ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 25-06-2024 The present L.P.A. is presented on behalf of the Bihar School Examination Board in assailing the order dated

28.05.2020 passed in C.W.J.C. No.4643 of 2017.

2. Grievance of the respondent Arti Kumari alias Nibha, wife of Chitranjan Pandey and daughter of Late Sugandha Upadhyay. Deceased Sugandha Upadhyay was appointed on daily wage basis in the Bihar School Examination Board in the month of March, 1975. Among others, his services were regularized on 21.01.1981 with effect from 01.01.1981 and he had attained the age of superannuation and retired from service. He had claimed that service rendered as a daily wager from March, 1975 till 01.01.1981 was required to be counted for the purpose of fixation of pension. The same was subject matter of two litigations. On earlier occasions, this Court directed the Bihar School Examination Board to consider grievance of the legal representative of the deceased Sugandha Upadhyay. Ultimately, a detailed order was passed and communicated to the respondent on 21.09.2016 during the pendency of C.W.J.C. No.4643 of 2017. By means of supplementary, respondent has assailed the order dated 21.09.2016 which was produced as Annexure-5/A.

3. The learned Single Judge without examining the contents of the order dated 21.09.2016 by which the grievance of the respondent has been turned down with reference to statutory provisions like Rule 58 of the Bihar Pension Rules to the extent that deceased Sugandha Upadhyay has failed to fulfill the criteria mentioned in Rule 58 of the Bihar Pension Rules, proceeded to quash order dated 21.09.2016. Whereas, the learned Single Judge while quoting paragraph-7 of the order dated 29.03.2016 passed in L.P.A. No.1463 of 2013 relied on even though L.P.A. No.1463 of 2013 filed by the respondent was withdrawn. The Coordinate Bench made an observation in paragraph-7. Such observation is in the absence of considering Rule 58 of the Bihar Pension Rules. Therefore, the learned Single Judge has committed error in not taking note of statutory provisions like Rule 58 of Bihar Pension Rules. Thus, learned counsel for the appellants submitted that order of the learned Single Judge is liable to be set aside while affirming the decision dated 21.09.2016 to the extent that deceased employee is not entitled to count daily wage service from March, 1975 to 01.01.1981. In support of the aforementioned contention, he is relying on two Full Bench decisions of this Court which are reported in (2014) 4 PLJR 229 {The State of Bihar and another Vs. Bhagwan Singh (since dead)} (paragraphs-11 to 14) and (2019) 2 BLJ 9 (Mobina Khatoon Versus State of Bihar through the Principal Secretary, Public Health Engineering Department and Others) (paragraphs-45 to 48). From these two judicial pronouncements, learned counsel for the appellants submitted that this Court had an occasion to examine as to whether daily wage service could be counted for the purpose of pension or not and another issue is relating to service rendered against the work charge establishment service could be counted or not. In the later decision, i.e., (2019) 2 BLJ 9, Full Bench has extended the benefit of counting work charge establish service towards pension and distinguished that a daily wage service cannot be counted for the purpose of pension. These are all the settled principles insofar as entitlement of counting service on daily wage basis towards fixation of pension.

4. Per contra, learned counsel for the respondent resisted the aforementioned contention of the learned counsel for the appellants and supported the order of the learned Single Judge dated 28.05.2020 passed in C.W.J.C. No.4643 of 2017 to the extent that there is no error committed by the learned Single Judge. In support of the contention that deceased Sugandha Upadhyay who has rendered service as a daily wager from March, 1975 to 01.01.1981 and it is required to be counted for the purpose of pens