1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1719 of 2004 Dr. Sushila Saha, wife of Sri Rajendra Prasad, resident of Rameshwaram, Bariatu Road, PO & PS Bariatu, Dist. Ranchi … Petitioner Versus 1. The State of Jharkhand 2. Registrar, Ranchi University, Ranchi 3. Vice Chancellor, Ranchi University, Ranchi 4. Principal, Karam Chand Bhagat College, Bero, PO & PS Bero, Dist. Ranchi 5. Education Secretary, Govt. of Jharkhand, Ranchi 6. Joint Secretary, Human Resource Department, Government of Jharkhand, Ranchi ... Respondents CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. N. K. Pasari, Advocate For the RespondentState : Mr. Shamim Akhtar, GA III For the Respondent Nos. 2 to 4 : Mr. A. K. Mehta, Advocate Mr. Nikhil Kumar Mehta, Advocate 19/18.11.2016 Aggrieved of rejection of her claim for arrears of salary for the period between September, 1995 to July 2008, the petitioner seeks quashing of order contained in communication dated 19.07.2003.
2. Heard. 3. The petitioner was appointed as Lecturer in Karam Chand Bhagat College, Bero on 18.07.1985. After about 10 years, the State government terminated service of teaching and nonteaching employees in various constituent colleges, challenging which C.W.J.C. No. 4021 of 1995 was filed by Bihar Rajya Mahavidyalaya Shikshak Evam Shikshkettar Karmchari Kalyan Mahasangh. On 21.06.1995, the High Court passed an order of “statusquo”, however, the petitioner was terminated from service on 04.09.1995. The aforesaid writ petition was allowed and the order of the State government was quashed on 31.01.1997. Petitioner's name was found in the provisional list approved by the State government vide letter dated 18.12.1989, against the recommended post. The Three Men Screening Committee also found petitioner 2 validly appointed and Syndicate of the University in compliance of order passed in C.W.J.C. No. 4021 of 1995 recommended that the petitioner shall be reinstated from the date of termination. Accordingly, Notification dated 04.10.1998 was issued for her reinstatement in service, however, she was held not entitled for arrears of salary and the period of absence from duty was treated as extraordinary leave without pay. The petitioner, claiming salary for the period between 04.09.1995 to 04.10.1998, approached this Court in W.P.(S) No. 3722 of 2001. The writ petition was disposed of on 16.08.2001, directing the ViceChancellor, Ranchi University to determine her claim and pass a reasoned order. When, inspite of several representations order passed in W.P.(S) No. 3722 of 2001 was not complied, the petitioner filed Contempt Case (Civil) No. 503 of 2002. Thereafter, the petitioner's claim for payment of backwages for the period between 04.09.1995 to 04.10.1998 was rejected vide order dated 19.07.2003.
4. Mr. N. K. Pasari, the learned counsel for the petitioner submits that on account of illegal action of the University the petitioner was prevented from discharging her duty as Lecturer in Karam Chand Bhagat College, Bero and while so, she is entitled for payment of full salary and consequential benefits for the said period. It is contended that the impugned order dated 19.07.2003 manifests apparent nonapplication of mind inasmuch as, Notification dated 04.10.1998 was challenged by the petitioner in W.P.(S) No. 3722 of 2001 in which a direction was issued to the ViceChancellor to decide petitioner's claim still, claim of the petitioner has been declined only on the ground that vide Notification dated 04.10.1998 her reinstatement in service was on the condition that she is not entitled for backwages. 5. Per contra, Mr. A. K. Mehta, the learned counsel for the respondentRanchi University, reiterating the stand taken in the counteraffidavit, submits that the petitioner, who did not perform her duty in the college from 04.09.1995 till her reinstatement in 3 service, cannot claim salary for the said period. It is contended that reinstatement in service does not automatically follow payment of full backwages in every case rather, in numerous cases Courts have declined to grant backwages and present is a case of such nature.
6. No doubt, payment of full backwages and other consequential benefits are not automatic on reinstatement in service. In cases where order of termination from service has been held illegal, depending on the facts and circumstances in each individual case, Courts have granted backwages to varying extent. Decisions of Supreme Court indicate that payment of full backwages, once order of termination is quashed, is not the normal rule. In “U.P State Brassware Corporation Ltd.& Anr. v. Uday Narain Pandey”, reported in (2006) 1 SCC 479, the Supreme Court has observed as under; “27. In Hindustan Tin Works (P) Ltd. v Employees this Court merely held that the relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It, therefore, does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order declaring that the termination of service is invalid in law.”
7. However, facts of this case are little different from the cases pertaining to simple termination of service. The State government terminated service of all teaching and nonteaching employees working in the constituent colleges in the State, is one aspect of the matter. What is noteworthy in the present case, is the order of “statusquo” passed on 21.06.1995 in C.W.J.C. No. 4021 of 1995. Nonetheless, petitioner's service was terminated on 04.09.1995, that is, about two and half months after the Court's order. Not only that, Notification dated 04.10.1998 records that the Syndicate of Ranchi University in its meeting held on 25/26.09.1998 found that petitioner's service was terminated “in utter defiance of the statusquo granted by the Hon'ble High Court on 21.06.1995 in C.W.J.C. No. 4021 of 1995”. Notification dated 04.10.1998 was under challenge in W.P.(S) No. 3722 of 2001. Still, vide communication dated 19.07.2003 the petitioner has been informed 4 that her claim for payment of salary for the period between 04.09.1995 to 04.10.1998 has been rejected on the ground that she was reinstated in service subject to the condition that she is not entitled for backwages. Apparently, denial of backwages for the period between 04.09.1995 to 04.10.1998 is illegal. Once the University accepts that petitioner was illegally terminated from service in breach of statusquo order dated 21.06.1995 passed in C.W.J.C. No. 4021 of 1995, the petitioner must be held entitled for grant of full backwages and other consequential benefits. It needs to be recorded that C.W.J.C No. 4021 of 1995 was allowed vide judgment dated 31.01.1997, which affirms that the order of the State government itself was illegal. 8. The learned counsel for the respondentUniversity submits that the petitioner at the time of her reinstatement in service did not raise objection and she accepted order contained in Notification dated 04.10.1998 without demur. In my opinion, the petitioner is not bound by the said order. In view of final order passed in C.W.J.C. No. 4021 of 1995, the petitioner was not required to raise any objection independently. She had approached this Court and a direction was issued to consider her claim. While dealing with a contention that an appointee who has given an undertaking not to claim promotion as of right on the basis of the promotion granted as stopgap arrangement, in “SecretarycumChief Engineer, Chandigarh Vs. Hari Om Sharma & Ors.” reported in (1998) 5 SCC 87, the Hon'ble Supreme Court has observed thus ;
“8. Learned counsel for the appellant attempted to contend that when the respondent was promoted in stopgap arrangement as Junior Engineer I, he had given an undertaking to the appellant that on the basis of stopgap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of 5 stagnation although, as we have found earlier, he was the only person amongst the nondiplomaholders available for promotion to the post of Junior Engineer I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stopgap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act, 1872.” 9. As a consequence of the aforesaid discussions, it is found that the petitioner is entitled for full salary and other consequential benefits for the period between 04.09.1995 to 04.10.1998 and adjustment of the aforesaid period as extraordinary leave without pay in Notification dated 04.10.1998 is held illegal. The impugned order dated 19.07.2003 is quashed. The writ petition stands allowed, however, only to the aforesaid extent. 10. I.A. No. 7436 of 2016 seeking amendment for challenging Notification dated 04.10.1998 renders infructuous. I.A. Nos. 1454 of 2010 and 3327 of 2014 stand disposed of in view of the order passed in the writ petition. (Shree Chandrashekhar, J.) Amit/A.F.R