Patna High Court
Sharda Sinha (Padmabhushan) vs The State Of Bihar on 12 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9131 of 2022
======================================================
Dr. Uday Chandra Mishra, S/o Late Ram Chandra Mishra, Resident of -
H.I.G. 101, Housing Board Colony, Khajsarai Kherajpur, Distrct Darbhanga
retired as Associate Professor in the subject of Sociology B.M.A. College
Baheri, Darbhanga.
... ... Petitioner
Versus
1. The State of Bihar through Principal Secretary, Education Department, Govt.
of Bihar, New Secretariat, Patna.
2. Principal Secretary, Education Department Govt. of Bihar, New Secretariat,
Patna.
3. The Director, Higher Education, Govt. of Bihar, New Secretariat, Patna.
4. The Incharge Officer, Pay Verifcation Cell, Education Department, Bihar,
Patna
5. The Vice-Chancellor, L.N. Mithila University, Darbhanga.
6. The Registrar, L.N. Mithila University, Darbhanga.
7. The Finance Officer, L.N. Mithila University, Darbhanga.
8. The Principal, B.M.A. College Baheri, Darbhanga.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 5914 of 2023
======================================================
Sharda Sinha (Padmabhushan) W/o Braj Kishore Sinha, Resident of Narayani
Road No.6 and 8 Rajendra Nagar, Sampatchak, P.S.-Sampatchak, District-
Patna.
... ... Petitioner
Versus
1. The State of Bihar through 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, New Secretariat, Patna.
4. The Vice Chancellor Lalit Narayan Mithila University Darbhanga, Registrar
Lalit Narayan Mithila University, Darbhanga.
5. The Principle Women's College, Samastipur.
... ... Respondents
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 9131 of 2022)
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
2/23
For the Petitioner/s : Mr. Shashi Bhushan Singh, Advocate
For the Respondent/s : Mr. Kameshwar Kumar, GP-17
Mr. Amit Bhushan, AC to GP-17
For the University : Md. Nadim Siraj, Advocate
(In Civil Writ Jurisdiction Case No. 5914 of 2023)
For the Petitioner/s : Mr. Vikas Kumar, Advocate
For the Respondent/s : Mr. Madhaw Pd. Yadaw, GP-23
For the University : Md. Nadim Siraj, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 12-01-2024
Since the issue(s) involved in both the writ petitions
are identical in nature, with the consent of the parties, they are
taken up together and disposed of by a common order. However,
for the purposes of easy references, the facts of both the writ
petitions are being recorded separately.
2. Heard Mr. Shashi Bhushan Singh, learned counsel
for the petitioner; Mr. Amit Bhushan, learned counsel for the
State as well as Md. Nadim Siraj, learned counsel for the L.N.
Mithila University, Darbhanga (for short "the University") (in
C.W.J.C. No. 9131 of 2022) and Mr. Vikas Kumar, learned
counsel for the petitioner; Mr. Madhaw Prasad Yadav, learned
counsel for the State and Md. Nadim Siraj, learned counsel for
the University (in C.W.J.C. No. 5914 of 2023).
Re.:C.W.J.C. No. 9131 of 2022
3. The petitioner by invoking the prerogative writ
jurisdiction of this Court under Article 226 of the Constitution
of India seeking quashing of the letter no. 249 dated 07.02.2022
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
3/23
issued under the signature of respondent no.4, whereby the Pay
Verification Cell duly constituted by the State Government has
withheld the pay slip of the petitioner, relying upon which the
University stopped the payment of monthly pension as well as
other legitimate terminal dues, including salary difference of the
petitioner.
4. It is to be noted that during the pendency of the writ
petition, respondent no.3 came out with an order as contained in
Memo No. 594 dated 20.02.2023 by which the service of the
petitioner has been held illegal, which order was also put to
challenge by the writ petitioner by filing Interlocutory
Application No.2 of 2023.
5. Now coming to the facts of the case, the petitioner
initially joined on the second post of Lecturer on 17.11.1979 in
the Department of Sociology, BMA College, Baheri, on the
recommendation of the Selection Committee constituted by the
Governing Body of the College. Subsequently, the State
Government vide letter no. 1333 dated 05.08.1981 sanctioned
the second post. Further, for the purpose of absorption of service
of teachers under 3rd Absorption Statute, an Absorption
Committee was constituted by the Chancellor whereby the
names of 28 teachers were approved for absorption vide letter
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
4/23
dated 03.02.1998, however, the said letter was subsequently
stayed by the Chancellor. Consequently, CWJC No. 10032 of
1999 was filed, which was disposed of vide order dated
18.07.2008
with a direction to expedite absorption. Being
aggrieved, LPA No. 875 of 2008 was preferred and the same
stood dismissed on 12.11.2008, resulting into absorption of
some of the teachers, leaving apart 13 other teachers, including
the petitioner due to some technical reasons.
6. It is the submission of the petitioner that in the
meantime, two of the aggrieved temporary teachers, namely,
Devendra Rai and Shashi Kant Prasad Singh moved before this
Court by filing CWJC No. 17021 of 2008 and CWJC No. 7550
of 2009, which were disposed of vide order dated 16.11.2020
and 18.11.2010, respectively (Annexures-2 and 3 to the writ
petition). In compliance to the afore-noted order(s), the
University vide letter no. 5562/11 dated 18.10.2011 placed the
matter for consideration by the Chancellor for absorption of 13
teachers including the petitioner. The Governor Secretariat also
issued letter no. 2400/GS(I) dated 17.09.2013 with a direction to
the University to consider the case of the petitioner and other
Lecturers for absorption. Pursuant thereto, the Post Creation,
Absorption and Confirmation Committee in its meeting dated
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
22.01.2016 made recommendation for absorption of the
petitioner on the post of Assistant Professor in the Department
of Sociology and the same was approved by the Syndicate of the
University vide Memo No. 3712-21/16 dated 26.09.2016
(Annexure-6 to the writ petition).
7. It is further case of the petitioner that being
absorbed w.e.f. 15.06.1982 in view of the order passed in CWJC
No. 17021 of 2008 (Devendra Rai v. L.N. Mithila University &
Ors.) as also under the scheme of time bound promotion, he was
promoted to the post of Reader w.e.f. 15.09.1992 upon the
recommendation of University Selection Committee vide Memo
No. 6216-27/18 dated 05.05.2018 (Annexure-7 to the writ
petition). Consequent upon the promotion, the pay-scale of the
petitioner was fixed by the Statutory Pay Fixation Committee
and communicated to the Principal of the College (Annexure 8
& 8/1). The pay-scale of the petitioner was further revised by
the Statutory Pay Fixation Committee as per the revised UGC
scale w.e.f. 01.01.2016 in view of the Memo No. 591 dated
06.03.2019 and pay slips were issued to the petitioner
(Annexure-10).
8. The petitioner having rendered more than 36 years
of service, superannuated on 31.01.2017 and was accordingly
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
issued PPO by the University in the pay-scale applicable to the
Lecturer as the petitioner was posted as Lecturer at the relevant
time and was sanctioned earned leave vide letter dated
22.02.2018 (Annexure-12). The petitioner has been paid his
entire salary and pension dues in the pay-scale of Lecturer
though he was entitled to receive benefits on the basis of the
pay-scale of Associate Professor and for this discrepancy, he
represented before the University. However, all of a sudden,
after five years of the retirement, the pay slip of the petitioner
was withheld by the Pay Verification Cell vide letter no. 249
dated 07.02.2022 and, on the basis thereof, the University also
stopped the pension of the petitioner from October, 2021
(Annexure-14 to the writ petition) which is impugned herein.
9. While assailing the order impugned Mr. Shashi
Bhushan Singh, learned counsel for the petitioner, submitted
that the Pay Verification Cell has no authority to grant approval
of the fixation made by the Statutory Pay Fixation as has been
held in the case of Patna University Employees Association &
Ors. v. The State of Bihar & Ors. [C.W.J.C. No. 65 of 2001]
(Annexure-17 to the writ petition).
10. Similarly, the petitioner being aggrieved by Memo
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
No. 594 dated 20.02.2023, issued by the Director Higher
Education, Government of Bihar, Patna, whereby and
whereunder the appointment of 17 teachers, including the
petitioner has been held illegal and it has been decided that no
benefit shall be given to the aforesaid 17 teachers, preferred the
present writ petition, seeking quashing of the same. The
petitioner also sought quashing of the letter contained in Memo
No. SC/45/23 dated 22.02.2023, whereby she has been informed
that in the light of the afore-noted order dated 20.02.2023 issued
by the Education Department, Patna, no benefit shall be given to
her with immediate effect.
11. It is the case of the petitioner that she was
appointed as a Lecturer in the Music Department in the
Women's College, Samastipur on 01.07.1977. Further, the State
Government vide its letter contained in Memo No. 30 dated
08.01.1982, has sanctioned a second post of Lecturer in the
subject of Maithali, Music, Urdu and Sociology in the pay-scale
of Rs. 700-1600 in the Mahila College, Samastipur.
Accordingly, the post of the petitioner as Lecturer was duly
sanctioned by the State Government. It is also the case of the
petitioner that her case was duly considered for the purpose of
absorption under 3rd Absorption Statute by the Chancellor, but
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
some of the teachers were absorbed while those of 13 teachers,
including the case of the petitioner was left pending. Further in
the light of the orders rendered by this Court in Devendra Rai
(supra) and Shashi Kant Prasad Singh (supra), the case of the
petitioner was duly considered along with others by the
Chancellor. The University vide letter no. 1278/16 dated
05.08.2016, directed the Principal of Women's College,
Samstipur to furnish necessary information regarding the
petitioner. In response thereto, the Principal of Women's
College, Samastipur wrote a detailed letter to the Registrar of
the University with a recommendation for regularization of
service of the petitioner as she has been working as an Assistant
Professor since last several decades.
12. Pursuant to the aforesaid direction and
recommendation made by the Post Creation, Absorption and
Confirmation Committee dated 22.01.2016 and subsequently
approved by the Syndicate dated 23.01.2016 and further by the
direction of the Chancellor dated 24.08.2017, the services of the
petitioner was regularized on the post of Assistant Professor,
Department of Music, Women's College, Samastipur w.e.f.
15.09.1982 vide Memo No. 3340-72/16 dated 23.09.2016
(Annexure-11 to the writ petition).
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
13. It is further case of the petitioner that on being
regularized as noted hereinabove, the petitioner was allowed
time bound promotion to the post of Reader w.e.f. 15.09.1992
vide Notification contained in Memo No. SC/3696-3707/17
dated 18.10.2017. Further, the petitioner has also been accorded
promotion to the post of Reader and accordingly the pay-scale
of the petitioner was also revised and finally, she superannuated
on 31.10.2017.
14. Having been superannuated, her pension was also
fixed and paid to her regularly. However, all of a sudden after
five years of her retirement, the impugned order contained in
Memo No. 594 dated 20.02.2023 came to be passed by the
Director, Higher Education, Government of Bihar.
15. It is to be noted that vide order of this Court in
CWJC No. 5914 of 2023 dated 26.04.2023, the operation of the
impugned order as contained in Memo No. 594 dated
20.02.2023, has been directed to be kept in abeyance.
16. Learned advocates appearing on behalf of the
petitioners, while assailing the common impugned order
contained in Memo No. 594 dated 20.02.2023 issued by the
Director, Higher Education, Government of Bihar, holding the
regularization of the petitioners illegal, submitted that
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
admittedly the second post of Lecturer in both the cases were
sanctioned by the State Government w.e.f. 1981 and 1982,
respectively and the College in question had already been given
affiliation in the subject of Sociology as well as Music from
much earlier. The delay in regularization of service of
petitioners was caused by the inertness of the respondent(s) and
thus the petitioners cannot be blamed that regularization took
place after 37-40 years of their appointment. The petitioners
have justified their regularization in view of the order passed in
CWJC No. 17021 of 2008 by submitting that the Bihar State
Litigation Policy-2011, especially clause 4-C(1) provides that it
is not required for each and everyone to approach the Hon'ble
Court for an issue that has been settled by the Court. Therefore,
the petitioner cannot be questioned for claiming parity with the
similarly situated case of the writ petitioners. Reliance has been
made to a full Bench decision of this Court in the case of
Amresh Kumar Singh v. State of Bihar & Anr. [L.P.A. No.
1028 of 2007] reported in 2018 (2) PLJR 929.
17. Learned counsel for the petitioners further
submitted that the University had fixed the pay-scale of the
petitioners, which was admissible pay-scale of Lecturer in UGC
scale with admissible increment and payment has been made to
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
the petitioners accordingly. All the more, in each and every
financial year, the University prepares budget in which the name
of the petitioners are included and the same is also approved by
the State Government. Thus, by granting approval, the State
Government, has acknowledged the services of the petitioners
as legal. The impugned order passed by the Director, Higher
Education, Government of Bihar, after five years of the
retirement of the petitioners without there being any proceeding
or even any show-cause notice or affording an opportunity of
hearing, is apart from illegal, wholly without jurisdiction, and
non est in the eyes of law.
18. It is further submitted that the action of the
respondents in passing the impugned order is not at all
sustainable in view of the judgments rendered by this Court in
the cases of Ranju Devi v. State of Bihar [1999(3) PLJR 504]
and Dr. Naw Kant Thakur v. Bhupendra Narayan Mandal
University, Madhepura & Ors. [CWJC No. 12868 of 2015].
Further submission has been made that the right to pensionary
benefit is a constitutional right and as such cannot be taken
away without proper justification as has been held in the case of
State of Jharkhand & Ors. v. Jitendra Kumar Srivastava &
Anr. [(2013) 12 SCC 210]. Similar reliance has also been made
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
on a judgment rendered by the Apex Court in the case of R.
Sundaram v. The Tamil Nadu State Level Scrutiny
Committee & Ors. [Civil Appeal No. of 2023 (Arising out of
Special Leave Petition (Civil No. /2023 Diary No.
15448/2020)], (2023 SCC Online SC 287) referring to para-23
of the aforesaid judgment, submission has been made that any
person, whose entire identity, and their past, present and future
rights are challenged, must at the least be given an opportunity
to be fairly heard. If such a right has been denied to the
petitioner(s), the burden of proof lies upon the respondent(s) to
disprove the legality of regularization.
19. Counter affidavits have been filed on behalf of the
respondent/State as well as the respondent/University.
20. It is contended on behalf of the respondent/State
that on being found irregularity by the Pay Verification Cell vide
Memo No. 1535 dated 16.06.2022, the Department of Education
had constituted a Three Member Committee to inquire into the
legality of regularization of service of 17 teachers including the
petitioners as was done by the University. Prior thereto, the
Department also vide its letter no. 190 dated 03.02.2022 had
directed the Pay Verification Cell to immediately postpone the
pay verification certificate issued to the petitioners and further
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
vide letter no. 204 dated 04.02.2022 has sought an explanation
from the Registrar of the University for the alleged irregularities
in regularization of service of the petitioner after 37 years of his
service. It is further submitted that the appointment of the
petitioner to the post of Assistant Professor in Sociology on
17.11.1979 was on non-sanctioned post and thus regularization
of the petitioner's service was not legal. Moreover, the case of
the petitioners is not covered by the order dated 16.11.2010 and
18.11.2010 passed in CWJC No. 17021/2008 (Devendra Rai v.
L.N. Mithila University & Ors.) and CWJC No. 7550/2009
(Shashi Kant Prasad Singh v. The State of Bihar & Ors.) nor
can the appointment of the petitioners be considered irregular as
per direction contained in para-44 of the Secretary, State of
Karnataka and Others v. Uma Devi [(2006) 4 SCC 1]
rendered by the Hon'ble Apex Court.
21. Learned counsel for the State has further made
reliance on a judgment rendered by this Court in Dr. Shiv
Narayan Yadav v. The State of Bihar & Ors. [2001(2) PLJR
817] and submitted that the temporary teachers cannot be
regularized under any of the statutes. He next submitted that in
making regularization in question, the permission of the State
has not been obtained, which is required under Section 35 of the
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
Act and as the very appointment of the petitioners is, void ab
initio, there cannot be any regularization in view of the mandate
of the Apex Court in Secretary, State of Karnataka and
Others (supra). Further reliance has also been made on the
judgment rendered by the Apex Court in M.P. State
Co-operative Bank Ltd. v. Nanuram Yadav [(2007) 8 SCC
264] as also the State of Bihar v. Devendra Sharma [(2020)
15 SCC 466].
22. On the other hand, learned counsel for the
University, referring to the averments made in its counter
affidavit, submitted that the claim of the parity by the petitioners
with Devendra Rai and Shashi Kant Prasad Singh is rather
misplaced, as the petitioners of the present writ petitions were
not even as a party to the writ petitions. He further submitted
that the State Government vide letter no. 15/M-05/2022-24
dated 04.02.2022 instructed the University to inquire as to how
the service of the petitioner, who was not even appointed on a
sanctioned post, was regularized after 37 years by issuing a
notification dated 26.09.2016. The respondents lastly submitted
that in order to inquire the legality of the regularization of the
petitioners, a Three Men Committee was constituted and on
whose recommendation, the pension of the petitioners and 16
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
other teachers were directed to be stopped and the regularization
of the petitioners has been found illegal and consequently their
pension have been stopped.
23. This Court has meticulously heard the learned
counsels for the parties and also perused the materials available
on record.
24. Admittedly, the petitioners were appointed
sometime in the years 1977 and 1979, respectively against the
non-sanctioned post which were later on sanctioned in the year
1981 and 1982, respectively.
25. It is needless to observe that the learned
Chancellor and the Absorption Committee, which was
constituted by the Chancellor, made a recommendation and sent
the list before the Vice Chancellor for considering their cases for
absorption under 3rd Adsorption Statute. From the said list, the
Chancellor approved the name of some of the teachers for
absorption and the cases of some of the teachers, including the
petitioners, remained pending due to some technical reasons, but
that has never been turned down leading to filing of the writ
petition by one of the identically situated person in CWJC No.
17021 of 2008, which was disposed of vide order dated
16.11.2010. The learned single Judge while disposing the writ
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
petition, had directed the respondent/University to consider the
case of the petitioner in the light of the observations made by
the Constitution Bench in para-44 of the said judgment.
26. It is apt to observe that the Constitution Bench in
the case of Secretary, State of Karnataka and Others (supra),
had directed the Union of India, the State Government and their
instrumentalities to take steps to regularize as a one time
measure, the services of such irregularly appointed, who have
worked for ten years or more in duly sanctioned posts but not
under cover of orders of courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months
from the date of the judgment and further clarified that
regularization, if any already made, but not subjudice, need not
be reopened based on this judgment.
27. Thus, in view of the mandate of the Constitution
Bench, it was incumbent upon the respondent authorities to
consider the claim of the petitioners for their regularization, who
have been uninterruptedly discharging their duties to their
respective post(s) in the Colleges for more than several decades.
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
28. This Court has also perused the affidavits filed on
behalf of the respondent/University as well as the State.
However, it has not been found even a whisper that the case of
the petitioners are different from those, who were appointed
pursuant to the direction of the Hon'ble Court that their cases be
considered in the light of the judgment rendered in the case of
Secretary, State of Karnataka and Others (supra), especially
in para-44 of the judgment.
29. The petitioners have rightly relied upon the State
Litigation Policy, 2011, especially clause 4.C which reads as
follows:
4.C. Covered Matters
4.C(1). A good number of cases are from the
category of similar cases. Each Government
Department will aim to consider and settle the
claim of the representationist/ applicant employee/
citizen, if the claim is found covered by any
decision of the Court. Many service matters of this
nature, can be disposed of at the level of the
Department itself without compelling the litigant to
come to the Court. In this manner, the Government
Departments would be acting as efficient litigants."
30. Further the afore-noted clause 4.C(1) of the Bihar
State Litigation Policy, 2011 has also been taken note of and
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
approved by the full Bench of this Court in the case of Amresh
Kumar Singh (supra), wherein the full Bench has held in para-
8 of the said judgment as follows:
"8. We are conscious of the law laid down in the
case of Uma Devi (supra) and various other legal
issues that are involved in the matter, but the fact
remains that in the case of thirty employees who
were dealt with under similar circumstances, not
only similar, but under identical situations,
twenty-eight employees, by virtue of the orders
passed in the writ petitions and L.P.A's have been
reinstated and it is only two persons who are
litigating the matter. The Bihar State Litigation
Policy, 2011, as indicated hereinabove, mandates
that all similarly situated employees should be
granted the benefit of covered matters and if
orders of the Court have been implemented in
case of certain litigants, it should be implemented
in respect of all other identically situated persons.
If the State Litigation Policy is to be
implemented, we have no hesitation in holding
that the present respondents should also be dealt
with in identical fashion i.e. respondent Surendra
Prasad Mahto @ Surendra Pd. Mahto in L.P.A.
No. 1509 of 2009 and the appellant Amarish
Kumar Singh in L.P.A. No. 1028 of 2007 in
identical situation and once on 21.04.2011 a
Division Bench of this Court in all other cases has
granted benefit to the employees, there is no
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
reason to go into the legal questions involved in
the matter and answer them when we find that in
the cases of twenty-eight employees the benefit
has been granted to them by virtue of the orders
passed by this Court."
31. It is to be noted that as regards the right to
equality guaranteed under Article 14 of the Constitution of
India, the position is well settled that the said right ensures
equality amongst equals and its aim is to protect persons
similarly placed against discriminatory treatment. In fact, it
means that all persons similarly circumstanced shall be treated
alike both in privileges conferred and liabilities imposed.
32. In the aforesaid legal premise, it can be said that
petitioners, who are equally identically situated to those of
Devendra Rai and Shashi Kant Prasad Singh, cannot be treated
differently than too when the authorities never objected to the
petitioners' working and made payment to them from the
government fund and also promoted them during their service
period. The petitioners have rightly made reliance upon the
judgment rendered by this Court in Ranju Devi (supra) and
Dr. Naw Kant Thakur (supra), where in identical situation,
this Court had held that subsequent to the retirement, the
respondents both the State and the University cannot take a plea
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
that the petitioners had worked on a non-existing post(s) when
the services of the petitioners were duly regularized by the
University and they have also promoted and being paid from the
government funds and allowed to superannuate unconditionally.
33. If an employee has been accorded all the benefits
of a regular employee, viz, regular salary in the prescribed pay-
scale, increment, promotion leading to regularization and
unconditional superannuation with all the retiral benefits, he is
obviously a regular holder of the post. If their services is to be
terminated or regularization is to be cancelled, State
Government should have resorted to statutory rules and
regulation, applicable to them. Thus, once a right has been
created or vested in favour of the petitioners, that cannot be
divested unilaterally, in such a casual and cavalier manner
without giving any show cause notice or proper opportunity of
hearing.
34. So far the reliance of the State respondents on the
judgment rendered by the learned Division Bench in the case of
Dr. Shiv Narayan Yadav (supra) is concerned, the same is
quite distinguishable with the present case as in the present case,
the regularization took place in the light of the Constitution
Bench judgment, in the case of Uma Devi (supra), specially
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
para-44, basing upon which services of other identically situated
persons have been regularized. Moreover, the provision
regarding regularization of the services of the petitioners had the
support of law and now it cannot be termed their
appointment/regularization void ab initio after five years of their
retirement. The other judgments relied upon by the State
respondents are on similar line of illegal appointment, thus not
applicable in the facts of the present case.
35. Time without number, the highest Court of the
land in a catena of judgments has held that the right to
pensionary benefit is a constitutional right and as such cannot be
taken away without proper justification. It would be proper to
quote paragraphs-15 and 16 of the judgment rendered in the
case of The State of Jharkhand (supra).
"15. In State of W.B. v. Haresh C. Banerjee
[(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this
Court recognized that even when, after the repeal
of Article 19(1)(f) and Article 31(1) of the
Constitution vide Constitution (Forty-fourth
Amendment) Act, 1978 w.e.f. 20-6-1979, the right
to property no longer remained a fundamental
right, it was still a constitutional right, as
provided in Article 300- A of the Constitution.
Right to receive pension was treated as right to
property. Otherwise, challenge in that case was to
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
the vires of Rule 10(1) of the West Bengal
Services (Death- cum Retirement Benefit) Rules,
1971 which conferred the right upon the
Governor to withhold or withdraw a pension or
any part thereof under certain circumstances and
the said challenge was repelled by this Court.
16. The fact remains that there is an
imprimatur to the legal principle that the right to
receive pension is recognized as a right in
"property"...Once we proceed on that premise, the
answer to the question posed by us in the
beginning of this judgment becomes too obvious.
A person cannot be deprived of this pension
without the authority of law, which is the
constitutional mandate enshrined in Article 300-A
of the Constitution. It follows that attempt of the
appellant to take away a part of pension or
gratuity or even leave encashment without any
statutory provision and under the umbrage of
administrative instruction cannot be
countenanced."
36. Admittedly, the impugned order holding the
regularization of the petitioners to be illegal after five years of
their retirement, when there was obvious severance of employer
and employee relationship, in no stretch of imagination, can be
said to be justified under any law, all the more when the same
has been passed without there being any proceeding or in
Patna High Court CWJC No.9131 of 2022 dt.12-01-2024
compliance of the principles of natural justice. It is a trite law
that no person can be condemned unheard. Any order causing
prejudice to the right and entitlement, leading to civil and evil
consequences must be in consonance with the principles of
natural justice.
37. In view of the submissions advanced on behalf of
the parties and the aforesaid settled legal position, this Court has
no hesitation to set aside the impugned order(s) as contained in
Memo No. 594 dated 20.02.2023 issued by the Director Higher
Education, Government of Bihar, Patna, so far it relates to the
petitioners as also the letter no. 249 dated 07.02.2022
(Annexure-14 to the C.W.J.C. No. 9131 of 2022) issued by the
University.
38. Accordingly, both the writ petitions stand allowed.
39. There shall be no order as to cost(s).
(Harish Kumar, J)
rohit/-
AFR/NAFR AFR
CAV DATE 04-01-2024
Uploading Date 16-01-2024
Transmission Date
