Service on stipend basis does not qualify for pension under the Bihar Pension Rules, 1950.

Ashwani Kumar Singh, J.

1. Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the Accountant-General.

2. This batch of writ petitions filed under Article 226 of the Constitution of India raises a common issue primarily relatable to the right of the retired teachers of primary schools, who were initially appointed on stipend basis on a non-substantive post and whose services were subsequently adjusted in a permanent establishment of the State for counting the period during which they rendered their services on stipend basis for the purpose of pension, revision of pay, etc.

3. The petitioners were initially appointed as Assistant Teachers in different schools of Bhojpur district on monthly stipend on purely temporary basis. Subsequently, they were adjusted in regular scale. After working for over three decades in regular establishment on attaining the age of superannuation, they retired from service between 31st July, 2007 and 31st August, 2009.

4. It is not in dispute that they have been paid their wages while working on stipend basis and they got their salary and other emoluments in regular scale after their adjustment in permanent establishment. It is also not in dispute that the services rendered by them in permanent establishment against substantive posts have been computed by the State for the payment of pension and they are getting their pension regularly.

5. The contention of the petitioners is that they have not been paid the regular scale since the date of their initial appointment, i.e., the date when they were appointed on temporary basis on monthly stipend basis and the period of stipend has not been counted for giving them pension and revision of pay.

6. The issue raised in these petitions is no more res integra. In the matter of State of Bihar and Anr. v. Bhagwan Singh (since dead) [2014(4) PLJR 229], wherein a similar issue was raised before this Court, considering the provisions prescribed under Rule 45, 56, 58 and 61 of the Bihar Pension Rules, 1950, a Full-Bench of this Court held in paras 11, 12, 13 and 14 as under:-

"11. Rule 56 of the Pension Rules provides that 'unless it be otherwise provided by special rule or contract, the service of every Government servant qualifies from the date he takes the charge of the post to which he is first appointed'. Rule 58 thereof provides that the service of a Government servant does not qualify for pension unless it conforms to the following three conditions:-

(i) The service must be under Government.

(ii)The employment must be substantive and permanent.

(iii) The service must be paid by Government.

12. Rule 61 thereof provides, 'service does not qualify unless the Government servant holds substantively a post on a permanent establishment'. Rule 45 thereof expressly excludes certain service for computation of pension. Clause (a) thereof reads, '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'. Clause (b) thereof reads, 'when a person is employed temporarily on monthly wages without specified limit of time or duty'.

13. It is apparent that the above-referred provisions were not brought to the notice of the learned Single Judge or before the Division Bench in the matter of State of Bihar and Ors. v. Chandrika Rai and Ors (Letters Patent Appeal No. 1343 of 1998).

14. Keeping in view the above provisions, we are of the opinion that the service rendered by the petitioner as daily wage Choukidar under the Executive Engineer, Tubewell Division, Gaya cannot be said to be a service for which the petitioner was paid from the general revenue of the State Government or the service rendered on a substantive post in a permanent establishment. Such service, although was followed by absorption on regular establishment, will not qualify for pension. Therefore, the service rendered by the petitioner, as daily wage employee from April 1973 to December 1978,