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Jharkhand High Court · body

2014 DIGILAW 729 (JHR)

Bijay Kumar Dash v. State of Jharkhand

2014-07-14

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the petitioner and the respondent-State and the University. 2. The grievances of the petitioner is that he has served on the post of Assistant Liberian from 01.04.1977 in the Kashi Sahu College, Saraikella, which became a constituent college of the Ranchi University vide memo no. P15327-83 dated 18.12.2008 as per Annexure-J to the supplementary counter affidavit of the respondent no. 2 filed on 07.07.2014. However, after his retirement on 31.08.2012, the respondents have not yet released the admissible post retirement dues such as Provident Fund, Gratuity, Group Insurance, Leave Encashment etc. with statutory interest. He is also entitled for fixation of pay under the 5th and 6th Pay Revision, which have been granted in respect of the University employees and also its arrears. 3. Learned counsel for the petitioner has straightaway relied upon the judgment in the case of Ratni Oraon and Anr. Vs. The State of Jharkhand and Ors. in W. P.(S) No. 7818 of 2012dated18.12.2013and submitted that the said employee, whose dependant had filed the said writ petition, had also been appointed as Peon in the same college in June, 1978 and died in harness on 25.12.2011 thereafter. The said petitioner had preferred the writ petition for grant of family pension and admissible death-cum-retiral dues and also claiming for compassionate appointment. It is submitted that in the said case also a plea was taken by the respondents that the post, upon which the deceased employee was appointed, was not sanctioned post, therefore the claim was not justified. It is submitted that the learned Single Judge after considering the rival submissions of the parties was of the view that such a ground cannot now be taken after 33 years of service rendered by the said deceased employee for denying the benefits of service to his dependant in the nature of pension etc., which is not a bounty but is a statutory right of an employee. The respondents were, therefore, directed to pass an appropriate order for release of family pension and other admissible dues by the said judgment. 4. In the instant case after order dated 02.12.2013, the respondent-State has filed a counter affidavit and thereafter again took time to file a detailed counter affidavit, which has been filed thereafter on 07.07.2014. The respondents were, therefore, directed to pass an appropriate order for release of family pension and other admissible dues by the said judgment. 4. In the instant case after order dated 02.12.2013, the respondent-State has filed a counter affidavit and thereafter again took time to file a detailed counter affidavit, which has been filed thereafter on 07.07.2014. The stand taken by the respondents in the supplementary counter affidavit is of the effect that after coming into force of the University Act 1976, the Governing Body of the college had no power to create non teaching posts in the college. There are no evidences of creation of additional post by the Governing body after 24.07.1973. The petitioner was appointed as Assistant Liberian by the Principal of the college vide letter dated 27.02.1977 and the Governing Body of the said college approved his appointment on 20.11.1979 with retrospective effect from the date of his joining. The University has stated that the date of regularization of the petitioner has been notified as 05.11.1979 as Lower Division Clerk (in short LDC) which, however, does not match with the date of his regularization by the Governing Body of the College. 5. According to the respondents, though the University has given reference of the judgment passed by the Hon'ble Supreme Court dated 25.09.1991, 10.08.1992 and 17.01.1994 in writ petitions and contempt case respectively as indicated in their counter affidavit, but these cases were related with those employees of the University, who were appointed without having sanctioned posts on the basis of staffing pattern. In the light of the Judgments of the Hon'ble Supreme Court, posts have been created by the Bihar State Government for the Colleges of Ranchi University vide letter dated 20.08.1993. The University is, however, trying to justify the appointment of the petitioner against the posts created by the State Government vide letter dated 20.08.1993. Therefore, the petitioner cannot be regularized prior to August, 1993 i.e. prior to the creation of the posts. The University has submitted the proposal for approval of the pay fixation of non teaching staffs of the College in the year 2008 in which the petitioner has been shown regularized against LDC post sanctioned by the State Government vide letter dated 05.11.1979. However, as per the said letter, three posts of Lab In-Charge were created, but no posts of Assistant have been created by the said letter. However, as per the said letter, three posts of Lab In-Charge were created, but no posts of Assistant have been created by the said letter. The stand of the University is contrary to the said letter. According to the respondents, there are 23 posts of 3rd grade in the college out of which 19 posts were created vide letter dated 20.08.1993 in which post of Assistant Librarian was not included. After relying upon all these letters, the respondents have stated that four posts of 3rd grade was available in the college prior to August, 1976 which does not include the post of Assistant Librarian. The petitioner is, therefore, not entitled for pay fixation against the said post, which were created prior to 15.08.1976 and his pay can only be fixed against 3rd grade post created vide letter dated 20.08.1993. 6. Based on all these facts, the claim of the petitioner for the payment of admissible post retiral dues from the date of his joining in the said post has been contested. 7. A perusal of the aforesaid averments made in the writ petition and the counter affidavit filed by the respondents, indicate that in the instant case, the petitioner was appointed in the year 1973. As per the letter addressed to the Director, Higher Education dated 05.04.2014, Annexure-J to the supplementary counter affidavit of the respondent-State, the Ranchi University has indicated the date of regularization of the petitioner against sanctioned post of LDC w.e.f. 20.11.1979 vide office order dated 21.01.1995. The respondent-State, however, after retirement of the petitioner has come forward that his services could only have been regularized on the post sanctioned by the respondent-State through letter dated 20.08.1993. Such a stand on the part of the respondent-State, after the retirement of the petitioner from the said post in the college in question in effect seeks to deny him benefits of services which were treated to be regularized from November, 1979 by the respondent-University and consequently the benefit of pay revision prior to 5th pay revision granted to him by the respondents as well. The claim of the petitioner in the present case, therefore, appears to be on similar line to that of writ petitioner i.e. Ratni Oraon and Another being W. P. (S) No. 7818 of 2012, which was decided by the Learned Single Bench of this Court vide judgment dated 18.12.2013 as the said employee in the said case was appointed in the same college on 28.06.1978 and died in harness on 25.12.2011. In the said case also, the respondents had taken a similar plea that the said petitioner was not appointed on a sanctioned post. 8. In the aforesaid facts and circumstances, it, therefore, appears that the respondent-State on the one hand has failed to take a conscious decision in the matter of recognition of the petitioner's services all along, though it has released the benefits of pay revision to him prior to 5th Pay Revision and now after his retirement, a question is being raised in relation to regularization of his services, which is contrary to the stand taken by the University on the strength of their letter dated 21.01.1995 whereunder the petitioner was regularized w.e.f. 20.11.1979. 9. In such circumstances, the stand of the respondent-State, does not seem to be proper in the eyes of law and has the effect to deny the valuable benefit of pension and other retiral dues of the petitioner, for which he may be entitled after serving the college in question all along since his regularization as treated with effect from 20th November, 1979 itself. 10. The petitioner through proper channel shall approach the respondent no. 3, the Registrar, Kolhan University, Saraikella-Kharswan for redressal of his aforesaid grievances duly supported with all necessary facts and documents. Respondent no. 3, after examining the claim of the petitioner in accordance with law, take a decision within a reasonable time and if required make the recommendation to the Directorate of Higher Education, Human Resources Department for appropriate decision and release of the admissible post retiral dues and arrears of pay revision in favour of the petitioner in accordance with law within a period of 12 weeks from the date of receipt of such request. 11. Accordingly, the writ petition is disposed of in the aforesaid manner. Petition disposed of.