Entitlement to retiral benefits under Bihar Pension Rules for temporary employees transferred to the Corporation.

P.K.Deb, J.

1. Both the cases are taken up together as they relate the same grievance of retired benefits of the petitioner.

2. Admittedly, the petitioner was appointed by the Industries Department of the State of Bihar on purely temporary basis in the month of October, 1961 in the post of Store Keeper under Bicycle Sanjojana Scheme vide Annexure-1 and immediately after appointment in the month of October, 1961 when Bihar State Small Industries Corporation Limited (hereinafter to be referred as the Corporation) was set up then all the Sanjojana Scheme so were amalgamated with the Corporation and vide Annexure-3 all the employees both temporary and permanent of the Industries Department being appointed under various Schemes had been transferred to the Corporation. Regarding the temporary staff as that of the petitioner following term was imposed during the course of transfer as per Annexure-3 itself dated 22-1-1962:

Temporary Staff.--The services of all temporary staff of the Industries Department employed in the Scheme transferred to the Corporation will be placed at the disposal of the Corporation with effect from the 1st February, 1962 for appointment against posts similar to the one held by them under Government and they shall be entitled under the Corporation to count towards increment and level the services tendered by them under Government upto the 31 st January, 1962. They shall be Corporations servants with effect from the 1st February, 1962. The transfer from Government to the Corporation shall not constitute a break in their service."

3. After such transfer to the Corporation the petitioner alongwith others employed in the Industries Department had continued as an employee of the Corporation and also got promotions from time to time under the Corporation itself without having any approval etc. from the State Government and ultimately the petitioner retired on superannuation on 30-6-1999. It appears that after retirement the petitioner had taken some benefits occrued to him as post retiral benefits from the Corporation. But now the present writ petiton has been filed making both the Industries Department, State of Bihar and the Managing Director of the Corporation as parties for the purpose of getting retiral benefits such as Gratuity, Leave Encashment fixation of Pension, G.P.F. etc.

4. In the Corporation there its no provision of pension and Bihar Pension Rules are not applicable, G.P.F. is also not there rather contributory Provient Fund is there. In that way, it is the stand of State of Bihar and that of the Corporation that the petitioner is not entitled to the benefits as claimed as Pensional benefits as per Bihar Pension Rules either from the State of Bihar or from the Corporation.

5. The petitioner has based his claim practically on a decision being given by a Division Bench of this Court in C.W.J.C. No. 1887/87 in Shivadhar Mishras case. In that case it was held in some special circumstances that Shivadhar Mishra being employed under the State of Bihar cannot be terminated illegally by the Corporation as his services remained as a State Government employee. It does not appear that the transfer of the employees as per Annexure-3 in the presents case was considered in respect of temporary staff rather Shivadhar Mishra was a permanent staff, that too challenge was in respect of termination only and there was an observation to the effect that the writ petitioner Shivadhar Mishra would be entitled to the retiral benefits also and ultimately on his retirement he filed Contempt petition before this Courts for getting his retiral benefits against the State of Bihar.

6. The case of Shivadhar Mishra was considered by a Single Bench of this Court in Birendra Kumar Sinha V/s. The State of Bihar, in C.W.J.C. No. 2293/99 and the case of Birendra Kumar Sinha was held to be distinguishable from that of Shivadhar Mishra on two grounds that there was no challenge regarding the transfer of the employees like that of the