Harishchandra Pandey vs The State Of Bihar And Ors
2021 Latest Caselaw 3187 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.2466 of 2019
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Harishchandra Pandey, son of Sri Ramnandan Pandey, Resident of Daudpur Kothi, Gali No3, P.O. M.I.T., District- Muzaffapur, the retired Head Assistant, Uma Pandey College, Pusa, District- Samastipur

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Education Department, Government of Bihar, Patna

3. The Director Higher Education, Education Department, Government of Bihar, Patna

4. The Vice Chancellor, Lalit Narayan Mithila University, Darbhanga

5. The Registrar, Lalit Narayan Mithila University Darbhanga

6. The Finance Officer, Lalit Narayan Mithila University Darbhanga

7. The Principal, Uma Pandey College, Pusa, District- Samastipur

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 2508 of 2019 ====================================================== Premchandra Pandey, son of Sri Ramnandan Pandey, Resident of Ward No.7, Harpur Mohamda, P.O. and P.S. Pusa, District- Samastipur, the retired Upper Division Assistant, Uma Pandey College, Pusa, District- Samastipur

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Director, Higher Education, Education Department, Government of Bihar Patna

4. The Vice Chancellor, Lalit Narayan Mithila University, Darbhanga.

5. The Registrar, Lalit Narayan Mithila University, Darbhanga

6. The Finance Officer, Lalit Narayan Mithila University, Darhanga

7. The Principal, Uma Pandey College, Pusa, District Samastipur

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 2466 of 2019) For the Petitioner/s : Mr. Vijay Kumar Singh, Advocate For the Respondent/s : Mr. Madhaw Prasad Yadav (GP-23) For the University : Mr. Rajeev Kumar Singh, Advocate (In Civil Writ Jurisdiction Case No. 2508 of 2019) Patna High Court CWJC No.2466 of 2019 dt.08-07-2021

For the Petitioner/s : Mr. Vijay Kumar Singh, Advocate For the Respondent/s : Mr.Jitendra Kr. Roy 1 (SC-13) For the University : Mr. Rajeev Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT Date : 08-07-2021 Heard learned counsel for the petitioners and the

respondents.

2. Since the issues involved in both the writ applications

are identical question of facts and law, with the consent of the

parties, both the writ applications have been heard together and are

being disposed of by this common judgment.

3. Petitioner (Harishchandra Pandey) in C.W.J.C.2466 of

2019 retired after attaining the age of superannuation on

31.01.2014. Petitioner (Premchandra Pandey) in C.W.J.C.2508 of

2019 retired after attaining the age of superannuation on

30.11.2016. After retirement of the petitioners, the University on

the objection raised by the Pay Verification Cell of the State

Government decided to reduce the pay scale of the petitioner in

both the writ applications and also decided to adjust the alleged

excess amount paid to the petitioners after their retirement i.e. on

31.01.2014 and 30.11.2016 respectively and reduced the pension

of the petitioners.

4. Learned counsel for the petitioners submits that the

petitioners were paid salary as per their entitlement fixed by the

Statutory Pay Fixation Committee and they received the salary up Patna High Court CWJC No.2466 of 2019 dt.08-07-2021

to the age of retirement i.e. 31.01.2014 and 30.11.2016. After five

years in C.W.J.C.2466 of 2019 and three years in C.W.J.C.2508 of

2019, the University has decided to adjust the excess amount from

the dues payable to the petitioners and thus it is a case of recovery

from the amount payable to the petitioners.

5. Learned counsel for the petitioners further submits

that pay fixation was done by the Statutory Committee and there is

no fraud and misrepresentation involved in the pay fixation of the

petitioners in either of the two cases and, therefore, recovery of

amount in the name of adjustment after 5 and 3 years of retirement

of the petitioners is impermissible in view of the law laid down by

the Apex Court in the case of State of Punjab & Ors vs Rafiq

Masih (White Washer), reported in (2015) 4 SCC 334.

6. Learned counsel for the petitioners further submits

that the matter of pay fixation at par with the employees of the

State Government was considered and finally decided by the Apex

Court in the case of State of Bihar & Ano. Vs. Sunny Prakash &

Ors, reported in ( 2013) 3 SCC 559 and once the Apex Court has

decided the issue in Sunny Prakash case (supra), the University

as well as the State has absolutely no jurisdiction to nullify the

effect of the judgment of the Apex Court in Sunny Prakash case

(supra).

Patna High Court CWJC No.2466 of 2019 dt.08-07-2021

7. Mr. Vijay Kumar Singh, learned counsel for the

petitioners has also highlighted the issue as to objection with

regard to power and function to determine the pay fixation, as has

been discussed by this Court in numerous cases and consistent

view of this Court is that the Statutory Authority of the University

has exclusive jurisdiction in the matter of pay fixation of its

employees.

8. Learned counsel appearing on behalf of the University

has referred to the judgment of this Court in the case of Dr. Kedar

Nath Pandey & Ors Vs. Magadh University & Ors (C.W.J.C. No.

7636 of 2014 disposed of on 15.01.2015) to contend that the State

Government has jurisdiction to raise audit objection under the

provisions of the Universities Act.

9. Raising objection is one issue and usurping power and

function of the Statutory Committee of the University is altogether

different. In the present case, from the pleadings it appears that the

power and function of the University under the Statute has been

usurped by the Pay Verification Cell of the State Government and

on the dictate of Pay Verification Cell of the State Government,

the University has adjusted the so-called excess amount from the

post retiral dues of the petitioners and thus recovered amount

payable to them in the name of adjustment, which is impermissible Patna High Court CWJC No.2466 of 2019 dt.08-07-2021

in view of the judgment of the Apex Court in the case of Rafiq

Masih (White Washer) (supra).

10. In the totality of the fact situation, both the writ

applications are allowed to the extent that recovery in the name of

adjustment by the University is nullity and the University as well

as the State Government is obliged to refund the amount recovered

from the petitioners by way of adjustment within a period of one

month from the date of receipt/production of a copy of this order.

11. So far as entitlement of post-retiral dues of the

petitioners are concerned, the University is granted 60 days time

from today to provide opportunity of hearing to the petitioners in

the matter of determination of post-retiral dues, particularly, on the

issue of hostile discrimination against the petitioners, as the

learned counsel for the petitioners submits that entire University

staff are getting salary on the basis of fixation made by the Pay

Fixation Committee, but these two petitioners were targetted by

the University only because of the dictate of the Pay Verification

Cell of the State Government.

12. Fresh decision in this regard may be taken by the

University after opportunity of hearing to the petitioners,

particularly on the issue of hostile discrimination.

Patna High Court CWJC No.2466 of 2019 dt.08-07-2021

13. In the event, it is found that other employees of the

University are paid salary and recalcitrant approach has been

adopted by the University in the matter of entitlement of the

petitioners and recovery by way of adjustment, the respondents

have to re-fix the pension of the petitioners and restore the revised

pension and other consequential benefits within a period of two

months thereafter, failing which the petitioners are entitled to

interest at the rate of 9% per annum from the date of retirement till

the date of actual payment, which shall be borne out from the

Vice-Chancellor, Registrar, Finance Officer of the University and

Director, Higher Education in proportion.

14. The University is also obliged to make payment of

difference of DA and HRA in both the cases, as the same has been

adjudicated by this Court in various cases including in the case of

Indranath Jha.

15. With the aforesaid, both the writ applications stand

allowed and disposed of.

(Anil Kumar Upadhyay, J) uday/-

AFR/NAFR                NAFR
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Uploading Date          12.07.2021
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