Anirudha Tiwari … v. 1. The State of Jharkhand 2. The Secretary, Home Affairs, Government of Jharkhand, Ranchi
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7 of 2023 Anirudha Tiwari … … Petitioner Versus 1. The State of Jharkhand 2. The Secretary, Home Affairs, Government of Jharkhand, Ranchi. 3. The D.I.G. (Jail), Ranchi. 4. The Jail Superintendent, Birsa Munda Central Jail, Ranchi. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : : Mr. Sreenu Garapati, SC-III For the Petitioner For the Respondents Ms. Ganga Kumari Kachhap, Advocate Ms. Divya, AC to SC-III ------ 8/ 09.10.2023 Heard the parties. 2. The petitioner is seeking a direction upon the respondents to grant him pension counting his past service, who retired on 31.01.2022 from the post of Dresser, Birsa Munda Central Jail, Ranchi. 3. Facts of the case are that the petitioner was appointed as daily wager on 12.8.1988 on the post of Dresser under the respondents. The petitioner had earlier moved this Court for regularisation of his service in W.P.(S) No. 2100 of 2005 and the same was disposed of with liberty to the petitioner to approach the respondent authority for consideration of his case. The petitioner again moved before the Division Bench in L.P.A. No. 243 of 2007. However, the same was not entertained and the same stood dismissed. However, in compliance of the order passed by the Writ Court and taking into account the Regularisation Policy, 2015 framed by the State of Jharkhand, the service of the petitioner was regularised with effect from 01.06.2021. On completion of age of superannuation, the petitioner stood retired with effect from 31.01.2022. It is the specific case of the petitioner that though he rendered the service for more than 33 years under the respondent-Authority, but he was held to be not entitled for pension on account of the fact that the period of his permanent service was less than 10 years. Hence the petitioner having no efficacious and alternative remedy approached this Court for a direction upon the respondents for grant of pensionery benefits counting his past services as daily wager. 2 4.
Legal Reasoning
Ms. Ganga Kumari Kachhap, learned counsel appearing for the petitioner submits that since the petitioner served on the post for more than 30 years on daily wages and retired in a permanent capacity, he is entitled for counting of his past services for the purpose of pensionery benefits. Learned counsel points out that similar to other regular appointees, the General Provident Fund has also been deducted from the salary of the petitioner. Learned counsel submits that as per Rules 58 and 59 of the Bihar / Jharkhand Pension Rules, the petitioner was very much entitled for pensionery benefits. Learned counsel further submits that Rule 59 of the said Rules and the notification issued thereunder clearly speak that in certain cases even though the conditions for qualifying period of service are not fulfilled, the Government may provide that the past service rendered by a Government servant shall count for the purpose of pension. Learned counsel further submits that State being the welfare State is meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the pensionery benefits to them including the petitioner. Learned counsel further submits that the petitioner was appointed on sanctioned and vacant post and worked for more than 30 years and he was taken into regular service just before his superannuation and even as per the celebrated judgment delivered in the case of Uma Devi, the petitioner ought to have been taken into regular establishment much prior to required qualifying period for pensionery benefits. Considering this aspect of the matter, learned counsel submits that a direction be given to the respondents to count the past service for grant of pensionery benefits. 5. On the other hand, learned counsel appearing for the respondents submits that despite the petitioner having worked for a longer period as daily wager, but upon being regularised, he was found short of qualifying service for pension and on that ground, he is not entitled for pensionery benefits. Learned counsel further submits that the services rendered as daily wager cannot be counted for the purpose of actual pension, otherwise, there shall not be any difference between a regular employee and a work charged employee. It is submitted that till the work charged employee is regularized, continues to work as regular employee and he serves the Department for the minimum qualifying period, he is not entitled for pension or pensionery benefits. Learned counsel 3 also submits that Rule 59 of the Bihar/Jharkhand Pension Rules and the notification issued thereunder is not attracted in the case of the petitioner, as he was appointed on daily wage basis. Learned counsel submits that once the petitioner has accepted the terms and conditions of the fresh appointment and he availed the benefit of regular appointment, he is not even allowed to be permitted to raise the issue of counting the past services at this stage. Hence, the writ petition deserves to be dismissed. 6. Having heard the learned counsel for the parties and having gone through the materials on record, this Court is of the considered view that the case of the petitioner needs consideration. It is not in dispute that the petitioner was appointed on 12.8.1988 as daily wager in the pay scale of Rs. 400-540 purely on temporary basis. It is also not in dispute that the petitioner’s service was regularised by the State by order dated 1.6.2021, in view of the Regularisation Policy, 2015 framed by the Government of Jharkhand and he stood retired on 31.1.2022. It is also not in dispute that the petitioner has actually rendered the total service for more than 33 years. It is also no doubt true that the service of the petitioner was regularised much prior to the age of superannuation. It is also true that the petitioner has rendered more than 33 years of satisfied service as defined under the Act as “continuous service”. 7. The issue involved in the writ petition is as to whether the petitioner is entitled for counting his past services as daily wager for the purpose of pensionery benefits or not? 8. It is the clear cut case of the respondent-State that the Government has fixed a minimum 10 years of service as a regular employee to qualify for pension. In this context, Rule 58 of the Bihar / Jharkhand Pension Rules which deals with the conditions of the service of a Government servant to qualify for pension may be referred to and the same is quoted herein below:- “58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- First- The service must be under Government. Second- The employment must be substantive and permanent. Third- The service must be paid by Government. These three conditions are fully explained in the following sub- sections:- 4 Xx xxx xxx xxx.” 9. Rule 59 of the said Pension Rules provides that in certain cases even though the conditions are not fulfilled, the Government may provide that the service rendered by a Government servant shall count for pension. Under this provision, the Government came out with Memo No.Pen 1024/69/11779 F. dated 12.8.1969, which is quoted herein below:- “Regarding:- Declaration of temporary service of a Government servant who is not confirmed as pensionable. 1. Under the existing pension rules, a temporary Government servant if not confirmed in any post, is not entitled to pension unless his services are declared pensionable under rule 59 of the Bihar Pension Rules. 2. There are a large number of temporary Government servants employed under different schemes which are in existence for the last 15-20 years and it will cause hardship to them, if they are not allowed pension after their retirement. 3. The State Government after careful considerations have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more than 15 years, it will be considered as pensionable under rule 59 of the Bihar Pension Rules. 4. These orders will be applicable to Government servants retiring on or after 12 August, 1969.” 10. From plain reading of the above provisions, it is crystal clear that even if a person has worked in a temporary capacity and has not been confirmed, if his service on any post under the Government is continuous and is for more than 15 years, then it may be considered as pensionable under Rule 59 of the Bihar /Jharkhand Pension Rules, 1950. 11. In the present case, the petitioner has worked for last 33 years in a temporary capacity as daily wager under the respondent-Government. The service of the petitioner has also been confirmed by the Government with effect from 1.6.2021. Therefore, in view of the notification issued under the proviso to Rule 59 of the Pension Rules, coupled with the fact that the petitioner’s past service has been recognised by the respondents and only on recognition of past service, he has been appointed on regular post, he is entitled to pensionery benefits. As such, the issue in question has been answered accordingly. 12. However, to recapitulate and substance the issue involved in this writ petition, it would be apposite to keep in mind that in our justice oriented jurisprudence, the Constitutional Courts are obliged to promote the 5 constitutional ethos of social justice, which necessarily includes social security measure like post retiral dues. The pension of a person is not a bounty, but a right accrued to him, who has rendered his/her valuable service. The present case is eminent example of the apathy shown by the Welfare State towards the daily wager, who has worked for decades. He is unceremoniously told that he had worked as daily wager and as such, he is not entitled to post retrial social security benefit. One has to keep in mind that these daily wagers were appointed taking into consideration the exigency of day-to-day need of the administration. They have been regularised by using the nomenclature fresh appointment not as a man from open market, but in recognition of their past service as daily wager. 13. The nomenclature used in the order of appointment is fresh appointment is designed just to frustrate the past service and entitlement of pensionery benefits, despite the fact that the petitioner was regularised by way of appointment against vacant and sanctioned post. Moreover, the appointment of the petitioner was made pursuant to a policy decision of the Government and the Government as per Rule 59 of the Pension Rules read with the notification issued thereunder provides that the employee who have completed 15 years of continuous service and even they were not confirmed, they are entitled for pension. It is not the case of the respondents that the petitioner was not in continuous service. 14. The issue involved in the writ petition fell for consideration in a number of cases and this Court held that for pensionery benefit, past services rendered by the employees should be counted. One of such judgement is rendered in the case of Jharkhand State Non-gazetted Employees Federation and Ors. Vs. State of Jharkhand & Ors, reported in 2019 SCC OnLine Jhar 3029, wherein this Court referring the various judgements has held that the employees are entitled for pension taking into consideration the past service rendered by them. This judgement has been upheld upto the Hon’ble Supreme Court of India. As such, this issue is no more res integra and it is now well settled that the past services should be reckoned for extending the pensionery benefits. 15. Of Late, the Hon’ble Supreme Court, in a bunch of appeals preferred for counting service rendered in a work charged establishment for 6 completing the same for pensionary benefits and the length of pensionable service, refused to accept the appeals and held that service rendered as work charged after regularisation of service shall be counted for qualifying service for the purpose of pension only. The Hon’ble Supreme Court held that “the period spent in the work charged establishment would be counted only to the extent of shortfall in qualifying period of service for grant of pension, which shall be made up by adding that period spent under the work charged establishment, and that the entire period spent under the work charged establishment would not be taken into account.” This judgment is rendered in the cases of Uday Pratap Thakur & Anr. Vs. State of Bihar & Ors and other analogous appeals, reported in 2023 SCC OnLine SC 527. 16. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, this Court held that the past service rendered by the petitioner shall be counted only to the extent of shortfall in qualifying period of service for grant of pension. The respondents are directed to extend the pensionery benefits accordingly within a period of twelve weeks from the date of receipt of a copy of this order. 17. With the aforementioned observations and directions, this writ petition is allowed. R.Kr. (Dr. S. N. Pathak, J.)