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2018 Supreme(Jhk) 1108
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D.N. PATEL, RAJESH KUMAR, JJ.
Chidanand Jha - Appellants
Versus
The State of Jharkhand and Ors - Respondent
L.P.A. No.474 of 2016 With I.A. No. 9459 of 2017
Decided on : 03-04-2018
Advocate Appeared:
For the Appellants :M/s Gautam Rakesh, Onkar Nath Tiwary, Advocate
For the Respondents: M/s Sharad Kaushal, J.C. to Mr. H.K.Mehta, A.A.G.
The main legal point established in the judgment is that an employee must be appointed against a sanctioned post to be entitled to any scale of pay.
Headnote:
Limitation Act - Condonation of Delay - Section 5 - Rule 38, 48, 49 and 58(a) of the Jharkhand Service Code 2001
Fact of the Case:
The appellants were appointed in a school and claimed salary for a period during which they were allegedly not paid. The court found that the posts on which the appellants were working were not sanctioned, and therefore, they were not entitled to any salary.
Finding of the Court:
The court found that the appellants' appointment was nullity in law as the posts were not sanctioned, and therefore, they were not entitled to any salary.
Issues: The main issue was whether the appellants were entitled to salary for the period they claimed to have worked.
Ratio Decidendi: The court relied on Rule 38, 48, 49 and 58(a) of the Jharkhand Service Code 2001 and the legal principle that a post must be created and sanctioned before filling it up, and if an employee is not appointed against a sanctioned post, they are not entitled to any scale of pay.
Final Decision: The court dismissed the Letters Patent Appeal, stating that there was no substance in the appeal.
RAJESH KUMAR, J.
I.A. No. 9459 of 2017
1. This Interlocutory Application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 15 days in preferring the instant Letters Patent Appeal.
2. Having heard learned counsels and looking to the reasons stated in paragraph 4 of the Interlocutory Application, there are reasonable reasons for condoning the delay in preferring the instant Letters Patent Appeal.
3. Accordingly, I.A. No. 9459 of 2017 is allowed and delay in filing the instant Letters Patent Appeal is condoned.
L.P.A. No.474 of 2016
Brief facts of the instant Letters Appeal
4. Appellants were appointed on 26.02.1981 by Managing Committee of the School (Annexure-1). Appellant no.1 has been appointed on the Class III post and appellant no.2 on the Class IV post of Pandit Binodanand Jha Balika Sanskrit Prathamik Sah Madhyamik Vidyalaya, Deoghar.
i. It has been further claimed that on 22.07.1986, the Secretary, Bihar Sanskrit Shiksha Board, Patna has approved the appointment of the appellants.
ii. It has also been claimed that the appellants have been paid salary for the period from 01.01.1985 to 31.03.1990 and thereafter, although they are working, but no payment has been made till date.
iii. The Bihar Sanskrit Shiksha Board has issued an order dated 20.01.1994 for stopping the payments of non-teaching staff of schools like appellants school.
5. In view of the above facts, the appellants approached this Court by filing W.P.(S) No. 2314 of 2003 praying for salary w.e.f. April 1990 as the same has been illegally withhold without any rhyme and reason.
6. This Court on 02.03.2012 has passed an order in W.P.(S) No. 2314 of 2003 remanding the matter to the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand with liberty to the appellants/petitioners to file representation within a period of four weeks from the date of the order and upon receipt of such representation, the Director, Secondary Education, Human Resources Development Department, Government of Jharkhand shall decide the representation submitted by the appellants/ petitioners within a period of two months thereafter. It has also been observed that if the claim of the appellants is found genuine, then in that case, salary must be released at the earliest.
On the strength of order of this Court, the appellants have filed representation before the Authority which has been finally disposed of vide Memo No. 2878 dated 25.10.2012 (Annexure-11/1).
7. The claim of the appellants has been rejected by the respondents on the ground that the post, on which appellants have claimed to be appointed and working, is not sanctioned post.
8. After considering the above facts and the stand of the State, learned Single Judge has come to the conclusion that since posts, on which the appellants are working, were not sanctioned by the then State of Bihar and in that view of the matter they are not entitled for payment of any salary.
9. After hearing the parties and perusing the records, this Court comes to a conclusion that there is nothing on record to suggest that the posts on which the appellants have been appointed were vacant and sanctioned posts.
It is well settled principle of law that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post, he is not entitled to any scale of pay.
Appointment presupposes existence of a duly sanctioned post and if it is not done against the duly sanctioned post, the appointment made is nullity in law i.e. void ab initio.
So far as, salary is concerned, it is always released through window of sanctioned post. In the absence of sanctioned post no Government money can be released as salary.
Rule 38, 48, 49 and 58(a) of the Jharkhand Service Code 2001 is quoted hereinbelow.
“38. Permanent post means a post carrying a definite rate of pay and sanctioned without limit of time.
48. Temporary post means a post carrying a definite r
