Patna High Court
Dr. Shubha Chandra Mishra vs The State Of Bihar on 18 November, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.516 of 2019
======================================================
Dr. Shambhudhar Jha, Son of Tripati Narayan Jha, Resident of Village-
Ganauli, P.S. Gonauli, District-Madhubani.
... ... Petitioner
Versus
1. Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar,
District-Darbhanga through its Registrar.
2. Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar
Nagar, Darbhanga, Distt.-Darbhanga.
3. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar,
Darbhanga, Distt.-Darbhanga.
4. The State of Bihar through Principal Secretary, Department of Education,
Govt. of Bihar, Patna.
5. The Principal Secretary, Department of Education, Govt. of Bihar, Patna.
... ... Respondents
======================================================
with
Civil Writ Jurisdiction Case No. 12689 of 2023
======================================================
Dr. Shubha Chandra Mishra, Son of Late Babu Mishra, Resident of
Jhanjharpur Bazar, P.S. Jhanjharpur, District- Madhubani.
... ... Petitioner
Versus
1. The State of Bihar through Additional Chief Secretary, Higher Education,
Department of Education, Government of Bihar, Patna.
2. The Additional Chief Secretary, Higher Education, Department of
Education, Government of Bihar, Patna.
3. Kameshwar Singh Darbhanga Sanskrit University, Kameshwar Nagar,
Darbhanga through its Registrar.
4. Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University,
Kameshwar Nagar, Darbhanga, District- Darbhanga.
5.. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwar
Nagar, Darbhanga, District- Darbhanga.
... ... Respondents
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
2/17
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 516 of 2019)
For the Petitioner/s : Mr. Durga Nand Jha, Advocate
For the State : Mr. Prabhakar Jha, GP-27
For the University : Mr. Deepak Kumar, Advocate
Mr. Mukund Mohan Jha, Advocates
(In Civil Writ Jurisdiction Case No. 12689 of 2023)
For the Petitioner/s : Mr. Durga Nand Jha, Advocate
For the State : Mrs. Binita Singh, SC-28
Mr. Vivek Anand Amritesh, AC to SC-28
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 21-11-2024
Considering the identical nature of grievance based
upon the similar facts, with the consent of the parties, both the
writ petitions have been heard together and disposed off by a
common order.
2. Heard Mr. Durga Nand Jha, learned Advocate for
the petitioners and Mr. Prabhakar Jha, learned GP-27 (in CWJC
No. 516 of 2019) and Mrs. Binita Singh, learned SC-28 (in
CWJC No. 12689 of 2023). The University is represented
through Mr. Deepak Kumar, learned Advocate along with Mr.
Mukund Mohan Jha, learned Advocate.
3. The petitioners were duly appointed on the post of
Lecturer against the sanctioned post of different subjects in
Dr. Jagannath Mishra Sanskrit College Pastan Navtoli,
Madhubani (for short 'the College'), an affiliated degree
Sanskrit College under the Kameshwar Singh Darbhanga
Sanskrit University (for brevity 'the University'). Upon
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
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attaining their age of superannuation after completing 65 years,
the petitioners were superannuated. Despite the
recommendation made by the College with a request to pay the
admissible amounts under Triple Benefit Scheme to the
petitioners, they were not accorded their admissible benefit(s)
and subsequently, the pension of the petitioners have been fixed
on the lower pay-scale without taking into consideration of their
length of service and the pay fixation made by the University;
compelling them to invoke the extraordinary writ jurisdiction of
this Court under Article 226 of the Constitution. The petitioners
sought a direction upon the respondents to pay retiral benefits,
including full pension on the basis of last pay drawn in 6 th Pay
Revision pay-scale, leave encashment for 300 days, provident
fund, gratuity and other admissible retiral benefits in the light of
Resolution dated 05.11.1980 and the amendment of the statute
thereon by the University as contained in letter no. 1709/08
dated 28.03.2008 and also in the light of the Notification
contained in Memo No. 5447-5481 dated 22.07.2014 issued
under the signature of the Registrar by the order of the Vice
Chancellor of the University. The petitioners, in sum and
substance, seek an appropriate declaration that the University
while fixing their pension ought to have considered that they
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
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fulfill the qualifying service of more than 35 years as provided
in Part-II, Section (ii) Clause 14(1) and the Clause 14(iii) of the
statute and thus they are entitled to get full pension as well as
the difference of pension by revising their P.P.O(s).
4. The short facts, which led to the filing of the
present writ petitions, are that the petitioners were initially
appointed on the post of Lecturer in the year 1979/1980 against
the sanctioned and vacant post under the different subjects. The
services of the petitioners were duly approved by the University
from the date of their initial appointment and further concurred
by the Bihar College Service Commission (hereinafter referred
to as 'the Commission'). Pursuant to the approval of the
appointment of the petitioners, they were discharging their duty
in the College and were being paid their salary by the University
out of the fund released by the Government. While the
petitioners were working on the sanctioned post against
different subjects, an advertisement bearing no. 852/94 was
published by the Commission for selection of Principal in
Permeshwari Veena Sanskrit College, Andharatharhi. The
petitioner in C.W.J.C. No. 12989 of 2023 submitted his
application and on being found eligible and having seen good
performance in the interview, his name was recommended for
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
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appointment against the post of Principal. Pursuant to which, the
Secretary of the Governing Body of the College issued
appointment letter vide letter no. G-60/2000 dated 05.05.2000.
5. Similarly, one another advertisement bearing no.
882/94 was issued, against which the petitioner in C.W.J.C. No.
516 of 2019 submitted his application for permanent
appointment on the post of Lecturer; on being found eligible, his
name was recommended by the Commission for permanent
appointment vide letter no. 169 dated 20.09.2002 and,
accordingly, the service of the petitioner was confirmed and
made permanent by the Governing Body of the College vide
letter no. 89/02 dated 03.10.2002. Thereafter, the pay of the
petitioners was fixed by the University on the basis of
recommendation of the Pay Fixation Committee vide
recommendation dated 24.05.2012 under 5th and 6th Pay
Revision Committee and it was duly approved by the syndicate
and the petitioners had been continuously discharging their
duties against their respective posts. In the meantime, the
University came out with a Notification contained in Memo No.
5447/5481/14
dated 22.07.2014, in pursuant to statute framed
by the Chancellor contained in Memo dated 15.01.2014,
whereby the Triple Benefit Scheme i.e. pension, gratuity and
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
provident fund have been made applicable to the staffs of the
affiliated College. Accordingly, the affiliated Colleges were
directed to submit their liabilities in respect of retiral benefits
with respect to staffs superannuated between 31.08.2010 and
March, 2015.
6. Since in the afore-noted Notification, extending the
triple benefits, there was a rider in the statute to the extent of
minimum 250 students appearing every year for the preceding
ten years; the same was questioned in C.W.J.C. No. 9726 of
2017 titled as "Dr. Jitendra Narayan Singh and Another v.
The Hon'ble Chancellor of Universities of Bihar and
Others" and the Hon'ble Court vide judgment dated 23.07.2018
declared the said condition ultra vires. In the meantime, both the
petitioners attained their age of superannuation after completing
65 years.
7. Initially, counter affidavit as well as supplementary
counter affidavit have been filed by the University and the State
officials with a categorical stand that the State Government
decided to extend the Triple Benefit Scheme to the Deficit Grant
Affiliated Colleges/Deficit Grant Minority Colleges; and the
said decision has also got approval of the Cabinet, leading to
amendment in the statute. Pursuant to the Cabinet decision, the
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
Government of Bihar in the Human Resources Development
Department issued Resolution No. 171 dated 18.01.2011,
extending the Triple Benefit Scheme to the Deficit Grant
Affiliated Colleges and Deficit Grant Minority Colleges. The
respondents have also admitted the position that against the
order passed by this Court in C.W.J.C. No. 9726 of 2017, the
State have preferred S.L.P. bearing no. 23489 of 2019 before the
Hon'ble Apex Court, which came to be dismissed vide order
dated 02.08.2019. After order of the Hon'ble Apex Court as
noted hereinabove, the issue has been referred to the Finance
Department, Government of Bihar, for its opinion, since the
effect of the judgment would incur a huge financial liability on
the State exchequer. Finally, steps were taken to sanction and
release the fund for extending the benefit of Triple Benefit
Scheme to the employees of the deficit grant-in-aid colleges and
the Education Department and the University agreed to get the
pay verification done by the University through Pay Verification
Cell of the Education Department. The University after making
fixation of the pay sent the same to Pay Verification Cell of the
Education Department. The Pay Verification Cell of the
Education Department verified the pay fixation made by the
University, however, certain queries regarding date of
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
appointment and grant of grade pay were made. The Education
Department vide different letters, directed the University to get
the pay fixation of the writ-petitioners verified by the Pay
Verification Cell positively and inform the Education
Department.
8. In reply to the queries made by the State officials,
the University informed the Education Department that the
University made re-fixation of pay of the petitioners, whereby
the objection raised by the Pay Verification Cell regarding grade
pay has been meted out. So far the query made by the Pay
Verification Cell regarding date of appointment, it has been
stated that it would be appropriate that the same may be
rectified by the syndicate. The Pay Verification Cell of the
Education Department finally found that the date of permanent
appointment of the petitioners on the recommendation of the
Commission is of the year 2002, whereas pay fixation has been
made by the University w.e.f. 1979-1980 as per the date of their
initial appointment.
9. The matter was placed before the Pay Fixation
Committee and also to the syndicate, and accordingly, vide letter
no. 1265 dated 10.08.2021 informed the Education Department
that the effective date of appointment of the petitioners would
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
be the date of permanent appointment made on the
recommendation of the Commission. Accordingly, the Pay
Verification Cell of the Education Department issued
entitlement slip in favour of the petitioners treating the effective
date of their appointment with effect from the date of permanent
appointment in the year 2002.
10. On account of giving a complete go by to the past
services with effect from the date of initial appointment of the
petitioners in the College and treating the effective date, with
effect from the date on which the permanent appointment was
made on the recommendation of the Commission, fixation of the
pension of the petitioners have been done in a lower pay,
compelling the petitioners to challenge the same in the present
writ petitions.
11. The stand of the petitioners is summarized that
they were initially appointed after following the procedure of
appointment as far back as in the year 1979-1980 and the same
was approved by the University. Further the petitioners were
getting salary by the University out of the fund released by the
State Government. The pay fixation order was issued by the
competent Statutory Body of the University and on the basis of
the recommendation of Promotion Committee, the petitioners
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
were also allowed time bound promotion.
12. Referring to letter no. 906 dated 16.07.1982,
especially Clause-8 thereof, it is contended that the Government
has taken a decision that those temporary teachers whose
services were duly recognized or shall be recognized, they shall
be given the benefit of their seniority and pay increment with
effect from the date of their initial appointment; however, they
shall not get the benefit of increment prior to 01.07.1982. The
decision of the Government as contained in letter dated
16.07.1982 was duly considered by this Court in C.W.J.C. No.
5859 of 1996 and the Hon'ble Court vide its order dated
04.03.1998 has held that the concerned teachers are entitled to
get the annual increment in terms of the Government decision as
also in terms of Clause-4 of 1986 absorption statutes. The Court
also held that the temporary Lecturers whose services were
regularized will be entitled to the benefit of their past service for
computing their qualifying service for promotion under the time
bound promotion statutes. The said judgment has finally been
affirmed by the Hon'ble Apex Court.
13. Taking note of the aforesaid fact, subsequently,
this Court vide its order dated 18.09.2018 passed in C.W.J.C.
No. 20310 of 2010 has been pleased to direct the University to
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
implement the judgment and order of One Man Committee.
Pursuant to which, the University has allowed all the benefits
from the date of the initial appointment. The copy of the afore-
noted decision has been marked as Annexure-6 to the main writ
application. It is also the contention of the petitioners that, in
case of Dr. Kedarnath Pandey and Others v. The State of
Bihar and Others vide judgment dated 15.01.2015 passed in
C.W.J.C. No. 7636 of 2014 as also in the case of Dr. (Smt.)
Abha Rani and Others v. Magadh University and Others
vide judgment dated 16.03.2018 passed in C.W.J.C. 511 of
2018, the learned Court has categorically held that "pay is
required to be fixed by the University and not by the
Government."
14. Mr. Jha, learned counsel for the petitioners,
finally urged that pay of the petitioners were revised from time
to time taking into consideration of their date of initial
appointment way back in they year 1979-1980 and subsequently
in order to make the temporary appointment of the petitioners as
permanent, the Commission advertised the post and on being
found eligible, their names were recommended by the
Commission for permanent appointment and finally services of
the petitioners were approved. The matter of the petitioners
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
were duly placed before the Governing Body of the College, in
which it was decided that since the petitioners have been
continuously working w.e.f. 1979-1980 and are getting regular
salary fixed by the Statutory Committee of the University, their
services are confirmed pursuant to the recommendation of the
Commission without any break in the service and thus in any
view of the matter, the services of the petitioners are required to
be considered for the calculation of pension with effect from the
date of their initial appointment till the date of their
superannuation.
15. Reliance has also been placed on a judgment
rendered by the learned Division Bench of this Court in L.P.A.
No. 198 of 2016 titled as "The Registrar General, Patna High
Court v. Ram Vyas Dubey and Others", wherein the learned
Division Bench vide its order dated 26.06.2023 taking note of
the rule 58 and 59 of the Bihar Pension Rules, 1950 (for short
'the Rules, 1950'), which deals with conditions of service of a
government servant to qualify for pension held that "reading of
the two provisions clearly provide that even if a person has
worked in a temporary capacity and has not been confirmed, if
his service on any post is continuous and is for more than 15
years, then it may be considered as pensionable under Rule 59
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
of the Bihar Pension Rules, 1950." The learned Division Bench
of this Court, accordingly, affirmed the decision of the learned
Single Judge.
16. This Court has anxiously heard learned Advocates
for the respective parties and also perused the materials
available on record.
17. The facts are not in dispute. Admittedly, the
petitioners were appointed on the post of Lecturer against the
vacant and sanctioned post, which was duly accepted and
approved by the University and subsequently approved by the
Commission from the date of their initial appointment. While
the petitioners were working in the College, which was an
affiliated degree Sanskrit College under the Kameshwar Singh
Darbhanga Sanskrit University, pursuant to an advertisement for
permanent appointment, they had submitted their application
and finally on being found eligible, their names were
recommended by the Commission for permanent appointment in
the year 2002. The services of the petitioners were confirmed
and approved by the Governing Body of the University vide
different letters on the basis of recommendation made by the
Commission with effect from the date of their initial
appointment. Time to time, on the recommendation of the Pay
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
Fixation Committee, pay-scales of the petitioners were duly
revised and the same was approved by the syndicate. It is also
the admitted position that the Government has taken a decision
to extend the benefit of Triple Benefit Scheme to the
employee(s) of deficit grant-in-aid colleges and, in this regard,
appropriate steps were taken to sanction and release the fund.
There is no dispute that prior to the permanent appointment of
the petitioners, they were temporarily working against the
sanctioned post in the College and the services rendered on
temporary basis were duly confirmed and approved by the
University on the recommendation of the Governing Body of
the University.
18. Reliance of the petitioners on the decision of this
Court in the cases of B.R. Ambedkar Bihar University
Teachers Association v. The State of Bihar and Others
[(1998) 2 PLJR 103] and Dr. Sureshwar Jha v. The State of
Bihar and Others [C.W.J.C. No. 20310 of 2010], has material
bearing over the issue that the temporary Lecturers whose
services were regularized will be entitled to the benefit of their
past services for computing their qualifying services for
promotion under the time bound promotion statutes. Once the
services of the petitioners working as temporary Lecturers shall
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
be counted for the purposes of seniority, promotion and other
benefits, this Court does not find any reason as to why their
services be not counted for the purposes of pension.
19. It would also be pertinent to observe that the State
Government vide its letter no. 906 dated 16.07.1982 made it
clear that those temporary teachers, whose services have already
got recognition or shall be extended in future, they shall be
given the benefit of Seniority-cum-Pay Increment with effect
from the date of the initial appointment in the concerned
College/University.
20. The aforesaid decision of the Government also
came up for consideration in C.W.J.C. No. 5859 of 1996 (B R
Ambedkar, Bihar University Teachers Association v. State of
Bihar and Others), wherein the learned Court in its decision
dated 04.03.1998 observed that the Government having taken
the decision in 1982 cannot be allowed, after more than 15 years
to raise this objection and to rely upon the provision of the
statute in support of his objection. The learned Court finally
held that the concerned teachers are entitled to annual
increments in terms of the Government decision as contained in
letter dated 16.07.1982 and in terms of Clause 4 of the 1986
Absorption Statute. The learned Court also held that the
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
temporary Lecturers, whose services were regularized will be
entitled to the benefit of their part services for computing their
qualifying service for promotion under the time bound
promotion statute.
21. What is required to qualify a government servant
to get pension has been duly prescribed under rule 58 of the
Rules, 1950. Rule 58 clearly stipulates that the service must be
under the government and the employment must be substantive
and permanent. It also requires that the service must be paid by
the government. Further, rule 59 of the Rules, 1950 provides
that in certain cases even though the conditions are not fulfilled,
the government may provide that the service rendered by a
government servant shall count for pension.
22. The services of the petitioners working on
temporary basis for over a period of more than a decade and
two, if are not computed for pension, it shall certainly cause
undue hardship and irreparable loss. Thus, in the opinion of this
Court, non-consideration of their past services rendered on
temporary basis, are not sustainable and fit to be rejected.
23. The respondent authorities are hereby directed to
fix the pension of the petitioners by treating their past services
continue with effect from the date of their initial appointment to
Patna High Court CWJC No.516 of 2019 dt.21-11-2024
the date of their retirement and ensure all the consequential
benefit(s), preferably within a period of twelve weeks from the
date of receipt/production of a copy of this order.
24. The writ petitions stand allowed.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28-11-2024
Transmission Date
