Objections Regarding Employee's Appointment Can't Be Raised Post-Retirement, If Not Raised During Service: Jharkhand High Court
A single judge bench of the Jharkhand High Court comprising of Justice Deepak Roshan, while deciding a writ petition, held that objections regarding an employee's appointment cannot be raised post-retirement if no such objections were made during the employee's service period.
Background Facts
The employee was appointed as a typist by the Governing Body of S.P. College, Dumka, on August 1, 1975. He worked continuously in the college for 31 years before retiring on December 31, 2006. During his service, he was adjusted to the post of Library Assistant through a resolution of the college as there was no sanctioned post for a typist. The employee's pay was initially fixed in accordance with the 4th Pay Revision, effective from April 1, 1981, and he continued to receive his salary based on that scale until his retirement.
The government of Jharkhand revised the pay scales for teaching and non-teaching staff in constituent colleges in accordance with the 5th and 6th Pay Commission recommendations, effective from January 1, 1996, and January 1, 2006, respectively. The employee's pay revision for these periods was recommended by the college and forwarded to the Department of Higher Education for approval.
Despite the recommendation, the Department of Higher Education did not include the employee's name in the approved pay fixation chart. As a result, the employee's salary and pension were not revised according to the 5th and 6th Pay Commissions, and he continued to receive his pension based on the outdated 4th Pay Commission scale.
The employee previously approached the High Court of Jharkhand by filing W.P.(S) No. 1786 of 2015, seeking a decision on his pay fixation claim. The court directed the respondent authorities to take a decision on his representation. In response, the university forwarded the employee's revised pay fixation to the state government, but the state rejected it through Memo No. 904 dated May 3, 2019, citing the absence of a sanctioned post for the employee's appointment.
Dissatisfied with the rejection of his pay fixation and pension revision, the employee filed the writ petition (W.P.(S) No. 5240 of 2021), challenging the memo issued by the state government and seeking the revised pay scale benefits and arrears.
It was contended by the employee that his appointment should not have been questioned by the state, especially after his retirement. It was argued by the employee that he was entitled to the benefits of the 5th and 6th Pay Commissions, which were applicable to non-teaching staff in constituent colleges from January 1, 1996, and January 1, 2006, respectively.
The employee referred to a resolution (Annexure-8) which stated that all appointments made prior to 1976 in constituent colleges should be deemed to be on sanctioned posts. Since he was appointed in 1975, he argued that his appointment should be considered valid.
On the other hand it was argued by the respondent state that the employee's initial appointment as a typist in S.P. College, Dumka, was made by the Governing Body of the college, but the post of typist was never sanctioned by the state government. As such, the employee's appointment could not be regularized.
It was further submitted that at the time of the bifurcation of Bhagalpur University (under which S.P. College, Dumka, originally fell), the list of sanctioned posts provided by Bhagalpur University did not include the post of typist. Thus, the employee's appointment was never part of the sanctioned positions at the college.
Findings of the Court
It was observed by the court that even though the post of typist was not sanctioned, the university had adjusted him to a vacant, sanctioned post of Library Assistant through a resolution. This adjustment was made within the same college where the employee had been working, not in a different institution or subject. The court found this adjustment to be valid and within the powers of the university.
It was held by the court that raising any objections after the employee's retirement (13 years after his superannuation) was unjust and legally untenable. This finding was supported by the precedent set in Ratni Oraon v. State of Jharkhand, where the court ruled that objections regarding an employee's appointment cannot be raised post-retirement if no such objections were made during the employee's service.
The Annexure-8 was referred to by the court, which stated that all appointments made prior to 1976 would be deemed to be on sanctioned posts. Since the employee was appointed in 1975, his appointment was deemed to be on a sanctioned post. It was observed that the employee's appointment should not have been questioned, especially considering the passage of time and the clear resolution made regarding appointments before 1976.
It was found by the court that the state's rejection of the employee's pay fixation on the grounds of a non-sanctioned typist post was not justified. The university had already recommended the employee's pay fixation based on his adjusted post of Library Assistant.
Based on the above findings, the court quashed the impugned order (Memo No. 904 dated May 3, 2019) and directed the state to approve the employee's pay fixation as recommended by the university. The state was given six weeks to approve the pay fixation, and the university was directed to revise the employee's pension and release arrears within 12 weeks of the state's approval.
With the aforesaid observations, the writ petition was allowed. It was held by the court that the employee was entitled to the benefits of the 5th and 6th Pay Commissions.
Case No. : W.P.(S) No.5240 of 2021
Counsel for the Petitioner : Subham Mishra, Adv. & Kumar Pawan, Adv.
Counsel for the Respondents : Divyam, AC to SC-IV