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2019 Supreme(Pat) 884
IN THE HIGH COURT OF JUDICATURE AT PATNA
Amreshwar Pratap Sahi, Anjana Mishra, Ashutosh Kumar, JJ.
Amrika Devi - Appellant
Vs.
State of Bihar - Respondent
Civil Writ Jurisdiction Case No. 10063 of 2012, 10449 of 2017, 1285 of 2016; Letters Patent Appeal No. 1794 of 2018, 1796 of 2018; Civil Review No. 167 of 2018
Decided On : 02-09-2019
For the Petitioner: Bam Bahadur Jha, Adv., Siyaram Pandey, Adv., Vishwambhar Prasad, Adv.,
For the Respondent: Gautam Bose, Adv., S. Raza Ahmad, Adv., Prabhat Ranjan, Adv.
Headnote:
Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013 – Rule 5 – 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 been referred to a larger Bench for an authoritative pronouncement – Another rule already surfaced being Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013 being followed by the Finance Department notification dated 17.10.2013 contained in Circular No. 10710 – The 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 – Now provided that five years service rendered under the Work-Charged Establishment 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 – The five to one ratio as stated in the Circular for those employees for whom the cut-off date been extended is but a measure to make the category also avail the pensionary benefit – 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 fully endorsed by the Division Bench in the case of Binod Kumar – The term "qualifying service" been made the key-word – The Circular/Resolution coming down the times in favour of such work-charged employees but a beneficial provision/benevolence offered under Rule 203 of the Bihar Pension Rules an exercise of discretion of the State Government and not by virtue of any right accrued to them – State Government come up with rules wherein it has come up with a scheme of 3rd July, 2019 giving pension to such work charged employee who appointed on or before 11.12.1990 and had served for ten years against one post and 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 – The five to one ratio as stated in the Circular for those employees for whom the cut-off date been extended being a measure to make this category also avail the pensionary benefit – Any department on that score cannot be whittled down on the argument that no vested right been curtailed. (Paras **)
(1998)4 SCC 117; AIR 2001 SC 1772; 2019(2) BLJ, (FB) – Referred to.
JUDGMENT :
Ashutosh Kumar, J.
1. In view of the difference of opinion noted by a learned Single Judge of this Court in the two Division Bench Judgments, 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. 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 pension able 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 Judgments 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 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 judgment 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 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:
"Patna High court LPA No. 166 of 2018 dt. 4.2.2019" 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 the P.W. Code and P.W.D. Accounts 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 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
