Jharkhand High Court
Biswanath Das vs The State Of Jharkhand Through The ... on 21 March, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4548 of 2014
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Biswanath Das, Son of Nabakishore Das, Resident of Village- Gaichhand, P.O and P.S.-Jamtara, District-Jamtara.... Petitioner
-Versus-
1. The State of Jharkhand through the Director, Primary Education, Jharkhand, Ranchi, having its office at Project Bhawan, Dhurwa, PO and PS-Dhurwa, District-Ranchi
2. The Deputy Commissioner, Jamtara, PO +PS+District-Jamtara
3. The District Superintendent of Education, Jamtara, PO +PS- +District-Jamtara
4. The Drawing and Disbursing Officer, Dewa, PO + PS and District- Jamtara
5. The Area Education Officer, Jamtara, PO + PS and District- Jamtara
6. The Block Education Extension Officer, Jamtara, PO+PS and District-Jamtara
7. The Accountant General (A&E), Jharkhand, Ranchi, PO +PS- Doranda, District-Ranchi, Jharkhand....... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. Mahesh Tewari, Adv. For the Resp.-State : Mr. Prashat Kumar Singh,G.P-VI
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09/21.03.2018 The petitioner is aggrieved of order dated 22.02.2014 passed by the District Superintendent of Education, Jamtara whereby claim for pension and other retiral benefits to the petitioner has been declined and a decision was taken by the District Establishment Committee to recover salary and other payments to the petitioner during his entire service tenure.
2. Briefly stated, the petitioner was appointed as Assistant Teacher; his appointment was purely temporary and it was only for a period of six months. Upon his appointment he was posted at Middle School, Dakshin Bahal, Jamtara. He claims that he was sent for training and on completion of the training he was appointed on 19.06.1976 in the said school. He has superannuated from service on 31.12.2011. When his post-retiral benefits were not paid to him he approached this Court in W.P.(S) No.1716 of 2013. The writ petition stood disposed 2 of by an order dated 27.09.2013 directing the District Superintendent of Education to pass a reasoned order on the claim of the petitioner. When the writ Court's order was not complied, the petitioner was compelled to prefer Contempt Case (Civil) No.298 of 2014. In the proceeding of the said contempt case it was disclosed that by the impugned order date 22.02.2014 claim for payment of post-retiral benefits and arrears of salary for the period between 01.10.2007 to 04.06.2011 have been declined. This is the order, which has been impugned by the petitioner in the present proceeding.
3. Contending that more than three years after his superannuation from service without initiating a proceeding under Jharkhand Pension Rules,2000, pension and other post-retiral benefits accrued to the petitioner cannot be withheld, Sri Mahesh Tewari, the learned counsel for the petitioner submits that the allegation of continuing in service fraudulently stands falsified from the respondents' own documents. As against the above, reiterating the stand taken in the affidavits filed on behalf of the respondent- State, Sri Prashant Kumar Singh, the learned State counsel submits that the letter of appointment dated 31.05.1976 by which the petitioner was appointed would disclose that he was appointed under Scheduled Caste category though he belongs to the general category and on a false representation continued in service till his superannuation from service on 31.12.2011 and, therefore, the petitioner who has played fraud is not entitled for pension and other post-retiral benefits.
4. At the outset it needs to be indicated that in "State of Jharkhand and Others Vrs. Jitendra Kumar Srivastava and another" reported in (2013) 12 SCC 210, it has been held by the Supreme Court that by an executive order pension and other post-retiral benefits to an employee cannot be withheld. Even in a proceeding initiated under the Jharkhand Pension Rules, 2000 only when a finding is recorded that the employee has committed grave misconduct during his service tenure or in a criminal 3 proceeding he has been found guilty, pension payable to an employee can be withheld or forfeited. Admittedly, in the present case no enquiry was initiated on an allegation of securing appointment through fraudulent means. It would not be out of the context to indicate that pension and gratuity, which forms part of pension under Rule 35 of the Jharkhand Service Code, 2001 are not gratuitous reward to an employee rather, to receive pension is a right earned by the employee and is a right akin to right to property under Article 300-A of the Constitution of India, has long been declared by the Supreme Court in "Deokinandan Prasad Vrs. State of Bihar and Others" reported in (1971) 2 SCC
330. Ignoring the aforesaid mandate of law the respondents, it appears, have embarked upon a course of action which patently is illegal, besides contrary to the law declared by the Supreme Court.
5. Not only that, under Rule 289 of the Jharkhand Service Code, 2001 service book of an employee remains in the custody of the employer. The petitioner has pleaded that in his service book it is recorded that he belongs to 'Vaishnav' community. It is not the case pleaded by the respondents that entry in the service book has been manipulated by the petitioner. All along the petitioner has taken a stand that he was appointed as a general category candidate. The plea that the petitioner has secured appointment under Scheduled Caste category is not corroborated by producing the caste certificate which the petitioner would have produced at the time of his initial appointment on 31.05.1976. In any case, the initial appointment of the petitioner pales into insignificance when it is found that on the basis of the training undergone by him he was again appointed on 19.06.1976; his previous appointment had lapsed (as found in letter dated 05.12.2012). The respondents have not disclosed either the staffing pattern or the total number of teachers in the general as well as the reserved category in Middle School, Dakshin Bahal, Jamtara to assert that appointment of the petitioner on 19.06.1976 was against a Scheduled Caste 4 vacancy and, thus, have failed to establish that he continued in service through fraudulent means. In the enquiry report dated 05.12.2012 Regional Education Officer, Jamtara has found that the petitioner was not appointed under Scheduled Caste category. Also, in the admission register when the petitioner was sent for training there is no such endorsement on caste of the petitioner. Stand of the petitioner in paragraph nos.5 and 10 of the writ petition has not been specifically denied by the respondents by producing indisputable documents. The petitioner who continued in service for more than 35 years, 3 years after his superannuation from service has been alleged to have continued in service by playing fraud. Apparently, the conclusion arrived at by the respondent-authority in the impugned order dated 22.02.2014 cannot be countenance in law.
6. In view of the facts noticed hereinabove and the law on the subject, the impugned order dated 22.02.2014 is quashed. The Secretary, Department of School Education and Literacy, Government of Jharkhand is directed to ensure payment of pension and other post-retiral benefits accrued to the petitioner on his superannuation from service, within 6 weeks. On payment of salary for the period between 01.10.2007 to 04.06.2011, the period during which the petitioner remained under suspension, a decision in terms of Rule 97 of the Jharkhand Service Code, 2001 shall be taken by the competent authority, within 6 weeks, by a reasoned order which shall be communicated to the petitioner within 4 weeks thereafter.
7. The writ petition stands allowed with the aforesaid directions, however, before terminating the present proceeding, it needs to be recorded that the procedure adopted by the respondent-State in filing several affidavits in the writ proceeding must be deprecated. Filing of supplementary affidavit(s) without permission of the Court and without disclosing a reason why complete and 5 correct facts were not disclosed in the first instance must lead to a conclusion that material facts were suppressed by the respondents when the counter-affidavit was filed in the matter. It is not surprising that in none of the cases in which such procedure has been adopted by the respondent- State, no action has been taken against the erring officers. The procedure adopted by the respondents in the writ Court has not only multiplied the litigation in the Court which has led to docket explosion, through such procedure public money is vested without accountability of the respondent-authorities. The Secretary, Department of School Education and Literacy, Government of Jharkhand shall take cognizance of the matter. Proceeding in this writ petition shall be attached with W.P.(S) No.2716 of 2016 when necessary directions in the matters pertaining to pension and on observance of the State's Litigation Policy shall be passed.
(Shree Chandrashekhar, J.) sudhir