Appointment Issue Can’t Be Raised After Employee’s Retirement Or Death When No Objection Was Raised During Service Period: Jharkhand HC

The Jharkhand High Court reiterated that an issue of appointment cannot be raised after the death or retirement of the employee when no objection was raised during his/her service period.

The Court was dealing with a writ application preferred by a 75-year-old retired employee seeking for quashing of the memo issued by the Director, Higher Education, Human Resources Development, Government of Jharkhand, by which his claim for fixation of his 5th and 6th pay-scale was rejected.

A Single Bench of Justice Deepak Roshan observed, “Moreover during the entire service period of the petitioner, the respondent state has never raised any objection with regard to the appointment of the petitioner and it was only raised at the time of approval of pay fixation of the petitioner which is after a lapse of almost 13 years of his retirement which is not justified in the eyes of law and also the same issue has been set at rest by the Co-ordinate bench of this Court in the case of Ratni Oraon (supra) which has been upheld up to the Hon’ble Apex Court in S.L.P.(C) No. 24661 of 2016, wherein it has been held that when during the entire service period of an employee no objection with regard to the appointment was raised; then it is not open for the respondent to raise the issue of appointment after his retirement/death.”

Advocate Subham Mishra represented the petitioner while AC Divyam represented the respondents.

Brief Facts -

The petitioner sought a direction upon the respondent-authorities to fix his pension in the revised scale and accordingly, pay the difference of arrears amount accrued on account of such revision. The petitioner was appointed on the post of Typist by the Governing Body of S.P. College, Dumka in 1975. After working for about 31 years, he superannuated from his service in 2006 and his pay was fixed on the basis of 4th pay revision and since then, he was getting the same pay-scale. The State Government revised the pay-scale of the teaching and non-teaching staffs of constituent colleges and the petitioner’s pay was revised by the Principal of the college and sent for approval.

However, the department did not include the name of the petitioner in the approved pay fixation chart and consequently his salary and his pension was not revised. Hence, he knocked the doors of the High Court whereby his writ petition was disposed of by directing the authorities to take a decision on the petitioner’ representation. Thereafter, the respondent university after fixing the pay fixation of the petitioner, sent the same for approval before the State and the State passed a reasoned order by rejecting the claim for pay fixation of the petitioner. Being aggrieved, the petitioner filed an application.

The High Court in view of the above facts, noted, “As a matter of fact, the University in its pay fixation chart has already mentioned about the fact that since no post of typist was available in the said college therefore, the petitioner was adjusted on a sanctioned vacant post of Library Assistant through a resolution in the same college wherein the petitioner was working and therefore, the action of the respondent state in rejecting the claim of the petitioner is not tenable as it does not comes under the ambit of the report of Justice S.B. Sinha Commission as it is not the case where an employee has been adjusted in a different college in a different subject; rather in the present case the petitioner has been adjusted in the same college and on a sanctioned vacant post.”

The Court further noted that the petitioner was appointed in the year 1975 by the Governing body of the College and in view of Annexure-8 which has been relied upon by the petitioner it was declared that all the appointment made prior to 1976 shall be deemed to be on sanctioned post and since the petitioner was admittedly appointed prior to 1976; therefore, the appointment of the petitioner should not have been questioned.

The Court, therefore, directed the University to take steps after receiving approval with regard to revision of pension and gratuity of the petitioner and to release all arrears with regard to petitioner pursuant to such revision of the pay. It said that the entire exercise shall be completed by the University within a period of 12 weeks from the date of receipt the order by the State Government.

Accordingly, the High Court allowed the application, quashed the impugned order, and directed the State to approve the pay fixation of the petitioner as sent by the University within six weeks.

Cause Title- Phul Chandra Thakur v. The State of Jharkhand & Ors.

Appearance:

Petitioner: Advocates Subham Mishra and Kumar Pawan.

Respondents: AC Divyam and Advocate Ashok Kr. Singh.

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