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IN THE HIGH COURT OF JUDICATURE AT PATNA
HARISH KUMAR, J.
CWJC No.12709 of 2023
(10.12.2024)
Bishwanath Prasad Suman ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Bihar Pension Rules, 1950 – Rule 59 – Non-payment of pension – Service condition of an employee ought not have been changed to his disadvantage – Rules applicable in matters of determination of pension are those which are in force at the time of retirement – However, it does not mean that employer can depart from his principle arbitrarily and confer benefit of Rules in force at the time of appointment, for computation of pension upon one employee and deny same benefit to another employee who is similarly situated – Appointment of petitioner in terms of advertisement against post of Junior Engineer was made against sanctioned and vacant post – Entire process of selection was undertaken on direction of Government of Bihar in Department of Energy – Petitioner had passed Hindi Noting and Drafting Examination and he was allowed benefit of 5th Pay Revision Commission and 6th Pay Revision Commission – Transfer of service of petitioner in BREDA can only be treated as deputation – There is no material to suggest that at any point of time consent of petitioner was taken and his service could not have been unilaterally transferred without his consent by imposing a service condition to disadvantage of petitioner – Lien of petitioner shall remain intact in Energy Department and even if he was transferred to BREDA that shall be deemed to be a posting on deputation and in no circumstance BREDA could have been allowed to alter terms and conditions of service to disadvantage of petitioner who was appointed prior to formation of BREDA – Respondents directed make payment of arrears of pension admissible to petitioner – Writ Petition allowed. (Paras 17, 18, 20, 21, 22, 26, 27 and 28)
Service Law – Deputation – Necessity for sending on deputation arises in public interest to meet exigencies of public service – Concept of deputation is consensual and involves voluntary decision of employer to lend services of his employee and corresponding acceptance of such services by borrowing employer – It also involves consent of employee to go on deputation or not. (Para 22)
Harish Kumar, J.—This Court has heard Mr. Kumar Kaushik, learned Advocate for the petitioner and Mr. Abbas Haider, learned Advocate for the State as well as Mr. Prasson Sinha, learned Advocate for the BREDA.
2. The petitioner is aggrieved by the office order contained in Memo No. 382 dated 08.03.2018 issued under the signature of the respondent no. 5, whereby the claim of petitioner for payment of pension has been turned down. The petitioner also sought a direction upon the respondent State of Bihar in its Energy Department to fix and pay the pension of the petitioner, who superannuated on 30.09.2013 from the post of Junior Engineer, while being deputed at Bihar Renewable Energy Development Agency (hereinafter referred to as the ‘BREDA’) and further for directing the aforesaid respondent authorities to make payment of arrears of pension and other consequential benefits with effect from the date of his superannuation.
3. The brief facts of the case which led to the filing of the present writ petition are that the Government of Bihar in the Department of Energy constituted a Committee at the district level for appointment of Junior Engineer and Technician on sanctioned post under the Biogas Project. The Committee headed by the District Magistrate with Deputy Development Commissioner along with other officers of the State of Bihar, including the Joint Director (Biogas)/Assistant Director (Biogas) or a nominee of the Energy Department, and the District Agriculture Officer as its members were authorised to make recommendation for appointment in accordance with the reservation roster of the Government. In pursuant to the aforenoted decision, the Energy Department issued a communication, as contained in Memo No. 3604 dated 25.08.1984, to all the concerned District Magistrates to ensure appointment in terms of the advertisement (copy of which are annexed as Annexure P-2 series to the writ petition). The petitioner being found himself eligible applied against the aforenoted advertisement and on being selected, he was appointed to the post of Junior Engineer vide Memo No. 3802 dated 11.10.1984 issued by the Collectorate, Samastipur. The petitioner submitted his joining and he was allowed to discharge his duty and on completion of 10 years of service, he was allowed the First Time Bound Promotion by the order passed by the Collectorate, Samastipur vide Memo No. 3223 dated 22.11.1997. In the meantime, the Bihar Renewal Energy Development Agency was constituted by the Bihar in its Energy Department vide Memo No. 786 dated 24.03.1987 and the services of the petitioner was transferred to BREDA vide order contained in Memo No. 2929 dated 09.01.2001. The petitioner was further allowed the benefit of post Pay Revision Commission with effect from 01.01.1986 and 6th Pay Revision Commission with effect from 01.01.1996.
4. After serving for about more than 27 years, the petitioner finally superannuated on 30.09.2013. However, when the rightful claim of the petitioner for pension has not been acceded to, the petitioner approached before this Court in CWJC No. 24291 of 2013 for payment of his post retiral benefits. The aforesaid writ petition was disposed off vide order dated 14.08.2014 directing the BREDA to consider the claim of the petitioner on the basis of the rules so framed by them relating to service condition. The petitioner preferred Civil Review Application bearing Civil Review No. 308 of 2014 which came to be dismissed vide order dated 26.08.2015. The petitioner on being dissatisfied preferred LPA bearing No. 2031 of 2015 which finally came to be disposed off vide order/judgment dated 15.02.2017 with a direction to the State Government and/or BREDA to pass an appropriate order to consider the claim of the appellant, the petitioner herein for payment of pension in accordance with the applicable rules. Pursuant thereto, the petitioner submitted his representation but the respondent authorities did not take up the matter, compelling him to file
The petitioner was entitled to the 6th pay revision as applicable to regular employees, as per the judgment in Bihar State Beverages Corporation Limited and Others vs. Naresh Kumar Mishra and Others.
Continuous service and regularization can establish entitlement to pension, overriding initial non-permanent employment status.
The jurisdiction of a state to impose disciplinary actions on an employee ceases once the employee is allocated to another state, and any disciplinary proceedings must adhere to statutory time limits....
A pension is a right under constitutional law, and its claim can be waived if alternative benefits are accepted, as evidenced in this case by the employee's adoption of the EPF Scheme.
Point of Law : A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution.
Temporary service against substantive government post, continued without interruption or repatriation beyond limited secondment period, counts fully as qualifying service for pension under CCS Pensio....
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