Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 723 (JHR)

Chidanand Jha v. State of Jharkhand

2018-04-03

D.N.PATEL, RAJESH KUMAR

body2018
ORDER : RAJESH KUMAR, J. I.A. No. 9459 of 2017 1. This Interlocutory Application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 15 days in preferring the instant Letters Patent Appeal. 2. Having heard learned counsels and looking to the reasons stated in paragraph 4 of the Interlocutory Application, there are reasonable reasons for condoning the delay in preferring the instant Letters Patent Appeal. 3. Accordingly, I.A. No. 9459 of 2017 is allowed and delay in filing the instant Letters Patent Appeal is condoned. L.P.A. No.474 of 2016 Brief facts of the instant Letters Appeal 4. Appellants were appointed on 26.02.1981 by Managing Committee of the School (Annexure-1). Appellant no.1 has been appointed on the Class III post and appellant no.2 on the Class IV post of Pandit Binodanand Jha Balika Sanskrit Prathamik Sah Madhyamik Vidyalaya, Deoghar. i. It has been further claimed that on 22.07.1986, the Secretary, Bihar Sanskrit Shiksha Board, Patna has approved the appointment of the appellants. ii. It has also been claimed that the appellants have been paid salary for the period from 01.01.1985 to 31.03.1990 and thereafter, although they are working, but no payment has been made till date. iii. The Bihar Sanskrit Shiksha Board has issued an order dated 20.01.1994 for stopping the payments of non-teaching staff of schools like appellants school. 5. In view of the above facts, the appellants approached this Court by filing W.P.(S) No. 2314 of 2003 praying for salary w.e.f. April 1990 as the same has been illegally withhold without any rhyme and reason. 6. This Court on 02.03.2012 has passed an order in W.P.(S) No. 2314 of 2003 remanding the matter to the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand with liberty to the appellants/petitioners to file representation within a period of four weeks from the date of the order and upon receipt of such representation, the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand shall decide the representation submitted by the appellants/ petitioners within a period of two months thereafter. It has also been observed that if the claim of the appellants is found genuine, then in that case, salary must be released at the earliest. It has also been observed that if the claim of the appellants is found genuine, then in that case, salary must be released at the earliest. On the strength of order of this Court, the appellants have filed representation before the Authority which has been finally disposed of vide Memo No. 2878 dated 25.10.2012 (Annexure-11/1). 7. The claim of the appellants has been rejected by the respondents on the ground that the post, on which appellants have claimed to be appointed and working, is not sanctioned post. 8. After considering the above facts and the stand of the State, learned Single Judge has come to the conclusion that since posts, on which the appellants are working, were not sanctioned by the then State of Bihar and in that view of the matter they are not entitled for payment of any salary. 9. After hearing the parties and perusing the records, this Court comes to a conclusion that there is nothing on record to suggest that the posts on which the appellants have been appointed were vacant and sanctioned posts. It is well settled principle of law that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post, he is not entitled to any scale of pay. Appointment presupposes existence of a duly sanctioned post and if it is not done against the duly sanctioned post, the appointment made is nullity in law i.e. void ab initio. So far as, salary is concerned, it is always released through window of sanctioned post. In the absence of sanctioned post no Government money can be released as salary. Rule 38, 48, 49 and 58(a) of the Jharkhand Service Code 2001 is quoted hereinbelow. “38. Permanent post means a post carrying a definite rate of pay and sanctioned without limit of time. 48. Temporary post means a post carrying a definite rate of pay and sanctioned for a limited time. 49. Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period. In case of doubt the State Government will decide whether a particular post is, or is not, a tenure post. 58. 48. Temporary post means a post carrying a definite rate of pay and sanctioned for a limited time. 49. Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period. In case of doubt the State Government will decide whether a particular post is, or is not, a tenure post. 58. (a) Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.” 10. Above Rule clearly suggest that a post has to be created and sanctioned in accordance with law then only appointment can be made and further salary can be released to the holder of such post. 11. In the present case, as already held, the appellants are not holder of sanctioned post and as such their appointment is nullity in law and they are not entitle for any salary. 12. Above preposition of law is supported by the order of Apex Court in the case of State of M.P. Vrs. Yogesh Chandra Dubey reported in (2006) 8 SCC 67, which has been approved in para-18 of the judgment rendered by the Apex Court in the case of Indian Drugs & Pharmaceuticals Ltd. Vrs. Workmen Indian Drugs & Pharmaceuticals Ltd. Reported in 2007 (1) SCC 408 . Para-18 of the judgment rendered in the case of Indian Drugs & Pharmaceuticals Ltd. Vrs. (supra) is quoted hereinbelow:- “(18) In the case of State of M.P. Vrs. Yogesh Chandra Dubey-this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.” 13. Yogesh Chandra Dubey-this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.” 13. The judgment rendered in the case of Indian Drugs & Pharmaceuticals Ltd. (supra) by the Apex Court in which law has already been settled that a person cannot be appointed against the non sanctioned post and further claim of that person is that he is working on that post, which is not existing hence, he is not entitled for any salary because the petitioner rendered the work against the non-sanctioned post which is not permissible under the law. 14. In view of the aforesaid facts and judicial pronouncements, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed. Appeal dismissed.