Bijay Shankar Singh v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.14293 of 2017 ====================================================== Bijay Shankar Singh Son of Late Raghunath Singh, Resident of Village- Pach Patia, P.O. Dewaria, P.S.- Autarnagar, Dist.- Saran. ... ... Petitioner/s

Versus

1.

The State Of Bihar through the Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna. 2.

The Principal Secretary, Public Health Engineering Department Govt. of Bihar, Patna.

3.

The Principal Secretary Finance Department, Govt. of Bihar, Patna. 4.

The Principal Secretary, General Administration Department, Govt. of Bihar, Patna.

5.

The Engineer-in-Chief-cum-Special Secretary, Public Health Engineering Department, Govt. of Bihar, Patna 6.

The Chief Engineer (Mechanical), Public Health Engineering Department, Govt. of Bihar, Patna.

7.

The Zonal Chief Engineer, Patna Zone, Department of Public Health Engineering, Bihar, Patna.

8.

The Superintending Engineer, Public Health Engineering Circle- Sasaram (Civil).

9.

The Superintending Engineer, Public Health Engineering Circle, Patna (Machnical).

10.

The Executive Engineer, Public Health Engineering Division, Aurangabad (Civil).

11.

The District Accounts officer- Aurangabad.

12.

The Treasury Officer, Aurangabad.

13.

The Accountant General (A&E), Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Siyaram Pandey For the Respondent/s :

Mr.S. Raza Ahmad-AAG5 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL ORDER 09-07-2020 Heard both sides through Video Conferencing.

2. The petitioner in this writ petition seeks reliefs for issuance of a writ in the nature of mandamus or an appropriate

2/11 writ/order or direction commanding the respondents to pay the retirement benefits to the petitioner including: (i) Full amount of pension.

(ii) Full amount of gratuity.

(iii) Full amount of leave encashment and amount of L.I.C. (iv) Arrears of salary and (v) Arrears of pension as per recommendation of VIth Pay Commission Revision with interest by counting the total length of service of the petitioner spent under work charge establishment in view of the notification of Finance Department as contained in Letter No.1393 dated 31.03.2004 and in accordance with the order dated 15.05.2013 passed by the Division Bench of this Court in L.P.A. No.416 of 2012(The State of Bihar and Ors. vs. Sheela Devi) as well as the order dated 21.09.2015 passed in Civil Review No.210 of 2014.

3. The learned counsel of the petitioner submits that the petitioner was appointed as daily wages employee on muster role on the post of work inspector, a group 'C' post, in Public Health Division(Civil), Aurangabad in the year 1981. The petitioner was an educated person and his Executive Engineer, Public Health Division, Aurangabad absorbed the services of the petitioner under work charge establishment vide his office order

3/11 no.55 dated 10.06.1988 as contained in Memo No.646 dated 10.06.1988(Annexure-1). The petitioner continuously worked with full satisfaction of the respondents-authorities on the post of Work Inspector and the Chief Engineer, Mechanical, Public Health Engineering Department, Govt. of Bihar, Patna vide its Memo No.1124 dated 28.11.2006 wrote a letter to the Executive Engineer of Gaya, Aurangabad, Jehanabad and Nawada to regularize the daily wage employees on the newly created post of Keyman-cum-Choukidar, a group 'D' post(Annexure-2). In pursuance of the order dated 28.11.2006, the Executive Engineer, Public Health Engineering Department, Aurangabad vide its office order no.116 dated 01.12.

2006 regularised the post of the petitioner as Keyman-cum-Choukidar, a group 'D' post, despite the fact that petitioner was holding the post of Work Inspector in the work charge establishment. The petitioner joined the post of Keyman-cum-Choukidar with protest. When the petitioner and other employees working under the work charge establishment were reverted to as daily wage employees w.e.f. 01.06.2002, many persons being aggrieved by order of reversal filed various writ petitions before this Court. One matter went upto Hon'ble Apex Court in Civil Appeal No.3486 of 2006(Dinbandhu Pandey vs.

4/11 and the Hon'ble Apex Court held that the reversal was illegal and the employees were entitled to get the arrears treating them as work charge employees. Accordingly, the arrears of the petitioner was paid and petitioner remained working under work charge establishment till his regularization. According to the letter of Finance Department, as contained in Letter No.1393 dated 31.03.2004, the total length of service spent under work charge establishment shall be counted for the purpose of counting the minimum qualifying service of an employee for calculating the pension and gratuity and the employee would be given the time bound promotion and A.C.P. by calculating the total length of service spent under work charge establishment. One Sheela Devi filed C.W.J.C. No.

2246 of 2012 and the aforesaid writ petition was allowed with a direction to the respondents to ensure the family pension and other death-cumretiral benefits including the gratuity, leave encashment, group insurance and G.P.F.. The State of Bihar preferred L.P.A. No.416 of 2013 against the order dated 04.09.2012 passed in C.W.J.C. No.2246 of 2012 and the aforesaid L.P.A. was dismissed on 15.05.2013. The State preferred S.L.P.(Civil) No.29497 of 2013 but the same was also dismissed. After dismissal of S.L.P.

5/11 petition in L.P.A. No.416 of 2013 being Civil Review No.210 of 2014 which was also disposed by order dated 21.09.2015 by a Division Bench of this Court and it is made clear that in view of the Letter No.1393 dated 31.03.2004 the total length of service spent under work charge establishment shall be counted for the purpose of counting total length of service as qualifiying service of an employee for calculating the pension and gratuity but the petitioner was not treated similarly and his pension was fixed only on the basis of the period spent by the petitioner after being regularized on the post of Keyman-cum-Choukidar. Similarly all other retiral benefits were not paid to the petitioner after calculating the total length of service spent by the petitioner under work charge establishment.

4. The claim was contested by the State Government. The State-respondents filed counter-affidavit stating that claim of the petitioner to calculate the entire period of the petitioner worked as work charge for the purpose of pension is not tenable. The petitioner was earlier working purely on temporary basis as daily wage employee and thereafter he was directed to work on the post of work charge as Work Inspector. The post of Work Inspector on which the petitioner was working under work charge establishment was not a sanctioned post, therefore, the

6/11 period of service rendered by the petitioner on work charge post cannot be treated as the services rendered by the petitioner on substantive post in the permanent establishment. An employee is only entitled for pension when he works on substantive post. It is further stated that very recently this Court in a Full Bench judgment in the case of Smt. Amrika Devi and others vs. The State of Bihar & Ors., 2019(4) PLJR 354 considered the different circulars including the circular of 2004 and 2013 and also considered the difference of opinion in two Division Bench judgments of this Court in State of Bihar and others vs. Sheela Devi and others (LPA No.416 of 2013) and Civil Review No.210 of 2014 and L.P.A. No.12674 of 2014 (Binod Kumar and others v. State of Bihar & Ors.)

7/11 grant of full pension as if the employee worked on the substantive post.

5. The only question arises "whether the service rendered by the Government servant on daily wages or on the post of work charge establishment followed by regularization of service of such employee will be considered pensionable and the entire period rendered as work charge establishment shall be taken into consideration for grant of full pension or the period rendered by an employee on the post of work charge shall be calculated for the purpose of only qualifying service for pension?"

6. It is admitted fact that the petitioner was firstly appointed as daily wage employee on the muster role on the post of Work Inspector in Public Health Division(Civil), Aurangabad in the year 1981 and on the same post he was asked to work under work charge establishment vide Memo No.646 dated 10.06.1988. The service of the petitioner was regularized on the post of Keyman-cum-Choukidar w.e.f. 01.12.2006 in pursuance of the order of the Chief Engineer, Mechanical, Public Health Engineering Department, Govt. of Bihar as contained in Memo No.1124 dated 28.11.2006 and he worked on that post till his retirement. The pension of the petitioner was

8/11 fixed taking into consideration the work rendered by the petitioner on a substantive post of Keyman-cum-Choukidar w.e.f. 01.12.2006 and the period spent by the petitioner on the post of work charge as Work Inspector was calculated for the purpose of qualifying pensionable service, accordingly, the other retiral benefits of the petitioner were paid. The petitioner being aggrieved by such calculation filed this writ petition for calculating the entire service rendered by the petitioner under work charge establishment as Work Inspector since 10.06.1988. This question came up for consideration before a Full Bench of this Court in the case of State of Bihar and Anr.-respondentsappellants vs. Bhagwan Singh-petitioner-respondent in LPA No.701 of 2011 arising out of CWJC No.7228 of 2005 and the Full Bench of this Court in paragraph 14 of the judgment held as follows:

"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 followed by absorption on 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

9/11 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."

7. Again, some differences of opinion arose between the two Division Bench Judgments Civil Review No.210 of 2014 arising out of L.P.A. No.416 of 2013 dated 21.09.2015(The State of Bihar vs. Sheela Devi and others) on which the petitioner placed reliance as well as L.P.A. No.12674 of 2017 dated 04.01.2018(Binod Kumar and others vs. State of Bihar and others) with regard to manner of counting of period of work charge of an employee in his length of service after being regularised on substantive post so that the employee may get minimum pension, if the period spent by him is less than the period worked on substantive post as required for grant of pension and the question came up for consideration before a Full Bench of this Court in Smt. Amrika Devi & Ors. (in C.W.J.C. No.10063 of 2012), (Md. Parvez Quasim and others. (in C.W.J.C. No.

10449 of 2017) and State of Bihar & Ors.(in L.P.A. No.1794 of 2018, 1796 of 2018). The Full Bench considered the circular No.10710 dated 17.10.2013 and different resolutions of the Finance Department as contained in Memo No.1344 dated 04.02.1949, order no.13327 dated 29.06.

10/11 and the order no.3425 dated 31.03.1976 and other circulars dealing with the service of work charge including the letter No.1393 dated 31.03.2004 and answered the reference in para 46 of the judgment.

"46. The reference, thus, is answered in the following terms:

(a) With respect to addition of the number of years of service rendered in a workcharged tenure to the service under regular establishment, for the purposes of making the service of such regular employees pensionable, there is practically no substantial difference in the pronouncements of the two Division Benches in the case of Sheela Devi(supra) and Binod Kumar(supra).

(b) For the purposes of pension, only such period from the work-charged tenure would be added for making the service of an employee which has been regularized to qualify him for pension.

(c) While adding such period of workcharged tenure, the modus would be of granting/counting one year for every five years of service rendered under work-charged establishment. If that also leaves some shortfall, then further number of years of work-charged tenure can be taken/added for making the service of the employee pensionable.

(d) For the purposes of giving benefit to an employee for promotion on the selection grade and time bound promotion, the entire period of service rendered as work-charged employee can be counted.

(e) The rules and Circular of 2013 are valid as has been held in Binod Kumar(supra). (f) The Rules and Circular of 2013 are applicable to such work-charged employees who have been appointed after 22.10.1984 and prior to 11.12.1990."

11/11

8. From the facts aforesaid and the law laid down by the two Full Bench judgments of this Court, it is crystal clear that the services rendered by the petitioner on the post of work charged following his regularization shall be taken into consideration for the purpose of calculating the service of the petitioner as pensionable after calculating the same in 5:1 ratio and the entire period of service rendered by the petitioner as work charge shall not be counted for the purpose of granting full pension. The entire service rendered by the petitioner on the post of work charge could not be counted for the purpose of qualified service but it shall only be counted to the extent for the purpose of making it pensionable on the principle of 5:1 ratio as stated in the circular of those employees for whom the cut off date has been extended.

Thus, I find that the petitioner is not entitled to get full pension and other retiral benefits after calculating the entire period of service rendered by him on the post of work charge. Accordingly, I find no merit in this writ petition and the same is dismissed.

(Prabhat Kumar Jha, J) Saurabh/- U