Jharkhand High Court
The State Of Jharkhand vs Jharkhand State Non-Gazetted ... on 9 March, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.169 of 2020
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1. The State of Jharkhand.
2. Principal Secretary, Department of Transport, having its
Office at F.A.P. Building, Project Building, Dhurwa, P.O.
Dhurwa, P.S. Jagannathpur, District Ranchi.
... ... Appellants / Petitioners
Versus
1. Jharkhand State Non-Gazetted Employees Federation,
Ranchi, having its Office at Hinoo, P.O. Doranda, P.S.
Doranda, District Ranchi, through its Joint Secretary,
Umesh Kumar, son of Late Bachcha Kumar Singh,
resident of Mahabir Nagar, P.O. Argora, P.S. Argora,
District Ranchi, retired on 31.07.2016 from the post of
Clerk from Drinking Water & Sanitation Department,
Gonda Division, Ranchi.
2. Harendra Singh, son of Late Ramkeshwar Singh,
resident of Sadabahar Chowk, Namkum, P.O. Namkum,
P.S. Namkum, District Ranchi, retired on 31.07.2016
from the post of Peon from the Office of District
Transport Office, Jamtara.
3. Narendra Kumar Pathak, son of Late Kailash Pathak,
resident of Piprakala, P.O. - Piprakala, P.S. Garhwa,
District Garhwa, at present residing at Plot No.275,
Kadru, P.O. New A.G. Corporation Colony, P.S. Argora,
District Ranchi, retired on 31.01.2016 from the post of
Clerk from the Office of District Transport Office,
Daltonganj.
4. Devendra Jha, son of Late Kulanand Jha, resident of
Village Padma, P.O. Padma, P.S. Ladania, District
Madhubani (Bihar). Retired on 28.02.2017 from the
Office of Peon from the Office of Sub-Divisional Officer,
Seraikella.
5. Nawal Kumar Choudhary, son of Late Vijay Kant
Choudhary, resident of Hatia, P.O. Hatia, P.S.
Jagarnathpur, District Ranchi. Retired on 31.01.2017
from the post of Clerk from the Office of Drinking Water
& Sanitation Circle, Gumla.
6. Purushottam Mishra, son of Ram Nagina Mishra,
resident of Near Ram Mandir, Chutia, P.O. Chutia, P.S.
Chutia, District Ranchi. Retired on 31.12.2012 from the
post of Clerk from the Office of Deputy Commissioner
(Establishment), Hazaribagh.
7. Lal Bahadur Singh, son of Latte Ramdeo Singh, resident
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of Village Behera, P.O. Jhari, P.S. Jhari, District Gaya
(Bihar). Retired on 31.12.2016 from the post of Peon
from the Office of Circle Office, Kharandih, Garhwa.
8. Gauri Shankar Prasad, son of Late Baldeo Prasad,
resident of Village Biharsharif, P.O. Biharsharif, P.S.
Biharsharif, District Nalanda (Bihar). Retired on
30.06.2015 from the post of Peon from the Office of
Regional Transport Office, Hazaribagh.
9. Ram Chandra Singh, son of Late Bhagwati Sharan
Singh, resident of Manjurahi, P.O. Manjurahi, P.S.
Aurangabad, District Aurangabad (Bihar). Retired on
30.09.2016 from the post of Peon from the Office of
Deputy Commissioner (Establishment) Seraikella.
10. Devendra Pratap Singh, son of Late Shivnath Singh,
resident of Village Saraiya Bagdora, P.O. Nagra, P.S.
Nagra, District Balia (Uttar Pradesh). Retired on
30.09.2014 from the post of Peon from the Office of
Circle Officer, Jagannathpur, West Singhbhum at
Chaibasa.
11. Vinod Kumar Singh, son of Late Tapeshwar Singh,
resident of Village Sujakarma, P.O. Sujakarma, P.S.
Aurangabad, District Aurangabad, District Aurangabad
(Bihar). Retired on 31.05.2017 from the post of Peon
from the Office of Sub-Divisional Officer, Deoghar.
12. Bidyanand Singh, son of Late Bansmochan Singh,
resident of Amrawati Colony, P.O. Chutia, P.S. Chutia,
District Ranchi. Retired on 30.09.2014 from the post of
Peon from the Office of Civil Surgeon, Ramgarh.
13. Lalan Prasad Singh, son of Late Triveni Prasad Singh,
resident of Village Tumol, P.O. Ghanshyampur, P.S.
Ghanshyampur, District Darbhanga (Bihar). Still
working.
14. Ratnakar Jha, son of Late R.R.Jha, resident of Amravati
Colony, Chutia, P.O. Chutia, P.S. Chutia, District
Ranchi. Still working.
15. Shyam Nandan Prasad, son of Late Nathun Prasad,
resident of Saidpur, P.O. Hati, P.s. Jehanabad, District
Jehanabad (Bihar). Still working.
16. Bindeshwar Thakur, son of Late Gopal Thakur, resident
of Road No.24/M, Rajiv Nagar, P.O. Keshri Nagar, P.S.
Rajiv Nagar, District Patna (Bihar). Still working.
17. Devendra Kumar Jha, son of Late Ram Chandra Jha,
resident of Village Sohilwara, P.O. Mansurchak, P.S.
Mansurchak, District Begusarai (Bihar). Still working.
18. Awadh Bihari Singh, son of Sri Jawahar Singh, resident
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of Baba Ashram, Adityapur-II, P.O. Adityapur, P.S.
R.I.T., District Seraikella Kharsawan. Still working.
19. Satyendra Prasad Singh, son of Late Sidheshwar Prasad
Singh, resident of Village Ghatrain, P.O. Ghatrain, P.S.
Madanpur, District Aurangabad (Bihar). Still working.
20. The Principal Secretary, Department of Finance,
Government of Bihar, at 3rd Floor, Alankar Palace,
Boring Road P.O. & P.S. Boring Road, District Patna,
Bihar.
21. The Principal Secretary, Department of Transport,
Government of Bihar, at Vishwesaraiya Bhawan, Belly
Road, P.O. & P.S. Belly Road, District Patna, Bihar.
... ... Respondents /Respondents
22. The Principal Secretary, Department of Finance,
Government of Jharkhand, having its Office at Project
Bhawan, P.O. Dhurwa, P.S. Jagannathpur, District
Ranchi.
... ... Performa Respondents
With
L.P.A.No.287 of 2020
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1. The State of Jharkhand through Chief Secretary, Project
Building, P.O. & P.S. Dhurwa, Dist. - Ranchi,
Jharkhand.
2. Department of Transport, Government of Jharkhand,
through Principle Secretary, Project Building, P.O. &
P.S. - Dhurwa, Dist. - Ranchi, Jharkhand.
... ... Appellants/Respondents
Versus
1. Shankar Prasad Keshri, Son of Late Sukhdeo Prasad,
Resident of Vill. Katoria Bazar, Suiya Road, P.O. -
Katoria Bazar, P.S. - Katoria, Dist. - Banka, Bihar.
2. Chittaranjan Prasad Roy, Son of Late Ram Chandra
Prasad Roy, Resident of Vill. Jogiyatilha, P.O. - Kiyajori,
P.S. - Kiyajori, Dist. - Jamui, Bihar.
3. Suman Jee, Son of Late Jai Prakash Prasad, Resident of
Vill. - Rajabagaicha, P.O. Rajabagaicha, P.S. - Deoghar,
Dist. - Deoghar, Jharkhand.
4. Surendra Prasad Singh Nirala, Son of Late Damodra
Prasad Nirala, Resident of Village - Bilasi Town, C.P. -
Dwari Lane, P.O. - Bilasi Town, P.S. - Bilasi Town, Dist.
- Deoghar, Jharkhand.
5. Pradeep Kumar Singh, Son of Late Suresh Prasad Singh,
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resident of Deoghar College Road (Tiwari Chowk), P.O.
Deoghar, P.S. - Deoghar, Dist. - Deoghar, Jharkhand.
6. Rajmani Singh, Son of Late Jangbahadur Singh,
Resident of Kamal Kothi, Purandaha, P.O. - Deoghar,
P.S. - Deoghar, Dist. - Deoghar, Jharkhand.
7. Pramod Prasad Singh, Son of Sri Ram Krishna Singh,
Resident of Village - Ralli, P.O. - NTPC (Badh), P.S. -
NTPC (Badh), Dist. - Patna, Bihar.
8. Avinash Kumar Mahtha, Son of Late Raj Kumar
Mahtha, Resident of Ranga Mod, Near Deoghar College,
P.O. - Deoghar, P.S. - Deoghar, Dist. - Deoghar,
Jharkhand.
9. Chandrasekhar Jha, Son of Late Basudeo Jha, Resident
of Village-Bhagwanpur, P.O. - Lakhnawdih, P.S. -
Lakhnawdih, Dist. - Banka, Bihar.
10. Ajay Kumar Jha, Son of Sri Nunu Mani Jha, Resident of
M.N.Das Lane, P.O. & P.S. - Jogsar, Dist.- Bhagalpur,
Bihar.
11. Munna Rajak, Son of Sri Hari Rajak, Resident of Vill.-
Junpokhar, P.O. & P.S. - Lakhnawdih, Dist.-Deoghar,
Jharkhand.
12. Parmanand Singh, Son of Late Tulo Prasad Singh,
Resident of Vill. - Khairehiya (Vichala Tola), P.O. & P.S.
- Akbarnagar, Dist. - Bhagalpur, Bihar.
13. Shambhu Prasad Jaiswal, Son of Late Rajendra Prasad
Jaiswal, resident of Trakar stand, Bajar Chowk, P.O. &
P.S. - Munger, Dist. - Munger, Bihar.
14. Nunmani Singh, Son of late Masudan Singh, Resident of
Vill. Sahur, P.O. - Amrath, P.S. - Jamuai, Dist. -
Jamuai, Bihar.
15. Chintamani Kumar Sahay, Son of Late Bageshwari
Sahay, Resident of Sahid Ashram Road, P.O. & P.S.
Baidhnathdham, Dist. - Deoghar, Jharkhand.
16. Prabhat Kumar Singh, Son of Late Surendra Prasad
Singh, Resident of Vikas Nagar, Gidhani, P.O. & P.S. -
Gidhani Jali, Dist. - Deoghar, Jharkhand.
17. Arbind Kumar Singh, Son of Sri Subhash Chandra
Singh, Resident of Ram Nagar, Stadium Road, P.O. &
P.S. - Jasidih, Dist.- Deoghar, Jharkhand.
18. Amrendra Narayan Singh, Son of Sri Pramod Prasad
Singh, Resident of Vill. Gulri (North Tola), P.O. & P.S. -
Gulri Kushaha, Dist. - Banka, Bihar.
19. Nageshwar Prasad Bhaiya, Son of Late Sashi Bhushan
Bhaiya, resident of Village - Karhani Bagh, P.O. -
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Ashram, P.S. - Deoghar, Dist. - Deoghar, Jharkhand.
20. Basudeo Prasad yadav, Son of Sri Nand Kishore Yadav,
Resident of Vill. - Hanshdiha Hathgarh, P.O. & P.S. -
Hansdiha, Dist. - Dumka, Jharkhand.
21. Thakur Vijay Kumar Sinha, Son of Late Visheshwar
Sinha, Resident of DSP Road, Kuwanar Singh, P.O. &
P.S. - Gumla, Dist. - Gumla, Jharkhand.
22. Bipin Chandra Ghosh, Son of Late Ram Mohan Ghosh,
Resident of Village - Kunani, P.O. & P.S. - Banka, Dist.
- Banka, Bihar.
23. Ashok Prasad Singh, Son of Late Nageshwar Prasad
Singh, Resident of Vill. - Aakakura, P.O. - Bharoganj,
P.S. - Chanan, Dist. - Banka, Bihar.
24. Ratneshwar Khan, Sonof Sidheshwar Khan, Resident of
Vill. Road No.24, Adityapur, P.O. & P.S. - Adityapur,
Dist. - East Singhbhum, Jharkhand.
25. Surendra Prasad, Son of Late Seopujan Prasad,
Resident of Matwari Kumahartoli, Hira Bag, P.O. & P.S.
Hazaribagh, Dist. - Hazaribagh, Jharkhand.
26. Sarfraz Alam, Sonof Late Md. Fakhruddin, Resident of
Sarwar Cottage, Ansar Nagar, Pelawal Road, P.O. & P.S.
- Pelawal Road, Dist. - Hazaribah, Jharkhand.
27. Ashok Bhattacharjee, Son of Late Sailaja Kumar
Bhattacharjee, Resident of Old Kali Badi, Kali Bari Road,
P.O. - Hazaribagh, P.S. - Sadar, Dist. - Hazaribagh,
Jharkhand.
28. Sarfaraz Ahmad, Son of Late Basir Ahmad, resident of
Subash Marg, Kohinar Gali, P.O. & P.S. - Hazaribagh,
Dist. - Hazaribagh, Jharkhand.
29. Awdhesh Kumar Tiwari, Son of Late Kedarnath Tiwari,
Resident of Chandmari Road, Gali No.1, Kanladbagh,
P.O. & P.S. - Kankadbagh, Dist. - Patna, Bihar.
30. Vijay Kumar Sinha, Son of Late Thakur Prasad,
Resident of Shiv Kumar Lal Road, New Area Hamidganj,
P.O. & P.S. - Daltonganj, Dist. - Palamau, Jharkhand.
31. Jageshwar Choudhary, son of Bawuchan Choudhary,
Resident of Vill. - Bisunpur Arara, P.O. Bisunpur Arara
& P.S. - Garail, Dist. - Vaishali, Bihar.
32. Lalji Prasad, Son of Sri Bhagwan Saw, Resident of NCI
Road, Hamidganj, Daltonganj, P.O. & P.S. - Daltonganj,
Dist. - Palamau, Jharkhand.
33. Jawed Akahtar, Son of Md. Younus Khan, Resident of
Muslim Nagar, P.O. & P.S. - Medininagar, Dist. -
Palamau, Jharkhand.
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34. Varun Ranjan, Son of Late Vijay Kumar, Resident of
Ishlampur, P.O. - Ishlampur & P.S. - Hajipur, Dist. -
Vaishali, Bihar.
35. Arun Kumar Singh, Son of Sri Ram Tabakya Singh,
Resident of Ward No.1, Hamidganj, P.O. & P.S. -
Daltonganj, Dist. - Palamau, Jharkhand.
36. Ramashray Mishtry, Son of Late Mahadeo Mistry,
Resident of Village barewa, P.O. - Polpol & P.S.
Daltonganj, Dist. - Palamau, Jharkhand.
37. Kanahai Mochi, Son of Sri Tetar Mochi, Resident of Vill.
Sarja, P.O. - Polpol & P.S. - Daltonganj, Dist. -
Palamau, Jharkhand.
38. Ramu Mistry, Son of Sri Nand Kumar Mistry, Resident
of Badi Patandevi Garha, Guljarbagh, P.O. Gujarbah &
P.S. - Patna City, Dist. - Patna, Bihar.
39. Pratap Singh, Son of Late Suraj Singh, Resident of Vill. -
Redma, P.O. & P.S. - Daltonganj, Dist. - Palamau,
Jharkhand.
40. Rajendra Pandey, Son of Late Brij Bihari Pandey,
Resident of Vill. - Bandua, P.O. - Shapur & P.S. -
Chainur, Dist. - Palamau, Jharkhand.
41. Rabindra Nath Mukherjee, Son of Late Sushi Kumar
Mukherjee, Resident of Vill. Sartadham, P.O. & P.S. -
Deoghar, Jharkhand.
42. Sudhir Kumar Singh, Son of Sri Chandraskhekhar
Kumar, Resident of Sri Krishanapuri, Deoghar, P.O. &
P.S. - Deoghar, Dist. - Deoghar, Jharkhand.
43. Madan Mohan Mahto, Son of Late Ram Chandra Mahto,
Resident of Vill. - Akbarpur, P.O. - Mathurapur & P.S. -
Arib Nagar, Dist. - Samastipur, Bihar.
... ... Petitioners/Respondents
44. State of Bihar through Principal Secretary, Govt. of
Bihar, Department of Finance, Patna, P.O. - Patna, P.S.
- Patna, Dist. - Patna Bihar.
45. Bihar State Road Transport Corporation through its
Administrator, Paribahan Bhawan, Birchand Patel Path,
Patna, P.O. - Patna, P.S. - Patna, Dist. - Patna, Bihar.
... ... Respondents/Performa Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Sachin Kumar, A.A.G.-II
[In both cases]
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For the Respondents : Mr. Indrajit Sinha, Advocate
[In L.P.A. No.169 of 2020]
Mr. Rajendra Krishna, Advocate
[In L.P.A. No.287 of 2020]
For the State of Bihar : Mr. S.P.Roy, G.A. (Bihar)
Mr. Diwakar Upadhyay, A.C. to G.A.
[In both cases]
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ORAL JUDGMENT
Order No. 08 : Dated 9th March, 2022 With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. Both these appeals arise out of common order and as such this Court had directed vide order dated 14.12.2020 that both these appeals will be heard side by side.
3. Learned counsel for the parties have also agreed that both the appeals should be heard together since common issues are involved.
I.A. No. 5416 of 2020 in L.P.A. No.169 of 2020 and I.A. No. 5713 of 2020 in L.P.A. No. 287 of 2020
4. Both the appeals are time barred, therefore, interlocutory applications under Section 5 of the Limitation Act have been filed in both the appeal being I.A. No. 5416 of 2020 in L.P.A. No. 169 of 2020 and I.A. No.5713 of 2020 in L.P.A. No.287 of 2020.
5. I.A. No. 5416 of 2020 has been preferred for condoning the delay of 35 days in preferring L.P.A. No.169 of 2020 and -8- I.A. No.5713 of 2020 has been preferred for condoning the delay of 257 days in filing L.P.A. No.287 of 2020.
6. Heard parties.
7. Having regard to the averments made in the interlocutory applications and submissions made on behalf of the parties, we are of the view that the appellants were prevented from sufficient cause in filing the appeals within the period of limitation. As such, the delay of 35 days in preferring L.P.A. No.169 of 2020 and delay of 257 days in preferring L.P.A. No.287 of 2020 are hereby condoned.
8. I.A. No. 5416 of 2020 and I.A. No.5713 of 2020 stand allowed.
L.P.A. No.169 of 2020 with L.P.A. No.287 of 2020
9. Both these appeals, preferred under Clause 10 of the Letters Patent, are directed against the order/judgment dated 19.12.2019 passed by learned Single Judge of this Court in writ petitions being W.P.(S) No.277 of 2018 and analogous cases whereby and whereunder the writ petitioners- respondents have been held entitled for pension taking into consideration the past service rendered by them and benefits accruing to the petitioners by virtue of their earlier services were also directed to be given to them within a period of three months from the date of receipt of a copy of the order.
10. Brief facts of the case as per the pleadings made in the -9- writ proceedings, which are required to be enumerated herein, read as under :-
The factual aspect involved in this case is that by virtue of bifurcation of the State by coming into effect of Bihar Reorganization Act, 2000 on 15.11.2000, two separate States i.e., the successor State of Bihar and the successor State of Jharkhand, came into existence, on or after 15.11.2000. The Government of India vide order dated 14.01.2004, had apportioned the assets and liabilities of the Bihar State Road Transport Corporation (in short BSRTC) between the State of Bihar and the State of Jharkhand in the ratio of 65:35. The BSRTC stood dissolved with effect from 30.06.2004. The employees of BSRTC, being allocated the cadre of Jharkhand, became the employees of the State of Jharkhand with effect from 01.07.2004. The Department of Transport recommended that the employees may be given the benefit of 5th and 6th Pay Commission if they have been absorbed.
The Government of Jharkhand came out with a notification regarding 'appointment' of the petitioners instead of 'absorption'. However, later on, the Department of Transport, Government of Jharkhand, issued a resolution being Resolution No.273 dated 09.03.2015 stating therein that in view of the direction of the Hon'ble Supreme Court, the word "appointment" is hereby deleted and the employees are being considered for "absorption" with all benefits in the
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light of the Resolution No.273 dated 09.03.2015. The Department of Transport, Government of Jharkhand thereafter issued a resolution being Resolution No.480 dated 04.04.2016 pertaining to the absorption of the services of the concerned employees with effect from 24.08.2011. Further, vide Resolution No.603 dated 19.07.2016, the Department of Transport resolved to give salary of the employees as per the recommendation of the 6th Pay Revision Committee and in case the salary is less than the employees used to receive as an employee of the BSRTC, the benefit of pay protection would be given. It was further resolved that since the date of absorption i.e. 24.08.2011, the new pension scheme shall be applied in the case of the absorbed employees. Since the employees/petitioners have been considered to be working in the services of the Government of Jharkhand with effect from 24.08.2011 due to application of new pension scheme, they have been denied the benefit of gratuity as well as pension.
It is further case of the petitioner that in some of the districts of State of Jharkhand like Chaibasa, Simdega, Seraikella and Ramgarh, the employees of the Transport Corporation were getting the benefits of pay revision and past service in light of Resolution No.273 dated 09.03.2015 issued by the Department of Transport, Government of Jharkhand, but when the employees of other districts raised issue of parity, the same was withdrawn and a direction was issued to
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make payment of salary in accordance with resolution No.603 dated 19.07.2016. The employees of BSRTC as also the similarly situated persons filed writ petitions being C.W.J.C. No.7985 of 2005, C.W.J.C. No. 18489 of 2011, C.W.J.C. No. 16460 of 2012 and C.W.J.C. No. 24999 of 2013 before the Patna High Court for a direction to the respondents for implementation of the recommendations of 5th and 6th Pay Commission with effect from 01.04.1997 and 01.04.2007 respectively.
All the writ petitions were heard together and the Patna High Court held that the petitioners are entitled for the benefit on the basis of the recommendations of 5th and 6th Pay Revision Committee.
The employees who were absorbed in the State of Jharkhand, in view of the bifurcation of the State, were denied the legal rights with respect to pay revisions as per the recommendation of the 5th and 6th Pay Commission and the benefits of pay differences, continuity of services and past service, whereas the counterpart's similarly situated employees are enjoying the fruits of 5th and 6th Pay Commissions' benefits.
The petitioners herein, therefore, being aggrieved by the non-consideration of their cases regarding benefits of 5th and 6th Pay Commissions and also consideration of their cases regarding benefits of pay difference from the date of
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bifurcation i.e. 01.07.2004 regarding gratuity, unauthorized leave, pension and other benefits, all continuity of services and bonus and hence they were constrained to approach this Court by filing writ petition being W.P.(S) No.277 of 2018 and W.P.(S) No.461 of 2018.
The writ petitioners agitated the ground about the decision of the State of Jharkhand to absorb them and similarly situated persons from 24.08.2011 being illegal, arbitrary and unlawful. According to the petitioners, the respondents ought to have absorbed the services of the petitioners from the date of their initial appointment giving them continuity in service as the petitioners are being deprived of their past service.
The took the further ground that action of the respondents is wholly contrary to the provisions of Section 73 of the Bihar Reorganization Act, 2000, as the Government of Jharkhand has varied the service conditions to the disadvantage to the petitioners without any approval of the Central Government.
Further, the benefits were rightly given to the employees in the light of Resolution No.273 dated 09.03.2015 issued by the Department of Transport, but the same was illegally and arbitrarily withdrawn and ordered for payment of salary in accordance with Resolution No.603 dated 19.07.2016.
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The respondents contested the case and took the plea that the direction of this Court has been complied with and the petitioners are getting the salary as other employees of the State of Jharkhand i.e. based upon the recommendation of 6th Pay Revision Committee. The resolutions of the respondents are totally based on Arbitration Committee's report of Justice Sagir Ahmed which has been upheld by the Hon'ble Apex Court. The employees of the State Road Transport Corporation, whose services were allocated to the State of Jharkhand, have been duly absorbed and in consequence thereof, they became at par with the employees of the State Government with effect from 24.08.2011.
Further ground was taken that the respondents-State has considered the cases of the writ petitioners on the basis of the directions of the Hon'ble Apex Court in which the cut- off date for absorption has been decided as 24.08.2011 and salary has been paid as per the 6th Pay Revision Committee.
Further, the absorption of the petitioners in the State of Jharkhand does not give them an automatic right to claim for the benefit of their past service.
Further, the reference of writ petition being W.P. (S) No. 2115 of 2015 has been made wherein the issue of absorption came for consideration but the aforesaid writ petition was dismissed observing therein that the adjustment has been made on the basis of the report of Arbitration Committee and
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the agreement entered into between the State of Bihar and the State of Jharkhand with respect to assets and liabilities of BSRTC.
The learned Single Judge, after appreciating the stand/ground agitated on behalf of the learned counsel for the parties, came to the conclusive finding as under
paragraph 21 of the impugned judgment holding the writ petitioners entitled for pension taking into consideration the past service rendered by them. Benefits accruing to the petitioners by virtue of their earlier services have also been directed to be paid within a period of three months from the date of receipt of a copy of the order, which is the subject matter of these intra-court appeals.
11. Mr. Sachin Kumar, learned A.A.G.-II, appearing for the State-appellants, has raised the issue that the direction of the learned Single Judge holding the respondents/writ petitioners entitled for pension taking into consideration the past service rendered by them is absolutely incorrect and improper conclusion, reason being that the writ petitioners were absorbed in service with effect from 24.08.2011 and subsequent thereto, the date of their absorption has been shifted to 01.07.2004, but that does not confer any right upon the writ petitioners to claim benefit of pension taking into consideration the fact that in the past services, i.e., services under the BSRTC, the services were not pensionable.
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According to learned counsel for the appellants, even after absorption by the State of Jharkhand under regular establishment, the writ petitioners cannot be held entitled for pension by treating them at par with the regular employees of the State of Jharkhand, rather the absorption in the facts of this case will have the same conditions which were at the time when the BSRTC was in existence under the undivided State of Bihar.
If, the contention of the learned counsel for the writ petitioners will be accepted, that will be nothing but inserting a new service condition which was not available at the time when they joined the service under the undivided BSRTC.
He further submits that the learned Single Judge has failed to consider this aspect of the matter and, therefore, the order passed by the learned Single Judge suffers from patent illegality and hence, not sustainable in the eyes of law.
Learned counsel pressed the report of the Arbitration Committee, headed by Justice Sagir Ahmed, wherein even though the benefit of continuity of service has been decided to be given and that is the reason why the writ petitioners were absorbed in service for the purpose of continuity in service but that continuity cannot entitle the writ petitioners for the benefit of pension by counting the past services.
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According to the learned counsel, the continuity of service as has been referred in the Arbitration Committee's report will only mean that they will be deemed to have continued in service and no other inference can be drawn for the purpose of pensionery benefits.
12. Per contra, Mr. Rajendra Krishna, learned counsel appearing for the respondents/writ petitioners in L.P.A. No.287 of 2020 and Mr. Indrajit Sinha, learned counsel appearing for the respondents/writ petitioners in L.P.A. No.169 of 2020, have jointly submitted that there is no error in the order passed by the learned Single Judge.
The learned Single Judge, after taking into consideration the implication of absorption, has held the writ petitioners/respondents entitled for pensionery benefit by directing to count the past service. According to them, once the decision has been taken by the Arbitration Committee for absorption, it impliedly means the past service rendered by one or the order employees working under undivided BSRTC, by virtue of their absorption in the State Government, will be counted and they will be entitled for the same benefit as is given in favour of the regular employees working under the regular establishment of the State of Jharkhand.
Learned counsel further submitted that once the writ petitioners have been absorbed under the regular establishment of the State Government, there cannot any
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discrimination treating them a different class to that of the employees working under the regular establishment of the State of Jharkhand, otherwise, there will be "class within class".
Their further submission defending the order passed by the learned Single Judge is that since the State Government is accepting the date of absorption to be from 01.07.2004, on that date the Old Pension Scheme was in existence and, therefore, the writ petitioners are entitled to get the benefit of pension under the Old Pension Scheme and not under the New Pension Scheme which came into existence in the month of December, 2004.
Learned counsel, therefore, submit that the learned Single Judge has passed the order taking into consideration the aforesaid fact and, therefore, the same suffers from no infirmity. Accordingly, both the appeals lack merit and the same may be dismissed.
13. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
14. This Court, having appreciated the argument advanced on behalf of the parties, is required to answer the following issues :-
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(i) Whether the writ petitioners are entitled to get the benefit of pension based upon the existence of pension scheme on the date of absorption i.e., 01.07.2004?
(ii) Whether the writ petitioners, who have been absorbed under the regular establishment of the State of Jharkhand based upon the Arbitration Committee's report which has been accepted by the Hon'ble Supreme Court, can be allowed to be discriminated with the regular employees of the State of Jharkhand?
15. Both the issues are inter-linked, therefore, the same are being considered and answered together but before answering the issues, some undisputed facts, as per the material available on record, are required to be referred.
Admittedly, the respondents/writ petitioners were the employees of the Bihar State Road Transport Corporation (BSRTC). Consequent to the bifurcation of the State of Bihar and creation of the State of Jharkhand by virtue of Bihar Reorganization Act, 2000, their services fell within the State of Jharkhand as they were either within the territorial jurisdiction of the State of Jharkhand or subsequently their services were allocated to the State of Jharkhand. In the unified State of Bihar, for some reason or the other, the employees of the BSRTC were not being paid the salary and as such, litigation has started which ultimately culminated into Civil Appeal No.7290 of 1994.
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The Hon'ble Apex Court, in the aforesaid appeal, has passed an order on 12.08.2008 dealing with the effect of bifurcation of the State of Bihar and the plight of the employees of the BSRTC. The dispute between the parties was referred to Arbitration Committee appointed by the Hon'ble Apex Court which was headed by a former Judge of the Hon'ble Supreme Court i.e., Hon'ble Mr. Justice S. Saghir Ahmad, and on the basis of the report submitted by the said Committee, which was accepted by the Hon'ble Supreme Court, the employees of the BSRTC were being paid 50% of the salary from 01.12.2000.
The Hon'ble Apex Court directed to make the payment of entire arrears of salary and retiral dues within a specific period of six months. The aforesaid order also speaks about the situation that if the State of Jharkhand decides not to have any State owned Transport Corporation or wants to terminate the services of the employees who are allotted to that State, it would do so by giving them the benefits of the Industrial Disputes Act.
Admittedly, the services of none of the employees in the State of Jharkhand were terminated even after the dissolution of the Corporation, rather, the services of the employees were absorbed by the State Government vide Resolution dated 31.10.2013, 01.09.2014 and 14.02.2015. The State of Jharkhand, after having absorbed the services of
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the employees, had filed one interlocutory application being I.A. No. 32 of 2012, seeking clarification about this order which stood dismissed vide order dated 05.10.2012 as mentioned in the resolution of the State Government itself which was published in the official gazette on 07.06.2013, therefore, the aforesaid order dated 24.08.2011 attained finality for all practical purposes.
It further appears that the Hon'ble Apex Court has passed order on 07.04.2015 in Contempt Petition (C) No. 411 of 2013 wherein it has been ordered "it is not in dispute that the petitioners have been absorbed with effect from 24th August, 2011 and their dues have been paid and in some of the instances is in the process of being paid keeping the date of absorption in mind".
It appears from the Resolution dated 07.06.2013 that the employees who have been absorbed in the services of the State of Jharkhand have been decided to be dealt with under the provisions of Jharkhand Service Code.
It is further evident that after the Resolution dated 07.06.2013, one another resolution has been issued on 9th March, 2015 as contained in Resolution No.273 whereby and whereunder the Government has come out with a modification in the Resolution dated 07.06.2013 to the effect that wherever the word "appointment" has been inserted, the same is treated to be "absorbed (Samayojit)".
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At this juncture, it would be relevant to refer about the importance of Resolution dated 09.03.2015 which has been issued by taking into consideration the fact about implication of absorption and that is the reason the State of Jharkhand has realized its mistake that in a case of absorption there cannot be any reference of "appointment" of one or the other persons, rather, the suitable word is "absorption".
It is further required to refer herein that there is wide difference in implication of the word "appointment" and "absorption". The appointment means that the person concerned is appointed the day when the officer of appointment is issued but if there is a decision for absorption, the implied meaning of it will be that the past service is to be counted.
This Court is required to refer herein that if there is no difference in between the word "appointment" and "absorption", then what necessitated the State of Jharkhand to come out with Resolution dated 09.03.2015.
If further appears from the record that one another resolution has come on 19th July, 2016 referring therein about the decision taken in the resolution dated 06.06.2013 as under paragraph 10, 11 and 12 which was with respect to the issue about the applicability of New Pension Scheme which is effective from the month of December, 2004, so far as stipulation made under paragraph 10 thereof. Paragraph
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11 of the aforesaid resolution speaks about the effect of absorption which was from the date of joining to the respective post. The stipulation made under paragraph 12 of the aforesaid resolution speaks about giving parity in the pay scale and other benefits, which will be at par with the State Government employees as also the absorbed employees were decided to be paid the benefit of revised pay scale.
It further appears from the aforesaid resolution that initially the services of the concerned employees were decided to be absorbed with effect from 24.08.2011 and, therefore, the writ petitioners were decided to be provided benefit of New Pension Scheme (NPS) since the date of absorption as the New Pension Scheme was in operation on that date. But a writ petition was filed before this Court being W.P.(S) No.2115 of 2015, which was decided on 08.03.2016 against which intra-court appeal being L.P.A. No.264 of 2016 was filed wherein following direction was passed on 29.01.2020 :-
"25. We accordingly, hold the appellants and the other similarly situated employees, entitled to the benefits of 5th Pay Revision Committee recommendations w.e.f. 01.07.2004, i.e., after the dissolution of the Corporation on 30.06.2004, and 6th Pay Revision Committee recommendations from the dates applicable to the other employees of the State of Jharkhand. The respondent State is accordingly, directed to calculate the dues of the appellants and the other similarly situated employees, including their retiral dues accordingly, and to make the payment of all their dues,
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including the retirement benefits, positively within a period of six months from today."
Against the aforesaid order, Special Leave to Appeal was filed which was dismissed vide order dated 01.03.2021 against which a review petition was filed being R.P.C. No.785 of 2021 which was also dismissed vide order dated 18.08.2021.
It further appears that the respondent State of Jharkhand again came out with another notification gazetted on 27.01.2022 whereby the following decision has been taken by modifying the earlier notification issued on 19.07.2016. The important decision is as under (i) whereby and whereunder the benefits of 5th Pay Revision have been decided to be provided in favour of the employees of the Corporation/absorbed employees with effect from 01.07.2004. Thus, the State Government has modified the earlier decision to grant such benefit which was decided to be paid with effect from 24.08.2011, has now been preponed to 01.07.2004.
Further, as under Condition No.(vii), the decision has been taken to pay the difference in amount with effect from 01.07.2004.
16. It is, therefore, evident from the discussion made hereinabove, based upon the consideration of the different
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notifications gazetted by the State of Jharkhand that the date of absorption has been fixed as 01.07.2004.
17. The New Pension Scheme has come into effect in the month of December, 2004. The plea of the State respondent that the writ petitioners will be entitled to be paid the pensionery benefits on the basis of the New Pension Scheme, even though, they have been decided to be absorbed with effect from 01.07.2004. The decision to make the New Pension Scheme applicable in favour of the absorbed employees was based upon the decision of the State authority by taking the cut-off date of absorption i.e., 24.08.2011 but the moment the date of absorption has been fixed as on 01.07.2004, it is required to be seen, whether on 01.07.2004 the New Pension Scheme was in operation or not?
Admittedly, the New Pension Scheme has come into operation in the month of December, 2004, therefore, the said scheme cannot be allowed to be given its retrospective application by stretching the period from 24.08.2011 to 01.07.2004, reason being that the decision which has been taken by the State authority by preponing the date of absorption to 01.07.2004, such decision was taken by virtue of the order passed by the Division Bench of this Court in L.P.A. No.264 of 2016 disposed of on 29.01.2020, as quoted and referred hereinabove, which has subsequently been affirmed by Hon'ble Apex Court by dismissal of Special Leave
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Petition vide order dated 01.03.2021 and further, the review petition being R.P.C. No.785 of 2021 was also dismissed vide order dated 18.08.2021.
In that circumstances, if the State authorities have acted upon the order passed by the Division Bench of this Court by fixing the cut-off date of absorption as 01.07.2004, the State respondent has brought the absorbed employees under the fold of Old Pension Scheme since, New Pension Scheme having come into operation in the month of December, 2004.
In view thereof, according to considered view of this Court, the plea which is being taken by the State authorities about applicability of New Pension Scheme with respect to the pensionery benefits to be granted in favour of the absorbed employees, is held to be improper and accordingly rejected.
18. The State has taken the further plea that even accepting that 01.07.2004 to be cut-off date of absorption but the benefit of past service cannot be allowed to given in favour of one or the other employees.
It requires to refer herein the report of the Arbitration Committee wherein the Committee has recommended in Clause (v) of the recommendation which is quoted hereinbelow :-
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"(v) Bihar State Road Transport Corporation has been paying half of the salary to its employees every month in terms of the Hon'ble Supreme Court's Order dated 10.11.2000 with effect from 01.12.2000. The employees remaining with the Bihar State Road Transport Corporation shall continue to be paid their salary at the aforesaid rate till appropriate orders are passed by the Hon'ble Supreme Court in that regard either modifying or vacating that Order to ensure either payment of full salary or salary at the present rate. This will also ensure continuity of service of the employees of the Bihar State Road Transport Corporation."
It further appears that the aforesaid report has been accepted by the Hon'ble Supreme Court and a direction has been passed so far as the employees working in the Jharkhand State Road Transport Corporation is concerned to the effect that if the State of Jharkhand decides not to have any State owned Transport Corporation or wants to terminate the services of the employees who are allotted to that State, those employees would be entitled to all the benefits in accordance with the provisions of the Industrial Disputes Act. But, after the aforesaid decision having been passed by the Hon'ble Apex Court, the State of Jharkhand, by virtue of notification issued on 07.06.2013, modified on 09.03.2015 and subsequent thereto, in pursuance of order passed by the Division Bench of this Court on 29.01.2020 in L.P.A. No.264 of 2016, the resolution has been gazetted on 27.01.2022, the decision has been taken to absorb the employees of the
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erstwhile Bihar State Road Transport Corporation who have come into the territory of the State of Jharkhand after bifurcation of the State. Therefore, the State itself has taken decision to absorb the services of the employees, the writ petitioners herein.
The State respondents, once taken decision for absorption of such employees, will not be allowed to take the plea that the writ petitioners are not entitled for the benefit of past service, reason being that once the petitioners have been absorbed under the State Government under the Department of Transport, they have been decided to be treated as employees of the State of Jharkhand and in that view of the matter, they are entitled to get the treatment at par with the regular employees working under the regular establishment of the Department of Transport of the State of Jharkhand and that is the reason, initially the State respondents published the gazette notification using the word "appointment" in favour of these petitioners but subsequently, as would appear from Gazette Notification dated 07.06.2013, but subsequent thereto, the modification has been made in the aforesaid notification by bringing another Gazette Notification on 09.03.2015 wherein the word "appointment" has been replaced by the word "absorption".
If the State of Jharkhand has taken the stand of replacing the word "appointment" to that of "absorption", the
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reason is obvious that the writ petitioners have been decided to be given the benefits of past service, otherwise there was no reason/occasion to replace the word "appointment" from the word "absorption".
Otherwise also, if the employees have been absorbed in the regular establishment, they cannot be denied the benefits of past service that too, when the fact about continuity of service has been recommended by the Committee, however, pertaining to the Bihar State Road Transport Corporation, but if the employees working under the Bihar State Road Transport Corporation have been given the benefit of continuity of service, can it be denied to the employees came in the territory of the State of Jharkhand due to the effect of bifurcation of the State.
It is important to note that in the notification issued with respect to absorbing the employees in the Road Transport Department of the State of Jharkhand, there is no stipulation to the effect that the past service will not be counted. If such condition would have been there, the matter would have been different. But, in absence of that condition, the State Government cannot be allowed to take such plea by filing counter affidavit before the court of law in order to make addition in the Gazette Notification which has been issued in the name of the Governor, after being deliberated upon by the Cabinet of the State.
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19. The implication of absorption, in absence of any condition not to count past services, will certainly be counted. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in Mrigank Johri and Others v. Union of India and Others [(2017) 8 SCC 256], wherein in the context of stipulation of condition not to count the past service in a case of absorption, the Hon'ble Apex Court has come to a view that when there is specific condition stipulated in the order of absorption not to count past service, once accepted, the absorbed employee cannot turn around and question that condition in order to count past service.
Therefore, in a case where the notification issued pertaining to absorption contains a condition not to count past service, then certainly the plea which is being taken by the State respondents will be held to be applicable but in absence thereof, such plea cannot be allowed to be agitated.
In the case of A.N.Sachdeva (Dead) By Legal Representative and Others v. Maharshi Dayanand University, Rohtak and Another [(2015) 10 SCC 117], the Hon'ble Apex Court while considering the fact about creation of class among class has observed as under paragraph 30 which reads as under :-
"30. Considering the principles enunciated under Articles 14 and 16 of the Constitution, and that the benefit is not an ex gratia payment but a payment in
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recognition of past service, in our opinion, discrimination could not have been made between those employees who have been absorbed/allocated and are entitled to count their services as qualifying service for the purpose of pension and not those who have been appointed directly. Fact remains that all these employees have served in Punjab University/Kurukshetra University/MD University without any break. MD University, prior to its establishment, was the regional centre of Kurukshetra University. Expectation had arisen to compute the period of service rendered in Punjab University/Kurukshetra University which cannot be unreasonably deprived of. Merely because a person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered. Even otherwise, it is a case of upward revision of benefit and the classification which is sought to be created by the aforesaid method of not extending benefit to persons appointed directly and by fixing cut-off date cannot be said to be intelligible one; same is discriminatory and thus, the appellants would be entitled for the benefit from the date decision has been taken on 24-12-2001 to compute the previous service rendered in Punjab University/Kurukshetra University as qualifying service. In other words, they would be entitled for the benefit prospectively from the date of issuance of Memorandum dated 24-12-2001. The employees have expressed their willingness to deposit/adjustment of the employer's contribution of CPF as required in the Memorandum dated 24-12-
2001." [Emphasis supplied] It is, thus, evident that in the aforesaid case, the Hon'ble Apex Court has observed that merely because of person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered and if the
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same will be allowed to happen, it will be nothing but a case of unreasonable classification and discriminatory.
20. This Court, after considering the fact about implication of absorption as also based upon the observation made by Hon'ble Apex Court, is of the considered view that once the writ petitioners were absorbed under the regular establishment of the State Government, the State authority cannot be allowed to take the plea not to count the past service for the purpose of giving the pensionery benefit. Otherwise, there will be no difference in between fresh recruitment and the absorption. If the cut-off date as on 01.07.2004 has been fixed to be the date of absorption and from that date the consideration of grant of benefit, as per the plea of the State authorities will be accepted, it will be nothing but the absorption of the writ petitioners will take the shape of fresh appointees and in that condition, the decision of the State authorities through the Cabinet of absorbing the writ petitioners, will be frustrated since once the Cabinet took decision for absorption, the concerned authority of the concerned Department is not competent to put a word upon the decision of the State Government, which is not permissible even under the Rules of Executive Business.
21. This Court, after having discussed the facts in entirety as above, has gone across the order passed by the learned
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Single Judge and found therefrom that the learned Single Judge has also considered the implications of absorption and in view thereof, has come to conclusive finding to count the past service of the writ petitioners and passed the order holding the writ petitioners entitled for pension. This Court, therefore, in the entirety of discussion as above, is of the view that the order passed by the learned Single Judge suffers from no error.
22. Accordingly, the instant appeals fail and are dismissed.
23. Pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.