Sukhdeo Khan ….. … v. The State of Jharkhand The Chief Engineer, Minor Irrigation Department, Govt. of Jharkhand, Jamtara
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5015 of 2021 Sukhdeo Khan ….. …. Petitioner 1. 2. 3. 4. 5. Versus The State of Jharkhand The Chief Engineer, Minor Irrigation Department, Govt. of Jharkhand, Jamtara. The Superintending Engineer, Minor Irrigation Division, Govt. of Jharkhand, Jamara. The Executive Engineer, Minor Irrigation Division, Govt. of Jharkhand, Dumka. Accountant General, Jharkhand, Ranchi. …. …. Respondents CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ For the Petitioner For the Resp-State For the Resp. No. 5
Legal Reasoning
------ : Mr. Onkar Nath Tiwary, Advocate : Mr. Indranil Bhaduri, SC-IV Mr. Suman Marandi, AC to SC-IV : Mr. Sudarshan Srivastava, Advocate ----- 8/ 26.04.2024 Heard the parties. 2. The petitioner has approached this Court with a prayer for quashing of the Memo dated 21.09.2021 (Annexure-2) and for a direction upon the respondents to pay retiral benefits as petitioner has retired from service on 31.01.2021 while working as a Pump Chowkidar in Minor Irrigation Department, Subdivision Jamtara. 3. According to the petitioner, he joined the service on 25.09.1982 as a work charged staff. Petitioner along with other 118 work charged staff were regularized in the establishment vide letter no. 691, dated 02.02.1991, issued under the signature of Deputy Secretary, Minor Irrigation Department, Bihar, Patna and the name of petitioner appears at Sl. No. 5 of the list. Petitioner had been continuously working as a Pump Chowkidar in the department and subsequently retired on 31.01.2021 from the office of the Minor Irrigation Department, Division-Jamtara. Petitioner received all the monetary benefits as per service condition viz revised salary as per pay revision, 1st ACP, 2nd ACP and 3rd MACP by computing service period of the petitioner taking the date of joining to be 25.09.1982. After his retirement, petitioner received all the retiral benefits including leave 1 encashment, group insurance and GPF but the amount of gratuity as also pension was not paid to him. All the required formalities were completed by the petitioner but the respondent no. 5, vide letter dated 31.1.2021 returned the service book and online pension paper and sought clarification from the respondent no. 4 with respect to Noting that under which Rule a Government servant who joined on 25.09.1982 as a work charged staff and later on taken into regular establishment on 02.02.1991, vide departmental letter no. 691, dated 02.02.1991, his/her past service as in work charged establishment can be calculated as qualifying service for the purpose of grant of pension. In response thereto, petitioner sent all the details since joining including letter no. 691, dated 02.02.1991 along with resolution dated 27.03.1987, issued by the Finance Department, Govt. of Bihar, Patna in which list of all the 118 Work Charged staff who were regularized by said letter and also para3(A) of the said resolution which clearly stipulates that entire working period in work charged establishment will be counted as qualifying service for pension and gratuity. However, the respondent no. 5, in an arbitrary manner, rejected claim of petitioner for pension and gratuity vide letter no. 960, dated 27.07.2021 by giving a reference of letter dated 18.03.2021, issued by the Planning-cum-Finance Department, Government of Jharkhand. It is further case of the petitioner that the respondent no. 5 illegally and arbitrarily has withheld pension and gratuity of the petitioner by giving reference of letter dated 18.03.2021 which is not applicable in the instant case as petitioner has retired on 31.01.2021. Being aggrieved, petitioner has knocked door of this Court. 5. Mr. Onkar Nath Tiwary, learned counsel appearing on behalf of the petitioner submits that the respondent no. 5 is ignoring Resolution dated 27.03.1987 as per which petitioner and other similarly situated persons are entitled for pension and gratuity from the date of their joining as Work Charged employee. Similarly situated person, namely, Chandan Marandi has been issued Pension Intimation Memo and Gratuity Payment Order dated 20.04.2020. Similarly Md. Hashnain Alam, Sudarshan Manjhi, Raghunandan Singh and Paklu Soren have also been granted similar benefits. Learned counsel further argues that petitioner was granted all the ACP/ MACP benefits by calculating length of service from his date of 2 joining as Work Charged Staff and vide Resolution dated 05.02.2007, the petitioner was given all monetary benefits by calculating service period from the date of his initial joining i.e. 25.09.1982. Respondent no. 5 has deliberately withheld the pension and gratuity illegally payable to the petitioner on frivolous grounds. Learned counsel further argues that it is case of the petitioner that he is entitled for the benefits from the date of his initial appointment i.e. 25.09.1982, but the same has not been considered by the respondents and as such a direction may be given to the respondents to consider his case for payment of retiral benefits and also pensionary benefits from the date of initial appointment i.e. 1982 with statutory interest. 6. Mr. Indranil Bhaduri, learned counsel representing the State very fairly submits that during pendency of the instant writ petition, counter affidavit has been filed and it has clearly been stated that the entire amount of retiral benefits have been extended to the petitioner from the date of his regularization to which he is entitled for. Referring to several paragraphs of the counter affidavit, learned counsel submits that petitioner has already been paid as per his entitlement, nothing remains to be paid. 7. The issue as to whether work charged employee is entitled for the retiral benefits from the date of his initial appointment or from the date of regularization has already been set at rest. The Hon’ble Apex Court in the case of Prem Singh Vs. State of Uttar Pradesh and others reported in (2019) 10 SCC 516 has been pleased to hold that the imposition of rider that such service i.e. service in the work-charged establishment, to be countered has to be rendered in between two spells of temporary or temporary and permanent service is legal and proper. The Hon’ble Apex Court has further been pleased to hold that on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment, it was made on monthly salary and, thereafter, in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. The Hon’ble Apex Court has further been pleased to hold that it would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in- 3 between temporary and permanent service. There is no rhyme or reason not to count the service of work charged period in case it has been rendered before regularization. In the opinion of the Hon’ble Apex Court, impermissible classification has been made under Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961. The Hon’ble Apex Court has further held that such classification is highly unjust, impermissible and irrational to deprive such benefits of qualifying service to the employees. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification. 7. In the instant case, State has not brought out any such classification. In fact, there is no rule or classification contrary to counting the period of service rendered in the work-charged establishment as a qualifying service for calculating retirement benefits to an employee. I am of the firm opinion that the petitioner is entitled for retirement benefits viz. General Provident Fund, Leave Encashment, Gratuity and Pension, from the date of initial appointment in the work-charged establishment. In the instant case benefits has been given to the petitioner from the year 1991 whereas the period of service rendered by him from the initial date of appointment i.e. 25.09.1982 has not been taken into consideration on flimsy grounds. 8. In view of facts and circumstances narrated hereinabove, the respondents are directed to consider case of the petitioner for granting retiral benefits from the date of initial appointment in the work-charged establishment. Since delay has been caused by the respondents- State due to wrong interpretation of legal proposition, petitioner is entitled for simple interest @6% per annum from the date of his retirement till date of actual payment. 9. At this juncture, learned counsel for the State argues that delay has been attributed not on part of the respondents as entire amount has been 4 paid after retirement and State is not liable to pay any interest. 10. The contention of learned counsel for the State that State is not liable to pay interest, it is totally misconceived as the issue has already been set at rest. Petitioner is entitled for the interest, as directed hereinabove, at the rate of 6% per annum from the date of retirement till the date of actual payment. The period of initial appointment i.e. 25.09.1982 to 1991 is directed to be counted for the purpose of payment of retiral benefits. Since entire amount has already been paid, the impugned Memo dated 21.09.2021 (Annexure-1) has become redundant. The entire amount be calculated and paid to the petitioner with interest, as directed hereinabove, within a period of eight weeks from the date of receipt/ production of a copy of this order. 11. With the aforementioned observations and direction, the writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.) 5