Only the qualifying period of service under Work Charge Establishment is counted for pension eligibility, as established by prior judgments.

JUDGMENT :

Harish Kumar, J.

Heard Mr. Siya Ram Shahi, learned counsel along with Mr. Ram Sevak Choudhary, learned counsel appearing on behalf of the petitioners and Mr. Vishambhar Prasad, learned AC to AAG-5, for the State.

2. The petitioners by filing the present writ petition under Article 226 of the Constitution of India seeking quashing of Clause (v) of Para 4 of Memo No. 10710 dated 17.10.2013, issued by the Additional Secretary, Finance Department, Government of Bihar, Patna, as contained in Annexure-8 to the writ petition, whereby it has been resolved that the Old Pension Scheme will be applicable to these employees. The benefits of pension and gratuity shall be calculated by recognizing one year of regular service for five years of Work Charge Establishment. Nonetheless, if the period of employee shall not be completed the qualifying period of 10 years of pensionable service under such circumstance, the benefit of pension will be given by adding the minimum service to that period.

3. The petitioners were initially appointed on Muster roll as Nalkup Khalasi sometime in the year 1979 and 1980 and subsequently by the letters issued by the Executive Engineer, Public Health Rural Water Supply Division and on the recommendation of the Establishment Committee, they were appointed as Work Charge Nalkup Khalasi in the pay scale of Rs. 350 -425. In course of time, the petitioner nos. 1 and 2 were promoted to the post of Nalkup Mistri vide office order no. 44 dated 17.02.1990 and likewise petitioner no.3 was promoted on the post of Nalkup Mistri vide office order no.7 dated 11.01.1993. Further in terms of the Finance Department Resolution No. 660 dated 08.02.1999, the petitioners were put in the pay scale of Rs.2650-4000/-. In the meantime, in the light of the letter dated 26.04.2002, issued by the Chief Engineer (Technical), Government of Bihar, the petitioners and several similarly situated employees, who were working in Work Charge Establishment reverted on the post of muster roll, which order was put to challenge by filing several writ petitions i.e. C.W.J.C. No. 7359 of 2002 and other analogous cases.

4. During the pendency of the aforesaid writ petition, the State Government came out with a policy decision with regard to regularization of the services of the employees working under Work Charge Establishment and finally pursuant to the direction of the Hon’ble Court a Three Men High Committee was constituted for regularization of the services in the light of the judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors., reported in 2006 (4) SCC 1, and finally the services of the petitioners have been regularized vide Memo No. 1130 dated 28.11.2006. Subsequent thereto the Government of Bihar in the department of Finance vide Memo No. 10710 dated 17.10.2013 came out with a resolution whereby the cut off date of regularization of Work Charge Establishment, which were earlier fixed vide Resolution No. 6394 dated 23.10.1987 has been amended and simultaneously Clause (v) of paragraph 4 is incorporated with regard to how the period of Work Charge Establishment shall be calculated for fixation of pension etc., which is impugned herein.

5. It is submitted on behalf of the petitioners that the petitioners were duly appointed under Work Charge Establishment way back in the year 1980-1982 and brought into regular establishment on 05.12.2006 after about 23 years of service in the Work Charge Establishment, thus for the purpose of fixation of pension of the petitioners, the entire period of Work Charge Establishment should be counted as per the Finance Department letter dated 31.03.2004. By the impugned Clause (v) of para. 4 of the Finance Department resolution dated 17.10.2013, only five years of Work Charge Establishment shall be calculated as one year, if the total period on the basis of said calculation is less than ten years (qualifying service) than the same will be made pensionable after