Jharkhand High Court
State Of Jharkhand vs Kauleshwar Prasad And Ors. [Alongwith ... on 5 April, 2006
Equivalent citations: [2006(3)JCR233(JHR)], 2006 (2) AIR JHAR R 375, (2007) 2 JLJR 367, (2006) 3 JCR 233 (JHA), (2006) 46 ALLINDCAS 194 (JHA)
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, Narendra Nath Tiwari
ORDER S.J. Mukhopadhaya, J.
Page 1356
1. In both the appeals as common questions of law are involved, they were heard together and are being disposed of by this common judgment.
2. Respondent No. 1/writ petitioner Kauleshwar Prasad of L.P.A. No. 488 of 2004 had preferred the writ petition being W.P.(C) No. 648 of 2002 for a direction on the respondents to count the services, rendered by him as Extra Clerk for the period from 16th December, 1958 to 10th February, 1981, for the purposes of granting him the pensionery as well as other retiral benefits. Further prayer was made to direct the respondent (appellant herein) to pay him the salary for period from 2nd February, 1991 to 17th February, 1992.
Respondent No. 1/writ petitioner Girija Nand Prasad of L.P.A. No. 512 of 2004 had preferred a separate writ petition being W.P.(S) No. 4406 of 2002 for a direction on the respondents to consider the period of service, rendered by him as Extra Clerk from March, 1952 to 28th November, 1972, for the purposes of fixing his pension and other retirement benefits.
3. The learned Single Judge by the impugned judgment dated 20th January, 2004 allowed the writ petition being W.P.(c) No. 648 of 2002, preferred by respondent No. 1/writ petitioner Kauleshwar Prasad and directed the appellant/State to fix his pension, counting the services, rendered by him as Extra Clerk from 16th December, 1958 to 10th February, 1981. The writ petition being W.P.(S) No. 4406 of 2002, preferred by respondent No. 1/writ petitioner Girija Nand Prasad was also allowed by another judgment dated 19th April, 2004 for similar reason and on similar ground and the appellant/State was directed to re-fix his pension, counting the period of service rendered by him as Extra Clerk from March, 1952 to 28th November, 1972.
4. The question, involved in these appeals, are (a) whether the period, rendered by a person as an Extra Clerk can be counted for the purposes of pension and other retiral benefits? and (b) if the period, rendered as Extra Clerk, can be counted for the purposes of granting the pension and other retiral benefits, to what extent such period can be counted?
Page 1357
5. For determination of the aforesaid issues, it is necessary to look into the nature of establishment and posts available in the Registration Department of the State. One can get it from Bihar Registration Manual, 1946, which was also noticed by a Division Bench of Patna High Court in the case of Subodh Kumar Jha v. State of Bihar 1989 P.L.J.R. 1.
6. In the Registration Office, apart from regular establishment, persons are also engaged to perform certain day-to-day work. There are (i) permanent Clerks and (ii) Temporary Clerks in the regular establishment, who are paid salary in the regular scale of pay. Certain persons are also engaged as "Extra Clerks", who are paid on piece rated basis at the rate of Rs. 1/- per page (subsequently raised to Rs. 2/- per page), subject to a maximum of 24 pages per day for copying the registered documents. They are not paid from the State exchequer. In fact, the Government charges from the public at the rate of Rs. 4.50 paise per page, out of which piece rated payment is made to the Extra Clerks. There is a modality of payment of Extra Clerks, as prescribed under Rule 26(2)(a) of the Bihar Registration Manual, 1946, list of which is prepared in advance in each Sub-Registry Office. The Government issued guidelines from time to time and provisions were made to fill up the posts of Temporary Clerks by appointment/absorption of Extra Clerks on the basis of their year of appointment and period of work.
7. From the aforesaid facts, it will be evident that the Extra Clerks are neither the employees of regular establishment nor they can be termed to be the State Government employees.
8. The respondent/writ petitioner Kauleshwar Prasad was appointed as Extra Clerk on 16th December, 1958 in the District Registration Office, Bokaro. Subsequently, he was appointed as Temporary Clerk on 10th February, 1981. While in service, he was made an accused in Giridih (T) P.S. Case No. 22 of 1991 (G.R.No. 214 of 1991)/Tr. No. 70 of 2001 for the offence under Section 498A of the Indian Penal Code. He was arrested on 2nd February, 1991 and was released from jail on 15th February, 1992. He retired from the services of the State on 31st December, 1994 and later on, acquitted of the charges in the aforesaid case vide judgment dated 27th June, 2001. The respondent/writ petitioner having worked as Temporary Clerk for the period from 10th February, 1981 to 31st December, 1994 i.e. for about 13 years and 10 months was not entitled for pension. Therefore, he preferred the writ petition for counting the period of service, rendered by him as Extra Clerk from 16th December, 1958 to 10th February, 1981 in the regular establishment of the District Sub-Registrar Office, Chas, for the purposes of pensionery and other retiral benefits.
So far as respondent/writ petitioner Girija Nand Prasad is concerned, he joined as Extra Clerk in March, 1952 at District Sub Registry Officer, Raj Mahal (District-Sahebganj) and continued to work as Extra Clerk till 28th November, 1972. According to him, he was appointed as Permanent Clerk on 29th November, 1972 and retired on 29th February, 1988 i.e. after about 15 years and three months. So that he may get full pension, he preferred the writ petition for a direction on the respondents to count the period of service, rendered by him as Extra Clerk i.e. from March, 1952 to 28th November, 1972 for the purposes of pension and other retiral benefits. It was pleaded that in the case of other similarly situated persons, total period of service rendered as Extra Clerk has been counted for the purposes of determining the pension and other retiral benefits.
Page 1358
9. For determination of the issues, it is also necessary to notice certain provisions, relating to grant and claim of pension. The cases in which no pension can be claimed have been provided under Rule 45 of the Bihar Pension Rules, 1950, which reads as follows:
45. In the following cases no claim to pension is admitted:
(a) 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
(b) When a person is employed temporarily on monthly wages without specified limit of time or duty.
(c) When a person's whole time is not retained for public service, but he is merely paid for work done, such as Government Pleaders and law officers not debarred from private practice.
(d) When a public servant holds some other pensionable office, he earns no pension in respect of an office of the kind mentioned in Clause (c) or in respect of duties paid for by a compensatory allowance.
(e) When a Government servant serves under an agreement which contains no stipulation regarding pension, unless the Provincial Government specially authorize him to count service towards pension.
10. The condition of qualification for grant of pension has also been prescribed under Rule 58 of the Bihar Pension Rules, 1950, as quoted hereunder;
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. However, the State Government is empowered to interpret the Rules and to grant any indulgence, not provided for by the Rules, as is evident from Rule 203(a) of the Bihar Pension Rules, 1950.
12. Admittedly, Extra Clerks are engaged on piece rated basis and are merely paid for the work done. Their employment being not substantive and permanent and as the Extra Clerk's service is not paid by the Government rather paid from the amount, collected for writing per page of copies, the Extra Clerks are not qualified for pension. They cannot claim pension as a matter of right. However, once an Extra Clerk is taken in the regular establishment by appointment as Temporary or Permanent Clerk, he/she becomes eligible for pension, subject to completion of qualifying period of service.
13. Under Rule 61 of the Bihar Pension Rules, 1950 there is a bar in admitting the claim of pension unless the Government servant holds substantially a post on a permanent establishment. By Notification No. 12928 F dated 4th September, 1962 provision was made to count temporary service for pension and since then the temporary service and officiating service under the State Government, followed by permanency in the same or any other post, was allowed to be counted in full for pension, except in respect of the period of temporary service in non-pensionable establishment and the periods of service paid from contingencies.
Page 1359 This was made effective from 1st August, 1962, relevant portion of which is quoted hereunder:
Notification No. 12928F, dated 4.9.1962 Regarding: Temporary Service counting for pension.
It has not 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 in non-pensionable establishment, and
(ii) periods of service paid from contingencies.
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 Liberalised Pension Rules.
14. With a view to grant indulgence to the Temporary Clerks/ Permanent Clerks, the State of Bihar issued guidelines under Rule 203(a) of the Bihar Pension Rules vide Memo No. P.C.2-9-45/78-79-2F dated 16th January, 1979. Having noticed that the Extra Clerks generally spend large number of years before coming to regular establishment, the State Government decided that those Extra Clerks, who have been taken in the regular establishment on or after 1st April, 1971, be provided certain benefits to enable them to get pension/death-cum-retirement gratuity/gratuity and family pension:
(i) The following pensionery benefits will be applicable to those Extra Clerks, appointed in the regular establishment and retired on or after 1st April, 1971, but who were not completed 10 years of permanent service or 15 years of temporary service in the regular establishment; and
(ii) The shortage of the pensionable period of minimum 10 years continuous in permanent establishment or 15 years continuous in temporary establishment will be completed by adding the period of service, rendered as Extra Clerk.
15. According to the counsel for the respondents/writ petitioners in terms with Circular contained in Memo No. P.C.2-9-45/78-79-2F dated 16th January, 1979 aforesaid, the total period of service rendered as Extra Clerk is to be counted. But we are not inclined to accept such submission in view of the aforesaid guidelines, which is very specific. It is like grace marks in an examination. If a candidate fails due to shortage of a few marks, say 5 marks, then many times grace marks to that extent is allowed by deducting such marks from the extra paper. The candidate cannot claim for addition of more or the total marks of the extra paper, which are not added for the purposes of determining Grade/Division.
16. Learned Counsel for the respondents/writ petitioners relied on a Single Judge's decision of Patna High Court in the case of Upendra Prasad v. State of Bihar, reported in 1995(2) P.L.J.R. 822, which was also relied on by the learned Single Judge in the impugned judgments. In the aforesaid case, it was ordered to count the total period of services, rendered as Extra Clerk, for the purposes of pensionery benefits. But we find that the guidelines, issued by the State under Rule 203(a) of the Bihar Pension Rules vide Memo No. P.C.2-9-45/78-79-2F dated 16th January, 1979 was neither brought to the notice of the Court nor was discussed. It could be further seen from the judgment that in the said case the learned Single Judge Page 1360 mainly relied on an instruction dated 8th July, 1987, whereby, instruction was given to all the District Registrars that the appointment from the post of Temporary Clerk to the post of Permanent Clerk would be treated as promotion. The aforesaid letter dated 8th July, 1987 is not a guideline, issued by the State but by way of clarification as to whether a post is to be treated as promotional or not and that can not override a statutory guideline, framed under Rule 203(a) of the Bihar Pension Rules i.e. the guideline, contained in Memo No. P.C.2-9-45/78-79-2F dated 16th January, 1979. There are certain unreported judgments of Patna High Court, enclosed to the writ petitions, including in the case of Suresh Chandra Rai v. State of Bihar and Ors. (C.W.J.C.No. 10895 of 1999, disposed of on 14th July, 2000), wherein, similar order has been passed, based on the judgment, rendered in the case of Upendra Prasad (supra).
17. In our considered opinion, the judgment rendered by the learned Single Judge of Patna High Court in the case of Upendra Prasad (supra) is not a good law and is also not binding on the Division Bench.
18. In view of the discussions, made above, and the guidelines, issued by the State Government, as the Extra Clerks can not claim to count the total period of service, rendered as Extra Clerk, for the purposes of pensionery benefit and as both the judgments, passed by the learned Single Judge in the present writ petitions, are based on the judgment rendered by the Patna High Court in the case of Upendra Prasad (supra), they (judgment dated 20th January, 2004, passed in W.P.(C) No. 648 of 2002 and the judgment dated 19th April, 2004, passed in W.P.(S) No. 4406 of 2002) are hereby set aside. The respondent/writ petitioner Kauleshwar Prasad, having been taken in the regular establishment on 10th February, 1981 and retired on 31st December, 1994 and thereby having completed 13 years, 10 months and 21 days, is entitled to get only 1 year, 1 months and 10 days out of the period of service, rendered by him as Extra Clerk i.e. to the extent of shortage to count 15 years of temporary service to get the pensionery and other benefits.
Similarly, the respondent/writ petitioner Girija Nand Prasad, having been taken permanently in the regular establishment on 29th November, 1972 and having retired on 29th February, 1988 i.e. after about 15 years and 3 months and there being no shortage of the period for getting pensionery benefits, the period rendered by him as Extra Clerk can not be counted for such purpose. The appellant/State and its authorities will allow the benefits to the respondents/writ petitioners accordingly. Both the writ petitions are hereby dismissed and the appeals are allowed with the aforesaid observations and direction. However, there shall be no order as to costs.