Patna High Court
Amrika Devi And Ors vs The State Of Bihar And Ors on 2 September, 2019
Author: Amreshwar Pratap Sahi
Bench: Chief Justice, Anjana Mishra, Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10063 of 2012
======================================================
1. Smt. Amrika Devi wife of late Raghunath Sahani,
2. Krishna Kant Sahani, son of late Raghunath Sahani
3. Mani Kant Sahani, son of late Raghunath Sahani
4. Bablu Kumar Sahani, son of late Raghunath Sahani
All residents of Village Dath, P.S. Biraul, District Darbhanga
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Engineer-In-Chief Cum Special Secretary, Public Health Engineering
Department, Government Of Bi
3. The Chief Engineer Mechanical , Public Health Engineering Department,
Government Of Bihar, Patna
4. The Superintending Engineer, Public Health Engineering Circle, Darbhanga
5. The Executive Engineer, Public Health Engineering Division, Darbhanga
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 10449 of 2017
======================================================
1. Md. Parvez Quasim, S/o Late Md. Quasim, resident of Bagh Kallo Khan,
Patna City, P.O.- Jhauganj, P.S.- Khajekala, District- Patna.
2. Md. Rafique Uddin, S/o Late Hamid Uddin, resident of S.M. Raza Street,
Nityanand Ka Kuan Lodi Katra, Patna City near Jaggan Goap, Patna.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Department of Public Health Engineering.
3. The Engineering-in-Chief-cum-Special Secretary, Public Health Engineering
Department, Bihar, Patna.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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4. The Chief Engineer Mechanical, Department of Public Health Engineering,
Bihar, Patna.
5. The Superintending Engineer, Public Health Engineering Bihar, Patna.
6. The Executive Engineer, Public Health Division, Patna, East Patna.
... ... Respondent/s
=============================================
=========
with
Letters Patent Appeal No. 1794 of 2018
In
Civil Writ Jurisdiction Case No.1285 of 2016
=============================================
=========
1. The State of Bihar
2. The Principal Secretary, Public Health Engineering Department,
Government of Bihar, New Secretariat
3. The Joint Secretary, Public Health Engineering Deparment, Government of
Bihar, New Secretariate, Pa
4. The Chief Engineer, Mechanical, Public Health Engineering Department,
Government, Government of Bih
5. The Superintending Engineer, Mechanical, Public Health Engineering
Muzaffarpur.
6. The Executive Engineer, Public Health Engineering, Muzaffarpur.
... ... Appellant/s
Versus
1. Maheshwar Pandey, son of Hardeo Pandey, Resident of Village- Sonebarsa,
P.S.- Kanti, District- Muzaffarpur.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Senior Accounts Officer, Office of the Accountant General, Bihar,
Patna.
... ... Respondent/s
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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=============================================
=========
with
Letters Patent Appeal No. 1796 of 2018
In
CIVIL REVIEW No.167 of 2018
=============================================
=========
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Public Health Engineering Department,
Government of Bihar, Patna.
3. The Joint Secretary, Public Health Engineering Department, Government of
Bihar, New Secretariat, Patna.
4. The Chief Engineer, Mechanical, Public Health Engineering Department,
Government of Bihar, New Secretariat, Patna.
5. The Superintending Engineer, Mechanical, Public Health Engineering
Department, Government of Bihar, New Secretariat, Patna.
6. The Executive Engineer, Public Health Engineer, Muzaffarpur.
... ... Appellant/s
Versus
1. Maheshwar Pandey, Son of Hardeo Pandey, Resident of Village- Sonebarsa,
Police Station- Kanti, District- Muzaffarpur.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Senior Accounts Officer, Office of the Accountant General, Bihar,
Patna.
... ... Respondent/s
=============================================
=========
Appearance :
(In Civil Writ Jurisdiction Case No. 10063 of 2012)
For the Petitioner/s : Mr. Bam Bahadur Jha
For the Respondent/s : Mr. Gautam Bose
(In Civil Writ Jurisdiction Case No. 10449 of 2017)
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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For the Petitioner/s : Mr. Siyaram Pandey
For the Respondent/s : Mr. S. Raza Ahmad- AAG5
(In Letters Patent Appeal No. 1794 of 2018)
For the Appellant/s : Mr. Vishwambhar Prasad Ac To
AAG 5
For the Respondent/s : Mr. Prabhat Ranjan
(In Letters Patent Appeal No. 1796 of 2018)
For the Appellant/s : Mr. Vishwambhar Prasad, AC To
AAG 5
For the Respondent/s : Mr.
=============================================
=========
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA
MISHRA
and
HONOURABLE MR. JUSTICE ASHUTOSH
KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH
KUMAR)
Date : 02-09-2019
1. In view of the difference of opinion
noted by a learned Single Judge of this Court in
the two Division Bench judgements, namely,
Civil Review No. 210 of 2014, arising out of
L.P.A. No. 416 of 2013 dated 21.09.2015
(State of Bihar & Ors. Versus Sheela Devi and
other analogous cases) as well as in L.P.A. No.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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12674 of 2017 dated 04.01.2018 (Binod
Kumar & Ors. Versus State of Bihar & Ors. ),
with respect to counting of the period of work-
charged service for the purposes of computing
pensionary benefits and the length of
pensionable service, the matter has been
referred to a Larger Bench for an authoritative
pronouncement.
2. Hence, the constitution of the
present Full Bench.
3. The learned Single Judge in
Raghunath Sahani, since dead, and now
represented by Smt. Amrika Devi and three
others, noted the difference between two
Division Bench Judgements in as much as in
Sheela Devi (supra), the Division Bench had
directed for taking into account of the entire
period of work-charged tenure for being
counted for pensionary benefits whereas in
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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Binod Kumar (supra), the Division Bench,
taking into account the Work-Charged
Establishment Revised Service Condition
(Repeal) Rules, 2013 had opined that period
spent under the work-charged establishment
would be counted only to the extent of the
shortfall in the qualifying period of service for
grant of pension which shall be made up by
adding that period spent under the work-
charged establishment and that the entire
period spent under the work-charged
establishment would not be taken into account.
It was also noticed by the learned Single Judge
that the judgement rendered in the case of
Sheela Devi (supra) was not noticed in Binod
Kumar (supra) which was a later
pronouncement.
4. The question therefore revolves
around and could be answered by testing the
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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validity and reasonableness of the contents of
the Circular No. 10710 dated 17.10.2013.
5. In order to appreciate the issue, it
would be necessary to go down the history of
the decisions of the Government with respect to
regularization of the services of a work-charged
employee and affording pension to him.
6. The State of Bihar vide Finance
Department's Memo No. 1344 dated 4th of
February, 1949 laid down the revised conditions
of the service of a work-charged establishment.
The memo referred to above reads as follows:
*Subject.- Revised
conditions of service of
work-charged
establishment.
The existing
distinction between work
charged establishment
temporary and permanent
establishment and daily
labour as given in th P.W.
Code and P.W.D. Accounts
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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Code will be maintained but
the conditions of service of
work- charged
establishment will
henceforth be identical with
those of temporary
Government servants.
The posts in work-
charged establishment
which are of permanent
nature, that is required for
12 months in the year and
for long and indefinite
period will be made
permanent and included in
permanent establishment
and the men employed on
these posts, having year's
approved service will be
included amongst permanent
Government employees.
Details in this connection
are Patna High Court LPA
No.166 of 2018 dt.04-02-
2019 being worked out and
till this is done the
conditions of service
applicable to temporary
Government servants will
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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apply to all work-charged
posts.
[Vide F.D. Memo
No. 1344 dated 4.2.1949].
7. Thereafter, the Government of the
day had taken a decision vide order No. 13327
dated 29.06.1971 to induct a work-charged
employee into regular establishment who had
rendered services for 10 years and be paid
pension. However, for qualifying for pension,
10 years minimum service was required and
therefore the period rendered by an employee
in a work-charged establishment would not be
counted for pension. The aforesaid decision was
liberalized and vide order no. 3425 dated
31.03.1976, a decision was taken to add the
service rendered by an employee under work-
charged establishment who were brought into
regular establishment after 01.04.1971 for
meeting the 10 years eligibility criterion for the
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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services to become pensionable. Even for family
pension, it was decided that if the service in
regular establishment was less than one year,
the period of work-charged tenure would be
added. In the year 1980 (Order No. 505, dated
06.03.1980), by another stroke of pen, the
requirement was further relaxed by the
Government and it was provided that such
work-charged employees who were brought into
regular establishment after 01.04.1971 or
thereafter, who did not have the requisite
qualifying years, namely 10 years for regular
service and 15 years for temporary service
after induction into the regular establishment,
shall be given the benefit of the period of
service during work-charged tenure to make it
pensionable along with gratuity. This was done
to meet the requirement of Rule 203 of the
Bihar Pension Rules, 1950. Necessary provision
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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was also made for family pension by the
aforesaid government order. Showing further
liberality in the matter, the Government vide
Resolution No. 3058 dated 22.10.1984
provided for regularizing the work-charged
employees who had continuously worked
against one post for five years in different
work-charged establishments. But, it was also
decided that in future, no post in work-charged
establishment shall be filled up nor created, in
view of the Finance Department Circular No.
8954 dated 23rd of July, 1975 . In that order
also, provision for adding service from the
work-charged tenure for the purposes of
making it pensionable was made. Thereafter
comes the Resolution No. 1503 dated
27.03.1987 issued by the Finance Department,
Government of Bihar, declaring that the whole
period rendered in work-charged establishment
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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for computation of qualifying period for grant of
pension shall be counted.
8. It may be noted that such addition
from the work-charged period was only for
making the services of such work-charged
employee qualify for pension. For the purposes
of giving selection grade and time-bound-
promotion, the period rendered in work-charged
establishment, though could be added but
without disturbing the seniority of a regular
employee. For clarity, paragraph 3 of the
aforesaid Circular is being extracted for ready
reference:
"3- dk;ZHkkfjr
deZpkfj;ksa dks isa"ku] izoj
dksfV ,oa dkyc) izksUufr dh
lqfo/kk nsus ds fy, dk;ZHkkfjr
LFkkiuk esa fcrk;h x;h vof/k dks
DokfyQkbZax ihfj;M dh x.kuk dk
fo"k; ljdkj ds fopkjk/khu FkkA
vr% iw.kZ fopkjksijkUr iwoZ esa fy,
x, fu.kZ; dks la"kksf/kr djrs gq,
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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jkT; ljdkj us fuEufyf[kr
fu.kZ; fy;k gS &
¼,½ ,sls dk;ZHkkfjr
deZpkjh ftudks orZeku vuqns"kksa
ds v/khu isa"ku ,oa minku
vuqekU; gksrk gS muds }kjk
dk;ZHkkfjr LFkkiuk esa fcrk;h xbZ
iwjh lsokof/k dks 'kkfey djrs gq,
isa"ku ,oa minku ds fy,
DokfyQkbZax ihfj;M dh x.kuk dh
tk;sxh] c"kÙksZ ,slk djrs le;
dk;ZHkkfjr lsok ls ftruh vof/k
isa"ku ;ksX; lsok,¡ tksM+h tk,¡xh
mruh vof/k esa va"knk;h Hkfo";
fuf/k esa iznÙk ljdkjh va"knku
vxj dksbZ gks] dh jkf"k ljdkj
dks ykSVk nsuh gksxh rFkk jkT;
dks"k esa tek dj nsuh gksxhA
¼ch½ fu;fer LFkkiuk esa
vkus ds i"pkr~ dk;ZHkkfjr lsok
o`f) dks tksM+rs gq, lEcfU/kr
deZpkfj;ksa dks izoj dksfV ,oa
dkyc) izksUufr dh lqfo/kk
miyC/k djk;h tk;s] c"kÙkZs fd
mlls fdlh Hkh fu;fer deZpkjh
dh ojh;rk dk voØe.k ugha
gksrk gksA ojh; izoj dksfV ;k
dkyc) izksUufr ds lEcU/k esa bl
vkns"k ds fuxZr gksus dh frfFk ds
iwoZ dk dksbZ Hkh cdk;k vuqekU;
ugha gksxkA bl izlax esa iwoZ esa
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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fuxZr lHkh vkns"k ,oa vuqns"k bl
va"k rd la"kksf/kr le>s tk;saxsA
4- bl vkns"k dk izHkko
vkns"k fuxZr gksus dh frfFk ls
gksxkA"
9. The language of the resolution is
absolutely clear and unambiguous that if need
be, the entire service period under the work-
charged establishment could be added but only
for completing the qualifying period for the
purposes of pension. However, no such
qualifying period has been noted for giving
selection grade and time-bound-promotion to
the employees and for that purpose, the entire
period under a work-charged tenure could be
counted but without disturbing the seniority of
regular employee.
10. It would be, in our opinion, wrong
to read that by virtue of 1987 Circular, the
entire service period rendered in work-charged
establishment is to be counted for pension also.
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11. The Finance Department,
Government of Bihar vide letter no. 1393
dated 31.03.2004 reiterated the contents of
the Circular of 1987, referred to above, though
by using different terminology. It would be
relevant to extract the Circular of 2004, which,
in fact, reiterates the decision taken vide the
Circular of 1987, referred to above. The use of
the words "vgZd vof/k" clearly refers to
qualifying period and nothing more.
"[fcgkj ljdkj] foÙk
foHkkxA i=kad foÙk ¼27½ isa0
dh0&91@04&1393 fnukad&
31&3&2004 dh izfrfyfiA izs"kd]
_f"k "kadj flag] la;qDr lfpo]
foÙk foHkkx] fcgkj] iVukA lsok
esa] lHkh vk;qDr ,oa lfpo] lHkh
lfpo] lHkh foHkkxk/;{kA]
fo"k; % dk;ZHkkfjr deZpkjhx.k
dks fu;fefrdj.k ds i'pkr~ muds
vkfJrksa dks ikfjokfjd isa'ku dh
vuqekU;rk ds laca/k esaA
ljdkj ds fofHkUu
foHkkxksa esa dk;ZHkkfjr LFkkiuk esa
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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deZpkfj;kas dh fu;qDr dh xbZA
jkT; ljdkj }kjk ,sls dk;ZHkkfjr
dfeZ;ksa dks fu;fer LFkkiuk esa
ysdj isa'ku@ikfjokfjd isa'ku dh
lqfo/kk,a nh tkus yxhA rRi'pkr~
jkT; ljdkj }kjk le;≤ ij
,sls dfeZ;ksa dks lqfo/kkvksa esa
mÙkjksÙkj fofHkUu ifji=ksa }kjk
o`f) dh xbZ&
1- yksd fuekZ.k foHkkx ds
vkns"k la[;k 13327 fnukad
29&6&1971 }kjk jkT; ljdkj }
kjk fu.kZ; fy;k x;k fd nl o"kksZa
ls vf/kd yxkrkj dk;Zjr
dk;ZHkkfjr deZPkkfj;ksa dks ml
foHkkx dh fu;fer LFkkiuk esa
fy;k tk; rFkk isa"ku lfgr lHkh
lqfo/kk,a nh tk;A ijUrq isa"ku dh
vuqekU;rk ds fy, U;wure nl
o"kZ dh lsok vfuok;Z Fkh rFkk
isa'ku dh x.kuk gsrq dk;ZHkkfjr
lsok dh x.kuk ugha dh tkrh FkhA
2- foÙk foHkkx ds ifji=
3425 fnukad 31&3&1976 }kjk
ljdkj }kjk fu.kZ; fy;k x;k fd
oSls] dk;ZHkkfjr dehZ tks fnukad
1&4&1971 ,oa ckn esa fu;fer
LFkkiuk esa fy, x, gks rFkk
ftudh fu;fer lsok 10 o"kksZa ls
de gks] dh U;wure 10 o"kksaZ dh
lsok iwjh djus ds fy, ftruh
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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vof/k de gks] mruh vof/k
fnukad 1&4&1971 ds iwoZ ds
dk;ZHkkfjr lsok dh x.kuk isa'ku
iz;kstukFkZ dh tk;A ikfjokfjd
isa'ku esa Hkh ;fn dqy fu;fer
lsok ,d o"kZ ls de gks] rks ml
deh dks dk;ZHkkfjr lsok ls mruh
vof/k ysdj iwjh dj yh tk;A
3- iqu% foÙk foHkkx ds
ifji= la[;k 505 fnukad
6&3&1978 }kjk bls vkSj mnkj
cuk;k x;kA jkT; ljdkj }kjk
fu.kZ; fy;k x;k fd oSls
dk;ZHkkfjr dehZ] tks nl o"kksaZ ls
de dk;ZHkkfjr lsok esa jgdj
fnukad 1&4&1978 vFkok blds
ckn fu;fer LFkkiuk esa vk;s gksa
rFkk fu;fer LFkkiuk ls lsok
fuo`fÙk ds le; U;wure isa'ku
iznk;h lsok ¼LFkk;h lsok gksus ij
10 o"kZ rFkk vLFkk;h gksus ij 15
o"kZ½ iwjh ugha dj ik;s gksa] dks Hkh
isa'ku iznk;h lsok esa dehZ ds rqY;
dk;ZHkkfjr lsok tksM+dj isa'ku
iznk;h lsok iwjh dus dh lqfo/kk
nh tk; ftlls mUgsa
isa'ku@miknku ns; gks ldsA lkFk
gh fu;fer LFkkiuk esa vkus ds
ckn U;wure ikfjokfjd isa'ku
iznk;h lsok ,d o"kZ iwjh djus ds
iwoZ mudh e`R;q gks tkrh gS
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rks ,d o"kZ iwjh djus esa tks deh
jg tkrh gS mlls dk;ZHkkfjr lsok
dks tksM+dj mUgsa ikfjokfjd isa'ku
dh Lohd`fr nh tk;sxhA
4- iqu% mijksDr ifji=
dks foÙk foHkkx ds ifji= la0
3058] fnuakd 22&10&1984 ds }
kjk vkSj vf/kd m/kkj cuk;k x;kA
blds }kjk ;g fu.kZ; fy;k x;k
fd lHkh dk;Z foHkkxks ds v/khu
dk;Zjr lHkh dk;ZHkkfjr lsod
ftUgksaus ,d gh in ij ikap o"kksZa
dh larks"ktud yxkrkj lsok iwjh
djh yh gS] mUgsa fu;fer LFkkiuk
esa fy;k tk;A
5- foÙk foHkkx ds ifji=
la[;k 1503 fnukad 27&3&1987 esa
izko/kku fd;k x;k fd&
¼i½ ,sls dk;ZHkkfjr
deZpkjh ftudks oÙkZeku vuqns"kksa
ds v/khu isa"ku ,oa miknku
vuqekU; gksrk gS muds }kjk
dk;ZHkkfjr LFkkiuk esa fcrkbZ xbZ
iwjh lsokof/k dks "kkfey djrs gq,
isa"ku ,oa miknku ds fy, vgZd
vof/k dh x.kuk dh tk;sxhA
¼ii½ fu;fer LFkkiuk esa
vkus ds i"pkr~ dk;ZHkkfjr
lsoko`f) dks tksM+rs gq, lacaf/kr
deZpkfj;ksa dk izoj dksfV ,oa
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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dkyc) izksUufr dh lqfo/kk
miyC/k djk;h tk;sxhA
6- ekuuh; mPp
U;k;ky;] iVuk esa dfri; okn
,sls dfeZ;ksa ds lsoksÙkj YkkHk ds
izlax esa fopkjk/khu gS] ftu
dfeZ;ksa dh lsok fu;fer LFkkiuk
esa ifji= gksus ds iwoZ ;k rks
in/kkjd dh lsokfuo`fr gks xbZ
vFkok in/kkjh dh e`R;q gks xbZA
oÙkZeku mica/kksa ds v/khu ,sls
dfeZ;ksa dks dksbZ isa"kujh YkkHk ns;
ugha gSA
7- U;k;k/khu ekeyksa ds
ifjis{; esa jkT; ljdkj }kjk bl
ekeys ij iqu% leqfpr fopkj
fd;k x;kA lE;d~ fopkjksijkUr
ljdkj }kjk ik;k x;k gS fd ewy
mica/kksa dks la"kksf/kr dj jkT;
ljdkj us dk;ZHkkfjr LFkkiuk ds
dfeZ;ksa ds laca/k esa fu;eksa dks
mnkjhd`r djrs gq, vf/kd
lqfo/kk;sa vuqekU; dh gSa ftlls
mudh vkfFkZd fLFkfr esa xq#Ùkj
fodkl gqvk gS ,oa ;g fd fu;eksa
dks vkSj vf/kd mnkjhd`r fd;s
tkus dk vkSfpR; LFkkfir ugha
gksrk gSA rn~uqlkj] tSlk fd
oÙkZeku esa micU/k gS] fdlh
dk;ZHkkfjr LFkkiuk ds v/khu
dk;Zjr dehZ dh lsok dk fufeÙk
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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LFkkiuk esa lek;kstu ds iwoZ
lacaf/kr dehZ dh lsokfuo`fr vFkok
eqR;q gks tkus ij mUgsa isa"ku
vFkok ikfjokfjd isa"ku vuqekU;
ugha gksxkA"
12. One Sheela Devi approached this
Court vide C.W.J.C. No. 2246 of 2012 for
seeking a direction to the respondents for
payment of death cum retiral benefits including
the family pension, gratuity, leave-encashment
and PF amount after the death of her husband,
who had died on 20.01.2009. The husband of
Sheela Devi had joined on muster roll in the
year 1980 and his services were taken in a
work-charged establishment in the year 1988.
He was again reverted to the muster roll in the
year 2002. His case along with other employees
was placed before a Three-Member-Committee
in terms of the decision of the Hon'ble Apex
Court in Secretary, State of Karnataka Versus
Uma Devi (3) and Others [(2006) 4 SCC 1] ,
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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which recommended the regularization of the
services of the husband of Sheela Devi and his
services was regularized on 01.12.2006. With
his death in the year 2009, the claim staked by
his widow for pension and other benefits was
contested by the State holding that the
employee being regularized on 01.12.2006
would be covered by a resolution dated
31.08.2005 of the State Government which
made all such appointees on or after
01.09.2005 amenable to the CPF Scheme
namely, the Bihar Government Servant
Contributory Pension Schemes, 2005. The
learned Single Judge hearing the matter, vide
his order dated 04.09.2012 relied upon a
judgement delivered in Sheo Kumar Shukla, etc.
Versus The State of Bihar & Others [2009 (3)
PLJR 187] which had not approved the
application of CPF Scheme to such employees
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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and had held that their regularization is not a
fresh appointment. It had been held in the
aforesaid judgement that such employees
cannot be said to have entered the portals of
the Government after the cut-off date when
CPF Scheme would be applicable and would be
deemed to have been part of the Government
from an earlier date. It was only their re-
induction after regularization and not a fresh
appointment. Since the husband of Sheela Devi
was also an appointee of an earlier time but
was regularized in the year 2006, CPF Scheme
was not applicable to him and the petitioner
was directed to be given family pension and
other death cum retiral dues including gratuity,
leave-encashment etc.
13. The aforesaid judgement of the
learned Single Judge in Sheela Devi (supra)
was challenged by the State in L.P.A. No. 416
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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of 2013 on the ground that under Rule 4 of the
GPF Rules, the grant of GPF to an employee did
not render his service automatically pensionable
and that the employee, in his life-time, had not
questioned the application of CPF Scheme to
him and therefore his GPF contribution was
credited to his CPF account. It was
unsuccessfully argued that the Circular dated
31.08.2005 making CPF Scheme applicable to
the employees, superseded the earlier Circular
dated 31.03.2004 under which services of the
employee could have become pensionable. The
Division Bench put a stamp of approval on the
decision of the learned Single Judge regarding
continuity of relationship of the employee with
the Government and therefore non-applicability
of the Circular dated 31.08.2005,
notwithstanding the regularization of the
services of the deceased employee in the year
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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2006. The employee was held to have been
reinstated / re-inducted and continued to work
as before. The Division Bench also noted down
the various stages of the liberalization of the
Government's policy of regularizing such work-
charged employees and giving pension to them.
It was therefore held that the Circulars of 1987
and 2004 which have been referred to earlier,
were never superseded by the Circular of 2005
and the State being a model employer had the
responsibility to take care of the widow of its
employee. While saying so, the Division Bench
also expressed its displeasure over the State in
not bringing before it correct facts and that the
deceased employee was not given any option to
chose between the two Schemes and therefore
any application of CPF Scheme was deemed to
have been thrust upon the employee which was
not permissible. Regard being had to the status
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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of the deceased employee viz his position in
society and lack of learning, the Division Bench
cautioned the Government to take only such
decisions which would not multiply litigation and
thereby burden the Courts of Law
unnecessarily. (Refer to State of Karnataka
Versus C. Lalitha [(2006) 2 SCC 747]; K. T.
Veerappa Versus State of Karnataka [(2006) 9
SCC 406]; Dakshin Haryana Bijli Vitaran Nigam
Versus Bachan Singh [(2009) 14 SCC 793];
Kesar Chand Versus State of Punjab & Others
[1988 Punjab 265]; and Punjab State Electricity
Board Versus Narata Singh [(2010) 4 SCC 317].
14. The Division Bench has consciously
used the expression "qualifying for pension" all
through the judgement and in conclusion, has
held as follows:
"In conclusion, we
are of the opinion that under
the Circular dated
31.03.2004, the duration of
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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service rendered in the work
charge establishment by the
deceased husband of the
respondent no. 1 before
induction in regular
establishment has to be
added to the total duration
of his service making it
pensionable entitling the
Respondent no. 1 to family
pension and other post
retiral dues of the deceased.
The Appeal is devoid of merit
and the order of the Learned
Single Judge calls for no
interference.
The Appeal is
dismissed."
15. The conclusion has been extracted
here to clarify that the addition of the period
rendered under the work-charged establishment
was all through held to be for the purposes of
making the service of the petitioner
pensionable; meaning thereby that only such
period was to be added which made the
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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petitioner qualify for being paid pension. We
say so for the reason that the successive
Circulars of 1987 and 2004 of the Government
were taken note of by the learned Division
Bench which only spoke of addition of the
period rendered under work-charged
establishment for making the service
pensionable (qualifying period for pension) and
with respect to grant of selection grade and
time-bound-promotion, the entire period could
be added.
16. Against the aforesaid judgement,
the State preferred SLP (Civil) No. 29497 of
2013 which stood dismissed by the Apex Court
by order dated 29.09.2013.
17. An attempt was, thereafter, made
by the State to have the Division Bench
Judgement reviewed. In the review petition,
another Division Bench disapproved of the
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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government taking the deficit period of service
from the work-charged employment only to
make the service of the husband of the widow
pensionable and held the same to be wrong.
18. It appears from the judgement in
review that the widow of the employee had also
preferred a contempt application and the review
was preferred during the pendency of such
contempt application. The addition of only the
deficit period was held to be incorrect. This
statement by the Bench hearing the review was
but made en-passant. The major reason for the
Review Court to reject such application was that
it could not have sat in appeal over the
judgement of a Bench of co-eval strength, more
so, when the State had lost the battle before
the Supreme Court.
19. It was this passing reference about
the addition of deficit period being wrong that
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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perhaps gave rise to an opinion that the
Division Bench in L.P.A. No. 416 of 2013 was
of the view that the entire service period under
the work-charged establishment was required to
be counted and not only for the purposes of
making up the deficit for the services of an
employee to qualify for pension.
20. This, to us, appears to be
erroneous. The reasons for the same would be
posited later in the judgement.
21. It may also be noted that the
review order was passed on 21.09.2015, by
which time, the Work-Charged Establishment
Revised Service Conditions (Repeal) Rules,
2013 and the follow up notification of the
Finance Department vide Circular No. 10710
dated 17.10.2013 had already been issued.
22. Under 2013 Circular, referred to
above, again the history of liberalized induction
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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of work-charged employees in regular
establishment by extending the cut-off date and
affording them pension by adding up the deficit
period from the work-charged employment, has
been reiterated. However, in Rule 5(v) of the
Circular, a new mode of addition of the deficit
period was formulated. The relevant rule 5(v) is
extracted hereinbelow for the sake of
completeness:
"5(v) bu dfeZ;ksa ij
iqjkuh ias"ku ;kstuk ykxw gksxhA
izR;sd ik¡p o"kksZa dh dk;ZHkkfjr
lsok ds cnys ,d o"kZZ dh fu;fer
lsok dh ekU;rk nsrs gq, isa"ku ,oa
xzsP;wVh ykHk dh x.kuk dh
tk;sxhA blds ckotwn ;fn iqjkuh
isa"ku ;kstuk ds rgr isa"ku
Lohd`fr gsrq fu/kkZfjr U;wure
isa"ku iznk;h lsok 10 o"kZZ iw.kZ
ugha gks rks ml gn rd U;wure
lsok tksM+dj isa"ku dk ykHk fn;k
tk,xkA"
23. For affording 5 years of the
service rendered under work-charged
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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establishment, one year would be counted in
regular services for the purposes of counting
qualifying period for pension and gratuity. By
resorting to such a method also, if some period
is left short, further period from the work-
charged employment shall be taken in order to
qualify the service of minimum of 10 years for
affording pension to an employee. However, the
aforesaid Circular was made applicable only to
those employees of the work-charged
establishment who were appointed till
11.12.1990 and who were still in service after
the issuance of the resolutions as well as
consequential orders by the controlling
authority. Later, in order to avoid any hardship
to such employees who would have retired or
died before issuance of consequential order of
regularization by the controlling department,
the Rule was extended and made applicable to
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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such employees who would be in service as on
17.10.2013 and who would retire or would
have died before the issuance of the
consequential order by the controlling
department. This explanation was given by
virtue of Resolution No. 6151 dated
03.08.2016.
24. In Binod Kumar (supra), which
decision has been taken note of in the referral
order, the constitutional validity of the 2013
Rules was questioned along with the
Notification No. 10709 dated 17.10.2013. By
the aforesaid rule, the State Government has
repealed the Work-Charged Establishment
Revised Service Conditions Rules, 1949 . The
challenge was particularly to paragraph 5 of the
Resolution of 2013, referred to above,
providing for counting of one year under regular
service for five years of work-charged service.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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It was urged on behalf of the petitioners therein
that such a mode of calculation would reduce
the actual benefits by reducing the service
rendered during the work-charged
establishment if counted in its entirety, which
was stated to be violative of Article 14 of the
Constitution as it treated the employees on
whom such rules were applicable differently
from the other work-charged employees who
were inducted in regular establishment earlier.
The challenge was sought to be repelled by the
State on the ground that even though such
mode of calculation for the deficit period was
provided for but even after the introduction of
new Scheme of pension, the work-charged
employees have been treated similarly and have
been put under the old pension Scheme. The
Division Bench, hearing the writ petition, came
to the conclusion that there was no infirmity
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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with the Rules either with regard to the
competence of the State in framing such Rules
or any other Constitutional limitation.
25. The arguments of the writ
petitioners challenging the validity of the
aforesaid Rules on the basis of the judgement
of the Supreme Court in Habib Khan Versus
State of Uttarakhand & Others in Civil Appeal
No. 10806 of 2017 arising out of Special Leave
Petition (Civil) No. 7434 of 2016 was also
answered by the Bench with the reason that in
the aforesaid case, Rule 370 of the Civil
Service Regulations in the State of Uttrakhand
was under question and the Supreme Court was
of the view that the employees were entitled for
addition of the period of work-charged services
for the purpose of computation of qualifying
service.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
35/62
26. Since the Rules and Circular of
2013 do provide, in a fair measure, such
provision which would make up for the deficit
for the qualifying period of pension, the
decision of the Government cannot be said to
have fallen foul of the judgement in the Habib
(supra). No irrationality was found by the
Division Bench in counting 5:1 for qualifying
service as persons falling in the group on which
such Rule or Circular was applicable would be a
class in itself as they have been appointed after
the imposition of prohibition of any such
appointment in a work-charged establishment.
It was also held by the Bench that the
Resolution has only extended the date of
appointment in a work-charged establishment
for regularization from 22.02.1984 to
11.12.1990 and would apply only to a separate
group of people.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
36/62
27. In Habib Khan (supra), the
appellant's service under the work-charged
establishment was directed to be counted for
computing the qualifying service for pension by
the State / Service Tribunal. This was
unsuccessfully challenged by the State vide
Writ Petition No. 24 of 2007 . The SLP against
the order also stood dismissed.
28. In the meantime, a Full Bench of
Uttarakhand High Court had taken a view that
the period of work-charged service would not
be counted for computation of the period of
qualifying service. In view of the aforesaid Full
Bench Judgement of Uttarakhand High Court, a
review of the order dismissing the Writ Petition
No. 24 of 2007 was sought and allowed by
order dated 27th of July, 2012, which order was
challenged before the Supreme Court in Habib
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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Khan (supra). The petition, however, was
dismissed as withdrawn.
29. The matter again came up before
the Supreme Court for consideration in view of
a Full Bench Judgement of Uttarakhand High
Court.
30. The Supreme Court found the
issue to be cadit questio in view of pari materia
provisions contained in the Punjab Services
Rules having been struck down by a Full Bench
of Punjab and Haryana High Court in Kesar
Chand Versus State of Punjab and Ors. [1988
(5) SLR 27] and such judgement having been
sustained by the Supreme Court.
31. Again, in Punjab State Electricity
Board & Anr. Versus Narata Singh & Ors.
[(2010) 4 SCC 317] it was held that the
employee would be entitled to reckon the period
of work-charged services for the purposes of
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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computation of qualifying service for grant of
pension.
32. Herein again, in all the
judgements, the reference is to the qualifying
service and not for counting of the complete
period under work-charged establishment for
pension.
33. It would also be apposite here to
understand the nature and the status of a
work-charged employee. A work-charged
establishment is materially and qualitatively
different from a regular establishment and the
employees engaged in a work-charged
establishment are recruited differently and with
different service conditions. A work-charged
employee constitutes a separate class and no
parity could be drawn between a work-charged
employee and an employee of a regular
establishment (refer to Jaswant Singh & Ors.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
39/62
Versus Union of India & Ors. [AIR 1980 SC 115]
and State of Rajasthan Versus Kunji Raman [AIR
1997 Sc 693]. Normally, the tenure of work-
charged employee is co-terminus with the
completion of the Scheme / Project but for
humane considerations and taking into account
that such work-charged establishments have
been continued by the Government for a pretty
long time, the services rendered under such
establishment have been made pensionable
(refer to Full Bench Judgement of Patna High
Court in Mobina Khatoon Versus State of Bihar &
Ors. and other analogous cases, reported in 2019
(1) PLJR 1015.
34. In the aforesaid Full Bench
Judgement, on grounds of equity, in the
absence of any Rule, it has been held that till
appropriate Rules in that regard is framed by
the Government, a work-charged employee who
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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has completed 10 years or more continuous
service against one post in the work-charged
establishment and who has not been inducted in
regular services will be paid pension and his
family, in case of the death of work-charged
employee, would be paid family pension. In
case of death of such employees, the heirs and
dependents would be entitled to claim death
cum retiral benefits but will not be able to claim
appointment on compassionate ground in the
absence of any Scheme framed by the
Government.
35. In the background of the aforesaid
decision by the Full Bench of Patna High Court,
the Government has come out with a Scheme
dated 3rd of July, 2019, which has been
gazetted, giving pension to such work-charged
employees who were appointed on or before
11.12.1990 and had served for 10 years
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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against one post and making them available the
benefits of the services of an employee under
regular establishment even though such
employees have never been inducted into
regular establishment. The old pension Scheme
has been made applicable to them with certain
caveat and conditions and with respect to them
also, the Circular No. 10710 dated
17.10.2013, referred to above which provides
for a special mode of making up for the deficit
for pensionable service, has been made
applicable.
36. What is necessary to note is that
all these Circulars are in the nature of
beneficent decisions of the Government of the
day without any corresponding right for the
same. At no point of time, the Government
came up with any Circular indicating that the
entire service period under work-charged
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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establishment would be counted for calculating
the service period of such employees who have
been inducted in regular establishment for the
purposes of making the service pensionable. It
was only at one point of time by a Division
Bench, while hearing a review petition, that a
passing reference has been made which we
have noticed earlier in the judgement. The
fallacy of the aforesaid observation is that the
entire Circular of 2004 was not taken into
account for coming to such conclusion. The
Division Bench which decided the Review
Petition was also not shown Rules and Circular
of 2013 regarding the service conditions of a
work-charged employee. The learned Division
Bench in Review failed to notice the qualifying
words, namely, "vgZd vof/k" in Circular of 2004
and the other cognate expression, namely,
"dk;ZHkkfjr lsok dh x.kuk isa"ku dh jkf"k fu/kkZfjr djus
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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ds fy, dh tk,xhA" and "DokfyQkbZax ihfj;M" used
in various other Circulars which have been
referred to above.
37. We have also noticed that in Kesar
Chand; Narata Singh; and Habib (supra), the
Supreme Court has also referred to "qualifying
period".
38. Thus, at no point of time, was it
ever conceived of that the entire service period
under a work-charged establishment would be
taken into account for counting the service
period for pension. Counting of the work-
charged tenure is only for the purposes of
making the service pensionable which otherwise
would not have been possible. The same may
not be true for the purposes of grant of
selection grade or time-bound-promotion.
39. Seen from this prism, there would
not appear to be any difference, much less any
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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substantial difference in the exposition of law in
Sheela Devi (supra) and Binod Kumar (supra).
40. We also do not find any anomaly
in the Rules and Circular of 2013 providing for
a special mode of counting of the period for
making up the deficit for the period to qualify
for pension, as such Clause in the Rules and
Circular are broad enough to pitch in as many
number of years from the work-charged tenure
for the purposes of addition for making the
services pensionable, as required. This is only,
we repeat, a beneficent measure which has
been promulgated and which ought to be
appreciated.
41. With respect to the passing
reference made by the Division Bench in
Review, we deem it necessary to quote Lord
Halsbury, L.C., in Quinn Versus Leathem (All ER
petition 7 G-1), which is as under:
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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"Before discussing
Allen v. Flood and what was
decided therein, there are two
observations of a general
character which I wish to
make; and one is to repeat
what I have very often said
before - that every judgment
must be read as applicable to
the particular facts proved, or
assumed to be proved, since
the generality of the
expressions which may be
found there are not intended
to be expositions of the whole
law, but are governed and
qualified by the particular
facts of the case in which
such expressions are to be
found. The other is that a
case is only an authority for
what it actually decides. I
entirely deny that it can be
quoted for a proposition that
may seem to follow logically
from it. Such a mode of
reasoning assumes that the
law is necessarily a logical
Code, whereas every lawyer
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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must acknowledge that the
law is not always logical at
all."
42. In Ambica Quarry Works Versus
State of Gujarat [(1987) 1 SCC 213], the
Supreme Court observed that the ratio of any
decision has to be understood in the
background of the fact of that case. It has been
said long time ago that a case is only an
authority for what is actually decides and not
what logically follows from it.
43. With similar refrain, the Supreme
Court in Bhavnagar University Versus Palitana
Sugar Mill (P) Ltd. [(2003) 2 SCC 111] has
observed that a little difference in facts or
additional facts may make a lot of difference in
the precedential value of a decision. A passing
reference should not be treated as an euclid's
formula or ipsissima verba.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
47/62
44. Precedent has to be followed only
so far as it marks the path of justice and as has
been said by Hidayatullah, J., in Abdul Kayoom
Versus CIT [AIR 1962 SC 680] and that one
must cut the dead wood and trim off the side
branches else one will find oneself lost in
thickets and branches.
45. It is also required to be noted that
the present set of petitions relate to work-
charged employees who were appointed after
the ban by the State Government in 1984 on
the appointment in work-charged
establishments. They, therefore, are a different
class of employees and even otherwise, they
would not be entitled to claim parity with such
employees who were appointed prior to such
ban having been imposed. The Rules of 2013,
referred to above, is clearly applicable to all the
employees of the work-charged establishment
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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who were appointed on or before 11.12.1990
and after 22.10.1984. The appointees prior to
22.10.1984, therefore, would not be affected
by the Rules of 2013.
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
work-charged 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).
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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(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 work-charged 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
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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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.
47. The cases are remitted to the
concerned Benches for applying the law as
declared.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019
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Per : Hon'ble Justice Smt. Anjana Mishra, J.
48. Divergent views created in successive judgments of this Court with regard to the work- charged employee have once again brought us together to resolve and cull out the true spirit and import of the circulars which were issued by the State of Bihar with respect to the counting of the period of work-charge service rendered by them for the purposes of computing pensionary benefits and the length of pensionable service.
49. Having carefully scanned the opinion of Brother Justice Ashutosh Kumar who has given a meticulous exposition of the Circulars and the Rules which have led to certain dichotomies in judicial pronouncement rendered by two Division Benches of this Court, I find myself in full agreement with his opinion and would also like to pen down my views in this regard.
50. What was observed by a learned single Judge while referring the matter to a Larger Bench for an authoritative opinion was the recent judgment dated 04.01.2018 rendered in the case of Binod Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 52/62 Kumar and others Vrs. The State of Bihar and others in L.P.A. No.12674 of 2017. The Division Bench while interpreting and taking into consideration the Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013, had given a considered opinion that the period spent under the Work-Charged Establishment would be counted to the extent of the shortfall in the qualifying period of service for grant of pension which shall be made by adding of that period spent under the Work-Charged Establishment. This opinion ran contrary to the earlier decision of this Court rendered in another Division Bench judgment in the case of State of Bihar and others Vs. Sheela Devi and other analogous cases (Civil Review No.210 of 2014, arising out of LPA No.416 of 2013, vide judgment dated 21.09.2015). In this case, the Court, while considering the issue with regard to the counting of the period of Work-Charge service for the purpose of computing pensionary benefits and the length of pensionable service, had held that the entire period spent under the Work- Charged Establishment be taken into account for Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 53/62 calculating the pensionary benefits. Thus, the latter decision in the case of Binod Kumar (supra), wherein it has been held that the entire period spent under the Work-Charged Establishment would not be taken into account, upsets the pronouncement in the case of Sheela Devi (supra) and created a totally new picture with a divergent view and necessitated an authoritative pronouncement in this matter, as in view of the earlier judgment, those who were under Work- Charged Establishment had to await the decision, whereas those whose cases were under consideration, were stuck with the latter decision rendered in the light of Circular No.10710 dated 17.10.2013.
51. As pointed out by learned Brother Justice Ashutosh Kumar, the Government by means of successive circulars endowed the Work-Charged employees such benefits right from the year 1949 to the year 1980. It appears from Order No.505 dated 06.03.1980 that those Work-Charged employee who came into the regular establishment after 01.04.1971 and thereafter, who did not have the qualifying years i.e., ten years of regular service and 15 years of Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 54/62 temporary service would be given the benefit of work-charge tenure, to make it pensionable along with gratuity. This relaxation was made and was in tune with Rule 203 of the Bihar Pension Rules.
52. The Government Resolution No.3058 dated 22.10.1984 further liberalized and widened the ambit by providing for regularising the work-charged employees, who had continuously worked against one post for five years in different Work-Charged Establishments but at this point, it was also decided by Circular No.8954 dated 23rd July, 1975 that no post in Work-Charged Establishment shall be filled up or created. 1987 Circular issued by the Finance Department, in its Resolution No.1503 dated 27.03.1987, declared that whole period rendered in Work-Charged Establishment be computed for the purpose of computation of qualifying period for grant of pension.
53. At this point of time, I would like to endorse the opinion as expressed by my learned Brother that the Circular of 1987 never intended that the entire service period rendered in the Work- Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 55/62 Charged Establishment is to be counted for pension also. This, in my opinion, is evident from the circular itself which clearly states that the qualifying period should be calculated in such a manner and added only to that extent and to the extent of the shortfall for which it is accepted, the concerned recipient of pension would have to refund the proportion of provident fund, if at all tendered to be deposited back into the Treasury. Clause 3(a) is clear on this issue. The Circular of 2004 issued by the Finance Department is nothing but a reiteration of the Circular of 1987, in which similar benefit has been extended to the work-charged employee.
54. I have also carefully perused the case of Sheela Devi, widow of one such work-charged employee, whose services were earlier engaged in 1988 but reverted to muster roll in 2002, came to be regularised by virtue of the decision of a 3-Member Committee in terms of the direction of Uma Devi (3) and others [(2006) 4 SCC 1]. His regularization in 2006 made him eligible to the benefit of CPF Scheme of 01.09.2005. It was held by the learned single Judge Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 56/62 that the husband of Sheela Devi being an earlier appointee than 2006, was not amenable to the CPF Scheme and was eligible for family pension and other death-cum-retirement benefits, including gratuity, leave encashment etc. The judgment of the single Judge was put to test in LPA No.416 of 2013, but the challenge placed by the State Government was rejected and finally the Division Bench while rejecting the challenge placed by the State Government and taking into note the various stages of liberalisation extended to Work-Charged Establishment in granting pension to them and the methodology of counting their service so as to bring the employee in the framework of qualifying service so as to entitle him to pension rejected LPA No.416 of 2013. The SLP also met with a similar fate, but with the oblique method of evading the contempt proceedings, the State filed a review which, however, was also rejected as judgment in LPA No.416 of 2013 having been affirmed by the Apex Court, had attained finality and a co-ordinate Bench could not sit in appeal over the same.
Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 57/62
55. It is important to remember that another rule had already surfaced being Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013 which was followed by the Finance Department notification dated 17.10.2013 contained in Circular No.10710. This Circular of 2013, by extending the cut-off date of induction of Work- Charged employees in regular establishment, sought to grant them pension by adding up the deficit period from their work charge tenure but with a rider in Rule 5 which method came to be resisted as the State Government in Clause 5, had now provided that five years service rendered under the Work-Charged Establishment would be only treated to be one year for counting and adding up in regular service so as to bring it within the purview of "qualifying period" for pension and gratuity.
56. The case of Binod Kumar (supra) sou6ght to deal with this issue and the circular wherein rules were sought to be tested for its reasonableness, but the Court held that the Circular No.10710 dated 17.10.2013 is wholly legal and valid Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 58/62 as the Rules have repealed 1949 provisions and the cut-off date, which has been fixed as 11.12.1990, made the Circular applicable only to those employees of Work-Charged Establishment who have been appointed on 11.12.1990 who were still in service. The Circular of 2013 only extended the benefit of such employee to 17.10.2013 but clause (5) fixed the parameters for fixation in the ratio 5:1, which was fully endorsed by the Division Bench in the case of Binod Kumar (supra).
57. Brother Justice Ashutosh Kumar has rightly noted that each of the judgments while dealing with the question of pension in the case of the Work- Charged employee, the term "qualifying service" has been made the key-word. However, I would supplement my said opinion by stating that the Circular/Resolution which have been coming down the times in favour of such work-charged employees, were but a beneficial provision/benevolence offered under Rule 203 of the Bihar Pension Rules, which was but an exercise of discretion of the State Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 59/62 Government and not by virtue of any right which had accrued to them.
58. It would be necessary to revert back to the decision in the similar Full Bench judgment in the case of Mobina Khatoon Vs. State of Bihar, reported in 2019(2) BLJ 9 (FB), wherein this Court while answering a reference to Rule 203 of the Bihar Pension Rules had permitted those who had been working in the Work-Charged Establishment to be granted pensionary benefits till the time fresh rules were framed in this regard.
59. It appears that the State Government has come up with rules wherein it has come up with a scheme of 3rd July, 2019 giving pension to such work- charged employee who was appointed on or before 11.12.1990 and had served for ten years against one post and had been made available the benefits of regular establishment to be entitled to the Old Pension Scheme with certain pre-conditions in terms of Circular No.10710 dated 17.10.2013.
60. I also find myself in full agreement with the view expressed my Brother who has clarified that Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 60/62 the ratio of the judgment in Sheela Devi and Binod Kumar both aimed at achieving the same object and granting only "qualifying period" and it was purely in ignorance of the Rules and Circulars that the Review Court could not appreciate the true import of the key- words in the Circular.
61. The reference as answered by our Brother Justice Ashutosh Kumar clearly is in line with my thinking and I am fully supportive of his finding that the entire service could not be counted for the purpose of qualifying service, but it would only be counted to the extent of service for the purpose of making it "pensionable." Thus, the five to one ratio as stated in the Circular for those employees for whom the cut-off date had been extended is but a measure to make this category also avail the pensionary benefit.
62. Having observed thus, I would proceed to state that any power to an authority is also coupled with a corresponding duty to comply with the requirement of law. However, we must also note that any department on that score cannot be whittled down Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 61/62 on the argument that no vested right has been curtailed.
63. I am also reminded of an observation in the case of State of Punjab Vs. Ram Lubbaiya Bagga, reported in (1998) 4 SCC 117, wherein their Lordships held as follows :
"It is also not normally within the domain of any court to weigh the pros and cons of a policy or to assess it to test the degree of beneficial or equitable effect for the purpose of varying, modifying or annulling, based on however sound and good reasons, except where it is arbitrary or violative of any constitutional statutory or any other provisions of law."
64. Furthermore, it is the settled principle of law as enunciated in Union of India Vs. Harjeet Singh Sandhu (AIR 2001 SC 1772), which is as follows:
"The truth or correctness or adequacy of the material available before the authority exercising administrative power cannot be revalued or weighed by court. Even if some of the materials on which administrative action is taken is found to be irrelevant, court will Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 62/62 still not interfere so long as there is some relevant material available on which the action can be sustained.
The court will presume the validity of the exercise of power but shall not hesitate to interfere if invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or opinion of the authority exercising the power."
Having considered the rationale of the afore- mentioned judgements and in agreement with the narrations as made by my Brother Justice Ashutosh Kumar, my opinion stands thus recorded.
(Amreshwar Pratap Sahi, CJ)
(Anjana Mishra, J)
Skm/PNM (Ashutosh Kumar, J)
AFR/NAFR AFR
CAV DATE 10.07.2019
Uploading Date 04.09.2019
Transmission Date N/A