Order Holding Regularisation Of Service Illegal 5 Yrs After Retirement Was Unjustified: Patna HC Provides Relief To Padmabhushan Singer Sharda Sinha

Justice Harish Kumar while allowing two writ petitions filed by Sinha and another LNMU professor, Dr. Uday Kant Mishra, observed, “If an employee has been accorded all the benefits of a regular employee, viz, regular salary in the prescribed pay- scale, increment, promotion leading to regularization and unconditional superannuation with all the retiral benefits, he is obviously a regular holder of the post.”

“If their services is to be terminated or regularization is to be cancelled, State Government should have resorted to statutory rules and regulation, applicable to them. Thus, once a right has been created or vested in favour of the petitioners, that cannot be divested unilaterally, in such a casual and cavalier manner without giving any show cause notice or proper opportunity of hearing,” Justice Kumar added.

The petitioners sought quashing of the letter no. 249 dated 07.02.2022 issued by the Education Department, Bihar, Patna (respondent no.4) whereby the Pay Verification Cell duly constituted by the State Government had withheld the pay slip of the petitioner, relying upon which the university stopped the payment of monthly pension as well as other legitimate terminal dues, including salary difference of the petitioners.

Notably, the Director, Higher Education, Govt. of Bihar, New Secretariat (respondent no.3) came out with an order as contained in Memo No. 594 dated 20.02.2023 by which the service of the petitioners was held illegal.

The petitioners, being aggrieved by the Memo preferred the present writ petition, seeking quashing of the same.

The petitioner also sought quashing of the letter contained in Memo No. SC/45/23 dated 22.02.2023, whereby she was informed that in the light of the aforenoted order dated 20.02.2023 issued by the Education Department, Patna, no benefit shall be given to her with immediate effect.

Sinha was appointed as a Lecturer in the Music Department at Women's College, Samastipur, in 1977. In 1982, the State Government sanctioned a second lecturer post in Maithali, Music, Urdu, and Sociology at Mahila College, Samastipur. Sinha's lecturer post was duly approved.

Although her absorption under the 3rd Absorption Statute was considered by the Chancellor, only some teachers were absorbed, leaving Sinha and 12 others pending. In 2016, the University directed the Principal of Women's College to provide information about Sinha. The Principal, in response, recommended Sinha's service regularization as she had been working as an Assistant Professor for several decades.

Following the recommendation, the Post Creation, Absorption, and Confirmation Committee, approved by the Syndicate and the Chancellor, regularized Sinha's services as an Assistant Professor in the Department of Music at Women's College, Samastipur. Subsequently, she received time-bound promotions to Reader from September 15, 1992. Sinha was further promoted to Reader, and her pay scale was revised until her superannuation in 2017.

After retirement, Sinha submitted that she had received regular pension payments for five years, however, unexpectedly, on February 20, 2023, the Director of Higher Education, Government of Bihar, issued the impugned order, withholding the petitioner's payslip and stopping her salary.

The Court in its verdict, placed reliance on the case of Secretary, State of Karnataka and Others v. Uma Devi (2006) and observed that the process must be set in motion within six months from the date of the judgment and further clarified that regularization, if any already made, but not sub judice, need not be reopened.

The Court asserted, “Thus, in view of the mandate of the Constitution Bench, it was incumbent upon the respondent authorities to consider the claim of the petitioners for their regularization, who have been uninterruptedly discharging their duties to their respective post(s) in the Colleges for more than several decades.”

“This Court has also perused the affidavits filed on behalf of the respondent/University as well as the State. However, it has not been found even a whisper that the case of the petitioners are different from those, who were appointed pursuant to the direction of the Hon'ble Court that their cases be considered in the light of the judgment rendered in the case of Secretary, State of Karnataka and Others (supra) , especially in para-44 of the judgment,” it added.

The Court observed that the impugned order holding the regularization of the petitioners to be illegal after five years of their retirement, when there was obvious severance of employer and employee relationship, was not justified under any law, especially when the same was passed without there being any proceeding or in compliance of the principles of natural justice.

The Court emphasized, “It is a trite law that no person can be condemned unheard. Any order causing prejudice to the right and entitlement, leading to civil and evil consequences must be in consonance with the principles of natural justice.”

Accordingly, the pleas were allowed.

Case No.: Civil Writ Jurisdiction Case No.9131 of 2022

Case Title: Dr. Uday Chandra Mishra vs. The State of Bihar

LL Citation: 2024 LiveLaw (Pat) 13

Click here to Read/ Download Judgment