Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1582 (JHR)

Kushmi Devi v. State of Jharkhand

2019-09-12

S.N.PATHAK

body2019
JUDGMENT : The petitioner has approached this Court with a prayer for direction to the respondents to pay the benefit of M.A.C.P. from the date, the petitioner is entitled thereof on completion of 30 years of regular and satisfactory service. Further prayer has been made to fix the pension after calculating the benefits of M.A.C.P. and also payment of post retiral benefits. 2. As per the factual matrix as stated in the writ petition, the petitioner was appointed as a Sevika in Hindi Uchch Prathmik School, Purani Ranchi vide memo No.7268-73 dated 02.12.1975. Subsequently, the appointment of the petitioner was suspended vide memo No.7843-47 dated 24.12.1975 in want of age proof. This suspension was withdrawn vide memo No.5255-56 dated 22.6.1976, restoring the date of joining as date of initial appointment, after sufficient proof of age was submitted by the petitioner. On 06.09.1977 the petitioner was transferred to Sarvodya Primary School, Ranchi in the pay scale of Rs.155-1-160-2-180 and thereafter the petitioner was again transferred to Govt. Middle School, Krishna Nagar Colony, Ratu Road, Ranchi from where on attaining the age of superannuation, she retired from services. 3. It is further case of the petitioner that she received revised pay scale of Rs.350-5-400 EB-5-425 w.e.f. 01.04.1981 by the then District Superintendent of Education, Ranchi. All through the service of the petitioner has been approved. In the light of the order passed vide memo No.319 dated 30.1.09, petitioner has also been given 1st and 2nd ACP w.e.f. 09.08.1999 and 02.12.1999 respectively and accordingly her pay was fixed. This ACP benefits were also confirmed by the Commissioner, South Chotanagpur. In pursuant to the 6th pay revision, pay scale of the petitioner was revised and her pay was fixed in the pay scale of Rs.5200-20,200/-. Thereafter, vide memo dated 07.01.2010 the Respondent D.S.E., Ranchi has confirmed the services of the petitioner w.e.f. 02.12.1978. The pay scale of the petitioner was provisionally fixed and approved by the District Superintendent of Education, Ranchi. After being eligible for getting the benefits of 3rd MACP, the petitioner made representation before the concerned authorities on different dates but the benefits were never extended. The petitioner after her superannuation on 02.10.2017 made representation for her post reitral benefits but the same was not considered rather the benefits have been withheld by the respondent No.3 on the ground that initial appointment of the petitioner is illegal. The petitioner after her superannuation on 02.10.2017 made representation for her post reitral benefits but the same was not considered rather the benefits have been withheld by the respondent No.3 on the ground that initial appointment of the petitioner is illegal. The petitioner clarified her stand before the respondents but till date no order has been passed regarding extending the benefits of 3rd M.A.C.P. and also for payment of post retiral benefits as well as fixation of pension in the revised scale and hence the petitioner has been constrained to knock the door of this Court. 4. Mr. Rishikesh Giri, learned Counsel appearing for the petitioner strenuously urges that the stand of the respondents is not at all tenable in the eyes of law. Learned Counsel submits that the services of the petitioner have been approved. Benefits of 1st and 2nd M.A.C.P. has been extended. The petitioner continued to work to the satisfaction of the respondent-authorities and her work was praised. Never any allegation was levelled against the petitioner and the appointment was never questioned. It is only after the retirement, respondents have raised the issue of illegal appointment on the ground that at the time of initial appointment, post was neither approved nor sanctioned which is not tenable in the eyes of law. The petitioner is entitled for her benefits which accrued to her after rendering more than 35 years of service. 5. Per contra counter-affidavit has been filed. 6. The respondent-State vehemently opposing the contention of the petitioner submits that upon attaining the age of superannuation and receiving an application for grant of 3rd M.A.C.P. on 11.7.2016 it was found that initial appointment of the petitioner is void and illegal. Though asked by the respondent-authorities to produce her original appointment letter but the petitioner failed to do so. In course of verification, it was found that the petitioner was appointed after 1.1.1971 i.e. in the year 1973 but there was no provision for appointment of peon/service in any elementary school of the State. Since appointment of the petitioner was made after 12.11.1973 i.e. on 02.12.1975, therefore, her appointment is ab initio void. The Regional Deputy Director has placed the matter before the District Education Establishment Committee where it was decided not to grant pension/gratuity/leave encashment and M.A.C.P. to the petitioner. The petitioner has superannuated on 31.8.2017. Since appointment of the petitioner was made after 12.11.1973 i.e. on 02.12.1975, therefore, her appointment is ab initio void. The Regional Deputy Director has placed the matter before the District Education Establishment Committee where it was decided not to grant pension/gratuity/leave encashment and M.A.C.P. to the petitioner. The petitioner has superannuated on 31.8.2017. G.P.F. and Group Insurance amount of the petitioner have already been sanctioned and since appointment of the petitioner itself is “ab initio void” a direction has been sought for from the Regional Deputy Director for taking a decision which is still pending. 7. Be that as it may, having gone through the rival submissions of the parties and from perusal of the documents on record, it is admitted that petitioner had continuously worked for more than 35 years. In the entire service career no fingers were raised. Appointment of the petitioner was confirmed, benefits of 1st ACP was given and even the benefits of 2nd ACP was extended to the petitioner. All the benefits were given by the respondents after verification. After lapse of more than 35 years of long service, respondents have raised the question of illegal appointment. The petitioner was legally appointed as a peon and has served the Department honestly and diligently to the satisfaction of the authority concerned. Never any adverse memo has been received by the petitioner nor any enquiry has been initiated in the service book. The stand taken by the Government for withholding the benefits of 3rd M.A.C.P. as well as benefits of retiral benefits and pay fixation is absolutely illegal and de hors the Rules. The petitioner was appointed in the year 1973. There is presumption in law that when she was appointed her eligibility educational qualifications certificates and testimonials were verified. The petitioner is also emergent from the facts that from 1973 till 2016 no illegality was found in her appointment. Suddenly an issue of the illegality of the appointment is sought to be raked up. The order of stopping of the pay fixation and retiral benefits is totally illegal and unwarranted. Similar issue fell for consideration before the Hon’ble Patna High Court in case of “Kabir Mahto vrs. State of Bihar”, reported in 2009 (1) PLJR 35 . The relevant paras are quoted here-in-below: “Para 7. If the petitioner was an illegally appointee as is sought to be contended quite obviously it was a collusive appointment. Similar issue fell for consideration before the Hon’ble Patna High Court in case of “Kabir Mahto vrs. State of Bihar”, reported in 2009 (1) PLJR 35 . The relevant paras are quoted here-in-below: “Para 7. If the petitioner was an illegally appointee as is sought to be contended quite obviously it was a collusive appointment. If, it was a collusive appointment, why should the petitioner suffer alone ? Those who made hay while the sun shone must equally see cloudy days. If the petitioner has to be denied his arrears of salary and retiral benefits all those in the Government who were associated with the appointment of the petitioner and released all salary to him as Assistant Teacher from 1972 to 1999 are equally required to be proceeded with against departmentally or under the criminal laws of the land, as the case may be. The counter-affidavit of the respondents is completely silent on this issue, perhaps intentionally. Para 8. This Court is perturbed by the manner in which the issue as important as education has been dealt with by the State. If what the respondents have done be permitted, no government employee would be safe, as at any stage of his career, no matter of the passage of time, any government functionary takes it into his mind to reopen the issue settled 27 years back the same may be reopened to be closed on conditions and negotiations only.” Para 9. The impugned orders dated 14.9.2004 and 20.9.2004 are quashed. The Court holds that the petitioner is entitled to his entire arrears of salary withheld from 1999 till his retirement on 30.6.2004 as also his retirement benefits. The only justification for the same would be institution of simultaneous departmental or criminal proceedings against those who dealt with his appointment and continuous from 1972 to 1999 as noticed above.” Para 10. This shall be without prejudice to the criminal prosecution stated to have been lodged against the petitioner. The writ petition stands allowed. 8. The aforesaid view has also been confirmed by the Hon’ble Patna High Court in case of “Surajmal Prasad vrs. State of Bihar & Ors.”, reported in 2009 (4) PLJR 929 . This Hon’ble Court in case of “Shankar Ghosh vrs. State of Jharkhand & Ors.”, reported in (2010 (3) JCR 365 (Jhr.) has reiterated the same view. 9. 8. The aforesaid view has also been confirmed by the Hon’ble Patna High Court in case of “Surajmal Prasad vrs. State of Bihar & Ors.”, reported in 2009 (4) PLJR 929 . This Hon’ble Court in case of “Shankar Ghosh vrs. State of Jharkhand & Ors.”, reported in (2010 (3) JCR 365 (Jhr.) has reiterated the same view. 9. From the aforesaid decision also, when any person has served for much longer period and especially as a Class IV type of services and also when her service book is maintained by the Government coupled with the facts that a grade IV employee that too a female continuously working for more than 36 years and receiving the benefits of 1st and 2nd A.C.P., fixation of the salary by the District Superintendent of Education, at the fag end of service the issue regarding initial appointment cannot be raised as the allegation itself is baseless allegation and based on the allegation retiral benefits cannot be withheld. 10. As a sequel to the aforesaid legal proposition, judicial pronouncements, I hereby direct the respondent-Director, Primary Education to immediately and forthwith release the retiral benefits to the petitioner, if not released till date and extend the benefits of 3rd M.A.C.P., as per her entitlement in accordance with law. The entire consequential benefits shall be paid with interest @ 6% per annum. 11. The writ petition stands allowed.