The State Of Jharkhand vs Herman Minz
2021 Latest Caselaw 638 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No.289 of 2020
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1. The State of Jharkhand

2. Secretary (Secondary Education), Human Resources Development Department, Project Bhawan, P.O. & P.S. Dhurwa, Ranchi .... .... Appellants Versus

1. Herman Minz, Son of Late Joseph Minz, Resident of Village & P.O. Kochedega, P.S. & District-Simdega, Jharkhand

2. The Secretary, G.E.L. High School, Kochedega, P.O. & P.S. Simdega, Dist. Simdega

3. The Head Master, G.E.L. High School, Kochedega, P.O. & P.S. Simdega, Dist. Simdega

4. The Accountant General, Ranchi, P.O.& P.S. Doranda, Dist. Ranchi

5. The Director (Secondary Education), Human Resources Development Department, Project Bhawan, P.O. & P.S. Dhurwa, Ranchi

6. The District Education Officer, Simdega, P.O. & P.S. Simdega, Dist. Simdega

7. The Treasury Officer, P.O. & P.S. Simdega, District-Simdega .... .... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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 For the Appellants         : Mr. P.A.S. Pati, S.C.-IV
 For the Respondents        : None
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  ORAL JUDGMENT
 05/Dated: 10.02.2021

The matter has been heard through video conferencing. There is no

complaint about any audio and visual quality.

I.A.No.5000 of 2020 & I.A.No.740 of 2021

Interlocutory application being I.A.No.740 of 2021 has been filed for

withdrawal of I.A.No.5000 of 2020 and condonation of delay in filing this

instant appeal.

Learned counsel for the appellant, at the outset, submits that he is

not pressing the interlocutory application being I.A.No.5000 of 2020.

In view thereof, I.A.No.5000 of 2020 is dismissed as not pressed.

I.A.No.740 of 2021

This interlocutory application has been preferred under Section 5 of

the Limitation Act for condoning the delay of 401 days in preferring this

Letters Patent Appeal.

Heard.

In view of the submissions made on behalf of the parties and the

averments made in the interlocutory application, we are of the view that

the appellants were prevented by sufficient cause in preferring the appeal

within the period of limitation.

Accordingly, I.A.No.740 of 2021 is allowed and delay of 401 days in

preferring the appeal is condoned.

One interlocutory application being I.A.No.775 of 2021 is also on

record pertaining to same prayer as reflected in I.A.No.740 of 2021 which

has already been allowed as above, therefore, interlocutory application

being I.A.No.775 of 2021 is dismissed as not pressed.

L.P.A. No.289 of 2020

The instant intra-court appeal is directed against the order/judgment

dated 21.08.2019 passed by the learned Single Judge of this Court in

W.P.(S) No.5823 of 2012, whereby and whereunder, the writ petition has

been allowed by quashing the order dated 17.08.2012 with a direction

upon the respondent authority to pay pension and gratuity in favour of the

writ petitioner.

2. The brief facts of the case are required to be referred herein which

reads as hereunder:-

The writ petitioner was appointed as Clerk on 01.02.1975 at G.E.L.

High School, Kochedega, Simdega and retired on 29.02.2004. He

received salary from April, 1980 to January, 2003 from the department

through the School.

The writ petitioner after having been superannuated has claimed for

post retiral benefits including pension as also the arrears of salary from

February, 2003 to February, 2004 along with the interest. The grievance

having not been redressed, he has preferred the writ petition being

W.P.(S) No.215 of 2010 which was disposed of vide order dated 21.04.

2010, by which, the authorities have been directed to take necessary

decision on all the issues, in pursuance thereto, the authorities had taken

decision on 17.08.2012 but his claim was rejected holding therein that the

writ petitioner is not entitled to get pension as because the writ petitioner

has been superannuated from his service w.e.f. 29.02.2004 while the

School in question, namely, G.E.L. High School, Kochedega, Simdega has

got the status of minority school in the year 2007.

The writ petitioner has questioned the said decision of the authority

by filing the writ petition being W.P.(S) No.5823 of 2012 by agitating the

point about the order passed by the Coordinate learned Single Judge of

this Court in W.P.(S) No.2514 of 2013 which was disposed of on

19.07.2016 and the petitioner of the said writ petition has been extended

with the same benefit which is being claimed by the writ petitioner and as

such, the learned Single Judge has found no reason to differ with the view

taken by the Coordinate learned Single Judge, the said order is the

subject matter of the instant appeal.

3. Mr. P.A.S. Pati, learned S.C.-IV appearing for the appellant-State of

Jharkhand submits that the learned Single Judge erred in passing the

order without considering the fact that the writ petitioner is not entitled to

get the pensionary benefit as per the provision of Rule of the year 1981.

Further, it has been contended that even accepting that a direction

passed by the another learned Single Judge of this Court in W.P.(S)

No.2514 of 2013 has been complied with by the State without assailing

the same before the Higher Forum but that does not mean that if the said

order has not been questioned and the benefit has been given to the writ

petitioner of the said writ petition i.e. W.P.(S) No.2514 of 2013, a right has

been accrued to the writ petitioner to get the said benefit and in view

thereof, the order passed by the learned Single Judge is not sustainable in

the eyes of law.

4. We have heard the learned counsel for the State appellant, perused

the documents available on record as also the finding recorded by the

learned Single Judge in the impugned order.

5. We deem it fit and proper to deal with certain admitted facts as also

the legal position before proceeding to look into the legality and propriety

of the impugned order.

6. Admittedly, the writ petitioner has joined his service as Clerk on

01.02.1975 against the sanctioned post and retired on 29.02.2004 as also

received salary from April, 1980 to January, 2003 from the concerned

Department through the School.

It is further admitted that the appointment of the writ petitioner on

the post of Clerk was sanctioned vide Memo No.19958-64 dated

10.10.1979. The writ petitioner, after his superannuation, has raised the

demand for disbursement of the pensionary benefit but having not

considered, writ petition being W.P.(S) No.215 of 2010 was filed, which

was disposed of on 21.04.2010.

The respondent authorities have passed an order on 17.08.2012

holding therein that the writ petitioner is not entitled to get the pensionary

benefit as because before getting status of the Minority School, the writ

petitioner has been retired from service.

It is further admitted fact that in the similar facts and circumstances,

writ petition being W.P.(S) No.2514 of 2013 was filed, wherein, another

learned Single Judge of this Court has passed an order, in pursuance

thereto, the pensionary benefit has been disbursed in favour of the writ

petitioner of W.P.(S) No.2514 of 2013.

7. The learned Single Judge after taking into consideration the fact

about the order passed in W.P.(S) No.2514 of 2013 having been complied

with by the State authority without assailing the same before the Higher

Forum, has allowed the writ petition by issuing direction in terms of the

order passed in W.P.(S) No.2514 of 2013.

8. Mr. P.A.S. Pati, learned S.C-IV appearing for the appellant-State has

taken the ground that the writ petitioner has retired in the year 2004 while

the School in question having been given minority status vide order dated

28.09.2007, as such, the writ petitioner is not entitled for pension and

other benefits.

He further submits that such decision was taken by the State

authority on the basis of opinion of Law Department as also the learned

Advocate General.

It has not been disputed that in the similar set of facts, pensionary

benefit and other retiral benefits have been given in favour of the writ

petitioner of W.P.(S) No.2514 of 2013.

9. So far as the contention that since the writ petitioner has retired

from service on 29.02.2004, the School in question has not been given

status of minority as on the date of retirement, therefore, the writ petitioner

is not entitled to get the pension and other retiral benefits but the said

argument is also without any substance, since the Human Resource

Development Department of the State of Jharkhand has already come out

with a decision on 12.09.2006 as contained in Memo No.1970 as has

been appended as Annexure-4 to the writ petition, whereby and

whereunder, the decision has been taken in furtherance to the decision of

the State of Bihar as contained in letter no.777 dated 31.03.1981 and

circular no.1775 dated 30.08.1980, whereby and whereunder, the

erstwhile State of Bihar has taken decision to extend the benefit of

pension, gratuity and G.P.F. and the State of Jharkhand has also taken

such decision to continue to pay the pensionary benefit in the light of the

said circular issued by the State of Jharkhand.

It appears from the said circular that the Government has taken

decision to follow contributory pension scheme for appointees who have

been appointed on or after 01.12.2004. Therefore, the contention of the

learned counsel appearing for the State appellant regarding the

entitlement of the pensionary benefit and other retiral benefits of the writ

petitioner is contrary to the policy decision of the State authority as

contained in circular dated 12.09.2006.

This Court, therefore, has found that even though, the State of

Jharkhand has come out with the decision on 12.09.2006 but the same

will be treated to be in continuation of the decision of the erstwhile State of

Bihar as contained in letter no.777 dated 31.03.1981 and circular no.1775

dated 30.08.1980 and as such, the decision which has already been taken

by the erstwhile State of Bihar by the said order, basis upon which, the

claim of the writ petitioner for getting pension after his retirement w.e.f.

29.02.2004 will be admissible to the writ petitioner, in pursuant to the said

policy decision, however, the said policy decisions have further been

continued by the State of Jharkhand by way of policy decision dated

12.09.2006 and hence, the decision of the authority as contained in the

impugned order that since he has retired w.e.f. 29.02.2004, therefore, he

will not be entitled to get the pensionary benefit, is having no foundation.

10. It is further relevant to refer about the settled position of law about

the normal rule to the effect that when a particular set of employee is

given relief by the Court, all other identically situated persons need to be

treated alike by extending that benefit., since not doing so would amount

to discrimination and would be violative of Article 14 of the Constitution of

India, as has been held by the Hon'ble Apex Court in State of U.P. and

Ors. Vrs. Arvind Kumar Srivastava and Ors., (2015) 1 SCC 347,

wherein it has been laid down at paragraph-22.1, which reads as

hereunder:-

"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated person should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."

11. Herein, the grievance of the writ petitioner is similar to that of writ

petitioner in W.P.(S) No.2514 of 2013 and taking into consideration the

said order passed by the another learned Single Judge of this Court, the

order has been passed which is impugned, the same cannot be said to

suffer from infirmity as, if the learned Single Judge would not have passed

such order, it would amount to discriminating the writ petitioner and further

the State of Jharkhand being respondent before the Writ Court has filed

the detailed counter affidavit and contested the case but has not pointed

out the non-applicability of the order passed in W.P.(S) No.2514 of 2013

and further before this Court also has failed to convince about the non-

applicability of the circular dated 12.09.2006.

12. This Court, is further of the view that the appellant State being a

welfare State cannot be allowed to adopt the policy of pick and choose i.e.

accepting the order passed in a case of a particular employee without

challenging the same rather acting upon the same by disbursing the

monetary benefit but questioning the order passed by the High Court

under Article 226 of the Constitution of India in case of other employee

instead of treating him on the similar facts and circumstances.

13. This Court, on the basis of the discussion made hereinabove and

after going across the impugned order, is of the view that the order suffers

from no error.

14. In the result, the instant appeal fails and is, dismissed.

15. In consequent to dismissal of this appeal, I.A. No.5001 of 2020,

I.A.No.6054 of 2020, I.A.No.6055 of 2020, I.A.No.6300 of 2020 and

I.A.No.6432 of 2020 stand disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-.A.F.R.