Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5966 of 2010 ====================================================== Jagdhatri Devi W/O Late Prof. Someshwar Mishra Department Of Hindi, D.A.V.College,Siwan, Resident Of Vill Parsarma, P.S.Supaul,Distt-Supaul Versus .... .... Petitioner 1. The Bihar University,Muzaffarpur, Through Its Vice -Chancellor 2. The Registrar , Bihar University Muzaffarpur 3. The Accounts Officer, Bihar University Muzaffarpur 4. The Finance Officer, Bihar University Muzaffarpur 5. The Principal ,D.A.V. College Siwan 6. The State Of Bihar, Through The Secretary, Higher Education Govt. Of Bihar .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Ranjit Jha, Adv. For the University : Mr. Harendra Kumar Tiwary, Adv. For the State : Mr. Prabhat Ranjan, AC to GP12 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 19 01-02-2013 Heard counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “I). For issuance of an appropriate writ, order or direction in the nature of „Mandamus‟ directing and commanding the concern respondents to make payment of arrears of difference of salary of the husband of the petitioner with effect from due date which has not been paid to the husband of the petitioner in his life time.” Counsel for the petitioner in view of various affidavits filed by the University has come out to say that even when certain payments have been made to the petitioner during the pendency of this writ application, the petitioner still will be entitled for payment of arrears of salary of her husband to the tune of Rs.
Legal Reasoning
Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 2 1,175/-, inasmuch as against the admissible amount of Rs.49,883/- the payment made by the University is only to the tune of Rs.48,708/-. It has further been submitted that towards the arrear of pension upto 4.2.2007 though the entitlement of the petitioner would be to the tune of Rs.5,41,370/- the University has paid only to the tune of Rs.2,82,767/- and the balance amount to the tune of Rs.2,58,603/- has not been paid. Finally it has been urged that the petitioner‟s family pension for one month of the period 1.1.2007 to 4.2.2007 has not been paid as yet. As with regard to the last prayer all that this Court can say that though a prayer was initially made in the writ application
Legal Reasoning
but it was deleted by the learned counsel for the petitioner himself as would appear from page-3 of the writ application. The prayer which is not on record will not be entertained for any reason whatsoever. That being so, the prayer for payment of pension salary of the husband of the petitioner for the period 1.1.2007 to 4.2.2007 must be and is hereby rejected. As with regard to the next prayer for payment of balance amount of salary to the tune of Rs. 1,175/- this Court would find that the University itself has been under some incorrect impression and that is how salary statements have been issued some time by Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 3 the Principal of the College and some time by the University authorities of the College. These aspects were ultimately referred to the Government Auditor and after the Government Auditors had detected that the record of service of the husband of the petitioner was not available and as such, it was impossible to find out the total entitlement of the husband of the petitioner. It has to be recorded that as per Statutes the payment of salary will be made on the order of promotion. The order of promotion can only be decided in accordance with law and the law is that a teacher cannot be given promotion by the Vice Chancellor or the University unless it is approved by the Commission. On the record there is an order of the University dated 30.4.1988 which would go to show that the husband of the petitioner alongwith other teachers were given provisional provision subject to concurrence of the Bihar State Constituent Service Commission. There is nothing on record much less stated anywhere by the petitioner that after this order was passed on 30.4.1988 whether promotion of the husband of the petitioner was ever regularized by the Commission or the University had issued the consequential order. In that view of the matter, unless the University authorities themselves verify from the records of the service record of the petitioner as to which date of entitlement of promotion of the Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 4 petitioner, namely, on the post of Reader with effect from 14.11.1980 and the post of Professor with effect from 11.12.1986, the petitioner will not be in a position to know as to what would be actual entitlement of the husband of the petitioner. For example, if the promotion date of the husband of the petitioner on the post of Reader and Professor after recommendation of the Commission gets changed, then the husband of the petitioner will not be entitled for such salary whose difference is being claimed by the petitioner after death. In that view of the matter, this Court would first direct the Registrar of the University to trace out the service record of the petitioner and if the same has not yet been made available by the Principal of D.A.V.College, Siwan the same must be made available to the Registrar of the Bihar University within a period of one month from the date of receipt of the order by the Principal of D.A.V.College, Siwan. In the event the service record of the husband of the petitioner cannot be found out its shadow records would be created for which the Registrar of the two Universities shall sit together and decide the matter, but in any event the finalized date of promotion of the husband of the petitioner must be settled before deciding the actual entitlement of the petitioner. This exercise in any event must be completed within a period of Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 5 three months from the date of receipt of the order. Once this exercise is completed and the petitioner‟s date of promotion as a Reader and Professor is confirmed as per the Bihar State Universities Act and Statutes framed thereunder, the petitioner‟s total entitlement will be calculated by the Verification Cell now constituted by the State Government which will look into the entitlement of the husband of the petitioner both in respect of salary and pensionary relief. The said Verification Committee shall thereafter submit its calculation on the basis of which whatever amount is found payable to the petitioner by way of either arrears of salary of the husband of the petitioner or towards pension in the life time of the husband of the petitioner or family pension till date shall be calculated and the payment of that amount will be made within three months of such final account arrived at by the Verification Cell of the State Government. As with regard to liability of payment of interest in the order of this Court dated 5.10.2010 this Court would find that now there are two situations, one according to which the petitioner‟s claim payment of interest on the due amount and the other where it has come on record by way of supplementary counter affidavit of the University based on the calculation made by the State Auditor discovering that the husband of the petitioner did not Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 6 complete 33 years of service in order to earn full pension and therefore, he was also paid a sum of Rs. 43,535/- in excess between 1.8.2005 to 4.2.2007. This amount definitely was not payable as per Pension Rules because the husband of the petitioner was not entitled for half of last salary drawn, his date of retirement being 30.4.1989. Therefore, the Verification Cell while calculating the amount of interest in terms of earlier interim order of this Court in this case, shall keep in mind as to what additional payment was made to the petitioner or his husband and what interest would be payable by the petitioner or her husband at the rate of 12% on the said amount. It is only after reducing the balance over payment shall be made in terms of the order of this Court dated 5.10.2010, relevant portion whereof reads as follows: “In addition to the direction given above, I direct the University to calculate upto date monthwise dues and submit the same under affidavit before this Court on 11th of October, 2010 and any amount, found due and payable thereunder, would be paid by then alongwith interest at the rate of 12%.” It is, therefore, made clear that what ever was directed by this Court for payment of interest upto October, 2010 will only qualify for payment of interest. The Verification Committee of the State Government, therefore, will confine payment of interest only Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 7 upto October, 2010 as per aforesaid order of this Court. It has also kept in mind that the University has filed its 5th supplementary counter affidavit wherein it has been stated that a sum of Rs.1,46,331/- was found payable by way of interest and the amount was sent to the Principal of the College on 24.2.2011 for making such payment. Since the learned counsel for the petitioner has orally stated that this amount of Rs.1,46,331/- has not been paid to the petitioner as yet, without there being any reply to the counter affidavit presumably on the ground that the copy of this counter affidavit was not served on the counsel for the petitioner, this Court would direct the Registrar of the University to verify from the Principal of D.A.V.College, Siwan as to whether a sum of Rs. 1,46,331/- was paid towards interest to the petitioner after the cheque dated 24.2.2011 (Annexure „F‟) was sent by the Finance Officer of the University to the Principal of the College. Thus whether such amount has already been paid by the Principal of the College to the petitioner or not will also be indicated in the statement to be furnished by the Registrar of the University to the Verification Cell of the State Government and the computation made by the Verification Cell on its being communicated by the Director, Higher Education shall be acted upon the University authorities towards making a full and final Patna High Court CWJC No.5966 of 2010 (19) dt.01-02-2013 8 settlement of the claim of the petitioner. With the aforementioned observation and direction, this
Decision
application is disposed of. surendra/- (Mihir Kumar Jha, J)