Allowed

Deo Narayan Sharma v. The T. M. Bhagalpur University and Ors.

Patna HC24 Sept 2018CWJC/9711/2015

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, directing the University to pay the petitioner salary and benefits consequential to his 1981 promotion, following a prior Division Bench order in favour of a similarly situated employee, Nand Lal Mandal, rejecting the University's claim of dissimilarity.

What did the court decide?

Writ allowed; Petitioner entitled to salary, allowances, post-retiral benefits, and statutory interest as per Nand Lal Mandal case, payable within two months.

Deo Narayan Sharma Vs The T. M. Bhagalpur… — Pension and Retirement Benefits | Patna HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 9711 of 2015

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Deo Narayan Sharma, Son of Late Maharaj Sharma, R/o Village Sakhua, P.O. Mahespur, P.S. Sahnaula, District Bhagalpur (Bihar).

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.... .... Petitioner/s

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Versus

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The T. M. Bhagalpur University, Bhagalpur, through its Registrar.

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The Vice-chancellor, T.M. Bhagalpur University, Bhagalpur.

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The Registrar, T.M. Bhagalpur University, Bhagalpur.

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The Finance Office, T.M. Bhagalpur University, Bhagalpur.

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The Principal S.M. College, Bhagalpur.

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The state of Bihar, through the Principal Secretary, Education Department, Government of Bihar, New Secretariat, Patna.

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The Director, Department of Higher Education Government of Bihar, Patna.

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The In-charge State Govt's Auditors Team, Deputed at T.M. Bhagalpur University, Bhagalpur.

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The Chief Secretary, Government of Bihar, Patna.

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The Director General of Police, Bihar, Patna.

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The District Magistrate, Bhagalpur.

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The Senior Superintendent of Police, Bhagalpur.

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.... .... Respondent/s

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=========================================================== Appearance : For the Petitioner/s : Mr. Purushottam Kumar Jha, Advocate For the Respondent/s : Mr.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT

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Date: 24-09-2018

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Heard learned counsel for the petitioner; State and T.M.

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Bhagalpur University (hereinafter referred to as the ‘University’).

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The petitioner has moved the Court for the following

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reliefs:

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“(i) Issuance of an Order, Direction or a Writ in the nature of Certiorari for Quashing of the Order contained in Memo No. B/10756-58 dated 21.08.2012 ( Annexure-26 of this Writ Petition), passed by the then Vice-Chancellor of the Respondent T.M. Bhagalpur University, Bhagalpur, whereby and where under legal/legitimate and

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lawful claim of the Petitioner for making payment of his due Salary and admissible allowances for the period from 31.08.1999 to February 2003, has been rejected, during which period the Petitioner had continuously discharged his duties on the post of “Sorter” in the College in question, to the full satisfaction of all concerned in the College.

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(ii) Issuance of an Order, Direction or a Writ in the nature of Certiorari for Quashing Memo No. RO/Spl/500-503/13 dated 26.02.2013 ( Annexure-30 of the Writ Petition ), passed by the then Vice-Chancellor of the Respondent University, whereby and where under legal /legitimate /lawful claim of the Petitioner for making payment of his due salary and admissible allowances for the period from 31.08.1999 to February 2003 has been rejected and previous Order contained in Memo No. B /10756-58 dated 21.08.2012 (contained in Annexure-26 of the Writ Petition ), has been upheld.

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(iii) Issuance of an Order, Direction or a Writ in the nature of Mandamus commanding the authorities concerned of the University in hand for making the payment of Petitioner’s lawful legitimate due Salary and other admissible allowances for the period from 31.08.1999 to February 2003, as has been done in the case of one Nand Lal Mandal, who was also promoted with this Petitioner vide Annexure-7 to this writ petition.

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(iv) Issuance of an Order, Direction or a Writ in the nature of Mandamus commanding the authorities concerned of the Respondent University for making payment of Penal Interest @ 12% per annum on the aforesaid arrears of salary claim of the petitioner.

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(v) For grant of any other relief(s) to which this petitioner may be found entitled to, in the facts of this case.”

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Though, the matter has been heard on a number of

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occasions, the Court on the last occasion had given opportunity to learned counsel to come prepared with a comparative chart with

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regard to the relief claimed by the petitioner and that by Nand Lal Mandal in whose case a Division Bench of this Court by judgment and order dated 25.07.2011 in L.P.A. No. 901 of 2008, had allowed the appeal by holding that the promotion given to Nand Lal Mandal to Class-III post was valid in the eyes of law and could not have been reviewed after such a long period, especially in the absence of any specific order cancelling such promotion and, thus, the Court had held Nand Lal Mandal entitled to all consequential benefits pursuant to his having been promoted in the year 1981 and also held any recovery to be impermissible and to be returned. The Court had further directed for payment of post retiral benefits to him treating such promotion valid from the year 1981 itself along with statutory interest permissible under law as also further consequential benefit as provided under the Statute. The Court had also indicated in the order that it be assisted on the point of similarity and dissimilarity of the case of the petitioner with that of Jwala Prasad Singh.

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In terms thereof, supplementary counter affidavit has been filed on behalf of the University enclosing a chart in tabular form the similarities and dissimilarities of the petitioner, firstly as compared to Nand Lal Mandal and thereafter to Jwala Prasad Singh.

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Coming to the case of similarity between the petitioner and Nand Lal Mandal, the similarities and dissimilarities shown have

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been recorded as under:

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	Nand Lal Mandal Simialritie	Deo Narayan Sharma s
1.	Appointed by the Principal, S.M. College, Bhagalpur on 01.07.1967 as Peon (Class IV Post) on purely temporary basis.	Appointed by the Principal, S.M. College, Bhagalpur on 28/ 30.01.1964 as Peon (Class IV Post). He joined the college on 01.02.1964.
2.	Service was confirmed vide order dated 28.02.1981. Information of confirmation of service was sent to the University.	Service was confirmed vide order dated 28.02.1981. Information of confirmation of service was sent to the _University. _
3.	Promoted from Class IV Post of Peon to Class III Post of Assistant on the basis of staffing pattern subject to approval of University w.e.f. 01.05.1981.	Promoted from Class IV Post of Peon to Class III Post of Librarian Sorter on the basis of staffing pattern subject to approval of University 01.05.1981.
4.	Payment of Salary was stopped with effect from 31^st	Payment of Salary was stopped with effect from ^st
	of August, 1999. Dissimila	31 of August, 1999. rities
5.	Filed a writ petition being CWJC No. 11755 of 2005 for issuance of direction to the authorities concerned to settle his post retiral dues and also for payment of other admissible benefits after getting the calculation done. During the pendency of this writ petition this court by order dated 27.02.2008	Filed a writ petition being CWJC No. 11249 of 2000 for issuance of direction to restrain the respondents specially the respondent University from Stopping the petitioner’s salary after more than 35 years of service without any fault on thepart of the

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directed to respondent no.3, the Registrar of the	petitioner and without any show cause or any
University to dispose of the	departmental
representation of the	proceeding and in
petitioner as contained in	utraviolation of the
Annexure 8 by a reasoned	Principles of Natural
order.	Justice and against the
The said representation was	Statues (Rules) of the
disposed vide Memo No.	respondent University
288-90/VCR/08 dated	in the most Arbitraty
29.06.2008 whereby the	manner and for
representation of the Nand	directing the
Lal Mandal for approval of	respondent University
his promotion to class III	to maintain status Quo
post was rejected stating	prevalent before
therein to the effect that	30.08.1999 in the
after enactment of Bihar	matters of payment of
Universities Act, 1976 the	salary and allowances.
University was not	During the pendency of
competent either to appoint	aforesaid writ petition,
or to create a post without	the petitioner moved an
prior approval of the State	I.A. No. 955 of 2008 for
Government and since the	amendment of prayer
petitioner was promoted by	portion by making an
the Principal of the College	additional prayer that
to class III post of Office	he may be treated to be
Assistant which was not a	regular service from the
sanctioned post.	dated of appointment
Said writ petition was	i..e 01.02.1964 till date
disposed off vide order	of his retirement and
dated 03.09.2008 with a	subsequently he be paid
direction to pay interest at	with all the emoluments
the rate of ten per cent over	which he would have
the amount paid to the	received if he would
petitioner treating him as	have been in continuous
Class IV employee,	service including
calculating from the date of	benefit of revised pay
retirement till the date of	scale implemented
payment to the petitioner by	w.e.f. 01.01.1996 along
the respondents within a	with reasonable
period of two months on	interest. This
receipt/production of the	application was moved
certified coy of the present	only after his
order.	absorption in the

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Nand Lal Mandal thereafter preferred an Appeal being LPA No. 901 of 2008 before the Division Bench of this Hon’ble High Court which was allowed holding that the promotion of the valid in the eye of law as the conduct of the Vice- Chancellor of respondent University in approving the pay fixation of Nand Lal Mandal fixation of Nand Lal Mandal could be deemed as approval of promotion.	College/University service vide Office no. 84/2006 dated 27.05.2006 w.e.f. 05.06.2003. The Hon’ble High Court vide its order dated 24.04.2008 disposed of the writ petition with a direction to pass an order either agreeing or disagreeing with the order of the Principal of the college within two months of receiving of the findings of the Principal. The Vice-Chancellor of the respondent University in compliance of order dated 24.08.2008 passed by the Hon’be High Court in C.W.J.C. No.. 11249 of 2000 and order dated 08.08.208 passed by this Hon’ble High Court in MJC No. 1566 of 2012, passed a reasoned order dated 21.08.2012 rejecting the claim of the petitioner for being promoted to the post of Sorter.
	Thereafter, in MJC No. 1556 of 2012, the petitioner stated that the case of the petitioner is similar to Nand Lal Mandal.

Nand Lal Mandal thereafter
preferred an Appeal being
LPA No. 901 of 2008 before
the Division Bench of this
Hon’ble High Court which
was allowed holding that
the promotion of the valid in
the eye of law as the
conduct
of
the
Vice-
Chancellor of respondent
University in approving the
pay fixation of Nand Lal
Mandal fixation of Nand
Lal
Mandal
could
be
deemed as approval
of
promotion.

College/University
service vide Office no.
84/2006
dated
27.05.2006
w.e.f.
05.06.2003.
The
Hon’ble
High
Court vide its order
dated
24.04.2008
disposed of the writ
petition with a direction
to pass an order either
agreeing or disagreeing
with the order of the
Principal of the college
within two months of
receiving of the findings
of the Principal.
The Vice-Chancellor of
the
respondent
University
in
compliance
of
order
dated
24.08.2008
passed by the Hon’be
High Court in C.W.J.C.
No.. 11249 of 2000 and
order dated 08.08.208
passed by this Hon’ble
High Court in MJC No.
1566 of 2012, passed a
reasoned order dated
21.08.2012
rejecting
the
claim
of
the
petitioner
for
being
promoted to the post of
Sorter.

Thereafter, in MJC No.
1556
of
2012,
the
petitioner stated that
the
case
of
the
petitioner is similar to
Nand Lal Mandal.

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The Hon’ble High
Court vide its order
dated 06.02.2013 to
reconsider the case of
the petitioner on the
issue of his claim of
similarity with Nand
Lal Mandal within a
period of three weeks
and pass an
appropriate order.
The Vice-Chancellor
vide its reasoned order
dated 26.02.2013
whereby it was clarified
that the grievances of
the petitioner as well as
the case of Nand Lal
Mandal is absolutely
different and the order
passed by the Vice-
Chancellor of the
University in
compliance of
respective order dated
24.04.2008 in CWJC
No. 11249 OF 2000 is
in accordance with law.
Vide this order the
claim of the petitioner
was rejected.
The Hon’ble High
Court vide its order
dated 17.01.2014
disposed of the MJC
No. 1566 of 2012 on
granting the liberty to
the petitioner that if the
petitioner feels
aggrieved with the
order dated 26.02.2013
passed by the

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	University, he may
	assail the same in appropriate proceedings.
	The petitioner had thereafter filed this writ petition being CWJC No. 9711 of 2015 seeking quashing of orders dated 21.08.2012 and 26.02.2013 passed by
	this the Vice-
	Chancellor of Respondent University and further for issuance of direction to the respondent University for making the payment
	of Petitioner’s lawful legitimate due salary and other admissible
	allowances for the period from 31.08.1999 to February, 2003 as has been done in case
	of one Nand Lal Mandal and further for making payment of
	Penal interest @ 12%
	per annum on the aforesaid arrears of salary claim of the
	petitioner.
6. *Did not apply in response* *to said advertisement.*	Being aggrieved from the disengagement from service and non- payment of some daily wage employee preferred writ petition
	before this Hon’ble
	Court which traveled
	upto LPA by the

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Respondent University.
It is noteworthy that the
Hon’ble High Court
vide its order dated
28.02.2000 quashed the
communication dated 30.08.1999 of the
University and directed
the University to take
steps for regularization/absorpti on of the service of he
petitioners against posts.
During the pendency of
LPA, a direction was
issued by the office of Higher Education, Govt. of Bihar, Patna in
the light of order dated 12.04.2001 passed by
this Hon’ble High
Court in LPA No. 1514
of 2000. Vide its order
dated 18.02.2002, the
University dated 18.02.2002, the
University had
withdrawn all the
appeals.
In pursuance to it an
advertisement published
in Hindi daily News
Paper “HINDUSTAN”
dated 19.10.2001, by
the respondent
University for
appointment of Class III
and Class IV posts.
The petitioner had
applied for his

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regularization in view
of above said
advertisement.
After qualifying in the
written test and
interview, the petitioner
was absorbed in the
services of the
College/University in
question vide Office
order no. 2160 dated
05.07.2002.
The aforesaid
Notification was
modified vide Office
Order No. 32 of 2003
dated 25/26.01.2003, as
in the earlier
notification reservation
rules were not applied.
The petitioner was
shown to be absorbed
at the Class III post of
Assistant.
Later on the Office
Order No. 32 of 203
dated 25/26.01.2003
was partially modified
vide Office Order No.
171 of 2003 dated
05.06.2003. The
petitioner was shown to
be absorbed at the
Cl III
ass post of
Storekeeper.
Finally, the service of
petitioner was absorbed
vide Office Order no.
84 of 2006 dated
24.05.2006 on the post

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		of “Steno Typist” w.e.f. 05.06.2003.
7.	The College vide its office	Finally, absorbed as
	order no. 36/2004 dated 09.12.2004 absorbed his	Office Order no. 84/2006 dated
	services in Class III post and sent the same to the respondent University for its approval.	27.05.2006 w.e.f 05.06.2003 on the post of “Steno Typist”.
8.	Retired on 31.01.2005	Retired on 29.02.2008

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In the dissimilarity, the only ground taken is that the petitioner had filed C.W.J. C. No. 11249 of 2000, being aggrieved by stopping his salary whereas Nand Lal Mahto had not preferred to move the Court which he did by filing C.W.J. C. No. 11755 of 2005 for settling of his post retiral dues. The Court would pause here. From the aforesaid, it is clear that Nand Lal Mandal preferred not to agitate the matter of his stoppage of salary whereas the petitioner had moved the Court in the matter which was disposed off on 24.04.2008, directing the Principal to look into the entitlement of the petitioner to payment of salary on the basis of his original appointment on the post to which he was promoted, which according to the University, was not a sanctioned one. In terms of the order, the Principal passed order on 08.08.2012 holding that in the background

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of the service of the petitioner, he was required to be paid his salary in accordance with law.

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Further, as also was required by the order of the Court dated 24.04.2008, the Vice Chancellor passed order dated 21.08.2012, accepting the claim of the petitioner to salary only for the IVth Grade Post and rejecting the claim of the petitioner to the promoted post of Sorter. However, since prior to passing of the order, the petitioner had moved in M.J.C. No. 1566 of 2012 and the order was passed during the pendency of the same, the Court taking note of the order passed in the case of Nand Lal Mandal in L.P.A. No. 901 of 2008, directed the Vice Chancellor to examine as to whether the case of the petitioner stands on similar footing as Nand Lal Mandal, and pass a fresh order, which was done on 26.02.2013, by which the earlier order dated 21.08.2012 was upheld. The contempt application was, thus, disposed off giving liberty to the petitioner to assail the same which has given rise to the present writ application.

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The Court, thus, gave an opportunity to learned counsel for the University to assist as to how the case of the petitioner was dissimilar to Nand Lal Mandal.

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After some arguments, learned counsel for the University fairly submitted that the basic foundational facts are

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identical except for the petitioner having applied for regularization which was allowed by the University whereas Nand Lal Mandal never applied for regularization and accordingly, his service was never regularized.

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Learned counsel for the State submitted that in view of the materials on record, the case of the petitioner cannot be said to be in any way different from that of Nand Lal Mandal.

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In view of the aforesaid position, the Court does not find the necessity to consider the case of the petitioner vis-à-vis that of Jwala Prasad Singh.

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Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the Court finds that the petitioner and Nand Lal Mandal having been identically situated, the benefit which Nand Lal Mandal ultimately got from the Court cannot be denied to the petitioner. It would be relevant to indicate here that Nand Lal Mandal had not even preferred to assail the order stopping his salary in the year 1999, which the petitioner had done and further, he had not even applied for regularization of his services, which the petitioner did, and moreover, the service of the petitioner was regularized as that of Nand Lal Mandal by the same order.

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Thus, in the opinion of the Court, when such

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simiarlity has been admitted by the parties before the Court, in the fitness of things the judgment of the Division Bench in L.P. A. No. 901 of 2008 dated 25.07.2011 is required to be followed in the present case.

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Accordingly, the writ petition stands allowed in terms of the aforesaid judgment and order dated 25.07.2011 in L.P.A. No. 901 of 2008. The petitioner is also held entitled to all consequential benefits in terms of his promotion given in the year 1981 which is held to be valid and his post retrial benefits shall accordingly be calculated and paid to him along with statutory interest permissible under law as also all further consequential benefits as provided under the Statute. The same be done expeditiously and latest within a period of two months from the date of production of a copy of this order before the Vice Chancellor and Registrar of the University.

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(Ahsanuddin Amanullah, J.)

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P. Kumar

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AFR/NAFR U

Deo Narayan Sharma v. The T. M. Bhagalpur University and Ors.

Case brief

What is this about?

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Deo Narayan Sharma v. The T. M. Bhagalpur University and Ors.

Case brief

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