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1998 DIGILAW 816 (PAT)

Bhupal Kumar Haldar v. State of Bihar

1998-11-24

CHAUDHARY S.N.MISHRA

body1998
JUDGMENT : Mishra, J.-In this writ application the petitioner apart from the various reliefs sought for, details whereof have been mentioned in different clauses of paragraph-1 of the writ application, has prayed for quashing the ORDER :dated 30.10.1993 passed by respondent Chief of Administration, Bihar State Road Transport Corporation, whereby the claim for grant of pension to the petitioner has been refused on the grounds mentioned therein, copy of the said ORDER :is made Annexure-5 to this writ application. 2. Shortly stated the fact of this case is that the petitioner was appointed on the post of junior clerk on 15.6.1956 in the Rajya Transport Department, Govt. of Bihar. After formation of the Bihar State Road Transport Corporation (hereinafter referred to as the 'Corporation'), the services of the petitioner and other employees of the Rajya Transport Department were transferred to the Corporation. While the petitioner was in the service of the Corporation he was promoted to the post of Assistant Traffic Inspector and thereafter to the post of Traffic Inspector on 12.6.71 and 5.6.81 respectively in the scale of Rs. 1400-2300/- per month. The petitioner ultimately retired on 30.11.1988. Since the retiral benefits not paid to the petitioner he filed a writ application before this Court being C.W.J.C. No. 3454/89. The said writ application was disposed of by a Division Bench of this Court on 19.8.89 whereby the respondent Chairman of the Corporation, on a prayer being made on behalf of the petitioner, was directed to pay at least the amount of contributory provident fund within the time mentioned therein, copy of the said ORDER :is made annexure-3 to this writ application. Pursuant thereto, the respondent Corporation has paid the amount of contributory provident fund to the petitioner. The petitioner again filed a writ application being C.W.J.C. No. 7994/91 claiming pension like other Govt. servants. The contention of the petitioner was that since he was appointed by the Government in the Rajya Transport Department he is entitled to pension like other Govt. servants from the respondent Corporation. The petitioner again filed a writ application being C.W.J.C. No. 7994/91 claiming pension like other Govt. servants. The contention of the petitioner was that since he was appointed by the Government in the Rajya Transport Department he is entitled to pension like other Govt. servants from the respondent Corporation. A - Division Bench of this Court, wherein I Was one of the parties, without going into the merits of the claim of the petitioner has directed him to file a comprehensive representation before the I Chief of Administration who will dispose of the same by a speaking ORDER :after giving opportunity of being heard within the time mentioned therein, copy of the said ORDER :is made Annexure-4 to this writ application. The petitioner, accordingly, filed representation before the respondent Chief of Administration, who after hearing the petitioner has passed the impugned ORDER :rejecting the prayer for grant of pension mainly on the ground that since appointment of the petitioner in the Rajya Transport Department was temporary one, his services were transferred to the Corporation, and, as such, he is not entitled to pension, as claimed by him. 3. Learned counsel appearing on behalf of the petitioner has challenged the ORDER :of the respondent Chief of Administration on the ground that the petitioner was appointed on the permanent post of junior clerk in the Rajya Transport Department, Govt. of Bihar and after formation of the Corporation in the year 1959 his services were transferred to the Corporation, his prayer for pension could not have been refused by the respondent Corporation. While developing argument learned counsel for the petitioner submits that similarly situated employees Sri P. Dayal was allowed to draw pension like other Govt. servants. Similarly other employee, namely, Kameshwar Pd. Sahmat, whose services were also transferred to the Corporation, was given such benefit and, accordingly, it is submitted that the petitioner has been discriminated in grant of pension by the Corporation. Learned counsel for the petitioner has further submitted that the terms and conditions of deputation or transfer of the Govt. servants to the Corporation do not make any distinction between permanent and temporary Govt. servant with respect to payment of pension to its employees. It is submitted that respondent Chief of Administration has without applying his mind passed the impugned ORDER :in a mechanical way without taking into consideration the decision of the government in this regard. servants to the Corporation do not make any distinction between permanent and temporary Govt. servant with respect to payment of pension to its employees. It is submitted that respondent Chief of Administration has without applying his mind passed the impugned ORDER :in a mechanical way without taking into consideration the decision of the government in this regard. Over and above, learned counsel also submits that apart from the grant of pension, other admitted retiral dues, details whereof have been mentioned in various clauses of paragraph 1 of the writ application, has not been paid as yet though the petitioner retired as far back as on 30.11.1988. The other reliefs sought for have been enumerated in clause (ii) (a) to (h) and (iii), which read thus : "(ii)(a) the payment of monthly salary ought to have been fixed as per new scale according as the ORDER :of Vth Pay Revision Committee with effect from 1.6.1986, (b) the difference of salary as per new scale of pay i.e. Rs. 1400-2300/with effect from 1 .1.86 till the date of his retirement on 30.11.88 with interest. (c) the difference of the amount of revised gratuity calculated as per his last pay in the new scale Le. about Rs.16000/- with interest. (d) the difference of the amount of leave encashment calculated as per his last pay in the revised scale with effect from 1.1.86 Le. about Rs. 8000/with interest. (e) the amount of incomplete differed dearness allowance from 1980 till petitioner's retirement Le. about 1040/with interest, (f) House-rent Allowance from December, 1977 to March, 1980 as per Government ORDER :s, (g) arrears dearness allowance from 1.1.82 to 31.3.82 as per calculation, (h) Ad-hoc interim relief Rs. 500/P.M. granted to all staff/employees of the Government of Bihar under the ORDER :s of the Hon'ble Chief Minister in 1987-88. (iii) For issuance of a direction for rescinding the payment of the amount of Rs. 46,433/- in the shape of contributory provident fund instead of Pension, wrongly made by the respondents and accepted by the petitioner under protest conditional on payment of retirement benefits to the petitioner." 4. In this case, a counter affidavit has been filed on behalf of respondent Corporation wherein, inter alia, it is stated that the appointment of the petitioner on the post of junior clerk Was purely temporary in nature and terminable without notice. In this case, a counter affidavit has been filed on behalf of respondent Corporation wherein, inter alia, it is stated that the appointment of the petitioner on the post of junior clerk Was purely temporary in nature and terminable without notice. In support of his contention learned counsel has relied upon the appointment letter of the petitioner dated 5.6.56, as contained in Annexure 'A' to the counter affidavit. It is alleged that the Government issued a letter dated 30th April, 1959, clearly specifying therein the terms and conditions of services of both permanent and temporary Govt. servants including technical staff working at the relevant time in Rajya Transport Department and according to the said term and conditions enumerated in the said letter (Annexure-7) the services of all categories of employees, temporary and permanent, working at the relevant time in the Rajya Transport Department were placed at the disposal of respondent Corporation w.e.f. 1.5.59. It is alleged that w.e.f. 1.5.59 services of such employees were placed at the disposal of the Corporation and they ceased to be the government servants w.e.f. 1.5.59. It is further alleged that in the case of permanent government servant on deputation to Political (Transport) Department, their services were to be placed at the disposal of the Corporation w.e.f. 1.5.59. on foreign service terms and they would continue to get their pensionary benefits. The petitioner and other similarly situated temporary employees ceased to be the government servants w.e.f. the date when their services were transferred to the Corporation and they became purely employee of the Corporation. It is further alleged that according to the scheme of the Corporation the petitioner is not entitled to claim benefit of pension being an employee of the Corporation and he became a member of the contributory provident fund scheme. The petitioner wilfully accepted the amount of C.P.F. in terms of the direction of the High Court in the earlier writ application on the prayer made by the petitioner himself. The petitioner wilfully accepted the amount of C.P.F. in terms of the direction of the High Court in the earlier writ application on the prayer made by the petitioner himself. On the question of discrimination, it is alleged that case of the petitioner cannot be compared as that of Sri P. Dayal who was appointed as permanent employee on 23.11.48 against a permanent post in the Bihar Police and his services were confirmed w.e.f.23.11.49 and thereafter on 10.1.53 the services of Sri P. Dayal were taken on loan basis in the Rajya Transport Department and, as such, his lien to the post continued to exist. 5. In ORDER :to appreciate the rival contention of the learned counsel the decision of the government dated 30th April, 1959 (Annexure-7), in relation to the terms and conditions of deputation or transfer of the government servant to the Bihar State Road Transport Corporation is to be noticed : (i) permanent Government servants on deputation to Political (Transport) Department, employed in the Rajya Transport, Bihar, as on the 30th April, 1959 :- The services of all permanent Government servants (including the technical staff) whose services are on loan to the Political (Transport) Department for employment in the Rajya Transport, Bihar, will be placed at the disposal of the Bihar State Road Transport Corporation on foreign service terms with effect from the 1st May, 1959. The staff so deputed shall continue to enjoy under the Corporation the same service conditions in respect of pay, increment, leave, promotions and discipline as under Government, and, in addition, they will continue their pensionary rights, which will include the right to count emoluments for pension in respect of not only such posts as may be created by the Corporation on the 1st of May, 1959, in lieu of the posts in existence under Government on the afternoon of the 30th April, 1959, but also such new posts as ll1ay be created thereafter by the Corporation. The pensionary benefit admissible shall be subject to the same conditions and restrictions as may be applicable under the Pension Rules of the State Government, for the time being in force, on the date of retirement of the staff..... The pensionary benefit admissible shall be subject to the same conditions and restrictions as may be applicable under the Pension Rules of the State Government, for the time being in force, on the date of retirement of the staff..... (ii) Temporary Government servants including technical staff working in the Rajya Transport, Bihar :- The services of all temporary Government servants, including technical staff, of the Rajya Transport, Bihar under the Political (Transport) Department, will be placed at the disposal of the Corporation with effect from the 1st May, 1959, for appointment against posts similar to the ones held by them under the Government on the 30th April, 1959, and they shall be entitled under the Corporation to count towards increment and leave, the services rendered by them under Government upto 30th April, 1959. They shall be Corporation's servants with effect from the 1st May, 1959 and shall cease to be Govt. servants. (iii) General : The transfer from Government to the Corporation of the temporary staff shall not constitute a break in their service. Members of the permanent staff deputed to the Corporation shall not be retained in the Corporation's service beyond the age of 60 years in the case of Ministerial staff, and 55 years in other cases, without the previous approval of Government. However, the aforesaid decision has also envisaged that until the Corporation has framed its own regulation in accordance with such policy decision, if any, that may be issued by the State Government under the Road Transport Corporation Act, 1950, the State Government's Rules relating to pay, increment, leave, travelling allowance and disciplinary control and such other matter as may be suggested by Government from time to time should be applied mutatis mutandis not only to the permanent Govt. servants deputed to the Corporation but also to its other employees. In the light of the aforesaid Govt. decision the question falls for consideration is as to whether the petitioner is entitled to pension, as claimed by him in this writ application. Admittedly the petitioner became a member of the C.P.F. scheme framed by the respondent Corporation and he has contributed the amount in the said scheme till his retirement. It further stands admitted that he withdrew the C.P.F amount in terms of the direction issued by this Court. It is further admitted that the employee is either entitled to pension or C.P.F. amount. It further stands admitted that he withdrew the C.P.F amount in terms of the direction issued by this Court. It is further admitted that the employee is either entitled to pension or C.P.F. amount. The petitioner has already got the benefit of C.P.F. scheme and, as such, he is not entitled to pension. The decision of the Government, referred to above, do not envisage the payment of pension to such employee. No doubt it has been mentioned that till the Corporation frames its own Rules and regulations the provision of the Bihar Pension Rules and the decision taken by the Government from time to time will be applicable to the employees of the Corporation as well. Since the Corporation has framed its own regulation as submitted by Mr. Verma learned counsel for the Corporation, services of such employee will be governed under the said regulation. Admittedly, there is no provision of grant of pension to the employees who retire from the Corporation service. Over and above, those who have opted to the Corporation service including the employees whose services have been transferred to the Corporation, are to be retired at the age of 60 years which is additional facility given to the employees of the Corporation. Had he been a Government servant he could have retired at the age of 58 years. This additional facility and benefit is not available to other Government employees. At this stage, learned counsel for the petitioner states that the petitioner has retired at the age of 58 years which is being disputed by the learned counsel for the Corporation Mr. Verma. He submits that there is no material on the record to show that the petitioner has retired at the age of 58 years. However, Mr. Verma concedes that if at all the petitioner retired at the age of 58 years be can claim monetary benefit of the Corporation for two years, if the petitioner is allowed to retire at the age of 58 years by the Corporation. 5. After having heard the learned counsel for the parties and going through the materials on record I have no hesitation to hold that the petitioner is not entitled to pension like other government servants as he ceased to become government servant the day when his services were transferred to the Corporation. Accordingly, prayer for grant of pension is rejected. 5. After having heard the learned counsel for the parties and going through the materials on record I have no hesitation to hold that the petitioner is not entitled to pension like other government servants as he ceased to become government servant the day when his services were transferred to the Corporation. Accordingly, prayer for grant of pension is rejected. This writ application is, accordingly, dismissed to that extent. However, as regards other retiral benefits, details whereof have been quoted above. I am of the view that the petitioner is entitled to such relief. Accordingly, I direct the respondent Corporation to pay the admitted dues, if not already paid, legally payable to the petitioner in terms of the reliefs sought for, as quoted above, as early as possible, preferably within three months from the date of receipt/production of a copy of this ORDER :. Since the petitioner retired in the year 1988 and even the admitted dues has not been paid, he is entitled to interest at the rate of 10% per annum from the date of retirement till the date of respective payments along with cost which is assessed at Rs. 1000/-. Both interest and cost shall be paid to the petitioner along with the principal amount within the time aforesaid.