Patna High Court
Punam Devi vs The State Of Bihar on 6 August, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4986 of 2023
======================================================
Pinki Devi, W/o Late Dashrath Prasad, resident of village- Mohanpur, Post-
Kishanpur Madhuban, P.S.- Madhuban, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar the Additional Chief Secretary, Education Department,
Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Director, Higher Education, Govt. of Bihar, Patna.
4. The Vice Chancellor, B.R.A. Bihar University, Muzaffarpur.
5. The Registrar, B.R.A. Bihar University, Muzaffarpur.
6. The Finance Officer, B.R.A. Bihar University, Muzaffarpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13586 of 2023
======================================================
Punam Devi, W/o Late Dilip Jha, Resident of Village- Mohanpur, P.O. and
P.S.- Dharhara, District- Munger presently residing at Damu Chak, P.S- Kaji
Mohammadpur, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar the Additional Chief Secretary, Education Department,
Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Director, Higher Education, Govt. of Bihar, Patna.
4. The Vice Chancellor, B.R.A. Bihar University, Muzaffarpur.
5. The Registrar, B.R.A. Bihar University, Muzaffarpur.
6. The Finance Officer, B.R.A. Bihar University, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 4986 of 2023)
For the Petitioner/s : Mr. Shashi Bhushan Singh, Advocate
For the Respondent/s : Mr. Madhaw Pd. Yadaw, GP-23
For the University : Mr. Zaki Haider, Advocate
(In Civil Writ Jurisdiction Case No. 13586 of 2023)
For the Petitioner/s : Mr. Shashi Bhushan Singh, Advocate
For the Respondent/s : Mr. Jitendra Kumar Roy 1, SC- 13
Mr. Hitesh Suman, AC to SC-13
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
2/19
For the University : Mr. Indrajesh Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 06-08-2024
Heard the learned Advocates for the respective
parties.
2. Considering the identical nature of grievance and
the similar issue posed in both the writ petitions, this Court with
the consent of the parties heard the matter together and disposed
of by this common order.
3. The petitioners before this Court are hapless
widows of the erstwhile employees of Bhim Rao Ambedkar
Bihar University, Muzaffarpur, who died in harness on
03.05.2017
and 07.01.2019 respectively invoking the
extraordinary jurisdiction of this Court by filing the writ
petitions seeking a direction upon the respondent authorities to
fix their family pension treating the services of the deceased
employees with effect from the date of their initial appointment
in view of the judgment of the learned Full Bench of this Court
in the case of Braj Kishore Singh & Ors. Vs. The State of
Bihar & Ors., reported in 1997 (1) PLJR 509 and other
orders/judgments passed in relation to similarly situated
persons.
4. For appreciation of the issue, a short summary of
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
facts of both the matters are being placed hereunder:
Ref.: C.W.J.C. No. 4896 of 2023
5. The husband of the petitioner was duly appointed
under staffing pattern as Class-IV employee on 06.08.1985. The
aforesaid appointment has accorded approval of Vice-chancellor
of University vide Memo No. B/4377 dated 06.09.1995. The
University vide Memo No. B/29 dated 22.02.1995 regularized
the services of 35 Class-IV employees in accordance with their
seniority in the gradation list and remuneration of rest
employees was enhanced. The decision has also been taken to
pay the enhanced remuneration at the rate of 975 per month, till
the availability of vacancy.
6. The Government of Bihar in the Department of
Human Resources Development, in the meantime, vide Memo
no. 189 dated 10.05.1991 directed the Universities to regularize
the services of those employees, who appointed prior to
10.05.1986 under staffing pattern. In case, the posts are not
available, the same will be filled up from future vacancies. It is
also made clear that those, who are appointed after 10.06.1986,
their services shall be terminated.
7. Subsequent thereto, the University vide Memo
No. B/2338 dated 31.07.1996 enhanced the further remuneration
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
of the husband of the petitioner to Rs.1230/- per month. A
gradation list of left over employees was also prepared, in which
the name of petitioners' husband was found placed at serial no.
94. Awaiting regularization, the University took a further
decision vide Memo no. B/1699 dated 24.06.2004 (Annexure-6)
that they would get prescribed scale with allowances till their
regularization. The University has further taken a decision to
count the services of all the Class-III and IV employees with
effect from the date of their initial appointment for the purposes
of payment of pension and other terminal dues; a notification in
this regard was issued vide Memo No. B/442 dated 25.04.2006,
the copy of which marked as Annexure-7 to this application.
8. Finally, the services of the husband of the
petitioner came to be regularized vide Memo No. B/942-68
dated 01.03.2011 along with other employees (Annexure-8 to
the writ petition). While the husband of the petitioner was
working, he died on 03.05.2017. However, treating the services
from 01.03.2011, the petitioner has neither been paid family
pension nor the terminal dues. The petitioner approached before
all the respondent authorities of the State as well as University
for counting the services of her husband from the initial date of
appointment i.e. 06.08.1985 and ensure payment of family
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
pension and other terminal dues, but has not been responded to,
left with no option, the petitioner moved before this Court.
Ref.: C.W.J.C. No. 13586 of 2023
9. The husband of the petitioner, namely, Dilip Jha,
was appointed as Class-IV employee on 22.03.1985, after
getting proper approval of the Vice-chancellor of the University
vide Memo No. 1698 dated 22.03.1985. The other facts of the
present case is similar to that of C.W.J.C. No. 4896 of 2023 and,
as such, the same is not being reproduced herein again for the
sake of brevity.
10. The name of the husband of the petitioner was
found place at serial no. 85 in the gradation list of left over
employees, issued vide notification contained in Memo No.
B/675 dated 02.03.1998. Finally, the services of the husband of
the petitioner came to be regularized vide Memo No. B/942-68
dated 01.03.2011 along with other employees. While the
husband of the petitioner was working, he died in harness on
07.01.2019, however, his services has been counted from the
date of his regularization i.e. 01.03.2011, resultantly, the
petitioner has not been accorded the family pension and the
other terminal dues. Despite the request and representation,
when the claim of the petitioner has not been acceded to, the
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
petitioner moved this Court by filing the present writ petition.
11. While pressing the writ petitions, learned
Advocate for the petitioners have submitted that admittedly the
husband of the petitioners in both the writ petitions were
appointed much before the cut off date on 10.05.1986. From the
list of the employees of Class-IV, services of 35 employees were
regularized vide Memo No. B/29 dated 22.02.1995. It was made
clear that the services of the rest of the employees would be
regularized in future, in case of availability of vacancy, as per
the staffing pattern.
12. Learned Advocate for the petitioners drew the
attention of this Court to the decision of the State Government,
as reflected from resolution contained in Memo no. 989 dated
10.05.1991 (Annexure-A to the supplementary counter
affidavit). Referring to Clause-4(VI) of the said letter, it is
submitted that in case appointment was made prior to
10.05.1986 and vacancy is not available, they would be
regularized against future vacancies. The gradation list
published by the University clearly shows the name of the
husbands' of the petitioners at serial nos. 94 and 85 respectively.
The Vice-chancellor of the University has taken a conscious
decision vide Memo No. B/442 dated 25.02.2006 that the
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
service of Class-III & IV employees, whose services were
regularized on subsequent dates be counted with effect from the
date of their initial appointment for the purposes of pensionery
benefits. Once the services of the deceased employees were
regularized vide office order as contained in Memo No. B/942-
68 dated 01.03.2011 in compliance of the order of the State
Government, Human Resources Development Department vide
Memo no. 989 dated 10.05.1991 by accepting the position that
they are appointees prior to 10.05.1986, there was no reason or
occasion not to give the benefit of their past services with effect
from the date of their appointment for the purposes of
pensionery benefits and terminal dues.
13. Learned Advocate for the petitioners has placed
heavy reliance on a judgment rendered by the Full Bench of this
Court in the case of Braj Kishore Singh (supra) that with
respect to staffing pattern and counting the past services has
been set at rest. Reliance has also been placed on a judgment in
a case where some of the employees, in identical situation, have
not been accorded the benefit of their past services for granting
relief of pensionary benefits, they approached this Court in
C.W.J.C. No. 6476 of 2013 and this Court vide order dated
25.07.2016 held that the period with effect from initial
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
appointment is being counted for the purposes of payment of
pensionary benefits for the petitioners of the aforenoted writ
petition. On being aggrieved by the part of the order dated
25.07.2016 with respect to grant of salary, the writ petitioner-
employee preferred LPA No. 1657 of 2016, but the same came
to be dismissed on 03.01.2018.
14. Suffice it to say that the petitioners of the
aforesaid writ petitions have been granted the pensionary
benefits by taking into consideration their past services with
effect from the date of their appointment.
15. Mr. Shashi Bhushan Singh, learned Advocate
for the petitioners also placed reliance of the order of this Court
dated 20.12.2022 passed in C.W.J.C. No. 5523 of 2021; the
petitioner of the said case has also been allowed the benefit of
his past services from the initial date of their appointment for
the purpose of computation of pensionary benefits. The case of
the petitioners are identical to the case of Ved Prakash Singh
(C.W.J.C. No. 5523 of 2021), who was also appointed in the
same manner like the husbands of the petitioners, prior to
10.05.1986 and his name also stands in the gradation list at
serial no. 93 in Memo no. B/675 dated 02.03.1998 (Annexure-4
to the writ petition). The services of Shri Ved Prakash Singh was
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
also regularized along with the deceased employees vide Memo
No. B/942-68 dated 01.03.2011. However, discrimination has
caused and Shri Ved Prakash Singh has been accorded all the
benefits of post retiral benefits by treating his service from the
date of their initial appointment, but in the case of the husbands
of the petitioners, their claim has not been accepted.
16. It is to be noted that taking note of the aforesaid
submissions of the learned Advocate for the petitioners, this
Court vide order dated 30.10.2023 directed the Director, Higher
Education, Government of Bihar to consider the claim of the
petitioner in C.W.J.C. No. 4986 of 2023. However, the claim of
the husband of the petitioner has negated vide order dated
01.01.2024.
17. Aggrieved, the petitioner filed interlocutory
application, bearing I.A. No. 1 of 2024 in C.W.J.C. No. 4986 of
2023 seeking quashing of Memo No. 14/MU13-410/2023-08
dated 01.01.2024. The aforenoted interlocutory application was
allowed on 29.01.2024 and the respondent State authorities had
accorded opportunity to file counter affidavit.
18. Counter affidavits as well as supplementary
counter affidavits have been filed on behalf of respondent State
authorities as well as University.
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
19. This Court will firstly take up the contention of
the State respondent authorities.
20. Learned Advocate for the State urged before
this Court that the Government of Bihar in the Department of
Human Resources Development (now Education Department)
vide its Memo no. 989 dated 10.05.1991 issued certain
significant instruction in respect of the Staffing Pattern, which
was to be followed by the Universities and other Higher
Educational Institutions in the State of Bihar. As per the circular
aforenoted only those employees were entitled to be regularized,
who were appointed up to 10.05.1986 against the sanctioned
vacant post by the competent authorities after following the due
process of law.
21. It is further contended with all rigor that the
said circular was subsequently withdrawn by the State
Government vide Memo No. 1881 dated 28.11.1995.
Subsequent thereto, in view of the judgment passed in the case
of Braj Kishore Singh (supra), the government vide its letter
no. 1820 dated 17.11.1998 directed the Universities to consider
the regularization of the services under the staffing pattern of
those employees only, who fulfill the certain criteria.
22. Adverting to the aforesaid facts, learned
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
Government Advocate, thus submitted that despite the
withdrawal of Memo No. 989 dated 10.05.1991 way back in the
year 1995 itself, the University vide its office order, as
contained in Memo No. B/942-68 dated 01.03.2011 regularized
the services of the employees, including the husbands of the
petitioners relying on Memo No. 989 dated 10.05.1991 and by
completely ignoring the letter no. 1820 dated 17.11.1998. It is
also the contention of the State that the judgment in the case of
Braj Kishore Singh (supra) is not applicable in the case of the
petitioners, as it is the fact that the husband of the petitioners
were not engaged even on admissible post under the staffing
pattern and thus regularization of their services were in teeth of
letter no. 1820 dated 17.11.1998, which was meant for
regularization of teaching employees appointed under staffing
pattern only.
23. Now this Court will take up the stand of the
University. The learned Advocate for the University referring to
the counter affidavit as well as supplementary counter affidavit
filed on behalf of respondent nos. 4 to 6 categorically submitted
that admittedly the husbands of the petitioners were appointed
prior to the cut off date i.e. on 10.05.1986. At first instance only
the service of 35 Class-IV employees were regularized taking
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
into account their seniority in the gradation list. The
remuneration of rest of the employees was enhanced in the
minimum pay scale on the basis of equal pay for equal work and
decided to pay till their reguarization against the future
vacancies. The University also admitted that the Vice-chancellor
of the University has taken a decision for counting continuous
service of employees (Class-III & IV) from the date of their
initial joining on their respective posts prior to their
regularization for the purposes of pensionary benefits. It is also
admitted that the case of the husbands of the petitioners are
similar to Ved Prakash Singh, whose services was also
regularized along with the husbands of the petitioners.
24. This Court has given anxious consideration to
the submissions made on behalf of the respective parties and
carefully perused the materials available on record.
25. It is admitted position that the husbands of the
petitioners were appointed before the cut off date i.e.
10.05.1986. A gradation list of Class IV employees was
prepared and as per the seniority of the employees, the services
of 35 of them have been regularized and the others have been
allowed to continue under the minimum scale of pay on the
basis of equal pay for equal work, till their reguarlization is
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
made against the future vacancies. The Government of Bihar in
the Department of Human Resources Development has directed
the Universities and other Educational Institution to ensure the
regularization of the services of those employees, who were
appointed prior to 10.05.1986 vide Memo no. 989 dated
10.05.1991. In view of the admitted position that the husbands
of the petitioners were appointed much before the cut off date
on 10.05.1986 and continuously serving the Colleges/University
under different capacity, the Memo No.989 issued by the State
Government would certainly govern the case of the husbands of
the petitioners. Only because of the fact that on account of
unavailability of posts, the persons, who were senior to the
deceased employees, whose services were regularized at first
instance in the year 1995, the case of the petitioners' husbands
and similarly situated persons cannot be differentiated from
those of 35 persons. The case of the petitioners' husbands and
similarly situated persons were identical to those of 35 persons,
whose cases of regularization were duly considered in the light
of the decision of the State Government, as contained in Memo
no. 989 dated 10.05.1991. Thus, the right was vested to those
left over employees, including the husbands of the petitioners,
whose services could not be regularized because of non-
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
availability of posts to get the equal treatment. Taking note of
the apparent prejudice caused to the left over employees, whose
services could not be regularized at first instance, the Vice-
chancellor of the University vide its notification contained in
Memo No. B/442 dated 25.02.2006 has taken a conscious
decision to count the services of Class-III & IV employees from
the date of their initial appointment for the purposes of
pensionary benefits and other terminal benefits.
26. The term 'regularization' always connotes to
make the irregular service regularized. In no stretch of
imagination, the regularization can be equated with the fresh
appointment unless the order of regularization makes it clear or
the regularized employees lack necessary eligibility criteria of
regularization/appointment prior to the date of its regularization.
27. The Hon'ble Supreme Court in Meera Massey
Vs. Dr. S.R. Mehrotra, (1998) 3 SCC 88 held that
regularization means, one which is already working, doing or
has done something which law did not permit but the same is
being regularized, treated to be done in accordance with law,
treat as one of such.
28. It is to be noted that the services of the
petitioners' husbands were came to be regularized in the year
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
2011 itself and now the manner or legality of the regularization
cannot be questioned that too after the death of the erstwhile
employees.
29. Learned Coordinate Bench of this Court in the
case of Ramjee Paswan & Ors. Vs. The Baba Saheb Bhim
Rao Ambedkar University & Ors. (CWJC No. 6476 of 2013)
after taking note of Full Bench decision of this Court in the case
of Braj Kishore Singh (supra) held that it will be travesty of
justice to ignore the period they have discharged in service for
the purpose of pensionary benefits. The learned Single Judge
while allowing the writ petition also highlighted the ratio of the
judgment of the Hon'ble Supreme Court in the case of Direct
Recruit Class II Engineering Officers Association Vs. State
of Maharashtra (AIR 1990 SC 1607) wherein the Constitution
Bench of the Hon'ble Supreme Court has held that where initial
appointment is not made according to the rules but the appointee
continues in service uninterruptedly for long period till
regularisation of his service, the entire period as the period spent
in service for the purpose of consequential benefits will be
counted.
30. It would not be out of place to observe that the
issue with regard to the staffing pattern and counting of the past
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
services was under consideration before the Full Bench of this
Court in the case of Braj Kishore Singh (supra). The learned
Full Bench of this Court has in no uncertain term held that once
staffing pattern is prescribed/laid down it would be
unreasonable to insist on prior approval of the State
Government in the matter of creation of posts within the frame-
work of the staffing pattern. And so far as the question of
approval of the appointment made against those posts is
concerned, if the power of the State Government to scrutinize
the eligibility or suitability of the candidates appointed or
proposed to be appointed or the validity of the selection process
is reserved to it, the State Government can, even after the
appointments have been made, decide not to approve them. It is
open to the State Government to consider the validity of
appointments already made for the purpose of granting or
refusing past facto approval.
31. The Full Bench of this Court making reliance
on the verdict of the Constitution Bench of the Hon'ble
Supreme Court in the case of Direct Recruit Class II
Engineering Officers Association (supra) held that the
appellants are entitled to have their services regularised against
the posts within the staffing pattern as applicable to the College.
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
The regularization of the husbands of the petitioners in the year
2011 had accorded the sanction of the State Government taking
into consideration that their initial appointments were much
before the cut off date on 10.05.1986.
32. The gradation list of the employees brought on
record and payment of uninterrupted remuneration in the
minimum scale of pay under the policy of equal pay for equal
work and the clear stipulation in the letters dated 22.02.1995
and 24.06.2004 that left over employees shall be regularized
against future vacancies, speaks loud that the deceased
employees were working under the staffing pattern. The
aforesaid fact has never been denied by the University and for
the first time when this Court directed to consider the claim of
the petitioner's husband in C.W.J.C. No. 4896 of 2023, the
respondent State authorities have taken a stand that the
petitioners' husbands were not working against the staffing
pattern without there being any material and thus not acceptable.
33. The respondent State has further failed to
differentiate the case of the husbands of the petitioners with that
of Ved Prakash Singh, whose services was also regularized
along with the services of the husbands of the petitioners and
surprisingly when he approached before this Court for identical
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
reliefs in C.W.J.C. No. 5523 of 2021, he has been accorded all
the pensionary benefits by taking into account his past services
rendered prior to his regularization, but an unfortunate
discrimination has been caused without there being any
justiciable reason.
34. Discrimination means an unjust, unfair action in
favour of one and against another. It involves and element of
intentional and purposeful differentiation and further an element
of unfavourable bias; an unfair classification. Trite it is that
Article 14 of the Constitution of India ensures equality amongst
equals and its aim is to protect persons similarly placed against
discriminatory treatment.
35. The aforenoted facts demonstrate a glaring
picture of inequality; this Court at the out set deprecate the
action of the State respondents, who are bound to act in
consonance with the law, but unfortunately different orders are
being passed with respect to identically situated persons
compelling them to approach before this Court.
36. The Hon'ble Supreme Court in Balram Gupta
Vs. Union of India, 1987 (Supp) SCC 228 had observed thus:
"as a model employer the Government must conduct itself with
high probity and candour with its employees."
Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024
37. In view of the facts, circumstances and the
position obtaining in law, this Court set aside the order of the
Director, Higher Education, Government of Bihar, as contained
in Memo No. 08 dated 01.01.2024 and direct the respondents to
ensure fixation of family pension and other terminal dues of the
petitioners by treating the services of the husbands of the
petitioner-deceased employees from their respective date of
initial appointment as has been done in case of other similarly
situated persons, as noted hereinbefore. After fixation of family
pension and other terminal benefits, the consequential order of
payment must be passed preferably within a period of 12 weeks
from the date of receipt/production of a copy of this order.
38. The writ petitions stand allowed.
39. The respondent State authorities are also
directed to pay litigation cost of Rs.10,000/- to each of the
petitioners.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR
CAV DATE 15.07.2024
Uploading Date 09.08.2024
Transmission Date NA
