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Patna High Court · body

2014 DIGILAW 150 (PAT)

Yugeshwar Mahto v. State Of Bihar

2014-01-30

HEMANT KUMAR SRIVASTAVA

body2014
CAV ORDER In all these three writ petitions, similar issue is involved and accordingly, a common order is being passed in all the above stated three writ petitions. 2. All the above stated three writ petitions have been filed for issuance of writ of certiorari to declare that the para 6 of the Service Condition Rule, 2004 of the Rural Institute, Birouli, Samastipur does not have retrospective effect and the said rule does not apply to the cases of the petitioners. CWJC No 22962 of 2012. 3. Petitioner in the aforesaid writ petition was appointed as Peon (Krishi Anusewak) on 01.10.1970 and he was made permanent on the aforesaid post on 03.03.1976 vide memo no. 754 dated 03.03.1976. Petitioner was given time bound promotion with effect from 09.08.1999 vide memo no. 156 dated 26.09.2007. The services of the petitioner and some other employees were confirmed in due course in the year 1975. Petitioner retired from the service on 29.02.2008 but his retiral dues such as Pension and Gratuity etc. were denied by the concerned University on the ground of Service Rule of 2004. Petitioner filed CWJC No. 14085 of 2009 for payment of pension and other retiral dues which was disposed of on 27.10.2009 by a Bench of this Court directing the Director, Higher Education, Government of Bihar, Patna and the Director, Rural Institute of Higher Studies, Birouli, Samastipur to consider and dispose of the representation of the petitioner, if it is filed, in accordance with law, preferably within a period of four months but his grievance was not redressed by the concerned authorities. CWJC No. 20723 of 2012. 4. Petitioner in the aforesaid writ petition was appointed as Peon (Krishi Anusewak) on 15.04.1966 and his service was made permanent on 03.03.1976 in due course. CWJC No. 20723 of 2012. 4. Petitioner in the aforesaid writ petition was appointed as Peon (Krishi Anusewak) on 15.04.1966 and his service was made permanent on 03.03.1976 in due course. Petitioner got time bound promotions and he was confirmed on the aforesaid post but after retirement when his retiral dues was not paid, he filed CWJC No. 17495 of 2009 for payment of pension and other retiral dues and the said petition was disposed of by a Bench of this Court vide order dated 14.12.2009 directing the concerned authorities to make payment of admitted dues of the petitioner on filing of representation petition but in spite of aforesaid direction, the respondents did not pass any order in respect of retrial benefits of the petitioner and the retiral benefits of the petitioner have been denied by the concerned authorities on the ground of service Rule of 2004. CWJC No. 10409 of 2012. 5. Petitioner in the aforesaid writ petition was appointed as Peon (Krishi Anusewak) on 09.05.1966 and on 03.03.1976, he was made permanent in due course. He was granted time bound promotions on 09.08.1999. He retired from the service on 31.01.2008 but his retiral dues was not paid to him and, thereafter, he filed CWJC No. 17989 of 2009 which was disposed of by a Bench of this Court with direction to concerned authorities to consider the representation of the petitioner in accordance with rule, if any representation is filed on behalf of the petitioner. 6. The stand of respondents no. 1 and 2 in all the above stated three writ petitions is that Rural Institute of Higher Studies, Birauli, Samastipur was established with effect from 01.09.1955 and fund for the aforesaid institute was being provided by the Central Government but later on, Government of India disassociated itself from the above stated institute by a decision dated 11.01.1971. After disassociation of Government of India from the aforesaid institute, the aforesaid institute was affiliated with Mithila University and later on, the aforesaid institute was registered as Society under the Societies Registration Act, 1960 with memorandum of association. After disassociation of Government of India from the aforesaid institute, the aforesaid institute was affiliated with Mithila University and later on, the aforesaid institute was registered as Society under the Societies Registration Act, 1960 with memorandum of association. Further stand of the Sate is that the State Government notified Service Condition Rule, 2004 of the Rural Institute, Birouli, Samastipur in the light of an order given by this Court and there is no provision for payment of retiral benefits to the non teaching employees of the institute after registration as a Society. It is also stand of the State that all the above stated petitioners were appointed when the status of the institute was a Society and, therefore, they are not entitled to get benefit of pension, gratuity and provident fund in the light of Rule 6 of Rural Institute Birauli, Samastipur Service Condition Rules 2004. Further stand of above stated respondents is that all the petitioners were appointed when the status of the institute was a Society and, therefore, in the light of Rule 6 of Rural Institute, Birauli, Samastipur Service Condition Rule 2004 petitioners are not entitled to get benefit of Pension, Gratuity and Provident Fund. 7. Admittedly, Rural Institute Birauli, Samstipur Service Condition Rule 2004 was framed in the year 2004 and prior to framing of aforesaid rule, the said institute was registered as Society under the Societies Registration Act, 1960 but the counter affidavit of respondents no. 1 and 2 does not disclose the date on which the aforesaid institute was registered as Society. 8. However, the counter affidavit of respondent nos. 1 and 2 discloses that above stated institute was established with effect from 01.09.1955 and on 11.01.1971, the Government of India disassociated itself from the aforesaid institute and thereafter, the aforesaid institute was affiliated with Mithila University. At the time of registration of aforesaid institute as Society, the memorandum of association was prepared and para 6 of the aforesaid memorandum says that “The Society shall employ all members of the teaching staff and other servants of Government of Bihar, who immediately before the registration of the Society, were employee in the Institute, on such terms and conditions as may be decided by the State Government.” 9. Now, the question arises when petitioners were appointed in the aforesaid institute. Now, the question arises when petitioners were appointed in the aforesaid institute. It is specific stand of petitioner in CWJC No. 22962 of 2012 that he was appointed in the aforesaid institute as Krishi Anusewak on 01.10.1970 and he was made permanent on 03.03.1976 vide memo no. 754 dated 03.03.1976. The stand of petitioner in CWJC No. 20723 of 2012 is that he was appointed as Krishi Anusewak in the aforesaid institute on 15.04.1966 and was made permanent on 03.03.1976 and similarly, the stand of petitioner in CWJC No. 10409 of 2012 is that he was appointed in the aforesaid institute as Krishi Anusewak on 09.05.1966 whereas made permanent on 03.03.1976. The aforesaid stand of the petitioners has not specifically been denied by the State rather a vague statement has been made that petitioners were appointed by the Society without disclosing the date of registration of the aforesaid Society. 10. Annexure-2 to the petitions reveals that State Government vide order no. 754 dated 03.03.1976 took decision to permit the continuance of the posts on which petitioners were appointed. In the aforesaid order no. 754 dated 03.03.1976 it has specifically been mentioned that the aforesaid posts were created three years ago. Therefore, the aforesaid document clearly shows that petitioners were working on their posts at least on the date of issuance of order no. 754 dated 03.03.1976. The aforesaid document also reveals that “15.04.1966” has been entered in front of name of petitioner in CWJC No. 20723 of 2012, “09.05.1966” has been entered in front of name of petitioner in CWJC No. 10409 of 2012 and “01.10.1970” has been entered in front of name of petitioner in CWJC No. 22962 of 2012. Therefore, it appears that petitioners were working on their post from the above stated respective dates. 11. The case of the State is that the Union of India disassociated itself from the institute on 11.01.1971 and after that the aforesaid institute was affiliated with Mithila University and, therefore, the aforesaid document shows that at the time of affiliation of aforesaid institute with Mithila University, the petitioners were working in the aforesaid institute and, therefore, the aforesaid fact goes to show that petitioners were appointed much prior to disassociation of Union of India from the aforesaid institute. Admittedly, after disassociation of the Union of India from the aforesaid institute, the aforesaid institute was registered as Society and, therefore, it is clear from the aforesaid document that the petitioners were not appointed by the concerned Society rather they were appointed by the State Government. Furthermore, Rural Institute, Birauli, Samastipur Service Condition Rule 2004 was made applicable with effect from 05.01.2004 and the aforesaid rule does not have any retrospective effect as there is nothing in the aforesaid rule to show that the aforesaid rules have been made with retrospective effects rather the aforesaid rules have been made applicable in respect of the persons who have been appointed by the Society. 12. It is also an admitted position that earlier petitioners came before this Court but they were directed to file representations before the concerned authorities in respect of their grievances and the concerned authorities were directed to redress the claims of the petitioners in accordance with law within a period of four months. In pursuance of order of this Court, petitioners again approached the concerned officials and filed representations but they did not find favour by the concerned authorities and the Director (Higher Education), Human Resources Development Department, Bihar, Patna rejected the claim of the petitioners taking aid of para 6 of the Service Condition Rule, 2004 of the Rural Institute, Birouli, Samastipur and observed that according to aforesaid rule, petitioners are not entitled for Pension, Gratuity and General Provident Fund. 13. As I have already discussed that petitioners were appointed by the Government before registration of aforesaid institute as Society and para 6 of the Service Condition Rule, 2004 of the Rural Institute, Birouli, Samastipur does not have any retrospective effect and, therefore, the aforesaid para 6 of the Service Condition Rule, 2004 of the Rural Institute, Birouli, Samastipur shall not apply in respect of the petitioners and, therefore, petitioners are entitled to get their retiral dues from the respective dates of their retirement. 14. Accordingly, these writ petitions stand disposed of with direction to respondents no. 2, 4 and 5 to take steps to ensure the payment of retiral dues of the petitioners treating them as government employees within three months from the date of receipt/production of a copy of this order.