The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI WP(S) No. 6265 of 2010 ---- Gupin Marandi and others ... … Petitioners -Versus- The State of Jharkhand and ors. ---- With WP(S) No. 7305 of 2012 ---- ... ... Respondents Jayshree Roy The State of Jharkhand and ors. -Versus- ... ... … Petitioner ... Respondents ----
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners For the Respondents ---- :M/s. Rajiv Sharma, Sr.Advocate, Rita Kumari, A Hussain & Hider Ali :M/s Jai Shankar Tiwari & Jogesh Prasad and S.Prasad 4- 5.8.2013 ---- WP(S) No. 6265 of 2010 Let the Secretary, Finance Department, Government of Jharkhand be impleaded as party respondent in the present writ petition. The petitioners are permitted to make necessary correction in the main writ petition during course of the day. Heard counsel for the parties. The entire controversy in the present writ application preferred on behalf of the 37 petitioners, who have been absorbed in the Commercial Taxes Department by a notification dated 30.5.2007 is whether they should be entitled to continue in the General Provident Fund Scheme to which they were subscribers being office staff of Adult and Non Formal Department, which, however, stood closed in the year 2001. Learned counsel for the petitioners submits that these petitioners were regularly working since 1980 against their respective posts and they were serving in different places in the State of Jharkhand as regular employees of the Department of Mass Education. After the bifurcation of the parent State of Bihar i.e. on 15.11.2000, the Government of Jharkhand closed the Department of Adult and Non Formal Education from 15.5.2001. These petitioners were getting the 2. benefits of General Provident Fund on deductions from their salary on regular basis. After closure of the Department of Mass Education in May 2001 by the conscious decision of the State Government to abolish the same, such employees like the petitioners were absorbed in different department from time to time. These petitioners were absorbed in the Commercial Taxes Department vide letter dated 24.7.2007, which is Annexure-2 to the writ petition. The said absorption was, however, made on a condition that it should be treated as fresh appointment and they will not be entitled to claim seniority in the Department on the basis of previous service and also the benefit of pay protection. In the year 2004, the respondent-State had created a new pension scheme (Jharkhand Sarkar Sarkari Karmachari Anshadayi Pension Yozana,2004), which was to be made effective from 30.11.2004 and those, who were appointed after 30.11.2004, would have to avail the benefit of the contributory provident fund scheme. It is the contention of the petitioners that by misconstruing the provisions of the aforesaid scheme of November, 2004, the petitioners have not been allowed to avail the benefit of G.P.F. scheme, which they were earlier availing during their services in the Department of Adult and Non Formal Education till May, 2001. Learned counsel for the petitioners submits that by resolution dated 21.2.2009, certain erstwhile employees of the Department of Adult and Non-Formal Education like the petitioners, who were absorbed in the I.T. Department, Government of Jharkhand in August, 2007, have been allowed to avail the benefit of G.P.F. Scheme to which they were earlier subscribers. The Deputy Secretary of the concerned Department had accordingly communicated the decision of the I.T. Department to the Director, Directorate of General Provident Fund, Government of Jharkhand, Ranchi vide letter dated 16.3.2009. 3. However, in the case of these petitioners, who were absorbed in the Commercial Taxes Department, by the impugned order dated 6.11.2010, Annexure-5, the said benefits have been refused. They have been treated to be fresh appointee as they have been absorbed by the resolution dated 30.5.2007 after 1.12.2004, when new pension scheme was brought into force. In such circumstances, these petitioners have been denied the benefit of the old G.P.F. scheme and have been directed to become members of the contributory provident fund scheme. The respondent-State in their counter affidavit has come out with a stand based upon interpretation of the resolution dated 01.12.2004 that since these petitioners are fresh appointees after 1.12.2004, therefore, they would be covered under the provisions of new contributory pension scheme, 2004. It is stated that these petitioners were working against a scheme and their services were terminated on closure of scheme. By resolution of 2007, by which they have been absorbed and treated fresh appointees, no benefit of seniority were given to them. In respect of the reliance of these petitioners upon Annexure-4 dated 16.3.2009 issued in respect of the erstwhile employee of Adult and Non-Formal Education absorbed in I.T. Department of the Government of Jharkhand, the counter affidavit filed on behalf of the Assistant Commissioner of Commercial Taxes states that the impugned order dated 6.11.2010 was issued after consultation of the Finance Department in view of para 2 of memo no. 68 dated 21.02.2009. As per this resolution of 21.02.2009, the petitioners are entitled for CPF benefit only as it has been implemented w.e.f. 1.12.2004. The stand of the respondents have once again been contested by the petitioners through their rejoinder. They once again elaborate 4. that it would not be fair and proper on behalf of the employer i.e. the State to discount the services of these petitioners for the entire period they have worked in the Adult and Non Formal Education under the respondents erstwhile State of Bihar as also the State of Jharkhand, till it was closed in May 2001. According to the petitioners, they are entitled to the benefit of old G.P.F. Scheme. In these circumstances, it therefore, appears that the whole issue revolved arounds the construction of the pension scheme of 1.12.2004 as also clarified by the resolution dated 21.2.2009. Learned counsel for the respondents has made specific reliance on para 1 of the said scheme dated 21.2.2009 which, according to him, applies to these petitioners. It appears that under the scheme of 1.12.2004 petitioners' absorption has been treated to be fresh appointment. Para 1 of the resolution of 21.02.2009 says that those employees of the erstwhile Government of Bihar or Government of Jharkhand or any independant undertaking/body, who being appointed before 30.11.2004, were covered by the old pension scheme and their services were pensionable, if they after rendering their technical resignation on or after 1.12.2004 or after being relieved in a lawful manner have joined on their appointed post, they would be governed by the old pension scheme. These petitioners undisputedly were employees of the Adult and Non-Formal Education Department of the erstwhile Government of Bihar and also continued under the State of Jharkhand till the Department was closed in May 2001. These petitioners were also members of the general provident fund scheme while they were in the service of erstwhile Department of Adult and Non Formal Education. Employees of the Adult and Non Formal Education were, however, absorbed in the Commercial Taxes Department by resolution of 24.7.2007. Similar, such employees have also been absorbed in other 5. Department like the I.T. Department, Government of Jharkhand as also other Department of Government of Jharkhand. Such similarly situated persons in I.T. Department were granted the said benefit vide the letter contained in Annexure-4 dated 16.3.2009. However, it is the stand of the respondents that the impugned decision contained in Annexure-5 dated 6.11..2010 has been taken in consultation with Finance Department. The resolution relied upon by the petitioners dated 21.2.2009 is also of Finance Department, Government of Jharkhand. After having heard learned counsel for the parties and in view of the different stand taken on behalf of the different Departments of the State in the matter of the implementation of the said scheme of 1.12.2004 and clarified by the resolution dated 21.2.2009, it is appropriate that a proper decision, which applies uniformally in respect of all such former employees of Adult and Non Formal Education Department absorbed in different Departments of the State Government like the present Commercial Taxes Department, be taken so that there is no discrimination vis-a-vis employees of the other Departments of the State. WP(S) No. 7305 of 2012 This petitioner was also an employee of the Department of Adult and Non-Formal Education, which stood abolished and closed in May,2001. The petitioner has been absorbed in the Department of Food, Civil Supply and Consumer Affairs, Government of Jharkhand by Resolution dated 28.3.2007. The grievance of the petitioner is that she had been posted in the District Supply Office of Garhwa as clerk and she has not been allowed to remain in the old GPF scheme, rather the respondents have insisted upon her to adopt the new CPF Scheme, which has been 6. made effective from 1.12.2004. Learned counsel for the petitioner has pointed out that the condition as contained in Resolution dated 30.5.2007 and clauses 11 and 12 thereof mention the absorption as fresh appointment only for the purpose of not claiming any seniority of her past services and or any pay protection for the same. However, for the purposes of benefit of GPF scheme, according to the petitioner, the Resolution does not debar her for doing so. The respondents in their counter affidavit have relied upon a Resolution dated 1.12.2004, which has also been clarified in the Resolution dated 21.2.2009 issued by the Finance Department. It, however, appears from facts of the analogous case discussed in this judgment earlier, different interpretations in respect of the same Resolution of 1.12.2004 and 21.2.2009 are being made in different Departments where surplus employees of Adult and Non-Formal Department have been absorbed.
Decision
In such circumstances, both the writ petitions are disposed of by directing the Secretary Finance, Government of Jharkhand to take an appropriate decision in accordance with law in respect of the claim of these petitioners for continuing under old General Provident fund Scheme, which they claimed to be subscribers while in employment under erstwhile Department of Adult and Non Formal Education before they were absorbed in the year 2007 as employees of the Commercial Taxes Department. It would be open to the petitioners to prefer a representation before the respondent Secretary, Finance Department, Government of Jharkhand within four weeks together with all supporting facts and documents. The Secretary, Finance Department, Government of Jharkhand thereafter shall take a decision within a period of 16 weeks from the date of receipt of representation. In view of the aforesaid reasons, the impugned order as contained in 7. Annexure-5 dated 6.11.2010 in WP(S) No.6265 of 2010 and Annexure 3/1 dated 28.9.2012 in WP(S) 7305 of 2012 respectively shall not be given effect to till an appropriate decision is taken in the matter as directed above by the Finance Secretary, Ministry of Finance, Government of Jharkhand. Thereafter the decision of the Finance Secretary, Government of Jharkhand shall be given effect to by the concerned Departments in respect of the employees like these petitioners. Pandey (Aparesh Kumar Singh, J. )