Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8449 of 2011 ====================================================== 1. Sharda Devi W/O Late Premchand Upadhyay Resident Of Village- Dhansoin,P S-Dhansoin,District-Buxar. .... .... Petitioner/s Versus 1. The State Of Bihar Through The Principal Secretary, Deptt. Of Health, Govt. Of Bihar, Patna. 2. Director-In-Chief, Health Services, Govt. Of Bihar, Patna. 3. Regional Deputy Director, Health Services, Patna Division, Patna. 4. Civil Surgeon-Cum-Chief Medical Officer, Buxar & Ara, District- Buxar. .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 7 20-12-2013 The petitioner in the light of the supplementary affidavit has prayed for quashing of the order dated 18.1.2011 (Annexure-13) passed by the respondent no.2 whereby her claim for payment of legal dues considering her husband to have been reinstated in the service was considered and rejected. Facts providing the background of the case may be noticed with relevant brevity: The husband of the petitioner is said to have been appointed on the post of Pharmacist ( a Class III post) on 6.7.1987
Legal Reasoning
by an order passed by Sri K.N.Rai the then Civil Surgeon- cum- CMO, Bhojpur (Annexure-1). The appointee was directed to join in the office of the Medical Officer, Brahampur on 30.7.1987. The husband of the petitioner sought extension of time for joining the post. The Civil Surgeon- cum-CMO by another communication Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 2 dated 5.12.1988 (Annexure-2) permitted him to join the post on or before 25.1.1989. Before the husband of the petitioner could join the post he was transferred to another Primary Health Centre by order dated 5.12.1988 issued by the same officer. The Medical Officer, Brahampur by order dated 19.1.1989, that is the day the husband of the petitioner submitted his joining relieved him for joining at Additional Primary Health Centre, Chandrapura. According to the writ petition, the husband of the petitioner thereafter joined at Additional Primary Health Centre, Chandrapura and started functioning as such. He also subscribed to the General Provident Fund. A service book of the husband of the petitioner was opened by the same Civil Surgeon on 16.1.1994. It came to the notice of the State Government that Sri K.N.Rai the then Civil Surgeon- cum-CMO, Bhojpur had indulged in making several illegal appointments. Having found so and after making an enquiry in this regard, the service of the husband of the petitioner was terminated on 17.1.2004 (Annexure-5). Several other appointees of Sri. K.N.Rai were also terminated. Some other appointments made by other officers in similar fashion were also terminated. Assailing the order of termination of their services, several writ petitions were
Decision
filed. Some of the writ petitions were considered and rejected by the writ Court. Writ appeals were filed thereagainst. Remaining writ petitions raising similar issues/grievances were tagged with the Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 3 writ appeals for consideration. The writ appeal Court by a common order dated 26.6.2006 (Annexure-7) disposed of approximately 819 Letters Patent Appeals and writ petitions. Considering the consensus reached between the parties and in the light of the law laid down by the Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Uma Devi 2006 (2) PLJR (SC) 363 it was directed that the State Government shall carry out the exercise of consideration of the cases for their regularization in the light of observations made in paragraph no. 44 of the said judgment within a specified time. The respondent State was, therefore, obliged to consider cases of each of the appellants/petitioners to find whether he/they were fit for his/their regularization in terms of the judgment passed by the Hon’ble Apex Court particularly para 44 thereof. Let it be noticed here that the writ petition filed by the husband of the petitioner being CWJC No. 3052 of 2004 was also disposed of by the said common order dated 26.6.2006 (Annexure- 7). This Court would also notice here that by the order dated 20.2.2004 (Annexure-6) service of the husband of the petitioner along with four others was terminated in the light of the instruction received from the government after issuing show cause notice(s) to them. According to the writ petition, in course of consideration of the matter a report was submitted on 29.11.2006 by the Civil Surgeon-cum-Chief Medical Officer, Buxar stating therein that the Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 4 husband of the petitioner and four others who were terminated by order contained in Annexure-5 had been appointed against the sanctioned post(s). The order regularizing the service of the employees covered by Annexure-6 is said to have been passed on 20-09-2007. The husband of the petitioner had in the meantime died on 17.6.2007. The order regularizing his service was, therefore, not passed. Resultantly, the petitioner was not paid the service benefits of the period rendered by her husband until he was terminated from service on 17.1.2004. In this backdrop, she filed a writ petition in this Court vide CWJC No. 867 of 2008. A Bench of this Court by order dated 29.4.2010 (Annexure-11) disposed of the writ petition. This Court would extract relevant part/portion thereof which reads thus:- the petitioner submits “In the above circumstances, learned that for counsel for expeditious disposal of the pending claims as highlighted in this writ application, petitioner proposes to file a representation before the respondent no.3. in raised In such view of the matter, in case such representation stating details of unpaid claims is filed by the petitioner within a period of six weeks from today along with the certified copy of the present order as also the copy of the relevant documents, if any, in support of the claim, the the the petitioner grievances of representation shall be considered in accordance with law expeditiously preferably within a period of four months on receipt of such representation so that the grievances of the petitioner could be settled without delay and upon consideration the admitted dues found payable could also be paid. However, upon consideration if any of the claims or part of the claim is found not admissible the same shall be disposed of by a reasoned order which shall be communicated to the petitioner by post under registered cover.” Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 5 The petitioner thereafter submitted a representation (Annexure-12) praying therein to pay her the amount which was deducted from the salary of her husband and also pass an order for payment of family pension to her. The respondent Director-in- Chief by an order dated 18.1.2011 (Annexure-13) rejected the said representation of the petitioner observing therein that the committee headed by him enquired into the appointment of the husband of the petitioner and the same was found fake/forged which was placed before the Hon’ble High Court and an order has been passed on 2.11.2007. Since the appointment of the husband of the petitioner was found fake/forged and in the meanwhile he had died no order was passed in the case of the husband of the petitioner. The claim of the petitioner for payment of retiral dues and appointment of his ward on compassionate ground was rejected. Aggrieved thereby the present writ petition has been filed. Heard Mr. A.B.Ojha learned counsel for the petitioner and Mr. Ajay Bihar Singh SC- 19 for the State. A counter affidavit has been filed on behalf of the respondent no.2. Mr. Ojha, learned counsel for the petitioner has urged that the husband of the petitioner along with four others was/were terminated from service by one order dated 20.2.2004 (Annexure- 6). Four of them have been regularized in service by the respondent State. The husband of the petitioner could not be Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 6 regularized since before passing such order of regularization he had died on 17. 6.2007. Had he been alive he would have also been regularized in the service. The respondents, therefore, erred in not granting the petitioner the post retiral benefits payable to the husband of the petitioner who had served for more than 10 years before being terminated from service. Mr. Ojha, however, in course of submission, fairly conceded that the present application be not considered as an application seeking compassionate appointment on the death of the husband of the petitioner. It has next been submitted that from the materials on record particularly Annexure- 9 it would appear that on enquiry it was found that the husband of the petitioner held a sanctioned post and was appointed by a valid order. Mr. Sinha, learned counsel for the State, on the other hand, supported the impugned order. He contended that from the materials on record it is more than evident that the husband of the petitioner was illegally appointed in gross breach of the selection procedure laid down for such appointment on Class-III posts. Nothing has been brought on record by the petitioner to substantiate that the appointment of the husband of the petitioner was made after advertising the post and undergoing the selection process and by an order passed by the competent authority. The petitioner has not averred and substantiated that the Civil Surgeon had the jurisdiction Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 7 to appoint on Class-III post. Referring to the apparent defects in Annexure-9, it has been contended that the same cannot be relied upon to conclude or hold that the letter of appointment issued in his favour was not forged. Referring to the statement made in para 13 of the writ petition, it has been submitted that on her own showing no document or evidence was placed by the husband of the petitioner before the committee to demonstrate that he was appointed against sanctioned post and after following the process/procedure of selection consistent with Articles 14 and 16 of the Constitution of India. On the day the husband of the petitioner died he was not regularized in the service. The status of the husband of the petitioner was that of a person not in the employment/service of the State on being regularized. The view taken by the respondent in the impugned order, therefore, cannot be faulted. On a consideration of rival submissions and after perusal of the pleadings on record, it appears, the husband of the petitioner died before he could be considered by the Committee as per order of this Court in the light of materials/documents to be placed by him for regularization of his service if the same was found in accord with the observations made by the Hon’ble Apex Court in the case of Uma Devi (Supra). Pension or family pension is payable to an employee who holds a substantive post in the Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 8 Government . The husband of the writ petitioner was not holding a post under the State on the day he died. He was not considered and found fit for regularization in the service obviously for the reasons that he did not appear before the Committee set up in this regard by the government to substantiate his claim. How can he, therefore, be considered for grant of pension/family pension. There is clear findings recorded in the impugned order that the enquiry committee on perusal of records found his appointment forged/fake and/or illegal. The pension or family pension is payable to an employee who died while in the employment of the State government. Having given my anxious consideration to the submissions of the parties this Court is unable to find any illegality much less patent illegality in the order passed by the respondent Director-in-Chief (Annexure- 13) meriting interference by invocation of its extraordinary and discretionary writ jurisdiction. Before parting with the records, this Court would observe that in the representation (Annexure-12) the petitioner had also prayed for payment of certain dues to her which was/were deducted from the salary of her husband. The husband of the petitioner while in service was permitted to subscribe to the General Provident Fund. It also appears from the service book that the husband of the petitioner had also subscribed to the Group Insurance Scheme of the Government and certain deductions were Patna High Court CWJC No.8449 of 2011 (7) dt.20-12-2013 9 made from his salary under this head. These deductions, together with statutory interest, are required to be paid to the petitioner, if not already paid. Let the respondent(s) calculate and pay those dues which were deducted from the salary of the husband of the petitioner under the head(s) Group Insurance and General Provident Fund while he was in the employment within 08 weeks from the date of receipt/production of a copy of this order. The writ application is dismissed but with the aforesaid direction(s)/observation(s). No order as to cost(s). (Kishore Kumar Mandal, J) Shyam/-