Sudha Ojha vs The State Of Bihar And Ors
2023 Latest Caselaw 3817 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                Civil Writ Jurisdiction Case No.22919 of 2018
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Sudha Ojha w/o Late Sushil Kumar Ojha resident of Plot no. 136, Road No. 10, Aditya Garden, Near R.I.T. More, Adityapur, Forest Block, Adityapur Industrial Are, Adityapur Seraikela- Kharsawan, Jharkhand- 832109. ... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Education Department, Government of Bihar, Patna.

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

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

4. The Vice-Chancellor, Magadh University, Bodh-Gaya, Gaya.

5. The Finance Officer, Magadh University, Bodh Gaya, Gaya.

6. The Registrar, Magadh University, Bodh-Gaya, Gaya.

7. The Principal, College of Commerce, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr.Pratik Kumar Sinha, Advocate For the State : Mr.Narendra Kumar, AC to GP-20 For the M.U. : Ms.Prakritita Sharma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 18-08-2023

Heard learned counsel for the petitioner, learned counsel

for the Magadh University, Bodh Gaya and learned counsel for the

State.

2. This writ application has been filed by the widow of a

re-designated demonstrator in the Department of Chemistry in the

College of Commerce, Patna. The husband of the petitioner died

on 12th November, 2015. According to the respondents, the

husband of the petitioner had worked till 31 st August, 2013,

whereas according to the petitioner, her husband had worked till Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

January, 2014.

3. It appears that after death of her husband, the

respondent no. 7 came out with an order dated 24.01.2018 as

contained in letter no. A/c 225/18 (Annexure '16' to the writ

application) by which the respondent no. 5 has been directed to

recover/adjust an amount to the tune of Rs. 6,32,984/- from the

pensionary benefits. The petitioner has also prayed for quashing of

the notification no. Fin/pen/1455/18 dated 09.10.2018 (Annexure

'18) issued by the Registrar, Magadh University, Bodh Gaya

(respondent no. 6), by which the said amount of Rs. 6,32,984/- has

been deducted and recovered from the pensionary benefits. The

petitioner also prayed for quashing of the part of the order dated

25.11.2016 (Annexure '15') as well as the order dated 29.03.2016

(Annexure '14') in so far as they relate to the husband of the

petitioner.

4. It is prayed that upon quashing of the aforesaid orders

the amount recovered from the petitioner and the arrears of salary

of her husband be paid to the petitioner with suitable interest.

5. Learned counsel for the petitioner has assailed the

impugned orders on various grounds which have been summed up

in paragraph '36' of the writ application. Attention of this Court

has been drawn towards the developments which took place from

time to time in the matter of re-designation of the demonstrators. Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

Brief facts of the case and submissions on behalf of the petitioner

6. It is stated that the husband of the petitioner was a

re-designated demonstrator in the College of Commerce, Patna

in the Department of Chemistry under Magadh University, Bodh

Gaya. He was initially appointed as Store Keeper in the College

of Commerce on a sanctioned and vacant post in the Department

of Chemistry Vide memo no. 465 dated 28.08.1975. He was

appointed on a sanctioned and vacant of Laboratory Assistant in

the Department of Chemistry. At the relevant time, he was a

graduate in science, later on he acquired his post graduation

degree in Chemistry.

7. It is further case of the petitioner that by virtue of

the letter no. 1115 dated 14.06.2006 issued by the State

Government through it's Human Resources Development

Department (Higher Education), Bihar and in terms of the

judgment and order dated 22.07.2002 of the Hon'ble Supreme

Court passed in SLP No. 7021/1999 and 7022/1999 vide Civil

Appeal No. 4215-16/2002, the Lab Technicians/Lab-In-Charges

of all the Universities and colleges who were having graduate

degree were re-designated as demonstrators and their pay

fixation was done with effect from their initial date of

appointment.

Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

8. It is submitted that on perusal of the said decision of

the State Government as contained in Annexure '1' to the writ

application, it would appear that Lab-Technicians who were

being re-designated as demonstrators were treated as teachers

within the meaning and definition as provided under the Bihar

State Universities Act, 1976 (hereinafter referred to as the 'Act

of 1976'). Annexure '2' is the copy of the notification dated

23.06.2007 issued by the Magadh University, Bodh Gaya

whereunder the list of different persons re-designated as

demonstrators has been provided and it contains the name of

husband of the petitioner at serial no. 77. Annexure '3' and '4' to

the writ application are the decisions regarding pay fixation and

pay scales w.e.f. 01.01.1996 and the decision of the University

to provide revised pay in view of sixth Pay Revision in the pay

scale of Rs. 9300-34800/- respectively.

9. It is stated that all of a sudden the State Government

vide it's letter no. 18.12.2008 took a decision that the persons

who were re-designated as demonstrators in terms of the

judgment of the Hon'ble Apex Court would be entitled to the

pay scale and other emoluments admissible to the demonstrators

with effect from the date of issuance of the orders to the said

effect, but they will not be approved as teachers in the light of Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

the judgment of the Hon'ble Apex Court. The State Government

thereafter withdrew it's decision.

10. It is stated that large number of demonstrators

including the husband of the petitioner moved this Court in

C.W.J.C. No. 1377/2010 and C.W.J.C. No. 8193/2010 which

were heard and disposed of by a common judgment and order

dated 21.09.2010. A copy of the judgment of this Court has been

annexed as Annexure '5' to the writ application and learned

counsel for the petitioner has drawn the attention of this Court

towards paragraph '24' of the said judgment (Annexure '5')

whereunder it is recorded that the State Government's Circular

vide memo no. 12 dated 18.12.2008 and similar circulars issued

and follow-up communications on similar line to that contained

in Clause 2(xii) thereof which holds that re-designated

demonstrators cannot be treated as teachers has to fail and

cannot be sustained. According to this judgment, the

consequence would be that all re-designated demonstrators who

have got promotion under the Universities Statute or otherwise

as Lecturers or Readers, as the case may be, in whichever

University in Bihar would continue accordingly and they cannot

be reverted nor their remuneration reduced. A challenge to this

judgment of the learned Single Judge failed in LPA No. Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

981/2011 and the State Government's Special Leave Petition

being SLP (C) No. CC-1324/2012 was dismissed in limine vide

order dated 27.02.2012.

11. It is submitted that even as in a contempt petition

being MJC No. 1432/2011, the Hon'ble Single Judge passed a

stringent order but the same was not implemented and the State

legislature amended Section 2(v) of the Act of 1976 vide Bihar

State Universities (Amendment and Validation) Act, 2012 by

which earlier definition included the word 'demonstrators' was

taken away retrospectively i.e. w.e.f. 05.10.1991. The main

purpose of that amendment was to exclude the demonstrators

from the definition of the word 'teacher'. As a result of this

amendment, the husband of the petitioner and the persons

similarly situated could not derive the promotional avenues and

enhanced pay scales.

12. In the aforementioned background, the State

Government took a decision to provide a remuneration to the

demonstrators in the pay scale of Rs. 5500 - 9000/- (unrevised),

upon revision w.e.f. 01.01.1996 actually implemented w.e.f.

01.04.2007. The pay scale of Rs. 9300-34800/- with grade pay

was provided to the re-designated demonstrators. The contempt

application was, thereafter disposed of vide Annexure '8' to the Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

writ application with a direction to the State authorities to clear

the arrears up to date to the redesignated demonstrators.

13. The order dated 13.11.2013 passed by the Hon'ble

Single Judge in the contempt application being MJC No.

1788/2011 was challenged by the State in a Letters Patent

Appeal being LPA No. 941/2015. In the meantime, the vires of

the amending Act by which Section 2(v) of the Act of 1976 was

amended to exclude the demonstrators from the purview of

teachers was challenged but the same was dismissed by Hon'ble

Division Bench of this Court and the Hon'ble Apex Court

affirmed the judgment of the Hon'ble Division Bench of this

Court. Thus, the amendment was held intra vires. It is pointed

out from the order of the Hon'ble Apex Court passed on

27.02.2017 in Civil Appeal No. 6178-6181 of 2015 (Annexure

'9' to the writ application) that the Hon'ble Supreme Court

made an observation that the present status, rank and pay of the

appellants will not be disturbed and any Lab Assistant who has

been given designation of demonstrator which he continues to

hold till date, will not be withdrawn. It was further held that

they would not be entitled to any further benefit in conflict with

the impugned Act. The husband of the petitioner was also before

the Hon'ble Supreme Court in the aforesaid Civil Appeal. Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

14. It is submitted that LPA No. 941/2015 and other

analogous appeals were finally disposed of vide order dated

01.08.2017 after taking note of the judgment of the Hon'ble

Supreme Court in the Civil Appeal and the consequential

notification of the State Government issued vide letter no. 1301

dated 06.07.2017. The University and the State were directed to

implement the order of the Hon'ble Apex Court and take the

follow-up action.

15. Learned counsel for the petitioner submits that the

retirement age of teaching cadre in the University in the State of

Bihar is 65 years whereas the retirement age of non-teaching

cadre is 62 years. Earlier the husband of the petitioner had been

granted the pay scale of Rs. 5500-9000/- w.e.f. 01.01.1996 vide

office memo no. 584 dated 29.11.2010 and he was treated as a

teacher, which would be evident from Annexure '12' to the writ

application. By Annexure '13', the Registrar of the Magadh

University vide memo no. 489/10/654/GIA dated 10.01.2011

and memo no. 58/11/C dated 03.02.2011 notified that by virtue

of the order passed by the Hon'ble Patna High Court in

C.W.J.C. No. 11348/2010 and C.W.J.C. No. 11775/2010 and

other analogous cases, those who were in service on 30.06.2010

and afterwards will superannuate on completion of 65 years of Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

age subject to final orders in Hon'ble Supreme Court as well as

in LPA filed by the State Government against the aforesaid

orders. According to this notification, all such teachers will

continue in their service and shall be paid their salary as before.

It further states that if the claims of the teachers are found not

genuine, they would be liable to refund.

16. Learned counsel for the petitioner submits that the

judgment of the Hon'ble Apex Court finally came on

27.02.2017 holding that the petitioner and others will not be

teachers and that they would be entitled to get the status of

demonstrators. It is only vide letter no. 104/2016 dated

29.03.2016 that the Principal of the College (respondent no. 7)

sought necessary directions from the Registrar of the University

with regard to the husband of the petitioner and other three who

worked beyond the retirement age of 62 years and received

excess amount. The Principal of the College vide it's letter No.

A/C/225/18 dated 24.01.2018 requested the Finance Officer

(respondent no. 5) to recover/adjust an amount of Rs. 6,32,984/-

from the husband of the petitioner. The case of the petitioner is

that her husband worked in the College of Commerce till

January 2014, however in the impugned letter, it is shown that

he worked till 31.08.2013. In the monthly progress dated Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

18.01.2014 of the teachers, the husband of the petitioner has

been shown taking classes of B.Sc. Chemistry.

17. It is her case that the husband of the petitioner was

placed in the teaching cadre vide Annexure '13' to the writ

application and even after coming into force of the Amending

Act 2012, he was allowed to continue and work as teacher and

he was paid his part salary every month till 31.08.2013. Under

these circumstances, there cannot be an order directing recovery

with retrospective effect and recovery from the pensionary

benefits of a deceased employee would cause immense hardship

to his dependant. It is stated that no show cause notice was

issued either to the husband of the petitioner (since deceased) or

the petitioner prior to passing of the impugned orders.

18. A counter affidavit has been filed on behalf of the

respondent nos. 2 and 3 (State Respondents). In the counter

affidavit, a plea has been taken that the protection of status, rank

and pay has been granted to only those re-designated

demonstrators who continued to hold post on 27.02.2017, but

admittedly, the husband of the petitioner was not holding the

said post on that date, therefore, he is not entitled to such

protection. There is no denial of the averments made in the writ Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

application that husband of the petitioner was allowed to work

as teacher even after coming into force of the Amending Act of

2012 whereby the definition of the word 'teacher' as contained

in Section 2(v) was amended to exclude the demonstrators.

Stand of the Magadh University

19. A counter affidavit has also been filed on behalf of

the Magadh University, Bogh Gaya. It is their stand that the

retirement age of non-teaching staff is 62 years whereas of the

teaching staff is 65 years. The petitioner's husband should have

retired on 31.11.2011 but was continued till 31.08.2013 and

excess salary amounting to Rs. 6,32,984/- was paid to him.

20. It is further stated in the counter affidavit of

respondent nos. 4, 5 and 6 that the petitioner's husband was re-

designated demonstrator in the pay scale of Rs. 5500-9000/- and

Rs. 9300-34800/-.

21. Learned counsel for the University as well as the

State have opposed this writ application.

Consideration

22. Having heard learned counsel for the parties and

on perusal of the records, this Court finds that vide Annexure

'12' to the writ application, the Registrar, Magadh University

granted pay scale of Rs. 5500-9000/- (w.e.f. 01.01.1996) to the Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

husband of the petitioner and the persons similarly situated who

were treated as demonstrators in the teaching cadre. Annexure

'12' to the writ application reads as under:-

Annexure '12'

"MAGADH UNIVERSITY, BODH GAYA NOTIFICATION In compliance with the judgment of the Hon'ble High Court Patna passed on 01.09.10 & 21.09.10 in C.W.J.C. No. 2002/10, 3090/10, 9321/10, 9599/10, 9650/10, 1794/10, 4327/10, 11356/10, 13333/10, 12557/10, 2271/10, 1128/10, 1377/10, 13910/10, 14013/10, 5227/10, 6474/10, 7729/10, 14360/10, 7094/10, 8192/10, 8193/10 and analogous cases the Redisgnated Demonstrators are to be treated as Demonstrators in the teaching cadre and consequently they will be placed the scale of Rs. 500-9000/- implemented w.e.f. 01.01.1996 in the light of the Govt. order as contained in letter no. 1300 dated 20.07.2000. The payment of salary in the above scale will be subject to the availability of grant from the State Govt. in this head.

The office order issued previously in this regard stands cancelled.

By the order of Hon'ble Vice-Chancellor Registrar Magadh University, Bodh Gaya.

Dated 29/11/10 Memo No. 584/GIA Copy forwarded for information and needful action:-

1. All the heads of P.G. Department of M.U., Bodh Gaya.

2. All Principal of Constituent Colleges, M.U., Bodh Gaya.

3. Pr. Secretary/Director, Higher Education, HRD Dept. Govt. Bihar, Patna.

4. Pr. Secretary/Jt. Secretary, Govt. Secretariat, Raj Bhawan, Patna.

5. All Officers, M.U., Bodh Gaya.

6. P.A. to Hon'ble V.C./P.V.C./Registrar/F.A./F.O./Pro M.U., Bodh Gaya.

29.11.10 Registrar Magadh University, Bodh Gaya.

29.11.10"

23. It further appears that the Principal, College of Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

Commerce (respondent no. 7) issued notification dated

03.02.2011 whereunder it was notified that those who were in

service on 30.06.2010 and afterwards will superannuate on

completion of 65 years of age subject to final orders in Hon'ble

Supreme Court as well as in LPA filed by the State Government

against the orders passed by the Hon'ble Patna High Court in

C.W.J.C. No. 11348/2010 and C.W.J.C. No. 11775/2010.

Annexure '13' to the writ application is, thus, quoted as under:-

Annexure '13'

"College of Commerce, Patna-20 Notification

In pursuance to M.U. letter No. 489/10/654/GIA dated 10.01.11 in the light of the judgment of the Hon'ble Patna High Court of judicature at Patna passed in CWJC No. 11348/10, CWJC No. 11775/10 and other analogous cases, it is notified that the teachers of College of Commerce, Patna under Magadh University, Bodh Gaya who were in service on 30-06-10 and after wards will superannuate on completion of 65 years of age subject to final orders in Hon'ble Supreme Court as well as in LPA filed by State Govt. against the aforesaid order.

Therefore, all such teachers will continue in their service and shall be paid their salaries as before. If the claims of the teachers are found not genuine they would be liable to refund all the amount received by them by virtue of their continuance of service in terms of order of the Hon'ble Court and University.

Sd/-

                                                           Principal

                     Memo No. 58/11/C                        Dated: 3.2.11

Copy forwarded for information and necessary action to:-

1. Concerned teachers, College of Commerce, Patna-20.

2. All heads of departments, College of Commerce, Patna-20

3. Bursar, Accountant, S.O. Sri Damoder Tiwary, Asstt. Sri Sanjeev Kumar, Asstt.

The Librarian, Examination Deptt. Cash Section, College of Commerce, Patna-20.

Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

Principal"

24. It is an admitted position that the husband of the

petitioner was continuing in service on the date Annexure '13'

came into existence. His date of superannuation was 31.10.2011,

but by virtue of Annexure '13' which was in turn issued towards

implementation of the judgment of this Court, the husband of

the petitioner continued in service in teaching cadre.

25. It further appears that the State legislatures brought

Amending Act of 2012 by which Section 2(v) of the Act of 1976

stood amended w.e.f. 05.10.1991. This amendment was under

challenge and there is a specific averment in paragraph 29 of the

writ application that the Hon'ble Apex Court was pleased to

pass an interim order dated 15.04.2014 that the demonstrators

who are working shall not be reverted. The case of the

respondents in the counter affidavit is that the husband of the

petitioner continued to work till 31.08.2013. Therefore, there is

an admitted position in the present case that the husband of the

petitioner was not reverted prior to his superannuation i.e.

31.11.2011. The college continued to avail his service, till

31.08.2013, though the case of the petitioner is that her husband

continued to render his service till 18.01.2014 as per the

monthly progress dated 18.01.2014 of teachers.

26. In fact, neither in the counter affidavit of the State Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

respondents nor in the counter affidavit of the University there

is any denial of the claim of the petitioner that her husband

continued to work. From the correspondences between the

Registrar of the University (respondent no. 6) and the Principal

of the College (respondent no. 7) as contained in Annexure '14'

and '15' of the writ application, it is evident that for the first

time, the respondent no. 7 informed the respondent no. 6 that in

different departments of his college altogether four re-

designated demonstrators have worked beyond the age of 62

years and have received salary. Annexure '15' written by

respondent no. 6 is in respect of one Smt. Vijayarani Agrawal, a

retired Laboratory Incharge. It is in this letter that respondent

no. 6 issued a direction that if the college has paid salary to re-

designated demonstrators beyond the age of 62 years then the

salary paid to them is recoverable. About one year thereafter,

respondent no. 7 wrote a letter (Annexure '16' to the writ

application) to the Finance Officer of the University informing

him to recover/adjust a sum of Rs. 6,32,984/- from the

petitioner. There is no denial of the fact that prior to issuance of

the order for recovery, no opportunity to show cause was given

either to the husband of the petitioner or the petitioner. Thus, the

whole exercise of recovery has been done ex parte. Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

27. In the given facts and circumstances and the

materials discussed hereinabove, this Court is of the considered

opinion that the amount paid to the husband of the petitioner as

salary for the period 01.11.2011 to 31.08.2013 for the services

rendered by him in the teaching cadre cannot be recovered. This

is not a case in which the petitioner's husband continued to

render services by concealment of his age or by playing fraud

upon the college. In the long drawn battle which continued over

the years, the college and the University allowed the husband of

the petitioner to continue to render his service in the teaching

cadre, therefore, they would be estopped from claiming any

recovery of salary amount from the pensionary benefits payable

to the petitioner. The husband of the petitioner died on 12 th

November, 2015, therefore recovery from the pensionary benefit

payable to the petitioner would cause immense hardship to the

petitioner at the evening of her age.

28. In result, this Writ Application is allowed. The

impugned orders in so far as they relate to the husband of the

petitioner or the petitioner are set-aside.

29. The respondents are directed to refund the entire

amount of Rs. 6,32,984/- with interest at the rate of 9% per

annum from the date of recovery till the date of payment to the Patna High Court CWJC No.22919 of 2018 dt.18-08-2023

petitioner within a period of two months from today.

30. As regards the claim of the petitioner for arrears of

salary for the period between 01.09.2013 to 31 st of January,

2014 and payment of difference of salary for the period between

01.11.2011 to 31.08.2013, the petitioner is at liberty to file an

appropriate representation within a period of four weeks from

today which will be considered by the Vice-Chancellor, Magadh

University, Bodh Gaya (respondent no. 4) and appropriate order

thereon shall be passed within a period of six weeks from the

date of submission of the representation. In course of

consideration of the representation, the Vice-Chancellor shall

give an opportunity to the petitioner to submit all such

documents which may be available with her.

(Rajeev Ranjan Prasad, J.) Rajeev/-

AFR/NAFR
CAV DATE
Uploading Date            22.08.2023
Transmission Date