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IN THE HIGH COURT OF JUDICATURE AT PATNA
HARISH KUMAR, J.
Dr. Uday Chandra Mishra, S/o Late Ram Chandra Mishra – Appellant
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No. 5914 of 2023, Civil Writ Jurisdiction Case No.9131 of 2022
Decided on : 12-01-2024
PAYMENT - Pension and Salary Dispute - Article 226 of the Constitution of India, Bihar State Litigation Policy-2011, Secretary, State of Karnataka and Others v. Uma Devi (2006) 4 SCC 1, State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr. (2013) 12 SCC 210 - The court discussed the prerogative writ jurisdiction under Article 226, emphasizing the right to pension as a constitutional right that cannot be revoked without due process. The court interpreted the Bihar State Litigation Policy to support claims of similarly situated employees, reinforcing the principle of equality under Article 14 of the Constitution. The court concluded that the actions taken against the petitioners were illegal and without jurisdiction, leading to the quashing of the impugned orders.
Fact of the Case:
The petitioners, who were appointed as Lecturers in the late 1970s and early 1980s, faced issues regarding the withholding of their pay and pension after years of service. The State Government and University had previously sanctioned their posts, but later deemed their regularization illegal, leading to the cessation of their pension and salary payments.
Finding of the Court:
The court found that the petitioners had been working in sanctioned posts for decades and had been promoted and paid accordingly. The court held that the impugned orders revoking their regularization and pension were issued without proper legal basis or adherence to principles of natural justice.
Issues: Whether the regularization of the petitioners' services was legal and whether the subsequent orders to withhold their pay and pension were justified.
Ratio Decidendi: The court established that the right to pension is a constitutional right that cannot be revoked without due process. It emphasized the importance of treating similarly situated employees equally and the necessity of following legal procedures before altering employment status or benefits.
Final Decision: The court allowed both writ petitions, quashing the impugned orders that deemed the petitioners' regularization illegal and reinstating their rights to pension and salary.
JUDGMENT :
HARISH KUMAR, J.
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 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 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 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
The right to pension is a constitutional right that cannot be taken away without due process, and similarly situated employees must be treated equally under the law.
Employees serving over ten years without unlawful intervention are entitled to pension benefits, even if prior appointments were irregular. Bureaucratic failure to regularize should not impede legal ....
The cancellation of an employee's regularization based on arbitrary grounds violates principles of non-discrimination and due process, necessitating restoration of benefits to similarly situated indi....
The State Government lacks jurisdiction to cancel a university's regularization notification, which violates principles of equality and the Bihar State Litigation Policy.
Prolonged service of over ten years without legal hindrance can qualify employees for regularization, regardless of the initial nature of their appointments.
The main legal point established in the judgment is the entitlement of employees to regularization after completing ten years of service on sanctioned and vacant posts, as supported by constitutional....
The court ruled that employees employed for lengthy periods cannot be denied regularization of service, emphasizing principles of fairness and equality under the Constitution.
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