Patna High Court
Syed Mokhtar Hussain vs The Union Of India And Ors on 2 February, 2024
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18619 of 2014
======================================================
Syed Mokhtar Hussain Son of Late Syed Akhter Hussain at present posted as
Laboratory Assistant, Department of Physics, N.I.T., Patna at permanent R/o
P.O. Aurangabad Saraiya, Via - Tilouthu, P.S. Amjhore, Dist - Rohtas Bihar.
... ... Petitioner/s
Versus
1. The Union Of India, through the Secretary, Ministry of Human Resources
Development, Department of Secondary and Higher Education, Shastri
Bhawan, New Delhi.
2. The National Institute of Technology, Patna through its Director, N.I.T.,
Patna.
3. The Director National Institute of Technology, Patna.
4. The Registrar, National Institute of Technology, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Siya Ram Shahi, Advocate
For the N.I.T. : Mr. Y. V. Giri, Sr. Advocate
: Mr. S.K. Giri, Advocate
For the U.O.I : Mr. Sujeet Kumar Sinha, C.G.C.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
CAV JUDGMENT
Date : 02.02.2024
Heard Mr. Siya Ram Shahi, learned counsel for
the petitioner, Mr. Y. V. Giri, learned senior counsel for the
respondent-National Institute of Technology assisted by Mr.
S.K. Giri and Mr. Sujeet Kumar Sinha, learned Central
Government Counsel for the Union of India.
2. The present writ petition has been filed for
quashing the letter no. NITP/1653/14 dated 27.06.2014
(Annexure-12) issued by the respondent no.3 whereby the
representation dated 31.03.2014 filed by the petitioner in the
light of the order dated 12.03.2014 passed in C.W.J.C. No.
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
2/11
24092 of 2013 has been rejected. Learned counsel for the
petitioner further prays for issuance of the appropriate direction
upon the respondent to put the petitioner in the pensionable
service as petitioner is not a new appointee in the service of
National Institute of Technology (hereinafter referred to N.I.T.)
Patna rather his service has been observed in the N.I.T. w.e.f.
28.01.2004
. Learned counsel for the petitioner submits that
pursuant to an advertisement issued by the Coordinator,
Transportation Engineering, B.C.E. Patna on 21.01.1987, the
petitioner was initially appointed as Technical Assistant on
05.03.1987 by the Co-ordinator, Transportation Engineering
Section, Department of Civil Engineering in the erstwhile Bihar
College of Engineering, Patna on the consolidated pay of
Rs.600 per month and petitioner has given joining on
12.03.1987. The matter with regard to regularization of the
service of the petitioner was pending before the Patna
University. The Government of India issued a notification dated
28.01.2004 then Bihar College of Engineering converted into
National Institute of Technology, Patna.
3. Learned counsel for the petitioner further
submits that prior to the conversion of the Bihar College of
Engineering, Patna into National Institute of Technology Patna,
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
the petitioner and 16 others similarly situated persons have filed
CWJC No. 12364 of 2001 before this Hon'ble Court for
regularization of their services. The aforesaid writ petition was
allowed on 18.04.2008 with certain directions to the respondent-
NIT Patna to consider the case of the petitioners for
regularization.
4. Learned counsel for the petitioner submits that
on 15.05.2008 11th meeting of the Board of Governors of N.I.T.,
Patna was held at Delhi and directed the Registrar, N.I.T. to
consider regularization of service of 11 persons named in this
case against vacant posts in the institute as per the qualification
and board as also advised the N.I.T. Patna to implement the
order as per its provisions.
5. Learned counsel for the petitioner further
submits that the service of the petitioner was regularized as
Laboratory Assistant, Department of Physics vide office Letter
No. NITP/214/09 dated 21.12.2009 issued under the signature
of the respondent no.4 and subsequently vide Letter No.
NITP/237/10 dated 11.01.2010 the pay scale of the petitioner
has been fixed in the revised pay structure (6th CPC) of Pay
Band-1 (Rs.5200-20,200 with Grade Pay Rs.2,000) w.e.f.
30.12.2009.
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
6. He further submits that the Ministry of Human
Resources Development, Department of Secondary and Higher
Education, Government of India, has introduced a new pension
scheme based on defined contribution in lieu of the GPF-cum-
Pension Scheme for new entrants recruited in Central
Government Service on or after 01.01.2004 and it has been also
directed that who has been recruited on or after 01.01.2004 will
also be governed by the New Pension Scheme and pursuant to
the aforesaid decision of the Government of India, the petitioner
has been put under the non-pensionable service.
7. Learned counsel for the petitioner submits that
the petitioner is entitled under law to get his service rendered as
daily wages employee should be counted for the purpose of
putting him into a pensionable service. The petitioner was
retired from the service on 31.06.2017.
8. Learned counsel for the petitioner in support of
his submission has placed reliance upon the judgment of the
Hon'ble Supreme Court passed in the matter of Nagar
Mahapalika, Kanpur Versus. Vibha Shukla (smt) and Others
reported in (2007) 15 SCC 61, para 16 & 20 of which are
quoted hereinbelow;
16. Respondent 1 was appointed
during the period 18-8-1975 and 30-
9-1976 on temporary basis. Such an
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
appointment was not made in terms
of sub-section (11) of Section 16-E of
the 1921 Act. There is nothing to
show that there existed a clear
vacancy or she was appointed in
terms of the Act. Procedures for
appointments under the 1921 Act and
the 1959 Act are different. The
Selection Committees constituted
under both the Acts are also
different. The terms and conditions of
the teachers appointed under the two
Acts are also different. It is, thus,
difficult to accept the findings of the
Tribunal as affirmed by the High
Court that the said provisions would
apply to the case of the first
respondent herein.
20. Furthermore, it is trite that
regularisation is not a mode of
appointment. It has been so held by a
Constitution Bench of this Court in,
State of Karnataka v. Umadevi (3).
The principle enunciated by the
Constitution Bench of this Court in
Umadevi (3) has inter alia been
applied by this Court in Post Master
General v. Tutu Das (Dutta) stating
as under:
(SCC p. 322, paras 12-13)
"12. What was considered to be
permissible at a given point of time
keeping in view the decisions of this
Court which had then been operating
in the field, does no longer hold good.
Indisputably, the situation has
completely changed in view of a large
number of decisions rendered by this
Court in last 15 years or so. It was
felt that no appointment should be
made contrary to the statutory
provisions governing recruitment or
the rules framed in that behalf under
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
a statute or the proviso appended to
Article 309 of the Constitution of
India.
13. Equality clause contained in Articles
14 and 16 of the Constitution of India
must be given primacy. No policy
decision can be taken in terms of Article
77 or Article 162 of the Constitution of
India which would run contrary to the
constitutional or statutory schemes."
9. He further placed reliance upon the judgment of
the Hon'ble Supreme Court passed in the case of State of Bihar
versus Sheela Devi & Ors. reported in 2013(4) PLJR 557, para
11 & 12 of which are quoted hereinbelow;
"11. The view was reiterated in (2006)9
SCC 406 (K.T. Veerappa vs. State of
Karnataka):-
"16......The benefits having been
given to 23 employees of the
University in compliance with the
decision dated 21.6.1989 recorded by
the learned Single Judge in WPs Nos.
21487-506 of 1982, it was expected
that without resorting to any of the
methods the other employees
identically placed, including the
appellants, would have been given the
same benefits, which would have
avoided not only unnecessary
litigation but also the movement of
files and papers which only waste
public time."
12. The issue for addition of work charge
duration after absorption making the
service pensionable was considered in
(2009)14 SCC 793 (Dakshin Haryana
Bijli Vitaran Nigam vs. Bachan Singh)
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
observing as follows:-
"19. The Court in Kesar Chand case
(1988 Punjab 265) (FB) held that the
period of service spent by an
employee on work-charged basis
prior to his regularisation, should be
taken into consideration for
determining his qualifying service.
This part is contained in para 19 of
the judgment and reads thus: (Kesar
Chand case)
"19.... It looks to be illogical that the
period of service spent by an
employee in a work-charged
establishment before his
regularisation has not been taken
into consideration for determining
his qualifying service. The
classification which is sought to be
made among Government servants
who eligible for pension and those
who started as work- charged
employees and their services
regularised subsequently, and the
others is not based on any intelligible
criteria and, therefore, is not
sustainable at law. After the services
of a work-charged employee have
been regularised, he is a public
servant like any other servant. To
deprive him of the pension is not only
unjust and inequitable but is hit by
the vice of arbitrariness, and for
these reasons the provisions of sub-
rule (ii) of Rule 3.17 of the Rules
have to be struck down being
violative of Article 14 of the
Constitution."
A Full Bench judgment of the Pun- jab and
Haryana High Court in Kesar Chand case
was carried before this Court by way of
filing a special leave petition. This Court
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
dismissed the said special leave petition."
10. In view of the aforesaid, the petitioner is
entitled for old pension scheme and the respondents are wrongly
treated the petitioner as new recruited in the NIT and
respondents may be directed to issue pension of retirement
benefit in favour of the petitioner treating the petitioner as his
initial appointment was in the year, 1987.
11. Learned senior counsel for the NIT and learned
counsel for the Union of India, on the other hand, vehemently
opposes the prayer and submits that the petitioner cannot claim
that he may be treated as the old employee, in fact pursuant to
the direction of this Hon'ble Court passed in C.W.J.C. No.
12364 of 2001 and M.J.C. No. 785 of 2009, the petitioner was
appointed as Lab Assistant (Physics) in the regular pay scale
against the sanctioned post of Lab Assistant (Physics) vide
M.H.R.D. Government of India Letter No. F.11 1/2006-TS.III
dated 17.03.2006 w.e.f the date when the petitioner joined the
service.
12. Learned counsel for the respondent further
submits that the petitioner has accepted the Annexure-5 and
even in the contempt proceeding he has not taken liberty to
challenge the Annexure-5 of the writ petition and even in the
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
present writ proceeding he has not challenged Annexure-5,
which is reproduced hereinbelow.
NATIONAL INSTITUTE OF TECHNOLOGY PATNA
ASHOK RAJPATH, PATNA-800005.
No. NITI/214/09 Date 21-12-2009
OFFICE ORDER
In compliance of Hon'ble Patna High Court order in CWJC case
No. 12364/01 and consequent contempt case in the Hon'ble Patna High
Court MJC No.785 of 2009, Sri Syed Mokhtar Hussain S/o Late Sri
Syed Akhter Hussain, At & P.O.: Aurangabad Saraiya via Tilouthu,
District. Rohtas (Bihar) is appointed as Lab Assistant (Physics) in the
regular pay-scale against sanctioned post of Lab Assistant (Physics)
vide MHRD, Gol letter No.F.11-1/2006-TS.III dated 17-03-2006 with
effect from the date when he will join the institute service.
Sri Syed Mokluar Hussain is required to join his duties
immediately.
Memo No. NITP/2948-53109
Copy to: By order of Director
1. All Deans REGISTRAR
2 All HoDs 21/12/07
3. Sri Syed Mokhtar Hussain
4. Secy. to Director
5. P.A.to Registrar
6. Account Section
REGISTRAR
The principle of estoppel can be invoked in this
case against the petitioner. The respondent no.3 has rightly
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
rejected the claim of the petitioner to not put him into the old
pension scheme in place of the national pension scheme because
the petitioner was joined the service in the respondent-NIT after
the direction of this Hon'ble Court in CWJC No. 12364 of 2001
and MJC No. 785 of 2009 w.e.f. 30.12.2009.
13. He further submits that after the order dated
18.04.2008 passed in C.W.J.C. No. 12364 of 2001, the services
of the petitioner was regularised by the N.I.T., Patna on
21.12.2009 from the date of joining on the post of Laboratory
Assistant which was later on modified on 09.04.2015 w.e.f.
04.12.2008 and the services of the petitioner was regularised by
N.I.T., Patna w.e.f. 04.12.2008. The notification of the Central
Government dated 05.07.2005, by which the National Pension
Scheme was introduced w.e.f. 01.01.2004. The notification
dated 05.07.2005 speaks about the new entrants recruited in the
Central Government Services on or after 01.01.2004. The said
scheme shall be applicable in case of the petitioner and even the
petitioner has not challenged the office order dated 21.12.2009
(Annexure-5) which was subsequently modified by the order
dated 09.04.2015 (Annexure-13) by which the date of joining of
the petitioner is amended as 04.12.2008 in place on 30.12.2009.
14. In view of the aforesaid, it is admitted case of
Patna High Court CWJC No.18619 of 2014 dt.02-02-2024
the petitioner that petitioner has never challenged the order
dated 21.12.2009 (Annexure-5) by which the petitioner has been
appointed in the N.I.T. pursuant to the direction of this Hon'ble
Court and even in the present writ proceeding the petitioner has
not choosen to challenge the order dated 21.12.2009. So, the
N.I.T. has rightly rejected the claim of the petitioner to put him
into Old Pension Scheme in place of the National Pension
Scheme because the petitioner was admittedly joined in service
of the respondent-N.I.T. after the introduction of the National
Pension Scheme (01.01.2004). After the joining in the N.I.T. the
authority had deducted the contribution amount from his salary
treating the petitioner as a new recruitee after the introduction of
the national pension scheme and even the petitioner has never
objected for the same. There is no infirmity in the order
impugned and respondents have rightly rejected the claim of the
petitioner.
15. Accordingly, this writ application is dismissed.
(Rajesh Kumar Verma, J)
ajay/-
AFR/NAFR NAFR
CAV DATE 05.01.2024
Uploading Date 02.02.2024
Transmission Date NA
