Uma Pada Mahto …. … v. Ranchi 3. Chief Engineer, Water Resources Department
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4621 of 2016 Uma Pada Mahto …. …. Petitioner 1. The State of Jharkhand 2. Principal Secretary, Water Resources Department, Dhurwa, District- Versus Ranchi 3. Chief Engineer, Water Resources Department (Minor Irrigation), Kotwali, District- Ranchi. 4. Executive Engineer, Minor Irrigation Division, Dhanbad …. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Respondents
Legal Reasoning
------ : Mr. Ashim Kumar Sahani, Advocate Mr. Ajit Kumar, Advocate : Mr. Devesh Krishna, S.C. (Mines)-III ----- 11/01.05.2024 Heard learned counsels for the parties. 2. The petitioner has approached this Court with a prayer for direction to the respondents to fix and pay the pension and the balance amount of gratuity and leave encashment, as well as benefits of A.C.P. Scheme with interest at the rate of 12 per cent per annum. 3. The brief facts of the case are that the petitioner was appointed to the post of Pump Operator pursuant to his application dated 14.07.1978 on daily wage basis under work charged establishment and the petitioner joined at Chaibasa. The petitioner has completed more than 240 days prior to the cutoff date 01.08.1985. Subsequently, the services of the petitioner were regularized along with other employees in view of the decision of the Hon'ble Supreme Court vide Resolution No. 5940 dated 18.06.1993 to the post of Correspondence Clerk in the pay scale of Rs.4000-6000. Thereafter, the petitioner was posted in the Minor Irrigation Division, Dhanbad, and he there under the Executive Engineer, Minor Irrigation Division, Dhanbad (Respondent No. 4). Thereafter, the petitioner superannuated from the services on 31.10.2013, upon attaining 60 years of age. It is specific case of the petitioner that one Jai Narayan Sharma, a similarly situated employee, who was also initially engaged as daily wager and 1 Shashank regularised along with the petitioner and others by the common office order dated 14.11.2003 (Annexure-2 to the writ petition), has been granted the benefit of pension, which is evident from Letter No. 1138 dated 12.09.2013, issued by the Accounts Officer of the Office of the Principal Accountant General (A&E), Jharkhand, and the same was followed by Pension Intimation Memo No. 7729 dated 03.01.2014. The petitioner was sanctioned leave encashment to the tune of Rs.2,17,847/- and gratuity to the tune of Rs. 1,22,200/- on 31.10.2013, considering the services rendered by him since 20.11.2003 till the date of his retirement on 31.10.2013. Thereafter, the amount of gratuity was enhanced to the tune of Rs. 2,46,620/- vide letter issued by the Assistant Accountant General, Jharkhand, dated 06.05.2014. Petitioner is aggrieved by the said calculation on the ground that he is entitled for payment of gratuity and leave encashment considering his past services with effect from 01.12.1978 and not from 20.11.2003. 4. Mr. Ashim Kumar Sahani, learned counsel appearing for the petitioner, vociferously argues that the petitioner has completed more than 35 years of service before his retirement and as such, he is entitled for the benefits as claimed considering the past services and the calculation for payment of gratuity and leave encashment should be made taking into account the past services rendered by the petitioner from 01.12.1978. Learned counsel further argues that he is even entitled for the benefits of A.C.P. Scheme. It has been further argued that similar issue has already been decided by this Hon’ble Court in plethora of judgments. Learned counsel places heavy reliance on the judgment of this Hon'ble Court rendered in the case of Ram Prasad Singh and Others versus State of Jharkhand and other analogous cases reported in 2005 (3) JCR 9. 5. On the other hand, Mr. Devesh Krishna, learned counsel appearing for the respondents, opposing the contentions of learned counsel for the petitioner draws the attention of the Court towards the counter-affidavit filed on behalf of Respondent Nos. 3 and 4 and submits that petitioner has already been paid gratuity, leave encashment and other retiral benefits considering the regular services 2 Shashank rendered by him from 20.11.2003 to 31.10.2013, which is admissible to him. It has been further argued that since the petitioner has not completed 10 years of regular service, he is not entitled for pension. It has been further submitted that specific averment to this effect has been made in Paragraph Nos. 7 to 15 of the counter-affidavit. 6. Having heard the rival submissions advanced by learned counsels for the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons:- (i) Admittedly, the petitioner was working in the work charge establishment since 1978 and his services were regularized on 19.11.2003. (ii) The Full Bench of this Hon'ble Court in the case of Ram Prasad Singh (supra) has categorically held that work charge employees are entitled for retiral benefits and the services of the work charge employees have to be counted from the date of initial appointment for the purpose of pension and not from the date of regularization, as the condition of the service of the work charged employees has been made similar to that of temporary government employees and under 1949 Rules, they have right to claim and get such benefits to which a temporary government employee is entitled. The scheme having been framed by the State, the respondents cannot deny similar benefits to the work charged employees or on their death to their dependents/heirs, their condition of service being similar to that of temporary employees. (iii) Similar view has been reiterated by this Court in the case of Maya Devi and Others versus State of Jharkhand and Others reported in 2024 SCC OnLine Jhar 919, and also in the case of Most. Meera Devi versus The State of Jharkhand and Others arising out of W.P.(S) No. 5204 of 2010, as also in the case of Ajit Kumar Deo and Another versus The State of Jharkhand and Others reported in (2018) 1 JBCJ 167 (HC). Shashank 3 (iv) The Hon’ble Apex Court in the case of Deokinandan Prasad versus State of Bihar reported in (1971) 2 SCC 330 has held as under:- “31. ……. pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.” (v) In the case of Poonamal versus Union of India reported in (1985) 3 SCC 345 the Hon’ble Supreme Court has held as under:- “7. …….. pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right.” (vi) In the recent judgment, the Hon'ble Apex Court in the case of State of Gujrat versus Talsibhai Dhanjibhai Patel reported in 2022 SCC OnLine SC 2004, has held that the State cannot be permitted to take the benefit of its own wrong. To take the services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. 7. As sequitur to the aforesaid rules, guidelines and judicial pronouncement, the petitioner is entitled for pensionary benefits by counting the past services rendered by him. The stand of the respondent-Accountant General that he has not rendered 10 years of service and is not entitled for pension is totally misconceived and fit to be quashed and set aside and the same is hereby quashed and set aside. Petitioner is entitled for all benefits, including gratuity and leave encashment, considering the past services rendered by him and the respondents are directed to calculate the same considering the past services of the petitioner from 14.07.1978 and not from 20.11.2003 and extend the benefits to the petitioner. Let the entire exercise be Shashank 4 completed within a period of 12 weeks from the date of receipt/production of a copy of this order. 8. With the aforesaid directions and observations, the writ petition stands allowed. (Dr. S. N. Pathak, J.) Shashank 5