The main legal point established in the judgment is the interpretation of Rule 59 of the Bihar Pension Rules, 1950 and relevant government memos to determine the pensionability of the deceased employee's service, influencing the petitioner's entitlement to family pension.

L. Narasimha Reddy, J.

1. The husband of the petitioner (for short employee) was initially engaged on daily wage basis with effect from 28-2-1983 in the Energy Department of the Government of Bihar, and he was treated as one on work charge establishment, with effect from 2-5-1988. It is claimed that the employee was taken in regular establishment through order 17-8-1994. He died on 3-5-2012 while in service. The petitioner submitted a representation for sanction of family pension to her. Since no order was passed thereon, she filed the present writ petition. She contends that her husband worked for more than about 30 years in the Department in various capacities and that she is entitled to be paid his family pension and gratuity. On behalf of the respondents a detailed counter-affidavit is filed. They denied the plea of the petitioner that the service of the employee was regularized. It is also pleaded that the person engaged under work charge establishment would be liable to be discontinued with the completion of the work, and there hardly exists any continuity or permanency of employment in such cases. Reliance is placed on certain provisions of the P.W.D. Code.

2. Learned counsel for the petitioner submits that though the pension is normally sanctioned to an employee appointed by the Government on substantive and permanent basis, as provided under Rule 58 of the Bihar Pension Rules, 1950, exception is carved out in Rule 59 which enables the Government to pay pension to an employee whose service is not regularized. He submits that way back in 1969 the Government has taken a decision to pay pension to such of the employees whose services were not regularized, but have put in 15 years of continuous service. He placed reliance on Memo No. Pen 1024/69/11779F dated 12-8-1969 issued by the Government in the P.W.D. Department through which the work charge establishment was equated to temporary service, in the Department.

3. Learned counsel for the respondents submits that the work charge establishment is a class by itself, and it cannot be equated with temporary employment, much less to a permanent employment. He submits that the occasion to extend the benefit of Rule 59 to an employee would arise, if only the employment was temporary in nature but the same was not regularised and in the present case such a situation does not exist. Both the learned counsel relied on certain precedents.

4. It was from the year 1983, that the employee served the Energy Department-may be on daily wages. It is not in dispute that his service was taken under work charge establishment with effect from 2-5-1988. Though it was submitted that his service was regularised from 2-5-1988, we are not taking the same into account since there is serious dispute about it. Ultimately, he died on 3-5-2012. The undisputed facts reveal that the employee was functioning as work charge employee between 2-5-88 and 3-5-2012 i.e., for a period of 20 years.

5. The question is as to whether the service rendered by the employee becomes pensionable. It is only when the service of her husband becomes pensionable, that the petitioner will be entitled to family pension.

6. It is a matter of common knowledge that the pension is paid only when the post held by an individual is in the establishment of the Government and the employment is against a substantive post. Rule 58 of the Bihar Pension Rules, 1950 makes this aspect clear. However, an exception is carved out to this Rule, under Rule 59. It reads as under:

"59. The Provincial Government may, however, in the case of service paid from general revenues, even though either or both of conditions (1) and (2) are not fulfilled-

(1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension;

(2) in individual cases, and subject to such conditions as it may think fit to impose in each case, direct that service rendered by a Government servant shall count for pension."

7. This is an almost a