Patna High Court - Orders
The State Of Bihar vs Sheela Devi & Ors on 15 May, 2013
Author: Navin Sinha
Bench: Navin Sinha, Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.416 of 2013
In
Civil Writ Jurisdiction Case No. 2246 of 2012
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The State of Bihar through the Secretary Department of Public Health
Engineering Department, Bihar, Patna
.... .... Appellant/s
Versus
1. Sheela Devi, Wife of Late Sidhnath Prasad, Resident of Village-
Gopalpur, P.O.- Gopalpur, P.S.- Belchi, District- Patna, presently residing
at Village Sisauna, P.O. + P.S.- Jokihat, District- Araria
2. The Secretary, Department of Public Health Engineering Department,
Bihar Patna
3. The Engineer-in-Chief, Public Health Engineering Department, Bihar,
Patna
4. The Chief Engineer, Department of Public Health Engineering
Department (Civil) Bihar, Patna
5. The Superintending Engineer, Public Health Engineering Department,
Purnea Anchal, District- Purnea
6. The Executive Engineer, Public Health Division, Araria
7. The Sub-Divisional Officer-cum-Assistant Engineer, Public Health
Engineering Department, Araria Sub Division (East) Araria, District-
Araria
8. The Accountant General (A and E) Bihar, Patna
9. The District Provident Fund Officer, District Purnea
10. The Treasury Officer, Araria District Purnia
11. District Accounts Officer, District- Purnea
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Nivedita Nirvikar, G.P. No.3
Mr. Vikash Kumar Pankaj AC to G.P. No.3.
For the Respondent No.1: Mr. Arun Kumar Arun,
Mr. Siyaram Pandey,
Mr. Amrendra Pratap Singh, Advocates.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
6 15-05-2013I. A. No. 2425 of 2013 has been preferred for condoning the delay of 110 days in the filing of the Appeal. After hearing the parties, considering the explanation for the delay, the important Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 2 question involved for adjudication, we condone the delay and proceed to decide the Appeal on merits.
We have heard Counsel for the Appellant and Respondent no.1. The present Appeal arises from order dated 4.9.2012 allowing C.W.J.C. No. 2246 of 2012. Respondent no.1 has been held entitled to family pension for the services rendered by her deceased husband relying on C.W.J.C. No.6183 of 2008 and analogous cases, affirmed in L.P.A. No.788 of 2009. The S.L.P. (Civil) No.8663 of 2010 assailing the latter was dismissed in limine. The husband of Respondent no.1 was initially appointed on 1.5.1980 as Khalasi on muster roll in the Public Health Engineering Department. He, along with others was inducted in the work charge establishment on 25.1.1988. Recommendation was made on 21. 12. 1998 for absorption in the regular establishment having completed 10 years in the work charge establishment referring to letter number 5074 dated 20. 9. 1990 of the Finance Department. On the contrary, he and several others were reverted to muster roll on a 1.6.2002. Such reversions were challenged in a large number of writ applications. A Division Bench in C.W.J.C No. 7359 of 2002 and analogous cases referred it to a three men committee to be constituted by the government. The husband of Respondent no.1 and several others similarly situated were ultimately absorbed in the regular establishment on 1.12. 2006 in the scale of Rs.2550 - 55 2660 - 60 - 3200 /- and worked in that capacity till his demise on 20.1.2009. Respondent no.1 in the circumstances staked the claim for family pension and other post retiral dues.
On 31.8.2005, the respondents introduced the Contributory Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 3 Pension Fund Scheme (CPF) in lieu of Bihar Group Provident Fund Rules, 1948 (GPF) and made it applicable to those appointed after 1.9.2005. The employees regularized on 1.12.2006 were considered as fresh appointees after 1.9.2005 and the CPF scheme made applicable to them by order dated 1.2.2008. C.W.J.C. No. of 2246 of 2012 and analogous cases were filed challenging the decision asserting that they were already holding GPF accounts and deductions were being made since earlier and were continued even after absorption till issuance of the aforesaid order. The Court held that after induction into the work charge establishment, service book had been opened along with GPF account. Deductions from salary for deposit in the individual GPF account had commenced. The GPF contribution continued after the absorption recommended by the three men committee also till January 2008. On 1.2.2008 orders followed to treat them as fresh appointees after 1.9.2005 covered by the CPF scheme relying on Circular dated 31.8.2005. The Circular at clause 3 excluded its applicability to those on deputation or contract from public sector undertakings, autonomous bodies, daily wagers and re-appointed employees. The order for absorption also mentioned that such employees would continue to work at the place they were earlier discharging duties. Noticing all of the aforesaid it was held as follows:-
"When the committee constituted by the respondents considered the case of the petitioners, all that was done was to put back the petitioners in a situation where they stood earlier. The recital in the order dated 6.12.2006 that they were absorbed on newly created posts can at best amount to their reinstatement/re- induction under clause- 3 of Circular dated 31.8.2005. The Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 4 respondents were themselves under no misconception with regard to the applicability of clause 3 thereof to the petitioners. This is more than evident from the fact that again from December 2006 to January 2008 there G.P.F accounts continued and deductions continued to be made from their salary......"
This court finds it difficult to hold that the petitioners are fresh appointees after 1.9.2005. The facts of the case have to be seen in its entirety. They have not entered the portals of the government after the cut-off date. They have been there since much earlier even when relegated from their superior posts their relationship with the government was never severed. The government then decided to re-in duct them to the posts that there were earlier holding. The continuity clearly survives.
This court, therefore, holds that the petitioners are appointees prior to 1.9.2005 and are therefore covered by G.P.F Scheme already in existence with regard to them. They are not required to open their account as covered by the contribution to the Provident fund scheme. The State shall continue to make deductions from their G.P.F accounts and credit the same to their benefit."
The Learned Single Judge in order under Appeal, on basis of the aforesaid earlier conclusions held that the Respondent no.1 was also entitled to family pension along with death-cum-retiral dues, gratuity, leave encashment, group insurance and GPF .
Counsel for the State submitted that under Rule 4 of the G P F Rules, the grant of GPF did not automatically make the service pensionable. It was next submitted that the husband of the deceased in his life time never questioned the orders putting him under the CPF scheme unlike others who came to the court. His GPF contribution was also credited to his CPF account. If he was not a party to the earlier litigation and did not object to the opening of his CPF account Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 5 Respondent no.1 is not entitled to family pension. It was next submitted that the judgment in C.W.J.C. No. 6183 of 2008 was pronounced on 18.3.2009 after the death of the husband of Respondent no.1 on 20.1.2009 and therefore she is not entitled to the benefit of the same. It was next submitted that the Circular dated 31.8.2005 overrides any earlier circular dated 31.3.2004 under which the deceased as a work charged employee may have been entitled to the benefit of pensionable service. The issue in C.W.J.C. No. 6183 of 2008 being limited to the question of GPF could not by analogy be extended for other purposes.
Counsel for respondent no.1 submitted that Circular dated 31.3.2004 entitled work charge employees subsequently inducted into the regular establishment to count their services as pensionable even if they did not meet the qualifying period of service after induction into regular establishment by adding the period of service in the work charge establishment. Likewise for family pension also the period rendered in work charge establishment was to be added if the employee died before fulfilling one year of service after induction in regular establishment. Only such persons who had superannuated or died prior to 31.3.2004 were excluded. The Circular dated 31.8.2005 does not supersede much less even refer to Circular dated 31.3.2004. The question of any implied repeal or recall of the latter does not arise. In C.W.J.C. No. 6183 of 2008 it was noticed that the order dated 1.2.2008 itself referred to them as persons re-inducted in service. The finding of the Court was that it was a case of reinstatement/re-induction entitling them to the benefit of clause 3 of Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 6 the Circular dated 31.8. 2005.
We have considered the submissions made on the behalf of the parties and also applied ourselves to the earlier orders of the Court. A finding of fact had been arrived at in the earlier litigations that there was a continuity of relationship between the government and such employees. They were not fresh appointees after 1.9.2005. They stood excluded as a class under clause 3 of the Circular dated 31.8.2005. Such persons were reinstated/re-inducted and continued to discharge duties where they were earlier. We find it difficult to hold that the earlier orders of the Court have to be read down to be confined for the purposes of GPF only. The same set of facts and circumstances cannot be considered and accepted for one purpose and ignored for another. There has to be a composite holistic view of the entire facts and circumstances.
The Circular dated 31.3.2004 narrates that on 29.6.1971 by order no.13327 the Government had decided to induct into the regular establishment work charge employees who had continued for ten years and be given benefit of pension also. But the period spent in work charge could not be added for meeting qualifying service of ten years for pension. On 31.3.1976 by order no. 3425 the Government decided that work charge employees brought into regular establishment after 1.4.1971 would be entitled to add service rendered in work charge for meeting ten years eligibility for pensionable service. Even for family pension if the service in regular establishment was less than one year, the period in work charge be added. On 6.3.1978 by order no. 505 the Government further relaxed Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 7 requirements by providing that such work charge employees brought into regular establishment after 1.4.1978 or later and did not meet the qualifying requirement for ten years of service (ten years for regular and fifteen years for temporary) after induction into the regular establishment shall be entitled to add the period of service as work charge to make it Pensionable along with Gratuity. Provision was likewise made for family pension also. Such work charge employees inducted in regular establishment were held entitled to benefits of selection grade and time bound promotion by order no.1503 dated 27.3.1987. The Circular dated 31.3.2004 has not been overridden by the Circular dated 31.8.2005. On the contrary, to the best of our understanding, Clause 3 of the latter impliedly protects the benefit of the earlier Circular available to such persons like the husband of Respondent no.1.
The State and its authorities are not adversarial litigants in a claim by a citizen. Their responsibility essentially and primarily is to place full, correct, relevant and necessary facts before the Court as aids for dispensation of justice. The Circulars dated 31.3.2004 was issued by the Appellants. It was the duty of the State and its officials to place it before the Court and leave the conclusions for the Court. Unfortunately it was left for the Respondent no.1 to bring on record a relevant and necessary document of the Appellants and in absence of which a different conclusion may or may not have been possible. The Court is disappointed. We must notice that no option was given to the deceased between the two schemes and that he opted for the CPF scheme consciously. Given his low paid status, lack of Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 8 knowledge of the intricacies and finer legal distinctions the situation was thrust upon him. Had an option been given and he had opted for one of them by choice, the matter may or may not have been different.
That the deceased husband of Respondent no.1 may not have been party to the earlier litigations is inconsequential. The Appellants themselves extended the benefit of the Division Bench order to the deceased by putting his case for consideration before the three men committee. The Appellants cannot simultaneously contend that he is not entitled to the benefit of the earlier orders and yet extend the benefits of the earlier orders to him. Even otherwise, when a question of law is considered by the Court it applies to all similarly situated and it is not a valid defence to contend that its applicability shall be restricted to the parties only. That would only be multiplying litigations burdening the Court unnecessarily. In (2006) 2 SCC 747 (State of Karnataka v. C. Lalitha ) it was observed:-
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently....."
The view was reiterated in (2006) 9 SCC 406 (K.T. Veerappa v. State of Karnataka) :-
"16.......The benefits having been given to 23 employees of the University in compliance with the decision dated 21-6-1989 recorded by the learned Single Judge in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 9 have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time."
The issue for addition of work charge duration after absorption making the service pensionable was considered in (2009) 14 SCC 793 (Dakshin Haryana Bijli Vitaran Nigam V Bachan Singh) observing as follows :-
"19. The Court in Kesar Chand case (1988 Punjab265)(FB) held that the period of service spent by an employee on work-charged basis prior to his regularisation, should be taken into consideration for determining his qualifying service. This part is contained in para 19 of the judgment and reads thus: (Kesar Chand case) "19. ... It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among government servants who eligible for pension and those who started as work-charged employees and their services regularised subsequently, and the others is not based on any intelligible criteria and, therefore, is not sustainable at law. After the services of a work-charged employee have been regularised, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness, and for these reasons the provisions of sub-rule
(ii) of Rule 3.17 of the Rules have to be struck down being violative of Article 14 of the Constitution."
A Full Bench judgment of the Punjab and Haryana High Court in Kesar Chand case was carried before this Court by way of filing a special leave petition. This Court dismissed the said special leave petition."
The question for adding duration spent in work charge under the State Government to the period of regular service in the State Electricity Board to qualify the latter as pensionable service was also considered in (2010) 4 SCC 317 (Punjab State Electricity Board V Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 10 Narata Singh). The Appellant contended that the respondent had not served the minimum qualifying service of 10 years to be considered for pension even if the duration as work charge in the Board was taken into consideration. The Board had issued Finance Circular number 24/92 dated 29. 5. 1992 deciding to include the period of a work charge service of an employee with the Board for the purpose of grant of pensionary benefits counting the said period for determining qualifying service for grant of pension. Noticing Kesar Chand (supra) it was held at paragraph 26 as follows :-
"26. In view of this settled position, there is no manner of doubt that the work-charged service rendered by Respondent 1 under the Government of Punjab was qualified for grant of pension under the rules of the Government of Punjab and therefore, the Board was not correct in rejecting the claim of the respondent for inclusion of period of work-charged service rendered by him with the State Government for grant of pension, on the ground that service rendered by him in the work-charged capacity outside PSEB and in the Departments of the State Government was a non-pensionable service."
The Circular dated 31.3.2004 in the present case to make the service pensionable in specified circumstances was the outcome of a considered decision making process with awareness of the implications including financial. In similar circumstances the contention of heavy financial burden being imposed consequently was rejected in (Narata Singh) (supra) observing as follows:-
"31. The plea that the case of Respondent 1 should have been rejected because it has financial repercussions is totally devoid of merits. Before adopting the policy underlying the two Circulars, the Board must have taken into consideration the financial implications as well as demands of the employees and thereafter must Patna High Court LPA No.416 of 2013 (6) dt.15-05-2013 11 have resolved to adopt those Circulars...."
In conclusion, we are of the opinion that under the Circular dated 31.3.2004, the duration of service rendered in the work charge establishment by the deceased husband of 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
(Navin Sinha, J)
Vinay/- (Shivaji Pandey, J)