Heard learned counsels for the petitioner, respondent-State and Accountant General, Bihar.
The present writ application has been filed for a direction to the respondents to make payment of pension and other retiral benefits to the petitioner
who retired from the post of Caretaker under the Work-charged establishment, Building Division, Patna in the Building Construction Department. The
relief as claimed by the petitioner in paragraph 1 of the writ application reads as follows:
“(i)By way of this writ application petitioner seeks indulgence of this Hon’ble Court for issuance of appropriate writ/order/direction upon the
respondents to make payment of following retiral dues/benefits to the petitioner who retired from service with effect from 29.2.2012 while working on
the Post of Caretaker (Karya Parveshak) under work charge establishment in the Building construction Department, Building Division, Patna
(a) To make payment of monthly pension
(b) To make payment of gratuity amount
(c) To grant benefit of A.C.P.
(d) To make payment of arrears of pension and gratuity
(ii) For any other appropriate order orders to which the petitioner is found to be entitled to in the facts and circumstances of the case.â€
It is submitted by learned counsel for the petitioner that the petitioner was appointed on the post of Caretaker vide letter no. 6938 dated 7.12.1981,
issued under the signature of the Superintending Engineer, in the Work-Charged establishment of South Bihar Circle, Building Construction
Department. The petitioner retired, after serving for about 29 years, on 29.2.2012. During the service period, the petitioner was granted time bound
promotion and other increments granted to regular employees and his GPF deductions were also made like a regular government servant. However,
the services of the petitioner were not regularized, in spite of the fact that he filed a writ application being CWJC No. 5519 of 2014, which was
permitted to be withdrawn vide order dated 22.10.2014, as contained in Annexure 1, with a liberty to approach the competent authority for redressal of
grievances. Consequently, the petitioner represented before the Principal Secretary, Building Construction Department vide representation dated
2.12.2014, but till date the representation of the petitioner has not been disposed of.
It is further submitted that one Md. Matin, having similar grievance, preferred CWJC No. 24532 of 2003 which was allowed by learned Single Judge
vide order dated 15.10.2014. However, the State Government preferred appeal against the said order being LPA No. 1211 of 2015 which was
dismissed vide order dated 23.6.2016 by a Division Bench of this Court. Thereafter, necessary direction was issued for payment of pensionary
benefits to Md. Matin after absorbing him in regular establishment. Similar orders were passed in several other writ applications for such
consideration. Learned counsel further submits that the service of a Government Servant though does not qualify for the pension unless it conforms to
three conditions :- first, that his service must be under government, second, his employment must be substantive and permanent and third, the service
must be paid by the Government, as provided under Rule 58 of the Bihar Pension Rules, 1950 (hereinafter referred to as the Rules). However,
exception has been provided under Rule 59 of the Rules, which stipulates that in case where the third condition, i.e., the service must be paid by the
Government, is fulfilled, while the first and second condition (as provided under Rule 58) do not get fulfilled, the Government may direct for counting
of such service for the grant of pension and consequently, keeping in view the provision under Rule 59 of the Rules, the Government has taken
decision vide Memo No. Pen 1024/69/11779 F, dated 12.8.1969, which reads as follows:
“Regarding:- Declaration of temporary service of a Government servant who is not confirmed as pensionable.
Under the existing pension rules, a temporary Government service if not confirmed in any post, is not entitled to pension unless his services are
declared pensionable under rule 59 of the Bihar Pension Rules.
2. There are large number of temporary Government servants employed under different schemes which are in existence for the last 15-20 years and it
will cause hardship to them, if they are not allowed pension after their retirement.
3. The State Government after careful consideration had, therefore, been pleased to decide that, if the service of the temporary or officiating
Government servant who is not confirmed in any post is continuous and is more than 15 years, it will be considered as pensionable under rule 59 of the
Bihar Pension Rules.â€
However, it is submitted that now in view of the judgement delivered by the Full Bench of this Court in the case of Mobina Khatoon Vs. The State of
Bihar and Anr., reported in 2019(1) PLJR 1015 ,the work-charged employee who has completed ten years or more years of continuous service
against one post in the work-charged establishment, will be entitled for pension and his family in case of death of such work-charged employee, would
be paid the family pension.
In the present case, the petitioner has worked for about 29 years in service. Similarly, the other Full Bench judgement in the case of Smt. Amrika Devi
and Ors. Vs. State of Bihar and Ors., reported in 2019(5) BLJ 410, lays down the procedure for computing the qualifying service by adding the period
of service under the work-charged establishment.
Though no counter affidavit has been filed on behalf of the State but learned counsel appearing for the State submits that in view of the ratio laid down
in the case of Mobina Khatoon (supra), the case of the petitioner may be considered.
Considering the rival submissions of the parties, the only issue involved in the present case is whether the petitioner, after rendering service, under
work-charged establishment for 29 years, is entitled for pension or not.
In the case of Mobina Khatoon (supra), the matter was referred to a larger Bench where the Division Bench of this Court noticed the difference of
opinion in the two judgements delivered by two different Division Benches of this Court â€" one being in Saraswati Devi Vs. The State of Bihar and
Ors., reported in 2017(3) PLJR 645 and the other being in the case of The State of Bihar and Ors. Vs. Bimli Devi, reported in 2016(1) PLJR 452. The
issue referred was whether the services rendered by a work-charged employee is to be taken into account for computing his pension and whether a
work-charged employee is, in the first instance, entitled to pensionary and other benefits which are available to a government servant and secondly
whether there is any availability of family pension to the widow of such deceased work-charged employee or compassionate appointment to his heirs
in case of death of such employee in service tenure. The reference has been answered in paragraph 70 of the judgement, which reads as follows:
“70. For the aforesaid reasons, we deem it necessary and lawful to hold and declare the following that till the time, appropriate rules in this regard
is framed by the Government:-
(i) That a work-charged employee who has completed ten (10) or more years of continuous service against one post in the work-charged
establishment will be paid pension and his family, in case of death of such work-charged employee, would be paid the family pension.
(ii) The work-charged employees who have received regular scale of pay for ten (10) or more years on their retirement and after their death, their
heirs and dependants would be entitled to claim death-cum-retiral benefits.
(iii) However, the dependants of a work-charged employee would not be entitled to claim appointment on compassionate ground in the absence of any
scheme framed by the Government for such work-charged establishment.â€
The case of Smt. Amrika Devi (supra) the matter was referred to the larger bench for authoritative pronouncement in view of the difference of
opinion noted by a learned Single Judge of this Court in the two Division Bench judgements, namely, Civil Review No. 210 of 2014, arising out of LPA
No. 416 of 2013 dated 21.9.2015 (State of Bihar & Ors. Vs. Sheela Devi and other analogous cases) as well as in LPA No. 12674 of 2017 dated
4.1.2018 (Binod Kumar & Ors. Vs. State of Bihar & Ors.). In the case of Sheela Devi (supra), the Division Bench has directed for taking into
account of the entire period of work-charged tenure for being counted for pensionary benefits whereas in the case of Binod Kumar (supra) the
Division Bench, taking into account the Work-charged Establishment Revised Service Condition (Repeal) Rules, 2013, directed for counting the
services rendered under work-charged establishment 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. The answer to the reference has been recorded in paragraph 46
of the judgement, which reads as follows:
“46. The reference, thus, is answered in the following terms:
(a) With respect to addition of the number of years of service rendered in a work-charged tenure to the service under regular establishment, for the
purposes of making the service of such regular employees pensionable, there is practically no substantial difference in the pronouncements of the two
Division Benches in the case of Sheela Devi (supra) and Binod Kumar (supra).
(b) For the purposes of pension, only such period from the work-charged tenure would be added for making the service of an employee which has
been regularized to qualify him for pension.
(c) While adding such period of work-charged tenure, the modus would be of granting/counting one year for every five years of service rendered
under work-charged establishment. If that also leaves some shortfall, then further number of years of work-charged tenure can be taken/added for
making the service of the employee pensionable.
(d) For the purposes of giving benefit to an employee for promotion on the selection grade and timebound-promotion, the entire period of service
rendered as work-charged employee can be counted.
(e) The Rules and Circular of 2013 are valid as has been held in Binod Kumar (supra).
(f) The Rules and Circular of 2013 are applicable to such work-charged employees who have been appointed after 22.10.1984 and prior to
11.12.1990.â€
In view of the discussions made above, this Court finds that the facts of the present case comes within the four corners of the ratio laid down in the
case of Mobina Khatoon and Smt. Amrika Devi (supra) and as such the petitioner is thus entitled to pension. The petitioner having completed 29 years
of service, becomes entitled to the payment of pension, by virtue of application of the ratio laid down in the two Full Bench judgements. In case, the
case of the petitioner is still pending for consideration, the same shall be decided, in view of the ratio of the two Full Bench judgements referred above,
within a period of three months from the date of receipt/production of a copy of this order.
The writ application thus stands allowed.