Case Background
The dispute concerns a non-teaching employee of K.V.S. College, Uchhaith, Benipatti, Madhubani, which later became a constituent unit of L.N. Mithila University. The respondent worked as Laboratory In-charge (Physics).
On 06.12.1980, when the college was taken over as a constituent college, two lists of non-teaching employees were prepared. The first, called the B1 list, contained persons working against duly sanctioned posts. The second, called the B2 list, contained persons working on non-sanctioned posts.
The respondent fell in the B2 category. Earlier, persons in the B2 list had filed C.W.J.C. No. 614 of 1982 against termination of their services. The High Court then refused to interfere, but observed that in any future recruitment they should be considered and given age relaxation for the period they had worked.
Separately, the Principal of the college made further appointments to Class-III and Class-IV posts to keep the college functioning. This created a third “Principal’s list”, whose members later filed C.W.J.C. No. 5545 of 1996.
Government sanction for the post of Laboratory In-charge (Physics) came on 09.03.1990. The respondent continued in that post from that date, but no regular selection was held for many years.
In 1996, two writ petitions were filed before the Patna High Court for regularisation of these non-teaching staff: C.W.J.C. No. 6145 of 1996 by persons in the B2 list (including the present respondent) and C.W.J.C. No. 5545 of 1996 by persons in the Principal’s list.
By judgment dated 09.05.1997, both writ petitions were rejected. The Court held that members of the Principal’s list had no claim at all, and that the B2 list employees could not be straightaway regularised. However, the Court directed that all sanctioned posts in the college must be filled through a proper advertisement and selection process, to be completed within six months. The B2 list employees were allowed to apply and were given age relaxation for the period they had actually worked.
Despite this clear direction, no selection was held within six months. Only in 2002, five years later, the university issued an advertisement. This led to a second writ petition, C.W.J.C. No. 3377 of 2002, where the respondent was petitioner no. 13. In that case, they again claimed regularisation and challenged the advertisement dated 18.02.2002.
On 09.02.2010, the High Court rejected the regularisation claim once more but directed the authorities to complete the recruitment process initiated by the advertisement for filling the vacant Class-III and Class-IV posts.
Finally, by memo dated 11.08.2012, the university issued regular appointment orders for 43 non-teaching Class-IV employees of K.V.S. College. The respondent was placed at serial no. 1 and was appointed as Laboratory In-charge (Physics) on a regular basis. He then retired from service on 31.01.2016.
Five years later, in 2021, he approached the High Court in a writ petition (C.W.J.C. No. 591 of 2021). He sought that his past service in the post of Laboratory In-charge (Physics) from 09.03.1990 be counted as qualifying service for retirement benefits and that he be given pension under the Old Pension Scheme.
The learned Single Judge allowed his writ petition. The Judge held that since he had continuously worked on the sanctioned post from 09.03.1990 and the authorities had delayed regular recruitment, he should get the benefit of that entire period for pension, and that pension should be under the Old Pension Scheme.
L.N. Mithila University, aggrieved by this direction, filed Letters Patent Appeal No. 554 of 2023 before a Division Bench of the Patna High Court.
What the Court Examined and Decided
The Division Bench, headed by Hon’ble the Chief Justice and Hon’ble Mr. Justice Partha Sarthy, examined the long history of the respondent’s employment and earlier litigation.
On behalf of the university, counsel argued that the respondent’s claim for regularisation had been rejected twice by the High Court in earlier writ petitions. The orders in those cases only directed that regular appointments should be made through proper selection, giving age relaxation for the period of service. They did not direct that his past service be treated as regular or as qualifying service for pension.
The university further submitted that the respondent was given regular appointment only in 2012 and retired in 2016. Thus, he had just four years of regular service, whereas the minimum qualifying service for pension is ten years. Hence, according to the university, he was not entitled to pension, and in any case, his belated claim after five years of retirement should not be entertained.
On the other side, counsel for the respondent relied on earlier decisions, including:
1) a Full Bench judgment of the Patna High Court in Braj Kishore Singh v. State of Bihar; 1997 (1) PLJR 509,
2) a Division Bench judgment in Braj Kishore Singh v. State of Bihar; 2004 (3) PLJR 668,
3) Netram Sahu v. State of Chattisgarh and Another; 2018 (2) PLJR 284, and
4) a Single Judge decision in Rajendra Kamti and Another v. L.N. Mishra University and Others; 2006 (3) PLJR 83.
The learned Single Judge whose order was under appeal had also relied on the Constitution Bench decision of the Supreme Court in Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra; (1990) 2 SCC 715. In that case, the Supreme Court held that where initial appointments are made to substantive vacancies and the appointee continues uninterruptedly for long periods until regularisation, the entire period should normally count as service for consequential benefits, even if the initial appointment was not strictly according to the rules.
The Division Bench carefully revisited the two earlier writ judgments, C.W.J.C. No. 6145 of 1996 and C.W.J.C. No. 3377 of 2002. It noted that in the first of these, the Court had clearly declined the prayer for regularisation. Instead, it directed that all sanctioned posts should be filled through advertisement and selection, and that B2 list employees, including the respondent, could apply with age relaxation.
Despite that, the university delayed the recruitment. The advertisement came only in 2002, nearly five years after the 1997 judgment, even though the Court had fixed a six-month time limit. Because of this delay, the employees again came to Court and the second writ petition was filed. Even then, the Court refused regularisation and again only directed completion of the selection process.
The Division Bench acknowledged that the delay in holding the selection was entirely due to the inaction of the university and not the fault of the respondent. He continued working as Laboratory In-charge (Physics) all through this period. When the selection finally took place, he was selected and appointed against the very same sanctioned post. The Bench reasoned that this clearly showed that, had the university held the selection within six months of the 1997 judgment, he would have been appointed much earlier.
The Court then considered how to treat his service for pension purposes. It examined clause (14) in Section II of Statute No. I of the Bihar State Universities Act, 1979. Under this provision, “qualifying service” includes service rendered as a member of university staff in a substantive capacity on a full-time basis, including probation. It further provides that full-time service rendered in a temporary or officiating capacity, followed without interruption by substantive appointment in the same or any other post, shall also count as qualifying service, except for service in work-charge establishments or paid from contingencies.
The Bench found that the respondent had continuously worked full-time on the sanctioned post from 1990 and was substantively appointed in 2012. His pre-2012 service was in a substantive vacancy, though not through regular selection.
However, the Court was not prepared to go as far as the Single Judge had done, who granted qualifying service from 09.03.1990 itself. The Division Bench pointed out that by the 1997 judgment in C.W.J.C. No. 6145 of 1996, the High Court had specifically declined the claim of regularisation from the B2 list employees. Therefore, it could not accept a claim that the respondent’s qualifying service started prior to that judgment.
To arrive at a fair middle path, the Bench took into account the six-month period given in the 1997 judgment for completing the selection. It held that, in equity, the respondent should be treated as if he had been appointed within that time. Hence, it fixed 09.11.1997 (six months after 09.05.1997) as the date from which his qualifying service would commence.
With this “slight modification”, the Court partly allowed the appeal. It confirmed that the respondent is entitled to pension under the Old Pension Scheme, but directed that his qualifying service be reckoned from 09.11.1997 and not from 09.03.1990.
The Division Bench also examined the reliance placed on the Full Bench decision in Braj Kishore Singh. It held that this judgment dealt with a different point: when a staffing pattern is prescribed, it is unreasonable to insist on prior State Government approval for creation of posts within that framework. In the present case, when K.V.S. College became a constituent unit, there was already a B1 list of employees on sanctioned posts. The respondent belonged to the B2 list, whose appointments were made without sanctioned posts, which were sanctioned only in 1990. Therefore, the principles of Braj Kishore Singh did not apply to regularise him from an earlier date.
Finally, the Bench considered the delay in approaching the Court. The respondent retired in 2016 but filed the writ petition only in 2021. Applying the Supreme Court decision in Union of India v. Tarsem Singh; (2008) 8 SCC 648, the Court held that while pension should be fixed based on the last pay drawn at retirement taking into account the qualifying service from 09.11.1997, arrears of pension would be restricted to three years prior to the filing of the writ petition.
Since the writ petition was registered on 06.01.2021, the Court directed that arrears be paid from 06.01.2018 only. He will continue to receive pension prospectively as fixed.
Why This Judgment Matters
This judgment is important for non-teaching and similar staff in universities and constituent colleges who work for long years on sanctioned posts but get regular appointment very late due to the authorities’ delay.
The Patna High Court recognised that employees should not suffer in pension matters because the university failed to hold timely selections, especially when they are eventually selected to the same posts they have been manning for years.
At the same time, the Court respected its earlier decisions which had declined regularisation. It did not treat the entire earlier period as regular service. Instead, it fixed a starting point based on the time-frame given in the earlier judgment, balancing fairness with legal consistency.
The decision also shows that even when pension is granted, arrears may be limited if the retired employee approaches the Court after a long delay. This can affect other retired staff who choose to raise pension disputes many years later.
Legal Issues and Answers
- Issue: Whether the respondent’s entire service as Laboratory In-charge (Physics) from 09.03.1990 should be counted as qualifying service for pension under the Old Pension Scheme.
Answer: No. The Court held that his qualifying service will be counted from 09.11.1997, six months after the 1997 judgment directing timely recruitment, though he will receive pension under the Old Pension Scheme. - Issue: Whether earlier orders refusing regularisation barred him from claiming pensionary benefits for pre-2012 service.
Answer: Earlier refusals of regularisation did not fully bar pensionary benefit. However, they prevented counting service prior to 09.05.1997. Considering the delay by the university, the Court allowed qualifying service from 09.11.1997. - Issue: From which date are arrears of pension payable given the delay in filing the writ petition.
Answer: Following Union of India v. Tarsem Singh, arrears are payable only for three years prior to the registration of the writ petition, i.e. from 06.01.2018, though pension is to be fixed on the basis of full qualifying service from 09.11.1997.
Cases Cited by the Court
- Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra; (1990) 2 SCC 715.
- Braj Kishore Singh v. State of Bihar; 1997 (1) PLJR 509 (Full Bench).
- Braj Kishore Singh v. State of Bihar; 2004 (3) PLJR 668 (Division Bench).
- Netram Sahu v. State of Chattisgarh and Another; 2018 (2) PLJR 284.
- Rajendra Kamti and Another v. L.N. Mishra University and Others; 2006 (3) PLJR 83.
- Union of India v. Tarsem Singh; (2008) 8 SCC 648.
Case Details
Case Number: Letters Patent Appeal No. 554 of 2023 in Civil Writ Jurisdiction Case No. 591 of 2021
Case Title: The L.N. Mithila University & Ors. v. Subhash Thakur & Ors.
Citation: 2024 (4) PLJR 389
Coram: Hon’ble the Chief Justice K. Vinod Chandran and Hon’ble Mr. Justice Partha Sarthy
Advocates: For the appellants (L.N. Mithila University): Mr. Md. Nadim Seraj, Advocate; Mr. Shailesh Kumar, Advocate. For respondent no. 1 (employee): Mrs. Anju Jha, Advocate; Mr. Bhavendra Jha, Advocate. For the State of Bihar: Mr. Vinay Kirti Singh, G.A.-2; Mr. Rajan Prakash, A.C. to G.A.-2.
Nature of the Case: Letters Patent Appeal against a Single Judge order in a writ petition concerning counting of past service and entitlement to pension under the Old Pension Scheme.
Link to the Judgment: https://patnahighcourt.gov.in/viewjudgment/MyM1NTQjMjAyMyMxI04=-aZ1wfpX5wtw=
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