Continuous service in a sanctioned post qualifies for pension benefits, despite delays in regularization, as per the Bihar State Universities Act.

JUDGMENT :

K. Vinod Chandran, CJ.

The appellant is the L.N. Mithila University, who is aggrieved with the impugned judgment directing the writ petitioner’s past services, in the post of Laboratory In-charge (Physics), with effect from 09.03.1990, to be considered for the purpose of retirement benefits, which also was to be paid under the Old Pension Scheme.

2. The learned Single Judge allowed the claim of the petitioner on multiple grounds. It was found that though the petitioner was continuing in the post from 09.03.1990, on which date, the Government had sanctioned the post, there was no attempt to make regular appointments to the said post till the year 2010. Even then, the petitioner was appointed in the year 2012 in a post he was continuing right from the date of sanctioning. It was found that the Chancellor had once granted regularization which was later cancelled. Twice, the petitioner, along with others similarly situated were before this Court seeking regularization; which writ petitions were disposed of directing regular appointment to be carried out, which was delayed indefinitely.

3. Reliance was placed on Direct Recruit Class-II Engineering Officers Association v. State of Maharhastra; (1990) 2 SCC 715, a Constitution Bench decision, wherein it was held that when initial appointment made to substantive vacancies, even if not made according to the rules, but the appointee continues in service uninterruptedly for long periods till regularization of his service, the entire period ought to be treated as period spent in service for the purpose of consequential benefits.

4. Learned Counsel for the appellant-University Sri Nadim Seraj, contended that twice there was a claim for regularization which was declined. The direction of this Court was only to carry out regular appointments, with age relaxation granted to the petitioner and other similarly situated persons for the period spent in service. The petitioner was appointed in the year 2012 and retired in 2016. Even if the petitioner is entitled to pension, under the Old Pension Scheme, his service after regular appointment is only for 4 years; while the minimum pensionary service is 10 years. It is also contended that petitioner has raised a claim, 5 years after his retirement.

5. The learned Counsel appearing for the 1st respondent Sri Bhavendra Jha relies on a Full Bench decision of this Court in Braj Kishore Singh v. State of Bihar; 1997 (1) PLJR 509, Division Bench decisions in Braj Kishore Singh v. State of Bihar; 2004 (3) PLJR 668, Netram Sahu v. State of Chattisgarh and Another; 2018 (2) PLJR 284 and a Single Judge decision in Rajendra Kamti and Another v. L.N.Mishra University and Others, 2006 (3) PLJR 83.

6. Admittedly, the petitioner had filed two writ petitions along with others for the purpose of regularization; C.W.J.C. No. 6145 of 1996 and C.W.J.C. No.3377 of 2002. We called for the Judges papers of the said cases and went through the records. C.W.J.C. No. 6145 of 1996 indicates two set of employees having approached the Court; all belonging to K.V.S College, Uchaith, Benipatti, Madhubani, (hereinafter referred to as ‘K.V.S. College’) which was taken over as constitutuent college of the appellant-University. On 06.12.1980, at the time of take-over, two lists were prepared of persons working in the different non-teaching Class-III and Class-IV posts in the College. The first of these, who were included in B1 list were employees working in duly sanctioned posts while the B2 list comprised of persons working in non-sanctioned posts.

7. The persons in B2 list had earlier filed C.W.J.C. No. 614 of 1982 against the decision to terminate their services. The Writ Court refused interference and exercise of writ jurisdiction but, made an observation that in case of fresh recruitment, the petitioners would be considered and they would also be granted relaxation in age. It transpires from the judgment that the Principal of the College also had made certain appointments to di