case. The date mentioned in modification of regularization, in this way had no relevance, so far consequential benefits are concerned. Subsequently when petitioners approach this Court for a direction to make payment of arrears of salary, pension and pensionary benefits, there was no reason to question, entitlement of these petitioners. They were entitled for all consequential benefits, in the light of Full Bench decision in Braj Kishore Singh’s case, as it was a law, settled on this point. The writ application was disposed off giving direction to make payment, considering representations’ filed by the petitioners. In this circumstance, the subsequent stand taken by the Opposite party, denying each benefit to the petitioners, on account of date mentioned in the notifications for regularization, is contemptuous. In their show cause, the Opposite parties have stated that, they have fully complied the direction of the High Court is contrary to their contemptuous action. 11. The Opposite parties are directed to file fresh show cause, showing full compliance of the direction of this Court. Compliance must be in consonance with the law settled in Braj Kishore Singh’s case. 12. Put up this matter after eight weeks, within first ten cases. ORDER DATED 27.7.2011 13. On the last occasion, when this matter was taken up, Mr. Shivendra Kishore, Counsel, representing Jai Prakash University, Chapra had informed that the University has taken steps towards compliance of the direction of this Court as requisition has been made to the State Government on 21.06.2011 for releasing the requisite fund. ORDER DATED 27.7.2011 13. On the last occasion, when this matter was taken up, Mr. Shivendra Kishore, Counsel, representing Jai Prakash University, Chapra had informed that the University has taken steps towards compliance of the direction of this Court as requisition has been made to the State Government on 21.06.2011 for releasing the requisite fund. This step was taken by the University after much delay as SLP has been dismissed in the year 2010 itself. 14. Today, when the matter is taken up, no Supplementary Show-cause has been filed, showing compliance of the direction of this Court regarding payment to the petitioner. When I asked Mr. Shivendra Kishore, where he has any instruction regarding payment, he said that lastly when he has talked with the Registrar and the Finance Officer, they have not replied positively regarding payment. This is a clear case of contempt, in which the University and its authorities are showing deliberate disobedience to the direction of this Court as well as Apex Court. 15. Let this matter be listed on 10th of August, 2011, retaining its position. The Vice-Chancellor of the University and Registrar and Finance Officer, all three will remain physically present in Court and will answer for showing disobedience to the direction of this Court. ORDER DATED 10.8.2011 16. Heard learned Counsel for the petitioner and the counsel, representing Jai Prakash University, Chapra. 17. In compliance of the direction of this Court, dated 27.07.2011, the Vice Chancellor; the Registrar; and the Finance Officer of Jai Prakash University, Chapra are physically present in Court with their show-cause. 18. The Show-cause has been filed, informing compliance of the direction of this Court and also an apology has been tendered for causing inconvenience to the Court. The reason behind delay in compliance of this Court’s Order, as submitted by Mr. Shivendra Kishore, Counsel, representing Jai Prakash University, Chapra, has been the disturbances through which the University has passed during the pendency of this M.J.C. Application. It has been indicated in the Show-cause that pre and post retrial dues of both the petitioners have been calculated. Steps have been taken for its payment to them and the pension has been fixed and pension payment order has been issued. It has been indicated in the Show-cause that pre and post retrial dues of both the petitioners have been calculated. Steps have been taken for its payment to them and the pension has been fixed and pension payment order has been issued. So far other dues are concerned, they have also been taken care of and order with regard to payment of this amount has also been issued as mentioned in different paragraph of the show-cause. 19. Counsel, appearing for the petitioner, however, has an objection with regard to not taking care of 5% interest on account of delayed payment, since there was such direction in the Order, passed in the Writ Application. He has submitted that calculation chart should have been supplied to the petitioner so that in case any further dues can be claimed by the petitioner, he could have raised his objection. 20. Considering that direction of this Court has substantially been complied, except the interest part, the Contempt Application is being dropped, giving liberty to the petitioner to raise his objection after he is supplied with the calculation chart and in case he finds that some more dues are left to be paid. 21. Personal appearance of the Vice Chancellor, the Registrar and the Finance Officer of Jai Prakash University, Chapra is dispensed with.