1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 578 of 2015 1. State of Jharkhand through its Secretary, Department of Industries, Government of Jharkhand, Nepal House, Doranda, Ranchi 2. The Director, Department of Industries, Government of Jharkhand, Nepal House, Ranchi 3. General Manager, District Industries Centre, Ratu Road, POGPO, PSSukhdeonagar, Ranchi ... … Appellants Versus 1. Ram Anugrah Pandey, S/o Late Trijugi Pandey, R/o Debi Mandap Road, Ratu Road, Hehal, Sukhdeonagar, Ranchi 2. The Secretary, Finance Department, Government of Jharkhand, Project Bhawan, HEC, Dhurwa, Jagarnathpur, Ranchi ... ... Respondents For the Appellants : Mr. Abhay Prakash, J.C. to G.A. For the Respondents : Mr. Indrajit Sinha, Advocate Mr. Suraj singh, Advocate Mr. Amitabh Prasad, Advocate Mr. Arpan Mishra, Advocate CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR th 06/Dated: 10 May, 2016 Per, Virender Singh, C.J.
For no fault of the respondentwrit petitioner, when a part of the retiral benefits was not paid to him, compelled to approach the Writ Court in W.P.(S) No. 675 of 2014 which was disposed of vide order dated 24.03.2014 with a direction to the appellant no.3General Manager, District Industries Centre, Ranchi to take a decision in the matter within twelve weeks. However, when the representation submitted by the respondent was not 2 decided as directed by the Writ Court, the respondent initiated Contempt (Civil) Case No. 601 of 2014 which invited the wrath of the Deputy Director, Industries who passed order dated 29.05.2014 and the General Manager, District Industries Centre who passed order dated 03.06.2014 whereby, the benefits under 1st and 2nd ACP as well as 3rd MACP granted to the respondent was withdrawn and order dated 06.08.2005 whereby, the respondent's service was confirmed was withdrawn with a further direction for recovery of excess amount paid to the respondent. Aggrieved thereof, the respondentwrit petitioner knocked the door of this Court by filing W.P.(S) No. 1855 of 2015 which now stands allowed vide order dated 04.08.2015. 2. Heard the learned counsel for the parties and perused the documents on record. 3. Mr. Abhay Prakash, the learned counsel for the appellantState of Jharkhand contends that the initial appointment of the respondent was made by an incompetent officer and the appointment was liable to be terminated once the original appointee namely, Bhoj Deogam returned after leave and thus, continuance of the respondent in service was illegal. Reiterating the stand taken before the Writ Court, the learned counsel submits that an employee who continued in service illegally cannot seek postretirement benefits. 4. Per contra, Mr. Indrajit Sinha, the learned counsel for the 3 respondentwrit petitioner submits that the respondent's service was approved and confirmed in accordance with law and benefits under ACP/MACP were extended to him strictly in terms of extant rules/circular. It is contended that during the entire service tenure of the respondentwrit petitioner, the State never questioned the legality of appointment of the respondent however, the appellant no. 3General Manager who is not competent to recall/review the orders passed by the competent authorities has unsettled the settled position. 5. The facts disclosed in the present proceeding indicate that the respondent was appointed on the vacant post of typist on 08.02.1975 and the Additional Director, Industries, Ranchi granted approval to the appointment of the respondent on 10.12.1975. This fact completely demolishes the plea taken by the State that the respondent's appointment was against a leave vacancy which could not have been continued after the original appointee returned from leave. The learned Writ Court referred to the delegation of power of appointment to Additional/Joint Deputy Director, Industries/Incharge of Regional Office at Ranchi, Patna, Muzaffarpur and Bhagalpur for appointment against sanctioned post of which the salary does not exceed Rs. 450/ per month and concluded that the respondent's appointment was made by a competent authority. It is not in dispute that the respondent's salary, as reflected in the appointment letter dated 4 08.02.1975, was fixed in the payscale of Rs. 2204240 EB5290 EB5315 with allowances sanctioned from time to time which was less than Rs. 450/ at the time of appointment. It is pertinent to note that order dated 28.06.1978 under which the employees working under different District Industries Office, on constitution of District Industries Centre by the Industries Department, were transferred bears the name of the respondent at Sl. No. 19 and thereafter, the respondent was granted 1st timebond promotion which was confirmed by the order of the Additional Director, Industries w.e.f. 08.02.1985. 6. It is also not in dispute that vide order dated 06.08.2005 issued by the Director, Industries services of several employees including the respondent were confirmed. Not only that, the respondent has been granted benefits of 1 st and 2nd ACP w.e.f. 09.08.1999, on the recommendation of the Screening Committee. However, ignoring the orders passed by the competent authorities the General Manager passed the impugned order dated 03.06.2014 recalling the order of confirmation of the respondent's service dated 26.08.2005 which is an order passed by the Director, Department of Industries which the General Manager being the junior officer in hierarchy could not have recalled. 7. On a reading of the order passed by the appellant no. 3 what strikes the mind is the fact that the General Manager while recording that the respondent's appointment was against a leave 5 vacancy which should not have been continued after return of the original employee namely, Bhoj Deogam, has failed to record a finding that the respondent continued in service on a post which was not sanctioned. On the contrary, order dated 10.12.1975 discloses that the respondent's appointment on the vacant post of typist was approved by the Additional Director, Department of Industries. In the counteraffidavit filed by the respondents before the Writ Court no allegation of fraud or misrepresentation or any kind of misconduct has been imputed to the respondentwrit petitioner. The respondent superannuated from service after rendering more than 38 years of service on 31.08.2013 and he was paid the postretiral benefits of GPF and Group Insurance and his provisional pension @ Rs 11,970/ per month was also fixed by the authority. 8. In the aforesaid facts, by no stretch of imagination the appointment of the respondent can be said to be illegal or irregular. The order of confirmation of the service and grant of benefits under ACP/MACP are not illegal orders which by a stroke of pen the appellant no. 3General Manager could have wiped out. The sad part of the story is that the appellant no. 3General Manager who in his order dated 03.06.2014 referred to the decisions in “State of Karnataka Vs. Umadevi” (2006) 4 SCC 1 and “State of Karnataka Vs. M. L. Keshari and Others” (2010) 9 SCC 247, seems to have completely forgotten the constitutional 6 obligation of the State to pay postretiral benefits to an employee in terms of the extant rules/circular. What has been held by the Hon’ble Supreme Court in “Deokinandan Prasad Vs. State of Bihar & Others” (1971) 2 SCC 330 by which the debate on the nature of pension; whether it is purely gratuitous or a reward for past services was finally settled, has been ignored by the appellant no. 3General Manager with impunity. It needs no reiteration that denial of pension to an employee has been held violative of Article 21 of the Constitution of India [“S.K. Mastan Bee Vs. General Manager, South Central Railways & Another” (2003) 1 SCC 184]. At this juncture, on the philosophy of pension the observation of the Hon’ble Supreme Court in “D.S. Nakara & Others Vs. Union of India” (1983)1 SCC 305 is reproduced; “It is a social welfare measure rendering socioeconomic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.” 9. After noticing the milestones in the service career of the respondentwrit petitioner, the learned Single Judge has succinctly discussed the issue as under :
6. “.... Facts have consciously been noticed in some detail to show that at no point of time, respondents questioned the legality of the petitioner's original appointment. They in fact, proceeded to grant approval to the appointment of the petitioner in December 1975 7 and granted first time bound promotion with effect from 08.02.1985 by an order of 1994. The services of the petitioner were also confirmed along with several others by the Director, Industries himself in 2005. On the recommendation of the Screening Committee, the respondents also confirmed grant of ACP to the petitioner after completion of 12/24 years of his service with effect from 08.02.1999. In these background facts therefore, the stand taken by the respondents to cancel the orders of confirmation and grant of ACP / MACP and render the original appointment of the petitioner itself illegal, does not have any legal basis. Such a course was wholly unwarranted on the part of the Respondent No. 4 based upon a communication of the Deputy Director, Industries who completely overlooked that an order of confirmation of the petitioner's service was issued by the Director himself. Therefore, the basis for issuance of impugned order by Respondent No. 4 and the letter of Deputy Director, Industries dated 29.06.2015 is also bad in law in the light of the orders of confirmation granted by the Director, Industries himself in respect of the petitioner and few other employees of District Industries Centre in 2005. Respondents have shown no mercy while computing the amount for recovery by calculating salary, emoluments and allowances granted to him from the date of creation of the State i.e. 15.11.2000 by Annexure10 dated 19.09.2014, though undisputedly he has discharged his duties for the said period. This obviously is based upon the impugned decision at Annexure9 to the writ petition. By no stretch of logic or reasoning or legal authority, such a course can be sustained in the eye of law.” 8 10. Having carefully gone through the materials produced in the present proceeding, we are of the considered opinion that order dated 04.08.2015 in W.P.(S) No. 1855 of 2015 does not suffer from any infirmity in law and the instant Letters Patent Appeal does not deserve admission. 11. In the light of the discussions made hereinabove, we are constrained to record that the respondent has been unnecessarily dragged to a series of litigations. As noticed above, the respondentwrit petitioner approached this Court in W.P.(S) No. 675 of 2014 seeking a direction for fixation of final pension, payment of gratuity, commutation of pension and leave encashment etc. When the direction of this Court was not complied, he was constrained to file Contempt (Civil) Case No. 601 of 2014 and after the order dated 19.09.2014 was passed by the General Manager, District Industries Centre, Ranchi, he was compelled to approach this Court once again. Not only that, for compliance of the order passed by the Writ Court the respondent had to file another contempt case. Still, the appellantState of Jharkhand did not comply the Writ Court's order. The instant Letters Patent Appeal was filed on 29.09.2015 and it remained defective atleast for about two months and it was only after the respondent filed the contempt case, the instant Letters Patent Appeal was prosecuted on 02.05.2016. 12. The State of Jharkhand has framed its Litigation Policy 9 under which it vows to reduce/discourage frivolous litigations however, the chronology of litigation in the instant matter has manifestly made clear that the appellantState has ignored its own policy or the officers at the helm of affairs are just not bothered to adhere to it. Considering the facts and circumstances in the case, we are satisfied that the instant Letters Patent Appeal warrants dismissal with exemplary cost. At this stage, we may hasten to add that it is not the filing of the Letters Patent Appeal which has invited cost upon the appellantState rather, it is the frivolity of litigation and failure on the part of the State to pay retiral benefits to the respondent which has prompted us to award cost, which is quantified at Rs. 20,000/. The cost imposed upon the appellant State may be paid to the respondent within four weeks however, the postretiral benefits to the respondent must be paid within two weeks i.e. on or before 25.05.2016. 13. The final outcome is that the instant Letters Patent Appeal stands dismissed. 14. I.A. No. 5646 of 2015 also stands dismissed. (Virender Singh, C.J.) (Shree Chandrashekhar, J.) Tanuj/ A.F.R.