Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 12037 of 2010 ====================================================== 1. Ramakant Singh S/O Sri Radhye Shyam Singh R/O Vill.- Kaithwan, P.O.- Kaithwan, P.S. Sirari, Distt.- Sheikhpura 2. Shyam Sunder Singh S/O Late Brahmdeo Singh R/O Vill.+P.O.- Kasar, P.S. Aryari, Distt.- Sheikhpura 3. Md. Raza Hassan S/O Late Bahul Hasan At - Station Road, P.O. + P.S.- Sheikhpura, Distt.- Sheikhpura 4. Ramashray Yadav S/O Late Sheetal Yadav R/O Vill.+P.O.- Gagaur, P.S.- Korma, Distt.- Sheikhpura 5. Smt. Bela Sinha W/O Late Ravindra Pd. Sinha R/O Vill.+P.O.- Pachna, P.S.- Sirari, Distt.- Sheikhpura 6. Rambilash Singh S/O Late Fulena Singh R/O Vill.+P.O.- Mahendrapur, P.S.- Matihani, Distt.- Sheikhpura 7. Krishna Kumar Singh S/O Late Ram Singh R/O Vill.- Narsinghpur, P.O.- Gilaud, P.S.- Barbigha, Distt.- Sheikhpura 8. Sita Ram Singh S/O Late Sri Kant Singh R/O Vill.- Darnay, P.O.- Bhadaur, P.S.- Barh, Distt.- Patna 9. Bilaytee Singh S/O Late Kesho Singh Vill.- Kapsi, P.O.- Karandey, P.S.- Karandey, Distt.- Sheikhpura 10. Uday Kant Singh S/O Late Ramnandan Singh R/O Vill.- Othwa, P.O. + P.S.- Sirari, Distt.- Sheikhpura 11. Suresh Pd. Singh S/O Late Rameshwar Singh Vill.+P.O.- Katari, P.S.- Korma, Distt.- Sheikhpura 12. Ramchandra Sharma S/O Late Bachchan Singh R/O Vill.- Chandey, P.O.- Abgil, P.S.- Korma, Distt.- Sheikhpura 13. Umakant Singh S/O Late Madan Singh R/O Vill.+P.O.- Barahiya, P.S.- Barbhigha, Distt.- Lakhisarai 14. Rambilash Singh S/O Late Girbal Narayan Singh R/O Vill.+P.O.- Gawai, P.S.- Sheikhpura, Distt.- Sheikhpura 15. Devi Singh S/O Late Ganga Singh Vill.- Gadua, P.O.- Chewara, P.S.- Chewara, Distt.- Sheikhpura 16. Krishnandan Singh S/O Late Laxman Singh R/O Vill.+P.O.- Mehus, P.S.- Mehus, Distt.- Sheikhpura 17. Gita Singh S/O Late Kaushalya Sharan Singh R/O Vill.+P.O.- Ekraha, P.S.- Aryari, Distt.- Sheikhpura 18. Ramchandra Singh S/O Late Bhagwat Singh R/O Vill.- Sultanpur, P.O.- Gagri, P.S.- Sirari, Distt.- Sheikhpura 19. Chinta Devi W/O Ranglal R/O Vill.+P.O.- Biman, P.S.- Aryari, Distt.- Sheikhpura Versus .... .... Petitioners 1. The State Of Bihar 2. The Secretary Human Resource Development Department, Govt. Of Bihar, Patna 3. The Director (Higher Education) Human Resource Development Department, Govt. Of Bihar, Patna 4. The Vice Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur 5. The Registrar, Tilka Manjhi Bhagalpur University, Bhagalpur 6. The Principal, Ramadhin College, Sheikhpura ====================================================== .... .... Respondent/s Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 2/11 Appearance : For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Advocate For the State For the University: ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER : Mr. Binay Kumar, Advocate : Mr. Anil Singh, Advocate 11. 21.01.2013 *************** There are 19 petitioners in the present Writ Application. They have moved the Court for a direction or a mandamus for payment of arrears of their salary in their respective pay-scale with increments and other benefits w.e.f. 12.12.1980 till 29.04.1993. Why such a demand has been made will unfold in the latter part of the Order. These petitioners with many other persons were appointed on different posts of Class-III or Class-IV in what is known as Ram Dahin College, Sheikhpura by the erstwhile Managing Committee. This is prior to the College becoming constituent. The College became constituent on 12.12.1980. There was a kind of understanding or agreement between the State, University and the College authorities that those employees, who fell within the staffing pattern and properly appointed would be taken over and salary paid. But as it usually happens on the news of the College becoming a constituent unit spreads it opens a flood gate of opportunity to the Managing Committee to fill up
Legal Reasoning
Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 3/11 various posts sanctioned or un-sanctioned. Majority of these appointments related to as already noticed above in the category of Class-III or Class-IV. When the University and the State would not recognize their services or agree to release funds for payments, 34 of those approached the High Court by
Decision
filing C.W.J.C. No. 2695 of 1983. The Court disposed off the Writ Application on 23rd November, 1990, giving certain directions as would be evident from reading of Annexure – 2. Some exercise was carried out, both by the University and the State and when the Contempt Application was moved for non-compliance of the Order, contained in Annexure- 2, the State Government hurriedly issued a notification on 30th of April, 1993, which is Annexure – 5 to the Writ Application. The State by this notification agreed to absorb the service of 32 persons, except on Ram Balak Singh and Bindeshwari Thakur. Sanction of post and other formalities were required to be carried out subsequently, but payment of salary would begin forthwith. Reading of Annexure–5 would show that this was done in compliance of the Order, contained in Annexure-2, earlier passed by the Writ Court. Obviously, this notification was issued in a hurry to overcome the difficulty faced by the respondent- Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 4/11 State authorities due to contempt proceeding initiated against them. The question of creation of posts, sanction of posts etc. were all left to be decided at a subsequent date. Petitioners along with the rest of the 32 have continued to get their salary after the notification issued on 30th of April, 1993. There has been no dispute on this aspect of the matter. The status of the petitioners and rest was crystallized by the State, when a notification, contained in Annexure- 9 came to be issued. Annexure – 9 is dated 16th of September, 1995. Annexure – 9 in the opinion of this Court formulizes the status of these employees and the manner in which they were to be accommodated under the University, which would be evident from the reading of paragraph 2 of the said notification. The Court is tempted to reproduce paragraph 2, as it has vital significance to the issue. “mDr egkfo|ky; esa ;s in bl ’krZ ds lkFk Lohd‘r fd;s tk jgs gSa fd bl egkfo|ky; esa vuqekU; inksa ls vf/kd inks ads in /kkjdksa dks fo’ofo|ky; esa in l‘tu ;k vU; izdkj ls gqbZ fjfDr;ksa ;k Hkfo"; esa gksus okyh fjfDr;ksa ds fo:) lkeaftr fd;k tk;sxkA muds lkeatu ds lkFk gh jkek/khu dkWyst] ’ks[kiqjk esa vf/kd l‘ftr in Lor% lekIr gks tk;saxsA” Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 5/11 The issue now brought before the Court is whether these petitioners would be entitled to the benefit of service including payments etc. from the date of the issuance of Annexure- 5 or from take over of the institution. According to the learned senior counsel representing the petitioners, they are entitled to these benefits for more than one reason. One of them being that if the College became a constituent College and the State agreed to take the liability, then all those employees who were in employment on the date of the take over would be naturally entitled to the benefits which accrues to such employees by virtue of the decision of the State. Other limb of the argument is that the University has been practicing discrimination by taking varied stand in identical or similar situation, as they have allowed benefit to some set of employees relating to yet another College, falling under the same University. In support thereof, they filed a supplementary affidavit and have annexed few documents, which are Annexure–12 to Annexure–14. It is contended that there is no reason why these petitioners would suffer at the hands of the respondents by treating them as a class apart when their origin or engagement was in similar Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 6/11 circumstances. Even though the submission of learned senior counsel looked attractive, but on a deeper look into the Writ Application and the documents brought on record by the petitioners coupled with the stand taken by the State and the University, the reason for not extending the kind of benefits in so many years are available. Whether it amounts to discrimination or not is for this Court to answer. There were 34 petitioners in the Writ Application, when they moved the High Court in the year 1983. As already noticed above, they were not treated by the University or the State to have been properly or validly appointed. In fact they seem to have been packed at the last minute by the last Managing Committee, knowing fully well that once College became constituent, it will have its own advantages. Since the Managing Committee in its own wisdom, without following any procedure had packed the College with all kinds of persons showing them to be engaged on one post or the other, whether sanctioned or not sanctioned, whether falling in the staffing pattern or not, their continuance or atleast payment to them did become tenuous. The petitioners knew this position quite well. Surely no Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 7/11 employee is unaware of the manner in which he came to be employed or engaged by any establishment. If it was not so, there would have been no occasion for them to move the High Court and seek a direction. The Learned Single Judge took into consideration the submissions, but a reading of the said Order does not indicate that the petitioners really had a clear case for consideration, having satisfied all the parameters. However, since there was a direction for consideration and the subsequent contempt looming large the State- authorities by virtue of Annexure-5 issued on 30th of April, 1993, agreed to pay salary to the 32 persons out of 34 from the date of the notification, despite the posts not being regularized, sanctioned etc, which the notification itself shows. If this is the status or the background under which salary to these petitioners and others came to be released by the State Government, then it is not a usual case whether the issue of engagement, employment or appointment under the Managing Committee was being resisted for an arbitrary reason either by the University or the State. Obviously, on a humanitarian consideration these persons derived a special benefit by virtue of the intervention of the Court, when the notification, dated Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 8/11 30th of April, 1993 was issued. This position cannot be disputed for the reason that Annexure–9, specially paragraph 2 of the Annexure – 9, quoted above, would show that the decision of the State was not a run of the mill decision but an extraordinary decision taken in the circumstances indicated in the said notification and therefore, the right or the obligation came to be created only after Annexure – 5 dated 30th of April, 1993 came to be issued. Prior to that there is neither any direction contained in Annexure- 2 nor any serious challenge was made to Annexure – 9, which is dated 16th of September, 1995. Paragraph 2 of Annexure – 9 would itself show that there were no regular vacant posts available. The mechanism, in which those 32 persons were allowed to be absorbed from time to time was to honour the Judicial Order, contained in Annexure- 2 or the earlier notification contained in Annexure- 5. Counsel for the State and the University are correct in submitting that these petitioners accepted the notification, contained in Annexure- 9, which has remained in force for the last 27 years. There has been no whisper or murmuring, when the notification was issued nor any serious challenge was thrown to the Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 9/11 same which finally crystallized their status. For after all the State could not release funds in favour of such persons, who were not properly employed or appointed. There has to be accounting for the public outflow of funds from the coffers of the State, which has been taken care of by issuance of Annexure – 9. But since human greed have no boundaries therefore, the present Writ Application has been filed egged by the desire of these petitioners to extend the benefit of perks and privileges, from the date of take over of the College in question. The contention of the learned senior counsel with regard to discrimination and arbitrariness will not apply in the present set of facts for the reason that these petitioners are beneficiary of a judicial Order and that judicial Order has been formularized on issuance of Annexure – 5 and Annexure – 9 many decades ago. If there was anything wrong with any of these notifications, the High Court would have surely taken an adverse view of its earlier direction. Even these petitioners or any of the beneficiaries would have surely assailed the same before the High Court. But then, they were more than happy to become an employee of the University with a direct liability of payment by the State and once they got Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 10/11 comfortable with the status over many decades, now obviously, they went to push the milepost back to the date of take over. Since the issue of extending benefit from the date of take over was never there, never decided, never directed by the High Court at any point of time, nor these petitioners raised any grievance when Annexure – 9, dated 16th of September, 1995 was issued, in the opinion of this Court it will be unethical and illegal on the part of the petitioners now to demand or beget a benefit which was never meant for them beyond what was notified in terms of Annexure – 2, Annexure – 5 and Annexure – 9, which have been brought on record by the petitioners themselves. The two Orders, which have been annexed with the supplementary affidavit are matters which were part of a judicial direction emerging from the bundle of facts dealt therein, how the same can be made applicable to the present set of facts which have been dealt with earlier is not understood or appreciated. The status of the petitioners or the obligation of the State stated only after the issuance of Annexure – 5. Anything which the petitioners are looking for prior to the said date will be an obligation on the Managing Committee. Neither the State Patna High Court CWJC No.12037 of 2010 (11) dt.21-01-2013 11/11 nor the University have an obligation to pay them a penny beyond what has been paid to them. Writ Application has no merit, it is dismissed. SKM/- (Ajay Kumar Tripathi, J.)