Chandrika Rai and Others v. The State of Bihar and Others
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 60 of 2022 1.The State of Jharkhand 2.The Principal Secretary, Water Resources Department, Government of Jharkhand, Nepal House, PO & PS Doranda, District Ranchi 3.The Chief Engineer, Water Resources Department, Government of Jharkhand, Nepal House, PO and PS Doranda, District Ranchi 4.The Superintending Engineer, Water Resources Department, Gumla, PO and PS Gumla, District Gumla 5.The Executive Engineer, Water Ways, Division-II, Chainpur, PO and PS ......Appellants Chainpur, District Gumla Versus 1.Krishna Rai, son of Late Shiv Nandan Rai, resident of village and PO Pipra, PS Govindpur, District Motihari (Bihar) 2.Accountant General (A&E), Jharkhand, PO and PS Doranda, District Ranchi ... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the State of Jharkhand: Mr. Ashok Kumar Yadav, Sr. SC-I For the Resp. No.1 Mr. Anish Kumar Mishra, AC to Sr. SC-I : Mr. J.P. Jha, Sr. Advocate Mr. Afaque Ahmad, Advocate Mr. Altaf Hussain, Advocate --------------- 7th November 2023 Per, Shree Chandrashekhar, J.
Legal Reasoning
The State of Jharkhand has challenged the writ Court‟s order dated 06th August 2021 passed in WP(S) No. 822 of 2014 by which a direction has been issued for taking a fresh decision for payment of
Decision
pensionary benefits to the writ petitioner in the light of an order passed by the Patna High Court in CWJC No. 9547 of 1997 titled “Chandrika Rai and Others v. The State of Bihar and Others”. 2. Briefly stated, the State of Bihar formulated a scheme on 18th June 1993 to regularize the employees in service who had worked for atleast 240 days till 1st August 1985 and a list of such employees was prepared on 25th October 1991. It seems that certain disputes arose which led to filing of writ petitions and the High Court issued a direction for implementing the scheme of regularization. With a grievance that he was left out while other similarly situated employees were regularized in service, Krishna Rai had also approached the writ Court and filed CWJC No. 1518 of 1997(R) and, 2 LPA No. 60 of 2022 by an order dated 17th April 1998, CWJC No. 1518 of 1997(R) filed by him was allowed by the writ Court in the following terms: “10. The writ petition is thus allowed directing the concerned respondents to take up the case of the petitioners alongwith the similarly situated persons for the purpose of their regularization or absorption within a month next from the date of presentation of a copy of this order from the side of the petitioners. It is made clear that regularization must be made atleast from the date of filing of this writ application, if not considered on an earlier stage, when the junior to the petitioners had been regularized and the petitioners should be given proper pay scale atleast from the date of regularization. If for any reason any of petitioners are found unfit for the purpose of regularisation then the respondents may take steps, according to the law, after giving proper opportunities of hearing.” 3. The challenge made by the State of Bihar to the aforementioned writ Court‟s order failed in LPA No. 179 of 1998(R) and the said Letters Patent Appeal was dismissed on 28th February 2000 for the following reasons: “23. In the present case, the State Government has already framed scheme which by and large appears to be in accordance with the direction of the Supreme Court in Piara Singh‟s case and other cases on the point, subject to some modification which I have suggested hereinabove in paragraph 16. In these premises, these writ petitions have to be disposed of with a direction to the State Government to make necessary modification in the scheme and to consider the cases of the petitioners and others in accordance with such scheme and in the light of observations made in this judgment as early as possible, preferable within six months. The petitioners, however, in the meantime, shall be entitled to salary at the minimum of the scale admissible to the posts on which they are working. In any case, they will be entitled to remuneration for the work already performed by them, after proper verification of the records in accordance with rules. 24. In view of the discussions made hereinabove, the order of the learned Single Judge dated 17.04.98 impugned in LPA No. 179 of 1998 directing regularization of the services from the date of filing of the writ petition within one month cannot be sustained, which is accordingly set aside and the concerned writ petition as well as the present batch of writ petitions are disposed of with the observations and directions made above,…..” 4. The orders passed by the High Court in relation to other employees were taken to the Hon‟ble Supreme Court by the State of Bihar in Special Leave Petition (Civil) No. 18154 of 1999 and batch cases. The Hon‟ble Supreme Court disposed of the Special Leave Petitions by an order dated 30th October 2000 with a direction that regularization of the employees must be done in accordance with the scheme formulated by the 3 LPA No. 60 of 2022 State of Bihar on 18th June 1993 and only such employees should be regularized in service who fulfilled all necessary conditions as mentioned in the scheme for regularization. The Hon‟ble Supreme Court further issued a direction that for expeditious implementation of the scheme for regularization the State of Bihar shall take steps to constitute Committees depending on the number of available vacancies, “from time to time”. This is no surprise to the Court that the State did not accept the order passed in favor of the respondent no.1 and rushed to the Hon‟ble Supreme Court by filing Special Leave Petition (Civil) No. 16784-16820 of 2000 which has been disposed of alongwith Special Leave Petition (Civil) No. 18154 of 1999. Now finding no way out, the State of Jharkhand issued the letter of regularization dated 29th April 2004 in relation to ten employees and in the said list of employees the respondent no. 1 is placed at sl. no. 8. On 30th June 2013, the respondent no. 1 superannuated from service and has been denied post-retiral benefits including pension on the ground that he could not complete a period of ten years after regularization in service. 5. Constrained, the respondent no. 1 approached the writ Court which issued aforementioned direction for a fresh consideration for payment of pensionary benefits to him. 6. WP(S) No. 822 of 2014 considered the rival contentions, thus: The writ Court in the order dated 06th August 2021 passed in “Be that as it may having gone through the rival submission of the parties, across the bar, this Court is of the considered view that admittedly petitioner has rendered services on the post of Jeep Driver from 01.01.1984, though his services were regularized in the year 2004. From the perusal of said regularization orders it reflects that the regularization was done on a substantive and permanent post. For better appreciation of the case it would be relevant to quote Rules 61 and 63 of the Jharkhand Pension Rules as well as Notification No.12928 F dated 04.09. 1962 which read as under:- “61. Service does not qualify unless the Government servant holds substantively a post on a permanent establishment. Notification:- It has now been decided that temporary service or officiating service under the State Government when followed by permanency whether in the same or any other post should count in full for pension except in respect of— (i) Period of temporary service establishment, and (ii) Period of service paid from contingencies. in non-pensionable The concession of counting officiating and temporary service in full for pension will be available to Government Servants who are governed by the Old Pension Rules, or the 4 LPA No. 60 of 2022 Liberalised Pension Rules. “63. A Government servant transferred from a temporary to a permanent appointment can count his service the temporary post, if though at first created experimentally or temporarily, it eventually becomes permanent.” in From plain reading of the aforesaid rules and notification it is clear that the period spent by the Government servant on temporary or officiating basis against the substantive pensionable post shall be counted for the purpose of pension if service is made permanent or such temporary officiating post is later on converted into a permanent post. The issue relating to consideration for grant of pensionary benefits upon regularization of services is no more re-integra. The Patna High Court in C.W.J.C. No.9547 of 1997 (Chandrika Rai & Ors. v. The State of Bihar & Ors.), in which the cases of similarly situated seasonal Moharrirs, who were initially appointed between the year 1954 to 1957 on the post of Seasonal Moharrirs, and who subsequently, retired after completing 38 years of continues service in between 1994 to 1996, were denied their retiral benefits by the respondent authorities on the ground that the those petitioners‟ were engaged as Seasonal employees and their services were terminated after the season was over, Ultimately their services were regularized w.e.f. 1992, but they had not completed ten years of service till the date of their retirement. The Patna High Court, taking into consideration Rules 45, 58 & 145 of the Bihar Pension Rules, negated the stand of the State Government and directed to make the payment of pension to those petitioners on the basis of the past services rendered by them as seasonal employees. The State Government filed L.P.A against the said order being L.P.A. No.1343 of 1998 which was also dismissed by a reasoned order, by the Division Bench of the Patna High Court on 5.1.1999. Against the said order appeal was filed by the State Government in the Supreme Court of India, and the same was also dismissed. Accordingly, those petitioners were paid their pensionary benefits taking into consideration the period of service rendered by them as seasonal Moharrir. As sequitur to the aforesaid rules guidelines and judicial pronouncement this writ petition stands allowed with a direction to the respondent-authorities to take a fresh decision in the matter of fixation of pensionary benefits admissible to the petitioner in view of order passed in Chandrika Rai (supra) case, within a period of eight weeks from the date of receipt of a copy of this order.” 7. The State of Jharkhand has challenged the direction issued by the writ Court primarily on the ground that a Full Bench of Patna High Court did not approved “Chandrika Rai” in a subsequent decision in “The State of Bihar v. Bhagwan Singh” 2014 SCC OnLine 3337. 8. the following observations in “Bhagwan Singh”: Mr. Ashok Kumar Yadav, the learned Sr. SC-I has laid stress on “The matter that arises for our consideration is whether the 5 LPA No. 60 of 2022 service rendered by the government servant on daily wages in service will be considered followed by pensionable under the Bihar Pension Rules 1950. Therefore, this Appeal. regularization Learned advocate Mr. Anjani Kumar has appeared for the State Government. In the submission of the Mr. Anjani Kumar, the learned single Judge and for that matter, the Division Bench in Letters Patent Appeal No. 1343 of 1998 had not considered the relevant provisions of the Bihar Pension Rules, 1950 (hereinafter referred to as the „Pension Rules‟). We shall first consider the relevant provisions of the Pension Rules, 1950. Rule 56 of the Pension Rules provides that „unless it be otherwise provided by special rule or contract, the service of every government servant qualifies from the date he takes the charge of the post to which he is first appointed'. Rule 58 thereof provides that the service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- (i) The service must be under Government. (ii) The employment must be substantive and permanent. (iii) The service must be paid by Government. Rule 61 thereof provides, „service does not qualify unless the Government servant holds substantively a post on a permanent establishment‟. Rule 45 thereof expressly excludes certain service for computation of pension. Clause (a) thereof reads, „when a government servant is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged‟. Clause (b) thereof reads, „when a person is employed temporarily on monthly wages without specified limit of time or duty‟. It is apparent that the above-referred provisions were not brought to the notice of the learned single Judge or before the Division Bench in the matter of State of Bihar v. Chandrika Rai (Letters Patent Appeal No. 1343 of 1998). Keeping in view the above provisions, we are of the opinion that the service rendered by the petitioner as daily wage Choukidar under the Executive Engineer, Tubewell Division, Gaya cannot be said to be a service for which the petitioner was paid from the general revenue of the State Government or the service rendered on a substantive post in a permanent establishment. Such service, although was regular establishment, will not qualify for pension. Therefore, the service rendered by the petitioner, as daily wage employee from April 1973 to December 1978, was not a pensionable service or did not qualify for pension. On his retirement from service or his superannuation from service, he would be entitled to pension for the service rendered on a substantive post from 1st January 1979 till the date he retired from service. followed by absorption on It is not in dispute that the petitioner has indeed been paid pension for the service rendered by him from 1st January 1979 till July 2002 in the Work Charge Establishment, the petitioner is, therefore, not entitled to the relief claimed in the writ petition. 6 LPA No. 60 of 2022 For the aforesaid reasons, Appeal is allowed. Impugned order dated 10th February 2010 made by the learned single Judge in C.W.J.C. No. 7228 of 2005 is set aside. C.W.J.C. No. 7228 of 2005 is dismissed. The judgment in the matter of Chandrika Rai (supra) and any other judgment taking a similar view are expressly overruled.” Mr. Ashok Kumar Yadav, the learned Sr. SC-I next referred to 9. Rules 45, 58 and 60 to submit that the writ Court‟s direction is flawed in law inasmuch as a government employee in order to become entitled for pension must have completed ten years of service on a substantive and permanent post. 10. Rule 45 of the Jharkhand Pension Rules, 2000 provides that a claim for pension shall not be admitted if a government servant was appointed for a limited time or for a specified duty on the completion of which he is to be discharged. As the facts of this case would indicate, the respondent no. 1 was not appointed for a limited period or for a specified duty after which he was to be discharged. Rather, he continued in service till he attained the age of superannuation and, in the meantime, he was regularized in service. Rule 58 seems to be the main plank for the State of Jharkhand to lay a challenge to the writ Court‟s order for reconsideration for payment of post-retiral benefits to the respondent no.1, which reads as under: “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.” 11. There is no dispute that the respondent no. 1 was in government service and he was paid from the government exchequer. This is the stand taken by the State of Jharkhand that counting from the date of regularization on 29th April 2004 the respondent no. 1 could not complete ten years of minimum service so as to entitle him for pension. Now in the context of the orders passed by the High Court and the Hon‟ble Supreme Court, it must be held that the respondent no. 1 was illegally denied regularization in service prior to 29th April 2004. This is also clearly demonstrable from the materials on record that the State of Bihar was engaged in litigation for several years and that was the only reason why an order for regularization in respect of respondent no. 1 was not issued, even after a direction was issued by the 7 LPA No. 60 of 2022 Hon‟ble Supreme Court on 30th October 2000. The order of regularization dated 29th April 2004 issued in favor of ten employees did not contain any stipulation that the past services rendered by them shall not be counted for the post-retiral benefits. This is not in the realm of any doubt that past services rendered by an employee even on adhoc/temporary basis can be counted for pension. The very fact that the respondent no.1 has been regularized in service demonstrates that he was possessing requisite qualifications from the inception. This we say because the regularization of the respondent no.1 in service is in compliance of the order passed by the Hon‟ble Supreme Court in a batch of Special Leave Petitions, wherein the Hon‟ble Supreme Court passed the following order: “We are of the view that the regularization of the writ petitioners should be done in accordance with the procedure indicate in the scheme dated 18.06.93 and it should apply to the persons who satisfy all the conditions mentioned in the Scheme. The direction given by the learned Single Judge that pending regularization of these daily-wage workers, they should get the minimum of the pay scale is set aside. The State of Bihar will take steps to constitute necessary Committees and will take expeditious steps to implement the Scheme depending upon the number of vacancies available, for time to time. With the above direction, the SLP is disposed of. SLP Nos.16781-83 & 16784-820/2000 Petitioners to comply with office Report dated 20.08.2000. There will be interim stay of operation of the impugned orders of the High Court, until further orders.” 12. Having regard to the aforesaid facts and circumstances, we do not find any ground to interfere with the writ Court‟s order and, accordingly, LPA No. 60 of 2022 is dismissed. 13. Jharkhand for taking a frivolous matter like the present one to the Court. However, a cost of Rs. 50,000/- is imposed on the State of (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Tanuj/ NAFR