Haridayal Mahto … v. The State of Jharkhand The Jharkhand Academic Council, Ranchi through its Chairman, Ranchi. The
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1229 of 2023 Binayak Mishra … … Petitioner WITH W.P.(S) No. 1380 of 2023 Kanhaiya Prasad … … Petitioner WITH W.P.(S) No. 1406 of 2023 Haridayal Mahto … … Petitioner 1. 2. 3. 4. Versus The State of Jharkhand The Jharkhand Academic Council, Ranchi through its Chairman, Ranchi. The Secretary, Jharkhand Academic Council, Ranchi. The Joint Secretary, Jharkhand Academic Council, Ranchi. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : For the Petitioner
Legal Reasoning
Mr. Ajit Kumar, Sr. Advocate Ms. Aprajita Bhardwaj, Advocate For the Resp-State : Ms. Vandana Singh, Sr.SC-III For the Resp-JAC : Ms. Neha Pandey, AC to Sr.SC-III Mr. Shubham Mishra, AC to SC(M)-II Mr. Rakesh Kumar Roy, AC to GA-III Mr. Anil Kumar, Sr. Advocate Mr. Abhijeet Kumar Singh, Advocate 6/ 20.12.2023 In all these writ petitions, common issue is involved and as such, they are heard together and are being disposed of by this common ------ order. 2. 3. Heard the parties. Petitioners are claiming the entire retirement benefits including gratuity, provident fund, group insurance, earned leave etc. on account of their retirement from the office of respondent-Jharkhand Academic Council. 4. The facts of the case are that the petitioners Haridayal Mahto and Binayak Mishra were appointed on the post of Assistant and petitioner Kanhaiya Prasad was appointed as Peon in the Bihar Intermediate Education Council, Patna and were posted in regional office at Ranchi. After bifurcation of the State of Bihar, the petitioners were continuously working in the Jharkhand Intermediate Education Council at Ranchi. Thereafter the Government of Jharkhand established Jharkhand Academic Council for conducting examinations of Intermediate Education (10+2), 2 Secondary Education, Sanskrit Education and Madarasa Education under the provisions of Jharkhand Academic Council Act, 2002. Thereafter, 352 posts were created / sanctioned by the Jharkhand Academic Council and the same were sent to the Government for its approval. In the meantime, the Council (respondent no.2) took a decision by its resolution dated 10.3.2004 to absorb / regularize the employees who were earlier posted and worked at the Bihar Intermediate Council at its regional office in Ranchi and after formation of the State of Jharkhand continued working in the Jharkhand Intermediate Education Council. This resolution was circulated by office order contained in memo no. 0173/209 dated 12.1.2009 in which the names of the petitioners find place. Thus, the petitioners’ services have been regularized. Thereafter, the Government of Jharkhand also granted approval to the newly created / sanctioned post by the Jharkhand Academic Council by letter dated 28.1.2009. The benefit of 1st ACP on completion of 12 years of service has also been extended to the petitioners by office order dated 20.11.2008. Despite the aforesaid facts that the petitioners’ services were regularized / absorbed and they were granted the benefit of ACP, the Jharkhand Academic Council issued an office order contained in memo no. 322 dated 20.5.2018, whereby it has been decided to keep the office order dated 12.01.2009 in abeyance and hence, the petitioners were deprived to get the fruit of retiral benefits. 5. At the very out, learned counsel appearing for the petitioners submits that the issue involved in this writ petition as to whether the petitioners are entitled for retirement benefit under Rule 58 of the Jharkhand Pension Rules is no more res integra. He submits that similar issue fell for consideration before this Court in W.P.(S) No. 3162 of 2018 wherein this Court after hearing the parties vide judgment dated 15.10.2019 has been
Decision
pleased to allow the writ petition with observation that when the employee worked as a regular employee and received the benefits, the issue cannot be allowed to be reopened by the respondents and therefore, direction was issued to give the petitioner all retiral benefits. Learned counsel further submits that the Jharkhand Academic Council challenged the said order before the Division Bench of this Court in L.P.A. No. 06 of 2020 decided on 15.2.2022, whereby the Division Bench held that since the employee was working continuously from 1994 and was granted several service linked 3 benefits, his employment was permanent and therefore, the employee is entitled for retirement benefit under Rule 58 of the Jharkhand Pension Rules. He further submits that the said order has been affirmed up to the Hon’ble Apex Court and as such, this case shall be disposed of in terms of order passed in the aforesaid case. 6. Mr. Anil Kumar, learned counsel appearing for the respondents though opposes the contentions of learned counsel for the petitioners, but he admits that issue has already been decided by this Court in W.P.(S) No. 3162 of 2018, affirmed up to the Hon’ble Apex Court. 7. Be that as it may, having gone through fair submissions of the parties, it appears that similar issue fell for consideration before this Court in W.P.(S).No.3162 of 2018 and this Court, after hearing the counsels for the parties at length, has allowed the writ petition on 15.10.2019, with the following observations and directions:- in Bihar “8. Be that as it may, having gone through rival submission, this Court is of the considered view that case of the petitioner needs consideration. Admittedly deceased – husband of the petitioner was working Intermediate Council and after bifurcation, his services were absorbed and transferred to Jharkhand Academic Council. From perusal of several documents brought on record, it appears that all the benefits given to a regular employee was considered and extended to the petitioner. The Notification regarding grant of benefits of ACP clarifies and supports case of the petitioner holding therein that admittedly husband of the petitioner was working as a regular employee and therefore benefits were extended to him. The said documents have been annexed with the writ petition and nowhere denied by the respondents – Jharkhand Academic Council. Case of the deceased – husband cannot be reopened after his death. All along during his service career, deceased employee (petitioner’s husband) enjoyed the benefits of a regular employee. It is only after his death, the issue of regular and adhoc-employees/daily wager has been raised to deny the benefits of compassionate appointment, which is not permissible in the eyes of law. When all along during the service career it was accepted by that petitioner worked as a regular employee and received the benefits, the issue cannot be allowed to be re-opened after death of the employee. The law is very much settled on this point.” the Jharkhand Academic Council 8. The said order of this Court was challenged before the Division Bench of this Court in LPA No.6 of 2020, which was dismissed vide order dated 15.02.2022 with the following observations and directions:- 4 “10. A glance at the various orders passed by Jharkhand Academic Council in respect of the husband of writ petitioner and other employees would indicate that conscious decisions were taken by the Council which are reflected in such orders. We are of the definite opinion that in case of the husband of writ petitioner it was not a mistake which crept in the various orders which we have already referred to. We further find that no reason has been disclosed by Jharkhand Academic Council why the decision dated 12th January 2009 was not implemented. Such a decision not to implement the decision dated 12th January 2009, if at all taken by Jharkhand Academic Council, is shrouded in mystery. In paragraph Nos.9 and 10(v) of the memorandum of present appeal, the Council has pleaded that 352 posts for Jharkhand Academic Council were sanctioned by the Department of Human Resources and Development Department, Government of Jharkhand vide letter dated 28th January 2009. This is the Council’s own pleading which would give rise to an inference that the order for regularization of services of 109 employees which is reflected in the office order dated 12th January 2009 was implemented by the Council and as a consequence of the said order the husband of writ petitioner was taken in regular service of the Council. … … … 11. Rule 58 of the Jharkhand Pension Rules provides that a government employee shall qualify for pension on fulfilling the following three conditions: (i) his service was under the government (in the present case under Jharkhand Academic Council) (ii) the employment was substantive and permanent and (iii) the employee is paid by the government. 12. We find that the husband of writ petitioner was working under Jharkhand Academic Council/Bihar Intermediate Education Council is not in dispute – his service later on came under Jharkhand Academic Council in 2003. He was working continuously since 1994 and was granted several service linked benefits. Therefore, we are inclined to hold that his employment was permanent. As we have noticed, 352 posts were sanctioned/created by the State of Jharkhand and the the one granting 1st Assured Career orders Progression (ACP) benefits indicate that the husband of writ petitioner was treated as regular employee and was paid the pay scale of Class-IV employee. In the above facts, in our opinion, the conditions as mentioned under Rule 58 of the Jharkhand Pension Rules are satisfied in the present case, even if the uncorroborated stand of the Council that the decision dated 12th January 2009 was kept in abeyance is accepted.” including 9. Further, the said order of LPA Court was subject matter before the Hon’ble Supreme Court in Special Leave to Appeal (C) No.8438/2022 and the Hon’ble Apex Court vide order dated 12.07.2022 dismissed the said SLP meaning thereby the order of this Court dated 15.10.2019 passed in W.P.(S) No.3162 of 2018 attained finality. 5 10. Similar issue further fell for consideration before this Court in W.P.(S) No. 863 of 2020 (Kanan Sinha Vs. The Chairman, Jharkhand Academic Council, Ranchi & Anr), whereby this Court by judgment dated 10.08.2022 directed the respondents to appoint the petitioner on compassionate ground and to pay the entire death-cum-retiral benefits. 11. As a sequitur to the aforesaid rules, regulations and judicial pronouncements, all writ petitions also stand disposed of, in terms of the orders passed in W.P.(S) No.3162 of 2018 and W.P.(S) No. 863 of 2020 with a direction upon the respondents to pay the entire retiral benefits under different heads to the petitioners, in accordance with law, within a period of six weeks from the date of receipt of a copy of this Court. 12. With the aforesaid observations and directions, these writ petitions stand disposed of. R.Kr. (Dr. S. N. Pathak, J.)