Allowed

Sushree Bharti Biswas v. the T.M.Bhagalpur University and

Patna HC30 Jan 2014CWJC/7716/2012

Case brief

AI extract

What is this about?

The Patna High Court allowed a writ petition seeking post-retirement benefits. The petitioner, a Matron for over 28 years, was appointed without prior state sanction. The Court ruled that her consistent service and payments by the university entitle her to benefits, directing respondents to regularize her status.

What did the court decide?

Direction to the university and State authorities to complete necessary formalities and treat the petitioner as a regular employee entitled to post-retirement benefits.

Sushree Bharti Biswas Vs the T.M.Bhagalpur… — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7716 of 2012

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====================================================== Sushree Bharti Biswas Daughter Of Late Manoranjan Biswas Resident Of 'Gurudham' 33/34, Housing Board Colony, P.O. & P.S. - Barari, Town & District - Bhagalpur (Bihar)

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.... .... Petitioner/s Versus 1. The T.M.Bhagalpur University , Bhagalpur, Through Its Registrar 2. The Vice-Chancellor, T.M. Bhagalpur University, Bhagalpur 3. The Financial Advisor, T.M. Bhagalpur University, Bhagalpur

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The Registrar, T.M. Bhagalpur University, Bhagalpur

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The Finance Officer, T.M. Bhagalpur University, Bhagalpur 6. The Principal, Sunderwati Mahila Mahavidyalaya , T.M. Bhagalpur University, Bhagalpur

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The State Of Bihar, Through The Principal Secretary, Human Resources Development Department, Government Of Bihar, New Secretariat, Patna 8. The Director, Department Of Higher Education, Govt. Of Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Purushottam Kumar Jha For the Respondent/s : Mr. Tej Bahadur Singh Aag7 For the university: Mr. Anil Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER

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20. 30/01/2014 Petitioner has filed the present writ application

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for a direction upon the respondents for fixation of her post-retirement benefit and claim as per the last salary drawn and to grant her all the benefits of post-retirement to which she is legally entitled to. However, the respondent-authorities refused to take a decision, so the writ.

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Petitioner’s claim is that she was appointed on the post of a Matron vide Memo No. 1777-80/80, dated 03.10.1980. This appointment was meant for the hostel of Sunderwati Mahila Mahavidyalaya, a constituent unit of Tilka Manjhi Bhagalpur University, Bhagalpur. The

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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pay-scale indicated in the said memo, contained in Annexure-1, was Rs. 260-8-408 /-. She joined the college in question and discharged her duties without any let or hindrance or any kind of negative remarks on her performance, till she came to superannuate on completion of 62 years of age w.e.f. 31.01.2009. She completed 28 years, 3 months and 28 days of uninterrupted service in the college under the university. The appointment according to the petitioner was made by the then Principal of the college in question on the recommendation of duly constituted Selection Committee.

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Petitioner also asserts in the writ application that she was paid regular salary from the funds made available to the university and the college in question and no objection at any point of time has been raised. She filled-up her pension papers after her superannuation on 31.01.2009 and forwarded the same to the Registrar of the university as well as to the Principal of the college in question. But nothing has been done with regard to her request. Therefore, the writ.

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The university has filed counter affidavit. Their stand is that the Principal of the college in question without obtaining the prior permission from the

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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competent authority made appointment on the post of a Matron. Matron is not a sanctioned post by the State Government. Funds have been released by the State Government only for those teaching and non-teaching posts, which were sanctioned posts and payments were made accordingly. Since the petitioner does not fall in above category of person, the university cannot give any authorization for grant of pension.

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Petitioner has filed a reply to the counter affidavit of the university. She made a statement that the college became a constituent unit of Tilka Manjhi Bhagalpur University, Bhagalpur in the year 1962. Prior to that it was being managed by governing body of the college in question. On 15.05.1957, while the college was under the control of the Managing Committee, the Managing Committee decided to create a post of Matron for the hostel of the college, since it is the only all girls college in Bhagalpur with large number of girls staying in the hostels of the college. There is and was necessity for having a post of Matron was felt so authorized. For a long period of time, some kind of an ad-hoc arrangement continued till the college, decided to make permanent arrangement in terms of Annexure-1. She was duly appointed after interview and selection by the Selection

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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Committee. It is the stand of the petitioner that as per the policy decision of the university, contained in Notification No. 195/77, dated 14.05.1977, the Principal of a constituent college as well as Head of the Post-Graduate Department were duly authorized to make appointment on a Class-III or a Class-IV post. This position stands corroborated by reading of the Order, passed in C.W.J.C. No. 2712 of 2006, decided on 06.04.2011. The notification as well as the order passed in that writ application has been annexed as Annexure- 7 and 8. This decision was upheld by the Hon'ble Supreme Court. Another decision, which has held that Principals were competent to make appointment on Class-III and ClassIV post, is evident from a decision rendered in C.W.J.C. No. 12378 of 2000, decided on 19.10.2006. This Order has attained finality, since an L.P.A. filed against the said order, which was L.P.A. No. 1078 of 2007 stood dismissed on 07.08.2008.

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If this is the position in law, which emerges in the background to adjudications made by the High Court in other related matters, it cannot be the case of the respondent-university or the State that appointment of the petitioner was illegal and not against any sanctioned post. The fact is that the petitioner has worked for more

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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than 28 years on the post of a Matron and has rendered satisfactory service. Payments have been made to her regularly even from the funds issued by the universityauthorities, who had full of knowledge in this regard and now, the university or the state-authorities cannot not deny the benefit of post-retirement dues to the petitioner.

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A significant communication of Tilka Manjhi Bhagalpur University, Bhagalpur dated 18/20 September, 2001, addressed to the Principal, contained in Annexure-9, is a clear indicator that the petitioner’s appointment was treated to be on a sanctioned post of Matron and payment came to be made to her on the basis of a clear direction issued in C.W.J.C. No. 9134 of 2001, decided on 20.07.2001.

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A counter affidavit on behalf of the Stateauthorities has also been filed. They also take a stand that there was no valid appointment of the petitioner on the post of Matron, as a Principal of a constituent college had no power to make an appointment, that too against an un-sanctioned post. Power vested with the ViceChancellor and the Vice-Chancellor had no business to delegate that power, even if the appointment of the petitioner is accepted that such a decision was taken with due approval of the Vice-Chancellor.

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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The stand taken by the university as well as the State-authorities could have merited consideration, provided the judicial orders on similar questions were not in existence or not taken in favour of the petitioner regarding payment. Petitioner has been permitted to work right from the date of her appointment till her superannuation and it never became a bone of contention. Circumstances under which the appointment came to be made, the necessity for the post as such looking at the fact that the Sunderwati Mahila Mahavidyalaya was all girls college, having residential facility and the care taking as well as looking after such a large population of residents in the hostel, did require post of a Matron, cannot be over-looked. There were compelling circumstances, both for the college and the university to agree with such an arrangement. In addition to that petitioner has brought on record many a documents to show that not only the university has been releasing funds for payment to the petitioner on the post of a Matron, but even the State-authorities were in full knowledge of the same. Merely because certain formalities had not been completed at the level of the State or the university, the benefit, which the petitioner is looking for, cannot be denied. Respondents, including

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Patna High Court CWJC No.7716 of 2012 (20) dt.30-01-2014

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the State, profess to be a welfare state and therefore, after having taken work from a woman for a long period of more than 28 years, she cannot be allowed to suffer as she has nothing or nobody to fall back upon.

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The circumstances being what they are with adequate evidence of payment of salary to the petitioner as part of the establishment of the college, under the university is established beyond doubt. The facts being such, the Court will reach out in favour of the petitioner and give a direction both upon the university as well as the State-authorities that whatever is required to be done in terms of formality, must be done and the petitioner would be treated to be part of the regular establishment of the university, which would entitle her to postretirement benefit.

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It is too late in the day either for the university or the State to disown her or not recognize her as a former employee under them.

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Writ application in the aforesaid facts and circumstances stands allowed.

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(Ajay Kumar Tripathi, J.)

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SKM/-

Sushree Bharti Biswas v. the T.M.Bhagalpur University and

Case brief

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Sushree Bharti Biswas v. the T.M.Bhagalpur University and

Case brief

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