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IN THE HIGH COURT OF JHARKHAND AT RANCHI

(CIVIL WRIT JURISDICTION)

WRIT PETITION (SERVICE) NO. ______OF 2021

IN THE MATTER OF: -

PETITION UNDER ARTICLE 226

OF THE CONSTITUTION OF
INDIA

AND,

IN THE MATTER OF: -

1. Mrs. Tarcilla Kullu,

W/o. Patrick Kiro,

Aged About 79 Years,

Residing at Vill. Khanjaloya,

PO. Keonddih,

PS. Pakartand, Dist. Simdega

Jharkhand 835 228 …...Petitioner

VERSUS

1. State of Jharkhand,
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2. Department of Human Resource

& Education,

Through its Director,

Project Building, ...Respondents

PO. Dhruwa, PS. Dhruwa,

Ranchi 834 002

3. The District Superintendent of

Education, Simdega,

Collectorate Building,

PO. Simdega, PS. Simdega,

Dist. Simdega,

Jharkhand 835 223

4. The Accountant General (A&E)

Ranchi, PO. Doranda,

PS. Doranda,

Dist. Ranchi

Jharkhand 834 002

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To,

HON’BLE MR. JUSTICE DR. RAVI RANJAN,

THE CHIEF JUSTICE OF HIGH COURT OF JHARKHAND AND HIS

OTHER COMPANION JUSTICES OF THE SAID HON’BLE COURT.

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH,

1. That the Petitioner is filing the present Writ Petition

Under Section 226 of The Constitution of India seeking

an appropriate relief in the form of Writ, Order/s,

Direction or a Writ in the nature of mandamus directing

and commanding upon the Respondents to pay arrears

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of difference of salaries from appointment on

22.01.1982 till date of superannuation on 31.01.2002

and allowances and outstanding and unpaid retirement

benefits including Pension and Gratuity and Provident

Fund along with penal interest and any other

consequential relief for which the Petitioner is entitled

in accordance with law.

2. That Petition is being made bonafide and in the interest

of justice and no identical petition had been filed before

this Hon’ble Court or the Supreme Court of India with a

similar prayer. This has been filed within time and there

is no undue delay.

3. That the present writ petition involves the following

substantial questions of law as to the interpretation of

the Constitution:
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a. Whether the Respondents have any lawful right,

authority or power to withhold the amount due

and outstanding in lieu of retirement benefits of

Pension, Gratuity, Provident Fund and arrears of

difference in salaries and allowances for an

indefinite period?

b. Whether the withholding of retirement benefits of

Pension, Gratuity, Provident Fund is violative of

Right to Livelihood under Article 14, Article 19 (1)

(g) and Article 21 of the Constitution of India?

c. Whether the action of the Respondents are in

violation of Article 300-A of the Constitution of

India?

d. Whether the action of the Respondents are

malafide, arbitrary and bad in the eyes of law?

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4. That the Petitioner is a citizen of India and resident

within the territorial limits of the Hon’ble High Court of

Jharkhand and is entitled to the protection of her

fundamental and other legal rights as guaranteed under

the Constitution of India.

5. That the cause of action has arisen within the territorial

jurisdiction and Hon’ble High Court of Jharkhand has

jurisdiction in the said subject matter.

6. The brief facts and background giving rise to the filing

of this petition are narrated below:

PARTICULARS OF THE PETITIONER

7. That Petitioner Mrs. Tarcillla Kullu was employed as

Assistant teacher on 20.01.1982 at St. Louis High

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School, which is a minority school being aided by the

Government of Jharkhand from funds from the public

exchequer.

8. That Petitioner Mrs. Tarcilla Kullu after providing her

services to St. Louis High School attained the age of

superannuation on 31.01.2002. Upon her retirement

the Secretary of St. Louis High School provided her the

Service Book. However, No-Dues Certificate was not

provided to the Petitioner.

True Copy of Service Book of Mrs.

Tarcilla Kullu is annexed hereto and

marked as Annexure-P1 (Page

_____to____).
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9. That on 20.01.1992, the Secretary, Bihar School

Examination Board, Patna through Memo No. 69 by

letter addressed to District Education Officer, Gumla

regarding the confirmation of services of the newly

appointed teachers including the Petitioner Mrs.

Tarcilla Kullu.

True Copy of Memo Dated

20.01.1992 of Secretary, Bihar

School Examination Board, Patna

is annexed hereto and marked as

Annexure-P2. (Pg_____to_____).

10. That Petitioner Salaries and allowances during her

services as Assistant Teacher, St. Louis High School

were increased at various intervals by notifications of

the Revised Central Remuneration Commission.

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11. That Petitioner Mrs. Tarcilla Kullu upon her attainment

of superannuation did not received the arrears of

difference in salary from 22.01.1982 to 31.01.2002 as

certified by the Secretary of St. Louis High School. It is

also submitted that she had not been paid retirement

benefits of Pension, Gratuity and Provident Fund which

became due and outstanding on her superannuation

after continued service at St. Louis High School,

Khanjaloya, Dist. Simdega, Jharkhand.

12. That during the year 2016 the Secretary of St. Louis

High School, Khanjaloya, PO. Keondih, Dist. Simdega,

Jharkhand, furnished details of arrears of difference in

Salaries and allowances from 22.01.1982 to 31.01.2002

in detail and certified the same.

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True Copy of details of arrears of

salaries and allowances as certified by

Secretary, St. Louis High School is

annexed hereto and marked as

Annexure-P3. (Pg._____to_____)

13. That Petitioner states that after rendering her services

as Assistant Teacher at St. Louis High School for many

years of her service from 22.01.1982 till

superannuation on 31.01.2002, the retirement benefits

accrued to her namely Pension, Gratuity, Provident

Fund on account of her long services were unpaid and

also arrears of difference of salary and allowances were

also outstanding and unpaid to her.

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14. That Petitioner made detailed representation about the

unpaid retirement dues of Pension, Gratuity and

Provident Fund along with the arrears of difference of

salary and allowance to the District Superintendent of

Education, Simdega along with representation to

Director, Department of Education and Human

Resources and Accountant General (A&E), Government

of Jharkhand. However, the above-mentioned

representation was of no avail whatsoever.

True Copies of Representation

Letter of Mrs. Tarcilla Kullu is

Annexed hereto and marked as

Annexure-P4 . (.Pg._____to___).

15. That Petitioner Mrs. Tarcilla Kullu approached the

concerned authorities many times but of no avail.

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16. That the Petitioner have filed the present Writ Petition

seeking protection of their fundamental rights on the

following grounds:

GROUNDS

i. That Petitioner after being employed as Assistant

Teacher in 22.01.1982 attained the age of

superannuation on 31.01.2002. It is also submitted

that Petitioner provided her valuable services to St.

Louis High School, Khanjaloya, Dist. Simdega,

Jharkhand and upon superannuation became entitled

to retirement benefits of Pension, Gratuity and

Provident Fund. It is submitted that no departmental or

disciplinary proceedings had been initiated or pending

against the Petitioner nor was she guilty of any crime or

grave misconduct. It is further submitted that through

her tenure as Assistant Teacher, the Petitioner has

earned retirement dues of Pension, Gratuity and

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Provident Fund which was arbitrarily withheld by the

Respondents.

ii. That respondents had no power to withhold the

retirement benefits of Pension, Gratuity and Provident

Fund due and outstanding to the Petitioner in lieu of

her service as Assistant Teacher.

In D.V. Kapoor Vs. Union of India [ AIR 1990 SC

1923], Supreme Court held that unless the pensioner is

found guilty of misconduct in departmental or a judicial

proceeding, any part of his pension cannot be withheld.

It is submitted that the retirement benefits of pension,

gratuity and provident fund are earned in lieu of

services rendered by the Petitioner while employed as

Assistant Teacher in St. Louis High School, Khanjaloya,

Dist. Simdega. Furthermore, the retirement benefits

due and outstanding to the Petitioner cannot be

withheld as she had not been guilty of any misconduct

during her service or after his retirement.

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iii. That respondents had no legal right to withhold the

arrears of difference in salary and allowances to the

Petitioner. It is submitted that withholding of due and

outstanding salary and allowances to the Petitioner is

arbitrary and without any lawful basis or grounds. It is

also submitted that the Petitioner had been in

continued and uninterrupted employment with St.

Louis High School, Khanjaloya, Dist. Simdega and the

difference of salary and allowances had accrued to the

Petitioner in lieu of her continued services as Assistant

Teacher.

iv. That Petitioner was legally and validly appointed as

Assistant Teacher at St. Louis High School, a minority

school, which was aided by funds from the exchequer of

Government of Jharkhand and had continued to

discharge her services as Assistant Teacher from

22.01.1982 to 31.01.2002 and the difference of arrear

of salary had accrued to her in lieu of such discharge of

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services. It is submitted that the Petitioner is entitled

to receive her salary when her appointment is valid.

In Asifa Bano Vs. State of Jharkhand [ W.P. (S) No. 2835

of 2016], Held by Hon’ble Jharkhand High Court that,

when a person is validly appointed, he is entitled to

receive salary. Such right to receive salary amounts to

right to hold property. Such a right of property falls

within Article 300A of the Constitution and as such the

State Government while issuing an executive flat cannot

deprive a person of his right to hold property.

It is also submitted that non-payment of salaries for a

very long period as such had resulted in violation of

human rights of the Petitioner by the State of

Jharkhand and violative of right to life as enshrined

under Article 21 of the Constitution of India.

In Kapila Hingorani v. State of Bihar [ Writ Petition

(Civil) 488 of 2002], In the background of non-payment

of salaries for a very long time to the employees of state-

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owned corporations, public sector undertakings or

statutory bodies in the State of Bihar and in the context

of death of several employees due to starvation or self-

immolation a question cropped up whether the State of

Bihar could escape its liability having regard to human

rights problem involved in the matter. The Supreme

Court held that in a situation such as this the Court is

obligated to issue necessary directions to mitigate the

extreme hardship of the employees involving violations

of human rights of the citizens of India at the hands of

the State of Bihar and government companies and

corporations fully owned and controlled by it.

v. That the withholding of retirement benefits of Pension,

Gratuity, Provident Fund and arrears of difference in

salaries and allowance are in violation of Article 14,

Article 19 (1) (g) and Article 21 of the Constitution of

India. It is submitted that the action of the Respondent

to withhold the retirement benefits and arrears of

difference in salary and allowances without any lawful

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basis is arbitrary and is violative of Article 14 of the

Constitution. It is an action based on the whims and

caprice of the Respondents and where the action is

arbitrary it is unequal according to constitutional law

and is therefore violative of Article 14 of the

Constitution.

In E.P. Royappa v. State of Tamil Nadu & Anr. (1974)

(4 ) SCC 3, Hon’ble Supreme Court observed as under:-

"From a positivistic point of view, equality is antithetic

to arbitrariness. In fact equality and arbitrariness are

sworn enemies; one belongs to the rule of law in a

republic while the other, to the whim and caprice of an

absolute monarch. Where an act is arbitrary it is

implicit in it that it is unequal both according to political

logic and Constitutional law and is therefore violative of

Article 14, and if it affects any matter relating to public

employment, it is also violative of Article 16. Articles 14

and 16 strike at arbitrariness in State action and ensure

fairness and equality of treatment.”

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vi. That the action of the Respondents to withhold the

retirement benefits of Pension, Gratuity, Provident Fund

and arrears of difference of salary is also violative of

Article 19 (1) (g) of the Constitution of India. It is

submitted that retirement benefits are earned benefits

in lieu of long, continuous, faithful and unblemished

services of the Petitioner and the same cannot be denied

to her without the authority of any law.

vii. That the right to retirement benefits namely Pension,

Gratuity, Provident fund are valuable property rights

accruing in lieu of long continued, faithful and

unblemished service of the Petitioner and withholding

of such valuable rights to property without any force of

law is illegal and is violative of Article 300-A of the

Constitution of India.

In D.D. Tiwari Vs. Uttar Haryana Bijli Vitran Nigam

Limited & Others [ Civil Appeal 7113 of 2014 ]-

Supreme Court held that payment of Pension and

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Gratuity amount are no longer any bounty to be

distributed by government to its employees on their

retirement, but have become valuable rights and

property in their hands, any culpable delay in

settlement and disbursement thereof must be dealt with

penalty of payment of interest at current market rate till

actual payment to employees.

viii. That the action of the Respondents to withhold the

retirement benefit of Pension and other retirement

benefits are in violation of fundamental right of right to

life of Petitioner. The Petitioner has attained an

advanced old age after rendering her services as

Assistant Teacher at St. Louis High School, Khanjaloya,

Dist. Simdega, Jharkhand and non-payment of Pension,

Gratuity and Provident Fund along with arrears of

difference of salaries had put extreme hardships upon

the Petitioner.

In Shri Naini Gopal Vs. Union of India & Others [ LD-

VC-CW 665 of 2020], Hon’ble Bombay High Court held

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that Pension payable to the employee after

superannuation is a property under Article 300-A of

Constitution of India and constitutes a fundamental

right to livelihood under article 21 of the Constitution of

India.

ix. That the action to withhold the accrued and

outstanding retirement benefits namely Pension,

Gratuity and Provident Fund and arrears of differences

of salary of the Petitioner is without any lawful authority

on the part of the Respondents. It is also submitted that

the action of the Respondents to withhold the retirement

benefits and arrears of difference of salary and

allowances is arbitrary and illegal.

SUBMISSIONS ON MAINTAINABILITY OF THE PRESENT PETITION

17. That it was held by a Constitution bench of the Hon’ble

Supreme Court in Amalgamated Coalfields v. Janpada

Sabha, AIR 1964 SC 1013, the principle of constructive

res judicata cannot be applied to petitions under Article

226 and 32 and that “petitioners cannot be precluded

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from raising new contentions on which their challenge

is based.”

18. That the cause of action in this subsequent Writ Petition

is entirely different from the Writ Petition filed

previously by the Petitioner. In G.N. Nayak Vs. Goa

University & Another AIR 2002 SC 790- It was held

by the Hon’ble Supreme Court that subsequent writ

petition is not barred when subject matter of

subsequent writ petition is different.

In Birla Institute of Technology Vs. State of

Jharkhand & Another’s [ Civil Appeal No. 2530 of

2012] – It was held by the Hon’ble Supreme Court that

in lieu of the amendment to the definition of “employee”

as defined under section 2(e) retrospectively with effect

from 03.04.1997 vide Payment of Gratuity (Amendment)

Act, 2009 published on 31.12.2009.

The amended definition reads as under:

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“(e) “employee” means any person (other than an

apprentice) who is employed for wages, whether

the terms of such employment are express or

implied, in any kind of work, manual or otherwise,

in or in connection with the work of a factory,

mine, oilfield, plantation, port, railway company,

shop or other establishment to which this Act

applies, but does not include any such person who

hold a post under the Central Government or a

State Government and is governed by any Act or

by any rules providing payment of gratuity.”

In the light of the said amendment made in the

definition of the word “employee” as defined in

Section 2(e) of the Act, the benefit of gratuity under

Payment of Gratuity Act was also extended to

teachers from 03.04.1997. It is submitted that on

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the onset, the Petitioner became entitled to claim

Gratuity in lieu of the abovesaid and thus the

subsequent cause of action is different altogether

from the cause of action in the previous Writ

Petition being dismissed as withdrawn.

19. That another writ petition was recently filed challenging

the arbitrary action of withholding of arrears of

difference of salaries and allowances, bearing Writ

Petition (Service) No. 2351 of 2017. In order dated

26.02.2019 of Hon’ble Mr. Justice Chandrashekhar,

Petitioner was allowed to withdraw the abovementioned

Writ Petition and same was dismissed as withdrawn.

True copy of Writ Petition 2351 of 2017

and Order dated 26.02.2019 passed in

Writ Petition (Service) No. 2351 of 2017

is attached herewith as Annexure P-5

(Page No.___to____).

And,
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Certified Copy of Order dated

26.02.2019 passed by Hon’ble Mr.

Justice Chandrashekhar in Writ

Petition (Service) No. 2351 of 2017 is

attached herewith as Annexure P-6

(Page No. _____to___).

20. That the Petitioner had no other equally efficacious

alternate remedy other than to move to this Hon’ble

Court under the extraordinary writ jurisdiction for the

redressal of her grievances.

21. That this Petition is made bonafide and in the interest

of justice.

It is therefore humbly prayed that this

Hon’ble Court may graciously be pleased to;

admit this Writ Petition; issue notice to the

respondents and after perusal issue Rule Nisi

calling upon the concerned respondents to

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show cause as to why a Writ in the nature of

mandamus be not issued commanding the

Respondents to pay to the Petitioner

retirement benefits of Pension, Gratuity,

Provident Fund and arrears of difference of

salary and allowances from 22.01.1982 to

31.01.2002 along with penal interest and for

any other consequential relief for which the

Petitioner is entitled in accordance with law,

AND/OR,

Be further please to grant such other reliefs

as this Hon’ble Court may deem fit and

proper in light of the facts and circumstances

of the case.

AND,
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For This Act of Kindness, The Petitioner

Shall, As In Duty Bound Ever Pray

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

(CIVIL WRIT JURISDICTION)

WRIT PETITION (SERVICE) NO. ______OF 2021

IN THE MATTER OF:
Mrs. Tarcilla Kullu ……. Petitioner
Versus
State of Jharkhand & Another’s …..Respondent’s
AFFIDAVIT
I, Mrs. Tarcilla Kullu W/o. Patrick Kiro, Aged About 79 Years, R/o. Vill.
Khanjaloya, PO. Keonddih, PS. Pakartand Dist. Simdega, Jharkhand
835 228, Hereby do solemnly affirm and declare as under:
1. That I am the Petitioner in the accompanying Petition, and I am
well conversant with the facts and records of the case and
therefore I am competent to swear this affidavit.
2. That I have read and understood the contents of the Writ Petition
and state that the contents thereof are true and correct to my
knowledge and information and based on the records of the case.
3. That the statements made in paragraphs
__________________________________________are true to my
knowledge and those made in
paragraphs________________________________are true to my
information and derived from relevant records of this case and
the statements made in rest of the paragraphs are my humble
submissions before this Hon’ble Court.
4. That the Annexures are true copies of their respective originals.
Verified, sworn and signed on this day of February, 2021 in the
premises of Jharkhand High Court at Ranchi.