Case Background
The petitioner worked as Laboratory Incharge in the Physics Department of K.V.S. College, Uchhaith, Benipatti, in district Madhubani. He was first appointed on 17.05.1979 by the then Governing Body of the college against the first sanctioned post of Laboratory Incharge.
The college later became a constituent college in December 1980. On 09.03.1990, the State Government, through letter no. 298, sanctioned 47 posts of Class III and IV employees in the college, including one post of Laboratory Incharge (Physics) on which the petitioner was working.
On 18.09.1992, the Vice-Chancellor of L.N. Mithila University regularised the services of the petitioner and similarly placed employees. Salary was paid in the prescribed pay scale along with admissible allowances.
However, the Chancellor reviewed and stayed this regularisation order on 17.12.1992 by letter no. A/c 354/92. Payment of salary was stopped, though the petitioner and others were allowed to continue working to meet the needs of the college.
The petitioner and other employees challenged this position in C.W.J.C. No. 6145 of 1996. On 09.05.1997, the Patna High Court directed the University to fill all sanctioned posts in a regular manner within six months by issuing an advertisement, conducting selection, and giving age relaxation for the period already worked to the petitioners who applied.
The University did not comply within six months. Instead, it issued the advertisement only on 18.02.2002. The petitioner and others again moved the High Court in C.W.J.C. No. 3377 of 2002, challenging the belated advertisement and claiming entitlement to regularisation. That writ petition was disposed of on 09.02.2010 with a direction to complete the selection process under the 18.02.2002 advertisement within four months and to grant due age relaxation.
In compliance, the University constituted a selection committee. Based on its recommendation, the Vice-Chancellor appointed 43 non-teaching Class III and IV employees to K.V.S. College by Memo No. 10863-936/12 dated 11.08.2012. The petitioner’s name appeared at serial no. 1 as Laboratory Incharge (Physics). He joined on 16.08.2012 and later retired on attaining the age of 62 years on 31.01.2016.
After retirement, the petitioner claimed pension, gratuity and leave encashment by counting his uninterrupted service from 17.05.1979 till 31.01.2016. As these benefits were not granted under the Old Pension Scheme, he approached the High Court under Article 226 of the Constitution of India in C.W.J.C. No. 591 of 2021.
What the Court Examined and Decided
The key dispute before the Patna High Court was whether the petitioner’s long service from 1979 till his formal appointment in 2012 could be counted for pension and other post-retirement benefits, and whether he would fall under the Old Pension Scheme or the New Contributory Pension Scheme.
On behalf of the petitioner, it was argued that he had been appointed by a competent Governing Body on a sanctioned vacant post and had worked continuously without break since 17.05.1979. The State Government had sanctioned the post of Laboratory Incharge (Physics) by letter dated 09.03.1990.
It was also pointed out that the University itself had recognised his services earlier by regularising him in 1992 and paying him in the prescribed scale, though that order was later stayed by the Chancellor. Despite the stopping of salary, the University continued to take work from him to cater to the college’s needs.
The petitioner’s counsel relied heavily on the principle that employees are generally governed by the pension scheme that exists at the time of the advertisement under which they are appointed. In this case, the recruitment process was triggered by the 18.02.2002 advertisement issued long before the New Pension Scheme came into effect on 01.09.2005.
To reinforce this, the petitioner referred to the Division Bench decision in Braj Kishore Singh and others vs. The State of Bihar and others, reported in 2004 (3) PLJR 668, and the Full Bench judgment in 1997 (1) PLJR 509. In those cases, the Court held that where employees had served for more than 17 years and were appointed against posts as per staffing pattern, their services should be regularised and the entire period of uninterrupted service prior to regularisation counted for consequential benefits.
The petitioner’s counsel also cited the coordinate Bench judgment in Rajendra Kamti and another vs. Lalit Narayan Mishra University and others, reported in 2006 (3) PLJR 83. That judgment interpreted the Bihar State Universities Act, 1976, and its statute defining “qualifying service” for pension. It held that full-time temporary or officiating service followed by substantive appointment, and not paid from work-charged or contingency establishments, should be counted towards pension.
Further reliance was placed on the Supreme Court’s decision in Netram Sahu vs. State of Chhattisgarh and another, (2018) 5 SCC 430. There, the Court held that once an employee’s services were regularised, his total period of service, including time as a daily wager, should be counted for gratuity, subject to proving continuous service for five years as required under the Payment of Gratuity Act.
The petitioner additionally mentioned C.W.J.C. No. 12318 of 2013 (Sandhya Mandal vs. State of Bihar and others) and analogous cases, where the High Court had directed payment of retiral dues after counting pre-regularisation services.
On the other side, the State contended that the petitioner’s substantive appointment took effect only from 11.08.2012. It pointed out that the Chancellor had approved a Statute for the New Contributory Pension Scheme, made applicable to University and constituent college employees appointed on or after 01.09.2005 by regular process on sanctioned posts. Since the petitioner’s formal appointment came in 2012, the State argued that he fell under the New Pension Scheme and was not entitled to pension and GPF under the Old Scheme, though he would get gratuity and leave encashment.
A supplementary counter affidavit from the State stated that the Education Department had sought clarification from the University. The University replied on 26.10.2021 that the petitioner’s services were absorbed w.e.f. 16.08.2012 and, therefore, he was covered by the New Pension Scheme. Payment of retiral dues under the New Scheme would be made after verification of his pay from the Pay Verification Cell.
Justice Harish Kumar carefully examined the undisputed facts. He noted that the petitioner was appointed in 1979 by the Governing Body against a vacant post, that the State Government sanctioned the post on 09.03.1990, and that his services had been regularised by the Vice-Chancellor in 1992 before being stayed by the Chancellor. Throughout, the petitioner continued to work on the sanctioned post till his retirement on 31.01.2016.
The Court stressed that the University had failed to comply with the 1997 direction in C.W.J.C. No. 6145 of 1996 to complete regular appointments within six months. Instead, it delayed the advertisement to 2002 and completed appointments only in 2012. The delay was entirely on the part of the authorities, not the petitioner.
On the question of which pension scheme applied, the Court referred to its earlier decision in Md. Kayumuddin Ansari & others vs. State of Bihar & others (C.W.J.C. No. 10901 of 2006). In that case, it was held that old vacancies are to be governed by old rules and that new rules introduced after the selection process begins cannot be applied to such vacancies. The Court had recognised a right to pension as a condition of service governed by the terms of the advertisement and existing rules at that time.
The Court also cited C.W.J.C. No. 16468 of 2016 (Chandra Kant Kumar and others vs. State of Bihar and others) and C.W.J.C. No. 8319 of 2020 (Ram Janam Paswan and others vs. State of Bihar and others). These cases held that appointments made pursuant to an earlier advertisement could not be deprived of Old Pension Scheme benefits merely because formal appointment orders were issued after the New Pension Scheme started, especially when delay was attributable to the authorities.
Further, the Court referred to the principle laid down in All India Groundnut Syndicate Ltd. vs. Commissioner of Income Tax, Bombay City, AIR 1954 Bom. 232, where it was held that a public authority cannot take advantage of its own default to defeat a right of a citizen.
The Court then examined the statutory definition of “qualifying service” in the Bihar State Universities Act, 1976 statutes. It held that full-time temporary or officiating service followed without break by substantive appointment should count for pension, except where the service is work-charged or paid from contingencies. There was no case that the petitioner was in a work-charged establishment or paid from contingencies.
Relying on Rajendra Kamti, the Court reiterated that employees who worked full-time for long periods and were later regularised cannot be denied the benefit of adding past service for pension and family pension. Pension is not charity but a right earned by long service.
The Court also found support from the Sandhya Mandal line of cases, where prior services of similarly placed non-teaching college employees had been counted for retiral dues once staffing pattern posts were available.
Importantly, the Court noted that the petitioner was appointed against a sanctioned vacant post by a competent authority and that nothing in his appointment letter stated that he would be governed by the New Pension Scheme. In this background, the reasoning of the Supreme Court in Netram Sahu regarding counting pre-regularisation service for gratuity was considered relevant.
The Court held that the petitioner’s past services had been recognised by the University and that his eventual appointment in 2012 was based on that past service and the sanctioned post. Therefore, he could not be pushed into the New Pension Scheme simply because of delays and laches on the part of the authorities.
Justice Harish Kumar concluded that the petitioner was entitled to pensionary benefits under the Old Pension Scheme, with his qualifying service counted from the date the Laboratory Incharge post was sanctioned by the State Government on 09.03.1990. The authorities could not use their own inaction over many years to deny him this right.
Accordingly, the writ petition was allowed. The Court directed the respondents to ensure payment of all retiral benefits under the Old Pension Scheme after taking into account the petitioner’s past service from 09.03.1990, and to complete this exercise preferably within three months from the date of receipt or production of the order. No order as to costs was made.
Why This Judgment Matters
This judgment is important for non-teaching staff of universities and constituent colleges who have worked for long periods before being formally regularised. It clarifies that such employees cannot be pushed into the New Contributory Pension Scheme only because their final appointment orders came late.
Where a post was sanctioned earlier and employees have continuously worked full-time on that post, the Patna High Court has reinforced that their qualifying service for pension must be counted from the earlier date, not merely from the date of formal absorption.
The ruling also sends a strong message that universities and the State cannot benefit from their own delays. If the authorities take years to issue advertisements or to complete selection processes, employees should not lose their pension rights because of this administrative failure.
For retired or retiring employees of constituent colleges in Bihar, especially those appointed many years ago by college governing bodies on sanctioned posts, this decision provides a clear precedent to claim Old Pension Scheme benefits and full counting of qualifying service.
Legal Issues and Answers
- Issue: Can the long service rendered by a college employee before his formal appointment/absorption be counted for pension and other retiral benefits, and should he be governed by the Old Pension Scheme or the New Contributory Pension Scheme?
Answer: Yes, his past service must be counted as qualifying service, and he is entitled to all retiral benefits under the Old Pension Scheme from 09.03.1990, despite formal appointment in 2012, because the post was sanctioned earlier, he served continuously on a full-time basis, and the delay in regular appointment was due to the authorities.
Cases Cited by the Court
- Braj Kishore Singh and others vs. The State of Bihar and others, 2004 (3) PLJR 668, and Full Bench judgment reported in 1997 (1) PLJR 509.
- The Direct Recruit Class-II Engineering Officers’ Association and others vs. State of Maharashtra and others, AIR 1990 SC 1607 / (1990) 2 SCC 715.
- Rajendra Kamti and another vs. Lalit Narayan Mishra University and others, 2006 (3) PLJR 83.
- Netram Sahu vs. State of Chhattisgarh and another, (2018) 5 SCC 430.
- Md. Kayumuddin Ansari and others vs. State of Bihar and others, C.W.J.C. No. 10901 of 2006.
- Chandra Kant Kumar and others vs. State of Bihar and others, C.W.J.C. No. 16468 of 2016.
- Ram Janam Paswan and others vs. State of Bihar and others, C.W.J.C. No. 8319 of 2020.
- Sandhya Mandal vs. State of Bihar and others, C.W.J.C. No. 12318 of 2013 and analogous cases.
- All India Groundnut Syndicate Ltd. vs. Commissioner of Income Tax, Bombay City, AIR 1954 Bom. 232.
- P. Mahendran vs. State of Karnataka, (1990) 1 SCC 411.
- Union of India vs. Gurnam Singh, (1982) 2 SCC 314.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 591 of 2021
Case Title: Subhash Thakur vs. The State of Bihar and others
Court: High Court of Judicature at Patna
Coram: Hon’ble Mr. Justice Harish Kumar
Date of Judgment: 08.02.2023
Citation: 2024 (1) PLJR 282
Advocates:
- For the petitioner: Mr. Bhavendra Jha, Advocate; Mrs. Anju Jha, Advocate.
- For the State respondents: Ms. Namrata Singh, AC to GA-12.
- For the University: Mr. Nadim Seraj, Advocate.
Respondents: State of Bihar through Principal Secretary, Department of Education; L.N. Mithila University through its authorities; Principal of K.V.S. College, Uchhaith, Benipatti, Madhubani.
Nature of the Case: Writ petition under Article 226 of the Constitution of India seeking directions for payment of pension, gratuity and leave encashment, and for counting of past service and application of Old Pension Scheme.
Link to Full Judgment: Patna High Court Judgment in CWJC No. 591 of 2021
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