Suchitra Jha vs The State Of Jharkhand
2023 Latest Caselaw 4019 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         L.P.A. No. 502 of 2022
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Suchitra Jha, aged about 57 years, wife of Late Bijoy Kumar Choudhary, resident of Deoghar, behind G.L. Motors, Pandit B.N. Jha Path, P.O. & P.S. Deoghar, District-Deoghar.

... ... Writ Petitioner/Appellant Versus

1. The State of Jharkhand, through Secretary, Department of Higher, Technical Education and Skill Development, Government of Jharkhand, Ranchi, Nepal House, P.O. Doranda, P.S. Doranda, District-Ranchi.

2. The Director, Department of Higher, Technical Education and Skill Development, Government of Jharkhand, Ranchi, Nepal House, P.O. Doranda, P.S. Doranda, District-Ranchi.

3. The Registrar, Sidhu Kanhu Murmu University, Dumka, P.O., P.S. & district-Dumka.

4. The Principal, A.S. College, Deoghar, P.O., P.S. & District-Deoghar.

5. The State of Bihar.

.. ... Respondents/Respondents With L.P.A. No. 47 of 2022

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1. The Registrar, Sidhu Kanhu Murmu University through its Registrar namely Mr. Sanjay Kumar Sinha, s/o Sri Yogendra Kumar Sinha, r/o New Babu Para, P.O., P.S. & District-Dumka.

2. The Principal, A.S. College, Deoghar, P.O., P.S. & District-Deoghar, Jharkhand.

Versus

1. Suchitra Jha, wife of Late Bijoy Kumar Choudhary, resident of Deoghar, behind G.L. Motors, Pandit B.N. Jha Path, P.O. & P.S. Deoghar, Jharkhand.

... ... Respondent/Petitioner

2. The State of Jharkhand.

3. The Director, Department of Higher, Technical Education and Skill Development, Government of Jharkhand, Ranchi, Nepal House, P.O. Doranda, P.S. Doranda, District-Ranchi.

... ... Performa Respondents/Respondent Nos.2 & 3

4. The State of Bihar.

.. ... Performa Respondents/Respondent No.1 CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR .....

For the Appellant/Petitioner : Mr. Manoj Tandon, Advocate [L.P.A. No. 502 of 2022] For the Sidhu Kanhu Unv. : Mr. Ravi Kerketta, Advocate

[L.P.A. No. 47 of 2022]

For the Respondents : Dr. Ashok Kr. Singh, Advocate [L.P.A. No. 502 of 2022]

For the State of Jharkhand : Mr. Mrinal Kanti Roy, GA-I Mr. Chandan Tiwari, AC to GA-I For the Resp.-State of Bihar : Mr. S.P. Roy, Advocate Mr. Diwakar Upadhyay, Advocate .....

C.A.V./Reserved on 03.10.2023 Pronounced on 17/10/2023

Per Sujit Narayan Prasad, J.:

1. Both the appeals have been directed to be heard together vide order dated 14.08.2023.

L.P.A. No. 502 of 2022:

2. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 18.08.2021 passed by the learned Single Judge of this Court in W.P.(S) No. 2090 of 2019, whereby and whereunder, the services rendered by the husband of the writ petitioner from 25.07.1984 to 28.02.2008 has not been ordered to be calculated for pernsionary benefit as claimed in para-1(a) of the writ petition.

L.P.A. No. 47 of 2022:

3. The instant appeal has been filed by the Sidhu Kanhu Murmu University through its Registrar under clause 10 of the Letters Patent challenging the order/judgment dated 18.08.2021 passed by the learned Single Judge of this Court in W.P.(S) No. 2090 of 2019, whereby and whereunder, the order has been passed with a direction upon the Registrar, Sidhu Kanhu Murmu University, Dumka, the respondent no.3 to the writ petition, to take a decision in respect of payment of family pension and other benefits to the petitioner within a period of four weeks from the date of receipt of copy of the order holding the writ petitioner entitled to receive the pensionary benefit, i.e., including the family pension.

4. The brief facts of the case as per the pleading made in the writ petitions, which require to be enumerated, read as under:

The husband of the writ petitioner, namely, Bijoy Kumar Choudhary was appointed as a Lecturer on ad hoc basis in A.S. College, Deoghar on 25.07.1984.

The husband of the writ petitioner rendered continuous service from 25.07.1984 to 28.02.2008 as temporary lecturer on full time against second proposed post and since 29.02.2008, he discharged the duty as permanent lecturer after qualifying the examination conducted for appointment in lecturers.

The post of Science faculty got sanctioned in the year 2003, vide letter no.5/mu-14/2002 dated 01.04.2003 under the signature of Secretary, Department of Human Resources Development. Thereafter, the Registrar, SKM University, Dumka vide letter dated 13.03.2014 sent requisition before the Director, Higher Education for payment of arrears of salary on account of payment of pay scale Rs.2200/4000/- but till date the same has not been paid.

The JPSC (Jharkhand Public Service Commission) advertised vacancy in which the husband of the writ petitioner qualified and joined the post on 29.02.2008 in view of the notification no. 91/2008 of Sidhu Kanhu Murmu University, Dumka.

It is the case of the writ petitioner that the aforesaid joining of the husband of the writ petitioner was in continuation of the work he was discharging since 25.07.1984 as he joined the same college on the same post.

The husband of the writ petitioner represented before the respondent authority to count the service rendered on ad hoc basis treating it to be for every purpose but no heed was paid and the University sanctioned retiral benefits only for the period of regular appointment from 29.02.2008 to 05.07.2018 ignoring the services rendered by the husband of the writ petitioner on temporary basis from 25.07.1984 to 28.02.2008.

Being aggrieved thereof, the writ petitioner challenged the same before this Court by filing writ petition being W.P.(S) No. 2090 of 2019 which has been disposed of directing the Registrar, Sidhu Kanhu Murmu

University, Dumka to take a decision in respect of payment of family pension and other benefits to the writ petitioner, against which the present appeals have been preferred by the writ petitioner and the respondent- Sidhu Kanhu Murmu University.

Argument on behalf of the appellant in L.P.A. No. 502 of 2022:

5. Learned counsel for the appellant has taken the following grounds in assailing the order/judgment passed by the learned Single Judge refusing to reckon the service rendered by the husband of the writ petitioner from 25.07.1984 to 28.02.2008 even though the husband of the writ petitioner was terminated from service but reinstated in pursuance of the order passed by the High Court vide order dated 05.07.2000 in C.W.J.C. No. 3916 of 2000, whereby and whereunder, the writ petitioner was directed to be reinstated in service however holding him not entitled for arrears of salary of the intervening period with the further observation that the authorities may terminate the services of the writ petitioner if regular appointment is being made in their places and any one or other writ petitioner does not come out successful at the time of such regular appointment.

Herein, the writ petitioner was reinstated in service and in pursuance thereof, has been declared to be successful in the process of regular recruitment and accordingly, appointed on substantive basis.

The writ petitioner since has been appointed on regular basis in pursuance of the observation made by the writ court in an order passed in C.W.J.C. No. 3916 of 2000, therefore, the service rendered by the deceased husband of the writ petitioner is required to be counted at least for the purpose of counting pensionary benefits, i.e., from the period from 25.07.1984 to 28.02.2008 since her husband will be said to be continued in service after the order of termination having been quashed and set aside followed by the order of reinstatement in service.

The husband of the writ petitioner if not had been inducted in service on substantive basis, the matter would have been different but that is not the case herein since the husband of the writ petitioner will be

treated to be continued in service followed by the regular recruitment based upon the observation made by the learned Single Judge.

6. The facts of the L.P.A. No. 47 of 2022 is exactly similar to that of the facts of the L.P.A. No. 502 of 2022. The impugned order, in entirety, has been challenged by filing the appeal on behalf of the University, whereby and whereunder, the part of the order by which the direction has been passed upon the respondent-University to take a decision in respect of payment of family pension and other benefits to the petitioner by holding the wife, the writ petitioner herein, entitled to receive the pensionary benefits including the family pension.

7. Dr. Ashok Kumar Singh, learned counsel for the respondent has taken the following grounds:

(i) The same ground is there with respect to the ground agitated on behalf of the appellant in L.P.A. No. 502 of 2022 as referred hereinabove.

(ii) The appointment of the appellant is held to be illegal and once the appointment has been held to be illegal, in those circumstances, the appellant will not be entitled for any benefit for the intervening period.

(iii) The issue of propriety of the appointment fell for consideration before the learned Single Judge of this Court in W.P.(S) No. 2931 of 2016 along with other analogous cases wherein the appointment has been held to be illegal, however, the minimum of pay scale was directed to be paid subject to fulfillment of the post after following the regular recruitment process.

(iv) The aforesaid order has been affirmed by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017 wherein also the very appointment of identically placed with that of the husband of the writ petitioner has been held to be illegal with the observation that the fraud has been played by the Principal of A.S. College, Deoghar.

(v) The learned counsel, on the aforesaid premise, has submitted that even this Court has come to the conclusion about the appointment to be illegal one, then, for the intervening period, there cannot be any benefit even for the purpose of counting the period for pensionary benefit.

(vi) It has been submitted that the writ petitioner was appointed on 29.02.2008 and while in service had died on 06.07.2018. Although, he had completed 10 years of service but he cannot be held entitled for pension/family pension since in the meanwhile, Old Pension Scheme has been replaced by National Pension System (NPS) wherein there is no provision of the pensionary benefit rather it is the contributory provident fund scheme but the learned Single has not appreciated the aforesaid fact and had held the writ petitioner entitled for pensionary benefit/family pension in the light of Clause 24.A(I) of the Statute.

8. In response to the same, learned counsel for the appellant in L.P.A. No. 502 of 2022 and respondent to L.P.A. No. 47 of 2022 has submitted that the order passed by the co-ordinate Single Bench of this Court in W.P.(S) No. 2931 of 2016 is for the purpose of regularization but while refusing the prayer for regularization on the ground that the process of fulfilling the public post had not been followed, hence, the co-ordinate learned Single Judge has refused to grant the benefit of regularization, however, the minimum of pay scale of lecturer as approved by the UGC, i.e., in the scale of 15,600 to 39000 was directed to be paid.

Further, direction was given upon the respondent-University to issue notice for regular appointment of lecturers on the sanctioned vacant post and till the regular appointments are made, the petitioners shall not be removed from their post and if disengaged by virtue of the order dated 04.05.2012, they shall be continued in service.

Observation was also made therein that appropriate age relaxation to the extent they have worked in the college shall be granted to the eligible candidates if they participate in the selection by direct recruitment.

The aforesaid order has been affirmed by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017.

Hence, the issue in the said writ petition was for regularization but while refusing to pass positive direction with respect to regularization of appellant and their interest has been protected by directing to make payment of minimum of pay scale also with direction for age relaxation at

the time of fulfilling the regular post on substantive basis. Therefore, if in such circumstances, the husband of the writ petitioner has been appointed on regular basis by virtue of the notice issued and reckoning the period from 25.07.1984 to 28.02.2008 for the purpose of counting the same for pensionary benefit, as has been done by the order passed by the learned Single Judge, is absolutely unjustified.

The learned Single Judge ought to have taken into consideration this aspect of the matter but having not done so, the order passed by the learned Single Judge to the extent as prayed in L.P.A. No. 47 of 2022 is fit to be quashed and set aside.

9. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.

10. The admitted fact in this case as per the pleading made in the writ petition is that the husband of the writ petitioner was appointed as a lecturer in A.S. College, Deoghar on 25.07.1984. At that time, the college was a constituent unit under the Bhagalpur University, now carved out and placed under Sidhu Kanhu Murmu University since 1992. The issue was raised for their regularization of service of adhoc lecturers/teachers which was filed before the Patna High Court and ultimately moved up to Hon'ble Apex Court in S.L.P. No. 11078 of 1989. The said S.L.P. was heard along with C.W.P. Nos. 65; 961 and 982 all of 1989. In those cases, the Hon'ble Supreme Court vide common judgment and order dated 10.02.1989 while directed the Universities to fill up the posts on regular basis, made it clear that the adhoc lecturers/teachers will continue in service so long regular appointments are being made. Contrary to the decision of the Hon'ble Supreme Court, the then Bhagalpur University terminated the services of petitioners in April, 1989 but subsequently in view of order of the Hon'ble Supreme Court, reinstated them vide orders issued on 09.04.1990/15.09.1990.

After the college was carved out and placed under S.K. University, the said University directed to terminate the services of all the adhoc

lecturers/teachers vide order dated 25.09.1997 in pursuance of which the impugned order of termination was issued on 28.11.1997.

The writ petitioner had challenged the order of termination relying upon two decision of Patna High Court rendered in Nikudimus Tudu vs. The Sidhu Kanhu University, Dumka and Ors. (C.W.J.C. No. 10128 of 1997), disposed of on 10.05.1999 and in Rajesh Kumar Choudhary vs. State of Bihar and Ors. (C.W.J.C. No. 900 of 1998), disposed of on 13.05.1999.

It is evident from both the order that the same/similar orders were under challenge. The Patna High Court taking into consideration that no regular appointment made on the recommendation of the Commission against one or the other post against which one or other person was working, directed the University to allow such lecturer/teacher to continue, in terms with the Hon'ble Apex Court direction, till regular appointment is made.

The co-ordinate learned Single Judge, on consideration of the order passed in Nikudimus Tudu vs. The Sidhu Kanhu University, Dumka and Ors. (supra) and in Rajesh Kumar Choudhary vs. State of Bihar and Ors. (supra), has set aside the order dated 25.09.1997 and the consequential order of termination so far as it relates to the petitioners. The writ petitioners were directed to be reinstated but having moved the Court after delay, they will not be entitled for arrears of salary of the intervening period.

The observation has been made leaving it open upon the authorities to terminate the services of the petitioners if regular appointment is made in their places and any one or other petitioners does not come out successful at the time of such regular appointment. For ready reference, the operative part of the said order is being reproduced as under:

"So far as the present petitioners are concerned, admittedly no regular appointment has been made in their places. Thereby, they are covered by the decision of this Court in Nikudimus Tudu vrs. The Sidhu Kanhu University, Dumka and Ors. (C.W.J.C. No. 10128/97) and Rajesh Kumar Choudhary vrs. State of Bihar and Ors. (C.W.J.C. No. 900/98).

As the same very impugned order 25.9.1997 was challenged in those cases and was set aside by this Court, following the decision aforesaid, I also set

aside the order dated 25.09.1997 and the consequential order of termination dated 20.11.1997 so far it relates to petitioners. They stand reinstated but having moved this Court after delay, the petitioners will not be entitled for arrears of salary of the intervening period.

However, it will be open to the authorities to terminate the services of petitioners if regular appointment is being made in their places and any one or other petitioner does not come out successful at the time of such regular appointment."

11. It is the specific case of the writ petitioner that subsequent to the process initiated for regular appointment, the husband of the writ petitioner participated in the process of selection and has been declared successful and subsequent thereto, has been appointed as lecturer in the said A.S. College, Deoghar.

12. The husband of the writ petitioner had continued in service. Similar to the direction passed in C.W.J.C. No. 3916 of 2000, identically placed lecturers have also come to this Court by filing writ petition being W.P.(S) No. 2931 of 2016 along with other analogous cases seeking therein their regularization but the co-ordinate learned Single Judge while disposing of the batch of writ petitions, vide order dated 08.05.2017, has taken note of the order passed by the Patna High Court in C.W.J.C. No. 3916 of 2000 and has passed the order of extending the minimum of pay scale with a direction for fulfilling the post on regular basis. The operative part of the order is being reproduced as under:

"17. Facts pleaded by the petitioners and not controverted by the respondents, would lead to an inference that the petitioners are discharging duties similar to the work undertaken by other regular appointees. It is admitted at Bar that minimum of pay-scale of Lecturers as approved by the U.G.C. is in the scale of Rs. 15,600 to 39,000/-. Accordingly, it is ordered that from November, 2005 to 03.05.2011 the petitioners shall be granted arrears of pay at the rate of Rs. 2200/- with other usual allowance and from 04.05.2012, they shall be paid the minimum of pay scale of Lecturer. In the light of the prayer in W.P(S) No. 3210 of 2000 and the direction of the Supreme Court in S.L.P(C) No. 11078 of 1989, the respondent-University is directed to issue a notice for regular appointment of Lecturers on the sanctioned vacant posts not only under A. S. College, Deoghar, but, also in all the colleges under it, within three months Till the regular appointments are made, the petitioners shall not be removed from their post and, if disengaged by virtue of order dated 04.05.2012, they shall be continued in service. Appropriate age relaxation to the extent they have worked in the college shall be granted to the eligible candidates if they participate in the selection by direct recruitment."

13. The said order has been challenged by filing letters patent appeal being L.P.A. No. 572 of 2017 wherein the appointment of the appellants of those appeals have been held to be illegal. However, the order passed by

the learned Single Judge has been affirmed whereby the prayer for regularization was refused.

It appears from the order passed by the co-ordinate learned Single Judge in W.P.(S) No. 2931 of 2016 and L.P.A. No. 572 of 2017 that the issue of regularization was under consideration. The co-ordinate learned Single Judge, while passing order in W.P.(S) No. 2931 of 2016, directed for making payment of minimum of pay scale with a direction to continue the petitioners in service till the regular appointment is being made.

14. So far as the appellant is concerned, who is the petitioner in C.W.J.C. No. 3916 of 2000, wherein the order of termination was quashed and the petitioner reinstated in service, however, has been held not entitled for arrears of salary of the intervening period. The appellant subsequent to the said order, when recruitment process begun, they were appointed on regular post and continued to discharge their duties.

15. It is in this background, the wife of the deceased employee has filed the writ petition for counting the period from 25.07.1984 to 28.02.2008 for the pensionary benefit as per the prayer made in the writ petition but the same has been denied holding therein that no such benefit is fit to be granted for the said period, however, she has been held entitled for pensionary benefit since her husband had completed more than one years of service and in view of clause 24.A(I) of the Statute, became entitled to receive the pensionary benefit including the family pension, therefore, direction was passed upon the respondent no.3 to take decision in respect of the payment of family pension within a period of four weeks from the date of receipt of copy of the order.

16. This Court, on the basis of the aforesaid fact and the argument advanced on behalf of the parties as referred above, is required to consider the following issues:

(i) Whether the appellant/writ petitioner is entitled for the benefit by reckoning the period from 25.07.1984 to 28.02.2008 for the purpose of counting it for pensionary benefit?

(ii) Whether the appellant/writ petitioner is entitled for the pensionary benefit including the family pension in view of the provision of clause 24.A(I) of the Statute?

(iii) Whether the benefit by reckoning the period from 25.07.1984 to 28.02.2008 for the purpose of counting it for pensionary benefit is to be considered in view of the fact that in the meanwhile, the Old Pension Scheme has been replaced by the New Pension Scheme w.e.f. 01.04.2004?

(iv) Whether in the facts of the case, the provision as contained under Rule 14(i) of the Statute is applicable in a case where the appointment of an employee is considered to be on temporary or officiating capacity followed by regular appointment?

17. All the issues since are interlinked, as such, are being taken up together for its consideration.

18. There is no dispute about the settled position of law that the benefit of continuity in service for the salary/seniority is generally not to be given in favour of one or the other employees who have been terminated from service and subsequently reinstated. The said principle is strictly applicable in the matter of appointment if not on substantive capacity.

19. Here, in the instant case, it is not in dispute that the husband of the writ petitioner was appointed in the A.S. College and subsequently he was terminated from service on the ground of the process of recruitment having not been followed. The order of termination when was challenged by filing writ petition being C.W.J.C. No. 3916 of 2000, the co-ordinate learned Single Judge after taking into consideration the order passed in Nikudimus Tudu vs. The Sidhu Kanhu University, Dumka and Ors. (supra) and in Rajesh Kumar Choudhary vs. State of Bihar and Ors. (supra), has quashed and set aside the order of termination with a direction for reinstatement in service as would appear from the order dated 05.07.2000 passed in C.W.J.C. No. 3916 of 2000 as quoted and referred above.

20. Further, it is the admitted fact that the husband of the writ petitioner, in pursuance of the order passed in the aforesaid case, had participated in the

process of selection, in pursuance thereof, he was declared successful and accordingly, he had been appointed as lecturer in the concerned college and started discharging his duties.

21. It is, thus, admitted fact herein that the husband of the writ petitioner was reinstated in service after the order of termination having been quashed and set aside.

Further admitted fact is that the co-ordinate learned Single Judge while disposing of the writ petition has not allowed the salary for the intervening period. There is no stipulation in the said order as to whether the said period is to be counted for the purpose of reckoning the period for pensionary benefit.

22. The issue of regularization again fell for consideration in W.P.(S) No. 2931 of 2016 along with other analogous cases wherein the co-ordinate learned Single Judge while disallowing the relief for regularization has allowed the identically placed to the appellant to discharge their duties till the regular appointment is made. However, they have been directed to be paid minimum of pay scale with a direction upon the respondent to fill up the post on regular basis, till then, the concerned employee be directed to be continued in service.

Further, the relaxation in the age of the period for which they have discharged their duties in temporary capacity has been directed to be given in their favour.

The aforesaid order has been affirmed by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017.

23. The argument which has been advanced on behalf of the University that the appointment of the identically placed lecturer of the college have been held to be illegal and fraudulent, we are not concerned with the finding since that is not the issue herein. The aforesaid fact has also been admitted by the learned counsel for the appellant that the issue of regularization is not the subject matter of the instant appeal rather the issue is for reckoning the period for the purpose of pensionary benefit.

24. The issue of regularization can also not be for consideration since the husband of the writ petitioner, in the facts of the case, had already been appointed on substantive capacity.

25. This Court has gone across the observation made by the co-ordinate learned Single Judge either in C.W.J.C. No. 3916 of 2000 or W.P.(S) No. 2931 of 2016 along with other analogous cases affirmed by the co- ordinate Division Bench of this Court in L.P.A. No. 572 of 2017, wherein, there is no observation made to count the intervening period for the purpose of granting pensionary benefit.

26. The learned Single Judge herein has considered the entitlement of the deceased husband of the writ petitioner for pension/family pension in the light of the provision of clause 24.A(I) of the Statute, therefore, the reference of clause 24.A(I) of the Statute is required to be made which provides that in case of death while in service, the employee should have completed a minimum period of one year of continuous service. If this condition is fulfilled, then, admittedly the pension will be admissible to the wife. For ready reference, clause 24.A(I) is being reproduced as under:

"24. A (I) The family pension will be admissible in case of death while in service or after retirement, if at the time of death a retired employee was in receipt of a compensation, invalid, retiring or superannuation pension. In case of death while in service the employee should have completed a minimum period of one year of continuous service. The condition of one year of continuous service will not apply if immediately before his/her appointment in the University service, the employee was examined by appropriate medical authority and declared fit by that authority for service in the University. (This will be applicable from 1.4.1980)."

27. Admittedly herein the deceased husband of the writ petitioner was appointed on regular basis after following the regular process of recruitment based upon the valid recommendation from the JPSC and joined on 29.02.2008. The husband of the writ petitioner, while in service had died on 06.07.2018.

28. The writ petitioner, who happens to be the wife of the deceased employee, approached to this Court by filing W.P.(S) No. 2090 of 2019 for claiming the pension and pensionary benefit in the light of the provision of clause

24.A(1) of the Statute.

29. Admittedly herein, the husband of the writ petitioner rendered 10 years of service, i.e., from 29.02.2008 to 05.07.2018. Further, the admitted fact is that the Old Pension Scheme was replaced by the NPS w.e.f. 01.04.2004 and hence, at the time when the husband of the writ petitioner joined the service afresh on 29.02.2008, it was under NPS after replacement with the Old Pension Scheme.

The claim of the writ petitioner that if the past serviced rendered by her husband will be counted, then, the services of her husband will become pensionable under the Old Pension Scheme since her husband joined the services sometime in the year 1982.

30. The said contention, according to the considered view of this Court, is not acceptable for the reason that the services of the identically placed to the husband of the writ petitioner has been held to be illegal by virtue of the order passed by the learned Single Judge in W.P.(S) No. 2931 of 2016 and other analogous cases affirmed by the co-ordinate Division Bench in L.P.A. No. 572 of 2017.

Once the appointment of the identically placed has been held to be illegal and fraud, if the period rendered by the husband of the writ petitioner and identically placed co-lecturers will be considered for the purpose of pensionary benefit, the same, according to our considered view will amount to sitting over upon the order passed by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017 wherein the appointment has been held to be illegal. Once the appointment has been held to be illegal, the writ petitioner cannot be held entitled for any relief for the period for which the appointment has been held to be illegal.

31. Although the writ petitioner has filed a separate writ petition being C.W.J.C. No. 3916 of 2020 but there also, she has been denied the benefit of the salary for the said period while quashing the order of termination with a direction to reinstate the husband of the writ petitioner in service. The reinstatement in service is again on the post said to be substantive and in pursuance thereof, the husband of the writ petitioner participated in the process of selection in which he was declared to be successful and thereafter, he had been appointed on substantive post. The said

appointment made after following the due procedure is altogether a different transaction of recruitment and according to our considered view, is having no nexus with the past services rendered by the husband of the writ petitioner otherwise, the appointment which has already been held to be illegal, will amount to be legalized.

32. The contention has been made on behalf of the writ petitioner that the writ petitioner is not claiming salary for the intervening period. But, even accepting the said plea, even though no direction can be passed for the purpose of counting the said period for the purpose of pensionary benefit otherwise, the same will amount to legalizing the said period of service which has been held to be illegal by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017.

Furthermore, the appointment so made of the husband of the writ petitioner on 09.02.2008 in terms of the fresh recruitment process as per the direction passed by the co-ordinate learned Single Judge in C.W.J.C. No. 3916 of 2000 and W.P.(S) No. 2931 of 2016 and other analogous cases affirmed in L.P.A. No. 572 of 2017 was during the period when Old Pension Scheme was already replaced by the NPS.

The matter would have ben different if there was no replacement of the Pension Scheme but herein, the Old Pension Scheme got replaced by the NPS w.e.f. 01.04.2004 and in that view of the matter, the appointment so made on 29.02.2008 in terms of the fresh recruitment process cannot be held to be stretched counting it from the date of initial appointment.

33. The principle to come to this conclusion is that if the period will be directed to be counted from the date of initial appointment, the same will amount to legalizing the illegality committed in its inception that too the same has been held to be illegal and fraud.

34. Learned counsel for the appellant/writ petitioner has relied upon the judgment of the Hon'ble Apex Court in State of Himachal Pradesh and Anr. Vs. Sheela Devi passed in S.L.P. (Civil) No. 10399 of 2020.

35. We have considered the said judgment and found from the factual aspect involved therein that the contractual employees were engaged prior to the

introduction of the Rules framed in 2004 whereby entitlement of pension per se was abolished. The employees, however, on different dates, were regularized. In some instances, they were employed even after the 2004 Pension Scheme came into force. Their claim was that upon regularization, they were entitled to reckon the period of contractual employment, for the purposes of pension. The State rejected the contention which led them to approach the High Court. The High Court by the impugned judgment allowed the writ petitions and directed the State to extend pensionary benefits on the basis of the benefit of including contractual service claimed by them on the reasoning that upon their regularization, the period of contractual employment was also reckonable for the purposes of future benefits including - whereby applicable, pension.

Against the said order, matter thereafter, went to the Hon'ble Apex Court and the Hon'ble Apex Court has been pleased to affirm the view of the High Court on the ground that the Rule 17 provides that the employees working on contract basis were regularized at a later stage. It is only for the purposes of pension that the past service as a contractual employee is to be taken into account.

The Hon'ble Apex Court has taken into consideration the fact that the contractual appointment was followed by the regularization, hence, has declined to interfere with the view of the High Court for counting the period of the contractual services for the period of pensionary benefit.

36. Learned counsel for the appellant/writ petitioner has tried to impress upon the Court by referring to the provision of Section 14(i) of the Statute for grant of retirement benefits which is under Section II thereof, wherein, 'Qualifying service' has been defined which means service rendered as a member of the staff of the University in a substantive capacity including period spent on probation. All services rendered in the University on a full time basis on a temporary or officiating capacity followed without interrupting by substantive appointment in the same or any other post shall count as qualifying service except in respect of periods of service in 'work charged' establishment and periods of service paid from contingencies.

37. Herein, it is evident from the aforesaid provision that the qualifying service includes the services rendered on a full time basis on a temporary or officiating capacity following without interruption by substantive appointment.

38. The argument, therefore, has been advanced that herein also the husband of the appellant/writ petitioner was appointed on temporary basis followed by substantive appointment and hence, the provision of Rule 14(i) of the Statute will be applicable and thereby, the judgment rendered by the Hon'ble Apex Court in State of Himachal Pradesh and Anr. Vs. Sheela Devi (supra) will also be applicable.

39. But, we are not in agreement with the said submission so far as the applicability of Rule 14(i) of the Statute is concerned on the ground that herein it is not the case of the writ petitioner of a temporary appointment or appointment in officiating capacity rather herein, the appointment has been held to be illegal and that is the reason the order of termination was passed, however, the husband of the writ petitioner was reinstated in service but with a direction for fulfilling the post on regular basis as would appear from the order dated C.W.J.C. No. 3916 of 2000.

40. Subsequently, this Court has passed the order in W.P.(S) No. 2931 of 2016 and other analogous cases holding the appointment of identically placed to the husband of the writ petitioner to be illegal declining their regularization in service which has been affirmed by the co-ordinate Division Bench of this Court in L.P.A. No. 572 of 2017 as would appear from the quoted part of the said order as referred above. As such, according to our considered view, once the services of the husband of the writ petitioner has been terminated, although reinstated subsequently, but the said reinstatement is also because the core subject of consideration to fulfill the post on regular basis.

Once the appointment has been held to be illegal then it cannot be construed to be appointment either temporary or on officiating capacity. Although the appointment has been made subsequent thereto, based upon the fresh recruitment process, the same cannot be said to be follow up action of the appointment made said to be temporary or on officiating

capacity rather the appointment so made of the husband of the writ petitioner cannot be said to be follow up action rather it is a fresh recruitment and in that view of the matter, the provision of Rule 14(i) of the Statute will not come into play for the purpose of counting the period from 25.07.1984 to 28.02.2008 as qualifying service.

41. Further, the judgment rendered by the Hon'ble Apex Court in State of Himachal Pradesh and Anr. Vs. Sheela Devi (supra) will not be applicable in the facts of the case since in the said case, the contractual employee have been appointed on regular post while they were in service on contractual post, therefore, based upon the said fact and on scrutiny of the fact of the given case, this Court is of the view that the fact herein is quite different to that of the said case and in that view of the matter the decision so given by the Himachal Pradesh High Court to count the period of contractual service for the purpose of granting pensionary benefit while herein, the period so rendered has been held to be illegal by the co- ordinate Division Bench of this Court in L.P.A. No. 572 of 2017.

42. However, ground has been taken that the husband of the writ petitioner was not party in L.P.A. No. 572 of 2017, hence, the same is not applicable but the same is also not of any aid to the writ petitioner since it has not been disputed that the nature of appointment of the husband of the writ petitioner was similar to that of the appellant of L.P.A. No. 572 of 2017.

43. Further, it is not in dispute that in terms of the advertisement issued based upon the observation made by the learned Single Judge in C.W.J.C. No. 3916 of 2000, the husband of the writ petitioner was appointed afresh and once the appointment has been made afresh in terms of the fresh recruitment process, then, where is the question to count the said period for the purpose of pensionary benefit.

44. This Court, therefore, is of the view that the judgment rendered by the Hon'ble Apex Court in State of Himachal Pradesh and Anr. Vs. Sheela Devi (supra), on facts of the given case, is not applicable.

45. Accordingly, all the issues are answered.

46. This Court, on the basis of the aforesaid reasoning, is of the view that the direction so passed by the learned Single Judge by not counting the period from 25.07.1984 to 28.02.2008 for the purpose of pensionary benefit, cannot be said to suffer from error.

47. Accordingly, the L.P.A. No. 502 of 2022 lacks merit and stands dismissed.

48. So far as the L.P.A. No. 47 of 2022 is concerned, we have considered the provision of Clause 24.A(I) of the Statute as quoted and referred above wherefrom it is evident that if one or the other employee has rendered service of the University for a period of one year, he/she will be held entitled for family pension since the said provision provides that in case of death while in service, the employee should have completed minimum period of one year of continuous service.

49. Herein, the husband of the writ petitioner has joined the service on 29.02.2008 and remained in service till his death, i.e., 05.07.2018, hence, he has completed more than one year of continuous service and as per clause 24.A(I) which speaks only for family pension, the writ petitioner, according to our considered view, will be entitled to receive the family pension.

50. This Court, on consideration of the clause 24.A(I) of the Statute and taking into consideration the fact that the husband of the writ petitioner had competed more than one year of continuous service, is of the view that the writ petitioner is eligible to receive family pension and in that view of the matter, the learned Single Judge has passed order directing the respondent no.3 to take a decision with respect to the payment of family pension and other benefits to the writ petitioner within the stipulated period. The same according to our considered view cannot be said to suffer from error.

51. Accordingly, the L.P.A. No. 47 of 2022 also lacks merit and stands dismissed.

52. Pending interlocutory application(s), if any, in both the appeals, also stands disposed of.

53. Let the exercise of granting family pension as directed by the learned Single Judge be completed within a period of four weeks from the date of receipt/production of copy of this order.

                                                        (Sujit Narayan Prasad, J.)

            I agree,


(Navneet Kumar, J.)                                       (Navneet Kumar, J.)

High Court of Jharkhand, Ranchi
Dated: 17/10/2023
Saurabh/-
A.F.R.