Patna High Court
Ujjwal Kant vs The State Of Bihar on 8 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.182 of 2022
======================================================
Ujjwal Kant Son of Late Sudama Prasad Rai Resident of Flat No. F/1, R.R.
Complex, A.N. Path, Boring Road, Post- Patliputra, Police Station- Patliputra,
District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Government of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Government of
Bihar, Patna.
3. The Director (Administration), Department of Education, Government of
Bihar, Patna.
4. The Accountant General (A and E), Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pawan Kumar Choudhary, Advocate
Mr. Manoj Kumar, Advocate
For the Respondent/s : Mr. Kameshwar Kumar, GP-17
Mr. S. K. Ranjan, AC to GP-17
For the Accountant General: Mr. Ram Yash Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 08-01-2024
This Court has heard Mr. Pawan Kumar Chaudhary,
alongwith Mr. Manoj Kumar, learned counsel for the petitioner
and Mr. S. K. Ranjan, learned counsel for the State.
2. The writ petition under Article 226 of the
Constitution of India has been initially filed for a direction upon
the concerned respondents to ensure payment of all the retiral
benefit except the payment of GIC and G.P.F. to the petitioner
with statutory interest, who wad superannuated from service on
31.01.2021
, as the Accountant in Education Department,
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
Government of Bihar, Patna, as also for payment of
compensation of Rs.1,00,00,000/- on account of the death of his
wife in dearth of money for treatment during the pandemic
period. Subsequently, during the pendency of the writ petition
on account of certain development, the relief prayed for in
para.1 of the writ petition is modified by adding certain other
prayer by the order of this Court dated 05.09.2023, which are
quoted hereinbelow:
"1(i) For issuance of writ in the nature
of certiorari for quashing the re-fixation of
pay scale by the respondents vide Memo No.
1321 dated 25.07.2023 and the entitlement of
ACP/MACP modified vide Memo No. 1309
dated 24.07.2023 (Annexure-A and B to the
Supplementary counter affidavit filed on
behalf of the respondent no.3).
1(ii) For direction to the respondent
Joint Secretary-cum-Director
(Administration), Department of Education,
Government of Bihar, Patna to not to
discriminate the petitioner from other and to
grant all his retiral dues on the basis of last
pay certificate appended as Annexure-P/6, as
the petitioner was superannuated with the pay
scale of Rs.76,500/-.
1(iii) For direction to the respondents
to grant all the consequential benefits as has
been granted to Smt. Ram Laxmi Mishra and
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
others, which has been given in compliance of
the order of this Hon'ble Court and the same
had also been affirmed by the Hon'ble Apex
Court (Annexure-P/4 & P/10 Series)."
3. Shorn of unnecessary details, the relevant facts,
which led to the filing of the present writ petition is that the
petitioner was appointed as a Clerk-cum-Accountant under the
Adult Education-cum-Non-formal Education, Project of the
Education Department on 10.05.1985. Owing to the closure of
the project/scheme by the Central Government, the petitioner
along with other persons, who were working in the said
scheme/project were retrenched with effect from 01.04.2001.
4. In the light of several judicial pronouncement of
the Hon'ble Court on the issue relating to retrenched/surplus
employee of Adult Education-cum-Formal Education, the State
Government vide its resolution contained in Memo No. 582
dated 20.05.2005 has taken a policy decision to absorb all the
retrenched employee in the different Departments of the State
Government. In view thereof, vide letter no. 433 dated
10.02.2006, issued by the Director, Mass Education addressed to
the Director (Administration)-cum-Deputy Secretary, Human
Resources Development Department, Bihar to absorb the
services of the petitioner in the Education Department.
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
Accordingly, the appointment letter was issued vide office order,
as contained in Memo no. 896 dated 18.04.2006 by the Director
(Education) of the Education Department and the petitioner was
absorbed on the post of Clerk-cum-Accountant.
5. Referring to the appointment letter, as contained
in Memo no. 896 dated 18.04.2006, the learned counsel for the
petitioner impressed upon the Court that the appointment letter
was in clear terms mentioned that the appointment of the
petitioner has not been treated as a new appointment. After
serving unblemished service, the petitioner retired from the
service on 31.01.2021 from the post of Accountant under the
Education Department and on the date of retirement, the last pay
drawn by the petitioner was Rs.76,500/-. In support of his
submission, attention of this Court has been drawn to Annexure-
P/6 of the first rejoinder to the counter affidavit.
6. It is the case of the petitioner that despite having
superannuated on 31.01.2021, when the authority did not release
the due retiral benefit, the petitioner has filed the instant writ
petition for payment of retiral benefits under different heads, but
the authority of the Education Department unilaterally amended
the last pay drawn as Rs.68,000/- by treating the petitioner as
new appointee, contrary to the condition of the
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
appointment/absorption letter 896 dated 18.04.2006. He further
submits that the respondent, in order to justify the aforesaid
amendment, has also issued a corrigendum letter under the
signature of Special Secretary-cum-Director (Administration)
with regard to appointment letter of the petitioner, as was issued
vide Memo no. 896 dated 18.04.2006 and modified the same
that the services of the petitioner will be treated as new service
vide Departmental letter no. 957 dated 27.06.2022 (Annexure-C
to the supplementary counter affidavit). Further the respondent
vide Departmental Memo No. 1309 dated 24.07.2023 has also
withdrawn the benefit of MACP, which was allowed to him on
the basis of recommendation of the Screening Committee of the
Department w.e.f. 14.02.2005 in Level-V. After withdrawing the
benefit of the aforesaid MACP, the authority once again re-fixed
the last pay drawn by the petitioner and fixed the same at the
rate of Rs.41,600/-, which orders are also under challenge.
7. While assailing the impugned orders and action
of the respondents, Mr. Chaudhary, learned counsel for the
petitioner submits that the last pay of the petitioner drawn on the
date of retrenchment was Rs.5800/-, which was also approved
by the Finance Department and is manifest from the service
book. The entire exercise was made by the authority of
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
Education Department and approved by the Finance Department
in view of the letter no. 1129 dated 04.07.2006 and thus the re-
fixation or re-amendment of the last pay of the petitioner is
wholly illegal, unjustified and fit to be set aside. It is further
submitted that several other retrenched employees had been
given salary for the retrenched period in view of the judicial
pronouncement of this Court, particulars of which has been duly
obtained under Right to Information Act and copy of which has
been brought on record by way of Annexure-P/5 to the rejoinder
filed on behalf of the petitioner. He also submits that one Smt.
Ram Laxmi Mishra, who was also holding the post of
Accountant had been provided salary for the retrenched period
and the case of the petitioner is identical to the case of Smt.
Ram Laxmi Mishra and others. He next submitted that the
authority has provided all the in-service benefits, except 2nd and
3rd M.A.C.P., as per the condition of the appointment letter as
well as in accordance with the directions contained in letter no.
1129 dated 04.07.2006 and rightly fixed the pay drawn at the
rate of Rs.76,500/-, which was illegally altered twice with
ulterior motive to deprive the petitioner fein getting 2 nd and 3rd
MACP, thus left with no option, the petitioner has assailed the
same by filing interlocutory application.
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
8. In order to buttress his submission, he further
submits that other, identically situated persons, have also been
allowed the benefit of ACP/MACP, who were later on absorbed
in the Government Service in the different departments and in
order to seek parity certain letters/orders with respect to
different persons have been brought on record. In support of the
aforesaid submissions, reliance has been made on the judgment
of this Court rendered in the case of Ram Naresh Ishwar Vs.
The State of Bihar & Ors. (CWJC No. 17137 of 2009), Bipin
Bihari Roy Vs. The State of Bihar & Ors. (CWJC No. 11936
of 2011) and in the case of The State of Bihar & Ors. Vs.
Prabhakar Mishra & Ors. (L.P.A. No. 438 of 2017).
9. Per contra, Mr. S. K. Ranjan, learned counsel for
the State, while refuting the contention of the petitioner,
submitted that the service of the petitioner before his
retrenchment was the part of Non Formal Education
Programme, which was sponsored by both the Government i.e.
Central Government as well as State Government, who were
bearing the expenses incurred in this programme in specified
ratio. However, the Central Government has taken a decision to
stop the Non Formal Education Programme and accordingly the
petitioner who was the then employee of Non Formal Education
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
Programme was retrenched from his service alongwith others.
In the light of the several pronouncements of this Court, the
State Government took a policy decision to adjust the
retrenched employee vide Memo No. 582 dated 20.05.2005,
which clearly contemplates that the adjustment should be treated
as a new employment and they shall not be entitled to grant the
benefit of seniority on the basis of earlier service prior to
retrenchment. The said period will be counted only for
pensionary benefits of retirement. Accordingly, the case of the
petitioner was recommended to adjust on the post of Accountant
in the pay scale of Rs.4000-6000/- as a new appointment.
However, due to typographical mistake appointment letter was
issued mentioning therein that the appointment will not be
considered as new appointment but in Clause -2 therein it was in
clear term mentioned that he will not get the benefit of seniority.
The respondent having come to know about the mistake has
rectified the same vide letter no. 957 dated 27.06.2022.
10. He next submitted that the case of the petitioner
is covered by the judgment of the Apex Court in Civil Appeal
No. 10806 of 2018 (State of Bihar & Ors. Vs. Baliram Singh &
Ors.) inasmuch as the petitioner has neither challenged his
retrenchment order nor challenged the adjustment order before
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
any Court of law.
11. To buttress his submission, he further
vehemently submitted that the Apex Court in the case of State
of Bihar & Ors. Vs. Baliram Singh & Ors. (supra) allowed the
appeal vide order dated 29.10.2018 and held that the writ
petitioner has not challenged the termination order, including
the policy decision dated 20.05.2005 of the terms and conditions
of the appointment letter, thus the Hon'ble Apex Court in
uncertain terms held that the readjustment of service shall be
deemed as new/fresh appointment, which will be counted from
the date of fresh appointment. The Hon'ble Court also
distinguished the order passed in the case of Smt. Ram Laxmi
Mishra, which was affirmed by the Division Bench of this
Court in L.P.A. No. 137 of 2006 and the SLA (Civil) No. 9401
of 2009 preferred by the State of Bihar also came to be
dismissed on 24.07.2009.
12. The respondent State of Bihar after obtaining
the order of the Apex Court in Baliram Singh & Ors. (supra)
vide Departmental Letter No.464 dated 28.02.2019
communicated to the Accountant General, Bihar that the
retrenched employees of Formal Education is not entitled for
any financial benefit for the period 2001 to 2006-07.
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
Consequent thereupon, the Government of Bihar has re-
determined the pay scale of the petitioner by treating the
appointment of the petitioner on 14.02.2006 in the pay scale of
Rs.4000-6000/- and granted 1st ACP w.e.f. 14.02.2016. The pay
scale of the petitioner has accordingly also determined from the
date of appointment to the date of retirement vide Department
Memo no.1548 dated 01.09.2023. It is lastly submitted that in
identical matter in the case of Chharpan Ram Vs. State of
Bihar & Ors. (CWJC No. 10282 of 2020) a Bench of this Court
vide its order dated 08.07.2022 has been pleased to hold that for
the purpose of grant of ACP/MACP the benefits should not be
calculated prior to retrenchment period.
13. In response to the submissions made on behalf
of the learned counsel for the State, Mr. Choudhary further
submitted that the reliance upon the judgment passed by the
Apex Court in the case of Baliram Singh & Ors (supra)
whereby and whereunder the Apex Court has been pleased to
distinguish the case of Smt. Ram Laxmi Mishra on the ground
that Smt. Ram Laxmi Mishra had challenged her retrenchment
order whereas the respondent Baliram Singh and Others not
only failed to challenge the termination order passed against
them consequent to the abolition of scheme w.e.f. 01.04.2001,
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
but also failed to challenge both the policy of the State and the
terms and conditions of the letter of the appointment, however,
the distinguishing feature would not have any application in the
case of the petitioner, as the case of the petitioner is not identical
to those of Baliram Singh and others (supra) where in the
appointment letter of the petitioner, it has been clarified that his
service should not be treated as new appointment and thus there
was no reason or occasion to challenge the same. He further
submits that once the petitioner superannuated from his service
on 31.01.2021, there was no relationship of master and servant
between them and in the circumstances mentioned herein, the
authority cannot alter the terms of appointment of the petitioner
after 1 ½ years of his retirement that too unilaterally without any
show-cause notice or opportunity of hearing.
14. This Court has given anxious consideration to
the submissions advanced on behalf of respective parties and
also perused the materials available on record. Undisputedly, the
petitioner was the employee of Mass Education (Non Formal
Education Programme), whose services were retrenched along
with others and subsequently in the light of the pronouncement
of judgments rendered by this Court, the State Government took
a policy decision on 20.05.2005 to adjust the retrenched
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
employees. The very adjustment/ appointment of the petitioner
is on account of the policy decision of the State Government
dated 20.05.2005, which has been brought on record by way of
Annexure- A to the Supplementary Counter Affidavit filed on
behalf of respondents. Bare reading of the said policy decision,
Clause ([k) thereof it is manifest that the retrenched employee
shall be adjusted for the same salary at which they were
retrenched. In the case of unavailability of posts/vacancies and
upon furnishing their written consent retrenched employee shall
also be adjusted at minimum salary. Clause (V) of the said policy
decision clearly stipulates that "adjustment of the retrenched
employee shall be deemed to be a new appointment, they shall
not get the benefit of seniority on the basis of their service
before being retrenched, but the period of service prior to
retrenchment shall be used for the pension purpose.
15. On the basis of the aforenoted policy decision,
as contained in Resolution dated 20.05.2005, the Director, Mass
Education, Bihar, Patna vide his Memo no. 433 dated
10.02.2006 wrote to the Director (Administration)-cum-Deputy
Secretary, Human Resources Development Department, Bihar
with recommendation to appoint the petitioner on the post of
Accountant in the pay scale of Rs.4000-6000/-. This Court has
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
also perused the said letter, which also contemplates similar
conditions that his adjustment shall be deemed to be new
appointment and on the basis of their service prior to
retrenchment, the seniority shall not be permissible, but his
service prior to his retrenchment shall be calculated for the
purpose of pension. However, surprisingly, when the
appointment letter, as contained in Memo no. 896 dated
18.04.2006, has been issued it has been incorporated in it that
the appointment shall not be treated as new appointment, though
the other condition was already there that his service prior to
retrenchment shall not be permissible for seniority. However, it
shall be counted for the purpose of pension.
16. It is true that it is the only letter i.e. Memo No.
896 dated 18.04.2006, which was communicated to the
petitioner and, as such, the petitioner had no reason or occasion
to challenge the same, as his appointment was not treated to be
new appointment, but this Court cannot shut his eyes that the
very basis of the appointment of the petitioner as discussed
hereinabove, viz, policy decision as well as recommendation
letter, there was a clear stipulation that the adjustment of
retrenched employee(s) shall be deemed to be new appointment.
17. In such circumstances, now the question posed
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
before this Court as to whether the petitioner shall be given the
benefit of his past services prior to appointment. After careful
consideration, this Court is of the opinion that admittedly the
petitioner has neither challenged the order of retrenchment nor
being aggrieved by the terms of the policy decision as well as
recommendation stipulating the condition that the appointment
shall be deemed to be new appointment, thus, it was out and out
a sheer mistake or typographical error on the part of the
respondents and, as such, the case of the petitioner also covers
by the judgment rendered by the Apex Court in the case of
Baliram Singh & Ors. (supra) wherein the Apex Court has held
that the adjustment/appointment of the retrenched employee
was/were a fresh appointment and the past service will be
reckoned only for the purpose of grant of pension and nothing
more.
18. Despite having held the appointment of the
petitioner as fresh appointment, this Court has no hesitation to
further hold that the case of the petitioner falls under
exceptional facts and circumstances, as this Court cannot lose
sight of the fact that the very appointment of the petitioner
stipulates that his appointment shall not be treated as new
appointment and the Government resolution dated 20.05.2005
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
specially Clause ([k) clearly says that the retrenched employee
shall be adjusted for the same pay scale at which they were
retrenched.
19. From the materials available on record, it would
be evident that before retrenchment on 31.03.2001, the
petitioner was getting salary at the rate of Rs.5800/-(in the pay
scale of Rs.4500-7000/-) w.e.f. 01.01.1996 and thus the
respondents is directed to ensure re-fixation of the pension of
the petitioner on the basis of the basic salary drawn in the pay
scale of Rs.4500-7000/- in terms of the policy decision of the
State Government, as contained in Resolution dated 20.05.2005.
20. So far the contention of the petitioner that others
have been allowed the benefit of salary for the period of
retrenchment, including Smt. Raj Laxmi Mishra and others.
Needless to observe that such benefits have been allowed
pursuant to the order of this Court as well as Apex Court on
account of their order of retrenchment having been set aside,
which is not the facts of the case in hand, thus no such
relief/benefits be accorded to the petitioner.
21. So far the challenge of the petitioner to the order
whereby the pay scale of the petitioner has been re-fixed by the
respondent vide Memo No. 1321 dated 25.07.2023 and the
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
entitlement of ACP/MACP modified vide Memo No. 1309 dated
24.07.2023 are concerned, admittedly the service of the
petitioner prior to retrenchment has been considered for the
purpose of pension and it has been submitted on behalf of the
petitioner at the bar that several persons, identically situated,
have been allowed the benefit of ACP/MACP by counting their
past services before the retrenchment, this Court also finds
substance on the reliance made on behalf of the petitioner on the
judgment rendered by this Court in the case of Ram Naresh
Ishwar Vs. The State of Bihar & Ors. (CWJC No. 17137 of
2009 and other analogous cases), Bipin Bihari Roy Vs. The
State of Bihar & Ors. (CWJC No. 11936 of 2011) and in the
case of The State of Bihar & Ors. Vs. Prabhakar Mishra &
Ors. (L.P.A. No. 438 of 2017).
22. In all the aforenoted cases, the Hon'ble Court
taking note of the fact that all those, who were terminated and
came to be absorbed under a policy decision form one class and
absorbed against the regular sanctioned vacancies in different
department/regional offices. The policy decision was also clear
for a permanent absorption is further confirmed by subsequent
appointment letter and to grant pay protection and count past
service for pension.
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
23. In the case of Bipin Bihari Roy (supra), the
petitioner of the said writ petition was also appointed as Class-
III employee in the year 1985 in the Directorate of Adult
Education, Government of Bihar along with other persons,
whose services were terminated on account of closure of Adult
Education Project, which subsequently, came to be set aside and
they were absorbed in Non-Formal Education Education Wing
of the Directorate of Adult Education with the same benefits and
he has been allowed the benefit of ACP taking into account the
past services, prior to retrenchment. Further the learned Division
Bench in the case of Prabhakar Mishra & Ors (supra) while
affirming the order of the learned Single Judge has been pleased
to hold in para. 13 and 14, which are as follows:
"13. Similarly, if Rules 10 and
22 of the MACP Rule, 2010 are taken
note of, it speaks about appointment in
the State Government service of an
employee, who had been working in a
school as a teacher or in any other
Public Sector Undertaking or
Autonomous Body. The rule speaks
about induction and appointment of the
employees into the service of the State
Government and does not refer to a
case where the services of the
employees working in the Corporation
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
is absorbed in the State Government on
winding up or closing of the
Corporation. The case in hand is one
where the State by its own notification
dated 7.3.1986 thought it appropriate
to absorb the services of the employees
and after such absorption when for
getting the benefit of pension and post
retiral benefits, the services rendered
by them in the Corporation is counted,
we are of the considered view that there
should not be any impediment in
counting the same services for grant of
ACP or MACP. The interpretation given
by the State Government in our
considered view, will only apply in the
case of appointment of employee in the
State Government service after
following the selection process or after
his lien is terminated in the
Corporation or Autonomous Body. The
respondents were regular employees in
service of Corporation and not
appointed in regular cadre service of
the State Government after selection or
termination.
14. We are of the considered
view that the Writ Court has not
committed any error in passing the
order, as from para-6 onwards by
holding that in the case of absorption
the principle applicable in the case of
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
appointment or fresh appointment will
not apply. In our considered view it is
correct interpretation and the same
need not be interfered with.
Accordingly, we find that the Writ
Court has not committed any error and
further hold that the Single Bench in
the case of Anjani Kumar Sinha (supra)
has not considered the law correctly
and has not interpreted the ACP Rules,
2003 and MACP Rules, 2010 in its
right perspective. With due respect, we
disagree with the observation of the
Writ Court in that case."
24. In view of the discussions made hereinabove,
this Court is also of the opinion that the impugned order
withdrawing the benefit of ACP/MACP vide Memo No. 1309
dated 24.07.2023, as also Memo No. 1321 dated 25.07.2023 for
re-fixation of the pay scale are fit to be quashed and cancelled
and accordingly the same are fit to be set aside.
25. So far the prayer of the petitioner for payment
of compensation of Rs.1,00,00,000/- on account of death of his
wife in dearth of money for treatment during the pandemic
period is concerned, this Court has found that the unfortunate
demise was on account of Covid-19 where the Medical survey
data reveals that lacs and lacs of people have lost their life in
Patna High Court CWJC No.182 of 2022 dt.08-01-2024
this pandemic not because of lack of money, but because of the
large scale spread infection leading to severe complication as
well as low immunity power and prolonged illness. It has rightly
been averred by the respondents that the percentage of death
ratio during the pandemic period from maximum elite class and
of well of families, who have no scarcity of money. In such
view of the matter, this Court does not find that it is a case,
which warrants any compensation to be awarded to the
petitioner.
26. Accordingly, the present writ petition stands
allowed to the extent indicated hereinabove. The entire exercise,
in terms of the order of this Court, must be completed within a
period of eight weeks from the date of receipt/production of a
copy of this order.
27. There shall be no order as to costs.
uday/- (Harish Kumar, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.01.2024
Transmission Date NA
