- (1.) CHALLENGE in this writ application is against the order issued by the respondent No. 6 vide order No. 1309 dated 16. 05. 2005 (Annexure-11) whereby the petitioner's claim for his retiral dues on the basis of his salary drawn by him on the post which he had held last, prior to his retirement, was rejected.
(2.) FACTS of the petitioner's case stated briefly are as follows :- (i) The petitioner was appointed as Assistant teacher in the Government Higher Secondary School, chhapra, Saran, Bihar in the pay scale of Rs. 387-600/-on the recommendation of the Central Selection Board and he joined the post on 30. 11. 1973. (ii) He worked in the post of Assistant Teacher till 31. 05. 1993. (iii) In the year 1992, an advertisement was published in the newspaper by the Additional secretary, Human Resource Development Department, vikash Bhawan, Government of Bihar, Patna for selection on deputation, on the post of Principal, District institute of Education and Training (DIET ). The petitioner applied for the post. On being called upon, he appeared at the interview held on 27. 02. 1993 and was finally selected for his appointment on the post of principal and under notification vide No. 186 dated 05. 05. 1993 and he was appointed as Principal, DIET, pabia, Dumka in the pay scale of Rs. 3700-5000/ -. (iv) Upon his selection to the post of Principal, diet, Pabia Dumka, the petitioner was relieved from his post of Assistant Teacher, Government Higher secondary School, Chapra, Saran. On being relieved, he joined the office of Principal, DIET, Pabia, Dumka on 01. 06. 1993. (v) Upon revision of the pay scales, he was issued the pay slip by the Accountant General, Bihar, patna in the revised pay scale of Rs. 12,000 16,500/ -. (vi) While the petitioner was on the verge of his retirement, he was allowed to continue on the post by way of extension pursuant to the sanction letters issued by the Secretary, Primary Secondary Mass Education, government of Bihar/jharkhand and he ultimately retired from service while working in the said post on 30. 06. 2002. (vii) The pension papers of the petitioner were forwarded to the Secretary, Human Resource development Department, Government of Jharkhand by the Principal, DIET, Pabia, Jamtara, Dumka along with the service book and other relevant papers for sanctioning the same vide letter No. 21 dated 13. 02. 2004. (viii) The amount of General Provident Fund and Group Insurance Scheme being sanctioned by the deputy Secretary, Human Resource Development department, Government of Jharkhand, the petitioner had received the said amounts. However, since the sanction order for extension of the petitioner's service was issued in the month of July, 2002, after the petitioner's retirement, the petitioner could not draw the arrears of his salary. As per circular issued by the state Government in the Department of Finance containing a direction to all Commissioners-cum-Secretaries, Heads of Department and all controlling departments of the Government, payment of arrears of salary of Government Servants was to be made from a separate Head by borrowing advance from the contingency Fund of the Government of Jharkhand. (ix) The petitioner submitted his bills which were forwarded to the Accountant General, bihar/jharkhand for pre audit through the respondent authorities. (x) When no response was received in the matter of payment of arrears of the salary, the petitioner filed a writ petition before this Court vide W. P. (S) No. 937 of 2005 praying for a direction to the respondents for payment of retiral benefits and arrears of salary. While disposing of the writ petition vide its order dated 28. 02. 2005, the petitioner was given a liberty to submit a representation before the respondent No. 2 raising his claim and with a corresponding direction to the respondent No. 2 to determine the question as to whether the petitioner was entitled to any retiral benefits as claimed by him and whether he is entitled for arrears of salary as prayed for in the writ petition. (xi) The petitioner submitted his representation on 26. 04. 2005. However, vide the impugned order (Annexure-11), the petitioner's claim for determination of his retiral benefits on the basis of the salary drawn by him on the post of Principal, was rejected and it was declared that the petitioner is entitled to benefits of pension only on the basis of his scale of pay in the original cadre of Subordinate Education Service. No order was passed with regard to the payment of salary.
(3.) THE petitioner has assailed the impugned order on the following grounds :- (i) The impugned order is illegal and arbitrary since the pension of an employee has to be fixed on the basis of last pay drawn by him which was fixed in the pre-revised scales of Rs. 3,700 5,000/- and postrevised scale of Rs. 12,000-16,500/ -. (ii) Although the petitioner was appointed purportedly on deputation to the post of Principal, but before his superannuation, he was never repatriated back to his original post and as such it has to be deemed that he was absorbed to the post of principal. (iii) In absence of any order for repatriating his services from the post of Principal to the Subordinate education Service cadre, the petitioner's continuation in the post of Principal even after expiry of three years of the extended tenure, cannot be said to be illegal. Since the petitioner's salary in the post of principal was sanctioned and released by the State government, the withholding of his pension, gratuity and other retiral benefits by the respondent authorities is violative of Article 14, 16 and 21 of the Constitution of india. ;