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IN THE HIGH COURT OF JUDICATURE AT PATNA
PURNENDU SINGH, J.
CWJC No.8701 of 2021
(7.10.2023)
Krishna Prasad ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Bihar Service Code, 1952 – Rule 73 – Bihar Pension Rules, 1950 – Rule 58 – Pension – Qualifying service – Petitioner was engaged as daily wager on sanctioned post – Minimum retirement age of a government employee is 60 years – Petitioner had completed qualifying pensionary service of 10 years – Respondents had not considered entire length of service of petitioner who had worked as a daily wager for more than 240 days with effect from 23.08.1982, and has rendered service till date of his superannuation after attaining 60 years of age – Prescription of cut-off date for absorption into regular service and to not count service rendered before regularization, for computation of qualifying service, has no rational basis and same is violative of Article 14 of Constitution of India – Petitioner has served for 32 years before being absorbed in regular service on 28.08.2014 – Even if a person has worked in a temporary capacity and has not been confirmed, his service on any post is continuous and is for more than 10 years, then it may be considered as pensionable under Rule 59 of Bihar Pension Rules, 1950 – Once entire service of daily wage is to be counted as qualified service then his date of appointment will relegate back to his initial date of engagement and he cannot be ousted from pension scheme by applying date of regularization. (Paras 16, 20, 21, 24 and 27)
Bihar Pension Rules, 1950 – Rule 58 – Pension – Qualifying service – New Pension Scheme would be applicable to entrants on the basis of offer of appointment issued to them – New Pension Scheme cannot be made applicable to petitioner since he cannot be considered a new entrant – Covenant contained in offer of regular appointment to petitioner cannot take away right vested in him under Bihar Pension Rules, Bihar Service Code and petitioner will be governed by Old Pension Rules and Contributory Pension Fund Scheme will not apply – Respondents directed to treat whole period of service of petitioner as qualified service for pension – Qualifying service is to be counted in terms of provisions of Rules 58 and 59 of Bihar Pension Rules, 1950 – Petitioner is entitled for pension under Old Pension Scheme and for other benefits, as is applicable to Government employees – Writ petition allowed. (Paras 28 and 30)
Purnendu Singh, J. – Heard Mr. Ramchandra Singh, learned counsel appearing on behalf of the petitioner and Mr. Manish Kumar, learned AC to AAG 6 for the State.
2. In continuation of order dated 18.08.2023 by which specific direction was given to the respondents and in spite of adjournments, have not been able to differentiate between the daily wagers, with respect to employees who have been performing their duties under a regular government establishment and those daily wagers, who were engaged under certain temporary scheme and with the lapse of scheme as per the terms of engagement, they lost their services/engagement.
3. Present is the case in which the facts as stated in the writ petition, counter affidavit and supplementary counter affidavits filed on behalf of the State, the petitioner was being engaged as daily wager by Executive Engineer, Rural Works Department, Works Circle, Danapur under regular establishment. The said fact has been admitted by the respondent in paragraph nos.7, 8, 9 and 10 of the supplementary counter affidavit dated 13.07.2023 filed on behalf of respondents and the same are reproduced hereinafter: –
“7. That it has already been submitted before the Hon’ble Court vide earlier counter affidavit that the petitioner was initially engaged as daily wages employee on 23.08.1982 and later on in compliance of the order passed by the Hon’ble Court in CWJC No.6661 of 1998 the petitioner was absorbed temporarily under regular establishment subject to certain conditions on the pay scale of 2550-55-260-60-3200 vide office order having Memo No.857 dated 13.12.2021 issued under the signature of the Superintending Engineer, Rural Works Department, Works Circle, Patna.
8. That it is very humbly submitted that the said appointment of the petitioner was not found to be in consonance with the Resolution No.5940 dated 18.06.1993 issued by the Personal and Administrative Reforms Department, Government of Bihar, Patna so in the light whereof the appointment of the petitioner was cancelled vide departmental letter No.-178 dated 24.01.2003.
9. That it is further submitted that the petitioner challenged the letter No.178 dated 24.01.2003 in the Hon’ble Court by way of CWJC No.2088 of 2003 which was disposed of vide order dated – 27.02.2004.
10. That the name of the petitioner was placed before the district level selection committee under chairmanship of the District Magistrate-cum-Chairman, District Level Selection Committee for consideration of absorption-regularization which was considered by the committee in its meeting held on 23.06.2014 and recommendation was made for regularization of service of the petitioner under Group-D in the light of the Resolution No.639 dated 16.03.2006 issued by the Personal and Administrative Reforms Department, Govt. of Bihar under specific condition that the service rendered by the petitioner as daily wager shall not be counted for any purpose.”
4. In the aforesaid supplementary counter affidavit, a reference of resolution No.5940 dated 18.06.1993 has been made in paragraph no.8 in support of the fact that the appointment of the petitioner was not found to be in consonance with the above-mentioned resolution and, as such, in light of the said resolution, the appointment of the petitioner was cancelled by department vide letter No.178 dated 24.01.2003.
5. The service particular of the petitioner and others has been mentioned in Annexure B to the said counter affidavit, which is the minutes of the meeting of District Level Selection Committee under the Chairmanship of the District Magistratecum- Chairman, dated 23.06.2014, and in the said meeting, recommendation was made for regularization of service of the petitioner under Group D in light of Resolution No.639 dated 16.03.2006, issued by the (present General Administrative Department) / Personal and Administrative Reforms Department, Government of Bihar with a condition that the service rendered by the petitioner as daily wager shall not be counted
Continuous service and regularization can establish entitlement to pension, overriding initial non-permanent employment status.
Continuous service of 40 years as a daily wager entitles the petitioner to pensionary benefits from the date of initial appointment, not from the date of regularization.
Pension on premature/voluntary retirement requires 20 years qualifying service per amended rules; shorter service ineligible unless government relaxes for undue hardship or grants weightage for prior....
Prior service as work-charged employees must be counted towards qualifying service for pension, ensuring compliance with principles of fairness and non-discrimination.
The exclusion of service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the....
Service rendered as daily wager cannot be counted towards pension benefits unless regularized, as clarified by the Apex Court.
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