Pinki Devi Vs The State of Bihar

Punam Devi, W/o Late Dilip Jha, Resident of Village- Mohanpur, P.O. and P.S.- Dharhara, District- Munger presently residing at Damu Chak, P.S- Kaji Mohammadpur, District- Muzaffarpur.

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... ... Petitioner/s

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Versus

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The State of Bihar the Additional Chief Secretary, Education Department, Govt. of Bihar, Patna.

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The Additional Chief Secretary, Education Department, Govt. of Bihar, Patna.

The Director, Higher Education, Govt. of Bihar, Patna.

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The Vice Chancellor, B.R.A. Bihar University, Muzaffarpur.

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The Registrar, B.R.A. Bihar University, Muzaffarpur.

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The Finance Officer, B.R.A. Bihar University, Muzaffarpur.

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... ... Respondent/s

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Appearance : (In Civil Writ Jurisdiction Case No. 4986 of 2023) For the Petitioner/s : Mr. Shashi Bhushan Singh, Advocate For the Respondent/s : Mr. Madhaw Pd. Yadaw, GP-23 For the University : Mr. Zaki Haider, Advocate (In Civil Writ Jurisdiction Case No. 13586 of 2023) For the Petitioner/s : Mr. Shashi Bhushan Singh, Advocate For the Respondent/s : Mr. Jitendra Kumar Roy 1, SC- 13 Mr. Hitesh Suman, AC to SC-13

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Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024 2/19

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For the University : Mr. Indrajesh Kumar, Advocate

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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT

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Date : 06-08-2024

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Heard the learned Advocates for the respective

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parties.

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Considering the identical nature of grievance and the similar issue posed in both the writ petitions, this Court with the consent of the parties heard the matter together and disposed of by this common order.

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The petitioners before this Court are hapless widows of the erstwhile employees of Bhim Rao Ambedkar Bihar University, Muzaffarpur, who died in harness on 03.05.2017 and 07.01.2019 respectively invoking the extraordinary jurisdiction of this Court by filing the writ petitions seeking a direction upon the respondent authorities to fix their family pension treating the services of the deceased employees with effect from the date of their initial appointment in view of the judgment of the learned Full Bench of this Court in the case of Braj Kishore Singh & Ors. Vs. The State of Bihar & Ors. , reported in 1997 (1) PLJR 509 and other orders/judgments passed in relation to similarly situated persons.

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For appreciation of the issue, a short summary of

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facts of both the matters are being placed hereunder:

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Ref.: C.W.J.C. No. 4896 of 2023

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The husband of the petitioner was duly appointed under staffing pattern as Class-IV employee on 06.08.1985. The aforesaid appointment has accorded approval of Vice-chancellor of University vide Memo No. B/4377 dated 06.09.1995. The University vide Memo No. B/29 dated 22.02.1995 regularized the services of 35 Class-IV employees in accordance with their seniority in the gradation list and remuneration of rest employees was enhanced. The decision has also been taken to pay the enhanced remuneration at the rate of 975 per month, till the availability of vacancy.

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The Government of Bihar in the Department of Human Resources Development, in the meantime, vide Memo no. 189 dated 10.05.1991 directed the Universities to regularize the services of those employees, who appointed prior to 10.05.1986 under staffing pattern. In case, the posts are not available, the same will be filled up from future vacancies. It is also made clear that those, who are appointed after 10.06.1986, their services shall be terminated.

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Subsequent thereto, the University vide Memo No. B/2338 dated 31.07.1996 enhanced the further remuneration

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of the husband of the petitioner to Rs.1230/- per month. A gradation list of left over employees was also prepared, in which the name of petitioners’ husband was found placed at serial no. 94. Awaiting regularization, the University took a further decision vide Memo no. B/1699 dated 24.06.2004 (Annexure-6) that they would get prescribed scale with allowances till their regularization. The University has further taken a decision to count the services of all the Class-III and IV employees with effect from the date of their initial appointment for the purposes of payment of pension and other terminal dues; a notification in this regard was issued vide Memo No. B/442 dated 25.04.2006, the copy of which marked as Annexure-7 to this application.

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Finally, the services of the husband of the petitioner came to be regularized vide Memo No. B/942-68 dated 01.03.2011 along with other employees (Annexure-8 to the writ petition). While the husband of the petitioner was working, he died on 03.05.2017. However, treating the services from 01.03.2011, the petitioner has neither been paid family pension nor the terminal dues. The petitioner approached before all the respondent authorities of the State as well as University for counting the services of her husband from the initial date of appointment i.e. 06.08.1985 and ensure payment of family

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pension and other terminal dues, but has not been responded to, left with no option, the petitioner moved before this Court.

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Ref.: C.W.J.C. No. 13586 of 2023

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The husband of the petitioner, namely, Dilip Jha, was appointed as Class-IV employee on 22.03.1985, after getting proper approval of the Vice-chancellor of the University vide Memo No. 1698 dated 22.03.1985. The other facts of the present case is similar to that of C.W.J.C. No. 4896 of 2023 and, as such, the same is not being reproduced herein again for the sake of brevity.

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The name of the husband of the petitioner was found place at serial no. 85 in the gradation list of left over employees, issued vide notification contained in Memo No. B/675 dated 02.03.1998. Finally, the services of the husband of the petitioner came to be regularized vide Memo No. B/942-68 dated 01.03.2011 along with other employees. While the husband of the petitioner was working, he died in harness on 07.01.2019, however, his services has been counted from the date of his regularization i.e. 01.03.2011, resultantly, the petitioner has not been accorded the family pension and the other terminal dues. Despite the request and representation, when the claim of the petitioner has not been acceded to, the

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petitioner moved this Court by filing the present writ petition.

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While pressing the writ petitions, learned Advocate for the petitioners have submitted that admittedly the husband of the petitioners in both the writ petitions were appointed much before the cut off date on 10.05.1986. From the list of the employees of Class-IV, services of 35 employees were regularized vide Memo No. B/29 dated 22.02.1995. It was made clear that the services of the rest of the employees would be regularized in future, in case of availability of vacancy, as per the staffing pattern.

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Learned Advocate for the petitioners drew the attention of this Court to the decision of the State Government, as reflected from resolution contained in Memo no. 989 dated 10.05.1991 (Annexure-A to the supplementary counter affidavit). Referring to Clause-4(VI) of the said letter, it is submitted that in case appointment was made prior to 10.05.1986 and vacancy is not available, they would be regularized against future vacancies. The gradation list published by the University clearly shows the name of the husbands’ of the petitioners at serial nos. 94 and 85 respectively. The Vice-chancellor of the University has taken a conscious decision vide Memo No. B/442 dated 25.02.2006 that the

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service of Class-III & IV employees, whose services were regularized on subsequent dates be counted with effect from the date of their initial appointment for the purposes of pensionery benefits. Once the services of the deceased employees were regularized vide office order as contained in Memo No. B/94268 dated 01.03.2011 in compliance of the order of the State Government, Human Resources Development Department vide Memo no. 989 dated 10.05.1991 by accepting the position that they are appointees prior to 10.05.1986, there was no reason or occasion not to give the benefit of their past services with effect from the date of their appointment for the purposes of pensionery benefits and terminal dues.

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Learned Advocate for the petitioners has placed heavy reliance on a judgment rendered by the Full Bench of this Court in the case of Braj Kishore Singh (supra) that with respect to staffing pattern and counting the past services has been set at rest. Reliance has also been placed on a judgment in a case where some of the employees, in identical situation, have not been accorded the benefit of their past services for granting relief of pensionary benefits, they approached this Court in C.W.J.C. No. 6476 of 2013 and this Court vide order dated 25.07.2016 held that the period with effect from initial

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appointment is being counted for the purposes of payment of pensionary benefits for the petitioners of the aforenoted writ petition. On being aggrieved by the part of the order dated 25.07.2016 with respect to grant of salary, the writ petitioneremployee preferred LPA No. 1657 of 2016, but the same came to be dismissed on 03.01.2018.

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Suffice it to say that the petitioners of the aforesaid writ petitions have been granted the pensionary benefits by taking into consideration their past services with effect from the date of their appointment.

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Mr. Shashi Bhushan Singh, learned Advocate for the petitioners also placed reliance of the order of this Court dated 20.12.2022 passed in C.W.J.C. No. 5523 of 2021; the petitioner of the said case has also been allowed the benefit of his past services from the initial date of their appointment for the purpose of computation of pensionary benefits. The case of the petitioners are identical to the case of Ved Prakash Singh (C.W.J.C. No. 5523 of 2021), who was also appointed in the same manner like the husbands of the petitioners, prior to 10.05.1986 and his name also stands in the gradation list at serial no. 93 in Memo no. B/675 dated 02.03.1998 (Annexure-4 to the writ petition). The services of Shri Ved Prakash Singh was

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Patna High Court CWJC No.4986 of 2023 dt. 06-08-2024 9/19

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also regularized along with the deceased employees vide Memo No. B/942-68 dated 01.03.2011. However, discrimination has caused and Shri Ved Prakash Singh has been accorded all the benefits of post retiral benefits by treating his service from the date of their initial appointment, but in the case of the husbands of the petitioners, their claim has not been accepted.

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It is to be noted that taking note of the aforesaid submissions of the learned Advocate for the petitioners, this Court vide order dated 30.10.2023 directed the Director, Higher Education, Government of Bihar to consider the claim of the petitioner in C.W.J.C. No. 4986 of 2023. However, the claim of the husband of the petitioner has negated vide order dated 01.01.2024.

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Aggrieved, the petitioner filed interlocutory application, bearing I.A. No. 1 of 2024 in C.W.J.C. No. 4986 of 2023 seeking quashing of Memo No. 14/MU13-410/2023-08 dated 01.01.2024. The aforenoted interlocutory application was allowed on 29.01.2024 and the respondent State authorities had accorded opportunity to file counter affidavit.

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Counter affidavits as well as supplementary counter affidavits have been filed on behalf of respondent State authorities as well as University.

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This Court will firstly take up the contention of the State respondent authorities.

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Learned Advocate for the State urged before this Court that the Government of Bihar in the Department of Human Resources Development (now Education Department) vide its Memo no. 989 dated 10.05.1991 issued certain significant instruction in respect of the Staffing Pattern, which was to be followed by the Universities and other Higher Educational Institutions in the State of Bihar. As per the circular aforenoted only those employees were entitled to be regularized, who were appointed up to 10.05.1986 against the sanctioned vacant post by the competent authorities after following the due process of law.

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It is further contended with all rigor that the said circular was subsequently withdrawn by the State Government vide Memo No. 1881 dated 28.11.1995. Subsequent thereto, in view of the judgment passed in the case of Braj Kishore Singh (supra), the government vide its letter no. 1820 dated 17.11.1998 directed the Universities to consider the regularization of the services under the staffing pattern of those employees only, who fulfill the certain criteria.

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Adverting to the aforesaid facts, learned

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Government Advocate, thus submitted that despite the withdrawal of Memo No. 989 dated 10.05.1991 way back in the year 1995 itself, the University vide its office order, as contained in Memo No. B/942-68 dated 01.03.2011 regularized the services of the employees, including the husbands of the petitioners relying on Memo No. 989 dated 10.05.1991 and by completely ignoring the letter no. 1820 dated 17.11.1998. It is also the contention of the State that the judgment in the case of Braj Kishore Singh (supra) is not applicable in the case of the petitioners, as it is the fact that the husband of the petitioners were not engaged even on admissible post under the staffing pattern and thus regularization of their services were in teeth of letter no. 1820 dated 17.11.1998, which was meant for regularization of teaching employees appointed under staffing pattern only.

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Now this Court will take up the stand of the University. The learned Advocate for the University referring to the counter affidavit as well as supplementary counter affidavit filed on behalf of respondent nos. 4 to 6 categorically submitted that admittedly the husbands of the petitioners were appointed prior to the cut off date i.e. on 10.05.1986. At first instance only the service of 35 Class-IV employees were regularized taking

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into account their seniority in the gradation list. The remuneration of rest of the employees was enhanced in the minimum pay scale on the basis of equal pay for equal work and decided to pay till their reguarization against the future vacancies. The University also admitted that the Vice-chancellor of the University has taken a decision for counting continuous service of employees (Class-III & IV) from the date of their initial joining on their respective posts prior to their regularization for the purposes of pensionary benefits. It is also admitted that the case of the husbands of the petitioners are similar to Ved Prakash Singh, whose services was also regularized along with the husbands of the petitioners.

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This Court has given anxious consideration to the submissions made on behalf of the respective parties and carefully perused the materials available on record.

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It is admitted position that the husbands of the petitioners were appointed before the cut off date i.e. 10.05.1986. A gradation list of Class IV employees was prepared and as per the seniority of the employees, the services of 35 of them have been regularized and the others have been allowed to continue under the minimum scale of pay on the basis of equal pay for equal work, till their reguarlization is

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made against the future vacancies. The Government of Bihar in the Department of Human Resources Development has directed the Universities and other Educational Institution to ensure the regularization of the services of those employees, who were appointed prior to 10.05.1986 vide Memo no. 989 dated 10.05.1991. In view of the admitted position that the husbands of the petitioners were appointed much before the cut off date on 10.05.1986 and continuously serving the Colleges/University under different capacity, the Memo No.989 issued by the State Government would certainly govern the case of the husbands of the petitioners. Only because of the fact that on account of unavailability of posts, the persons, who were senior to the deceased employees, whose services were regularized at first instance in the year 1995, the case of the petitioners’ husbands and similarly situated persons cannot be differentiated from those of 35 persons. The case of the petitioners’ husbands and similarly situated persons were identical to those of 35 persons, whose cases of regularization were duly considered in the light of the decision of the State Government, as contained in Memo no. 989 dated 10.05.1991. Thus, the right was vested to those left over employees, including the husbands of the petitioners, whose services could not be regularized because of non-

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availability of posts to get the equal treatment. Taking note of the apparent prejudice caused to the left over employees, whose services could not be regularized at first instance, the Vicechancellor of the University vide its notification contained in Memo No. B/442 dated 25.02.2006 has taken a conscious decision to count the services of Class-III & IV employees from the date of their initial appointment for the purposes of pensionary benefits and other terminal benefits.

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The term ‘regularization’ always connotes to make the irregular service regularized. In no stretch of imagination, the regularization can be equated with the fresh appointment unless the order of regularization makes it clear or the regularized employees lack necessary eligibility criteria of regularization/appointment prior to the date of its regularization.

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The Hon’ble Supreme Court in Meera Massey Vs. Dr. S.R. Mehrotra, (1998) 3 SCC 88 held that regularization means, one which is already working, doing or has done something which law did not permit but the same is being regularized, treated to be done in accordance with law, treat as one of such.

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It is to be noted that the services of the petitioners’ husbands were came to be regularized in the year

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2011 itself and now the manner or legality of the regularization cannot be questioned that too after the death of the erstwhile employees.

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Learned Coordinate Bench of this Court in the case of Ramjee Paswan & Ors. Vs. The Baba Saheb Bhim Rao Ambedkar University & Ors. (CWJC No. 6476 of 2013) after taking note of Full Bench decision of this Court in the case of Braj Kishore Singh (supra) held that it will be travesty of justice to ignore the period they have discharged in service for the purpose of pensionary benefits. The learned Single Judge while allowing the writ petition also highlighted the ratio of the judgment of the Hon’ble Supreme Court in the case of Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra ( AIR 1990 SC 1607 ) wherein the Constitution Bench of the Hon’ble Supreme Court has held that where initial appointment is not made according to the rules but the appointee continues in service uninterruptedly for long period till regularisation of his service, the entire period as the period spent in service for the purpose of consequential benefits will be counted.

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It would not be out of place to observe that the issue with regard to the staffing pattern and counting of the past

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services was under consideration before the Full Bench of this Court in the case of Braj Kishore Singh (supra). The learned Full Bench of this Court has in no uncertain term held that once staffing pattern is prescribed/laid down it would be unreasonable to insist on prior approval of the State Government in the matter of creation of posts within the framework of the staffing pattern. And so far as the question of approval of the appointment made against those posts is concerned, if the power of the State Government to scrutinize the eligibility or suitability of the candidates appointed or proposed to be appointed or the validity of the selection process is reserved to it, the State Government can, even after the appointments have been made, decide not to approve them. It is open to the State Government to consider the validity of appointments already made for the purpose of granting or refusing past facto approval.

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The Full Bench of this Court making reliance on the verdict of the Constitution Bench of the Hon’ble Supreme Court in the case of Direct Recruit Class II Engineering Officers Association (supra) held that the appellants are entitled to have their services regularised against the posts within the staffing pattern as applicable to the College.

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The regularization of the husbands of the petitioners in the year 2011 had accorded the sanction of the State Government taking into consideration that their initial appointments were much before the cut off date on 10.05.1986.

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The gradation list of the employees brought on record and payment of uninterrupted remuneration in the minimum scale of pay under the policy of equal pay for equal work and the clear stipulation in the letters dated 22.02.1995 and 24.06.2004 that left over employees shall be regularized against future vacancies, speaks loud that the deceased employees were working under the staffing pattern. The aforesaid fact has never been denied by the University and for the first time when this Court directed to consider the claim of the petitioner’s husband in C.W.J.C. No. 4896 of 2023, the respondent State authorities have taken a stand that the petitioners’ husbands were not working against the staffing pattern without there being any material and thus not acceptable.

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The respondent State has further failed to differentiate the case of the husbands of the petitioners with that of Ved Prakash Singh, whose services was also regularized along with the services of the husbands of the petitioners and surprisingly when he approached before this Court for identical

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reliefs in C.W.J.C. No. 5523 of 2021, he has been accorded all the pensionary benefits by taking into account his past services rendered prior to his regularization, but an unfortunate discrimination has been caused without there being any justiciable reason.

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Discrimination means an unjust, unfair action in favour of one and against another. It involves and element of intentional and purposeful differentiation and further an element of unfavourable bias; an unfair classification. Trite it is that Article 14 of the Constitution of India ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment.

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The aforenoted facts demonstrate a glaring picture of inequality; this Court at the out set deprecate the action of the State respondents, who are bound to act in consonance with the law, but unfortunately different orders are being passed with respect to identically situated persons compelling them to approach before this Court.

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The Hon’ble Supreme Court in B alram Gupta Vs. Union of India, 1987 (Supp) SCC 228 had observed thus: “as a model employer the Government must conduct itself with high probity and candour with its employees.”

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In view of the facts, circumstances and the position obtaining in law, this Court set aside the order of the Director, Higher Education, Government of Bihar, as contained in Memo No. 08 dated 01.01.2024 and direct the respondents to ensure fixation of family pension and other terminal dues of the petitioners by treating the services of the husbands of the petitioner-deceased employees from their respective date of initial appointment as has been done in case of other similarly situated persons, as noted hereinbefore. After fixation of family pension and other terminal benefits, the consequential order of payment must be passed preferably within a period of 12 weeks from the date of receipt/production of a copy of this order.

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The writ petitions stand allowed.

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The respondent State authorities are also directed to pay litigation cost of Rs.10,000/- to each of the petitioners.

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(Harish Kumar, J)

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uday/-

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AFR/NAFR	NAFR
CAV DATE	15.07.2024
Uploading Date	09.08.2024
Transmission Date	NA

Pinki Devi v. The State of Bihar

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Pinki Devi v. The State of Bihar

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