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2003 DIGILAW 738 (PAT)

Iti Devi v. State Of Bihar

2003-07-22

AFTAB ALAM

body2003
Judgment Aftab Alam, J. 1. The petitioner is the widowed wife of one Rajendra Prasad who died as a Government employee in the Work-Charged Establishment. After his death, the petitioner was paid the amount of his (i) G.P.F. and (ii) group insurance amounting to Rs. 33,142.00 and Rs. 39,359.00 respectively. She now presses her claim for payment of (i) family pension, (ii) gratuity and (iii) leave salary. The respondent authorities take the stand that the retiral/death benefits claimed by the petitioner are not admissible to an employee in the Work-Charged Establishment. 2. The facts of the case are brief and without controversy. The deceased husband of the petitioner (Rajendra Prasad) was taken in the Work-Charged Establishment in the pay scale of Rs. 155-199.00 by an office order issued by the Executive Engineer, Building Construction and Housing Department, Building Division, Patna, under his memo No. 362, dated 24-1 -1980 (Annexure 1). (From the office order, it appears that before being inducted into the Work-Charged Establishment, he was working as Mazdoor on daily wages but the period for which he worked on daily wages is not stated anywhere). The office order further stipulated that his engagement in the Work-Charged Establishment was in anticipation of the approval by the Superintending Engineer, South Bihar Circle, Patna. There is not material on record to show that the anticipated approval was ever received from the named authority. 3. In due course his G.P.F. account was opened and deductions were made from his salary for deposits in the G.P.F. account. He was also given the benefit of revision of pay-scale as per the recommendations of the 5th Pay Revision Committee. 4. While working in the Work-Charged Establishment, Rajendra Prasad died on 2-6-2000 and as noted above the petitioner was paid the amounts of his G.P.F. and group insurance. 5. Mr. Ambarnath Banerjee, counsel appearing for the petitioner submitted that employees under the Work-Charged Establishment were held to be at par with temporary Government employees and the latter were entitled to pension, gratuity and leave salary in terms of Rule 59 of the Bihar Pension Rules. In support of his submission, he relied upon two decisions of this Court, one in Smt. Meera Devi V/s. State of Bihar, 2000 (1) PUR 493 and the other in Tulsi Prasad Singh V/s. State of Bihar, 2001(3) PLJR 15 . 6. In support of his submission, he relied upon two decisions of this Court, one in Smt. Meera Devi V/s. State of Bihar, 2000 (1) PUR 493 and the other in Tulsi Prasad Singh V/s. State of Bihar, 2001(3) PLJR 15 . 6. In Meera Devi, a Hon ble Judge of this Court considered the question whether the dependent(s) of a deceased employee in the Work-Charged Establishment was covered by the scheme of compassionate appointment. The decision in Meera Devi referred to a circular issued by the Finance Department under Memo No. 1344, dated February 4, 1949. In the circular it was stated that the posts in Work-Charged Establishment which were of permanent nature, that is, required for twelve months in the year and for long and indefinite period would be made permanent and included in the permanent establishment and the men employed on those posts having one years approved service would be included amongst permanent Government employees. The decision by the Hon ble Single Judge then went on to hold that by virtue of Political and Appointment Departments notification No. 5555-21-27/230A, dated April 15, 1950 published in the Bihar Gazette of April 26, 1950, the circular, dated 4-2-1949 had acquired the status of a rule framed under Art. 309 of the Constitution. On this reasoning, it was held that the guidelines/scheme issued by the State for compassionate appointment which was applicable to temporary Government servants was also applicable to the employees working in the Work-Charged Establishment and their dependents. Consequently, the order cancelling the compassionate appointment given to Meera Devi was quashed and she was directed to be re-instated in service. 7. Mr. Banerjee relied upon this decision to contend that an employee in the Work-Charged Establishment was at par with a temporary Government employee and was, therefore, entitled to pension and other retiral dues under Rule 59 of the Bihar Pension Rules. 8. Learned counsel does not seem to be aware that the single Judge decision in Meera Devi was set aside by the division bench in appeal. Against the judgment and order, dated 8-10-1999 passed in the writ petition filed by Meera Devi (CWJC No. 5987 of 1998) the State preferred an appeal being L.P.A. No. 1501 of 1999. 8. Learned counsel does not seem to be aware that the single Judge decision in Meera Devi was set aside by the division bench in appeal. Against the judgment and order, dated 8-10-1999 passed in the writ petition filed by Meera Devi (CWJC No. 5987 of 1998) the State preferred an appeal being L.P.A. No. 1501 of 1999. By judgment and order, dated 27-3-2001, a Division Bench of this Court allowed the appeal and set aside the order passed by the Hon ble single Judge on the writ petition filed by Meera Devi. The single Judge decision in Meera Devi, therefore, cannot be relied upon as a precedent. 9. The other decision in Tulsi Pd. Singh is by the same Hon ble single Judge. In Tulsi Pd. Singh, the issue was whether an employee in the Work-Charged Establishment was entitled to time-bound promotion(s) in terms of the scheme framed by the State Government following the recommendations of the 4th Pay Revision Committee. In the decision in Tulsi Pd. Singh too the Finance Departments circular under Memo No. 1344, dated February 4, 1949 was elevated to the status of a rule made under Art. 309 of the Constitution by reference to the notification, dated April 15, 1950 issued by the Political and Appointment Department and on that basis the benefit of time-bound promotion(s) was extended to an employee in the Work-Charged Establishment. 10. With utmost respect, I have serious reservations as to whether the notification, dated April 15, 1950 would cover and apply to the circular, dated February 4, 1949. The 1950 notification is quoted in the decision of Tulsi Pd. Singh and it is as follows: "All enactments, rules and orders, which are made under any enactment or otherwise, which regulated the recruitment and condition of services of persons appointed through public services and posts in connection with the affair which are now the affair of the State of Bihar and which were in forced immediately before the 26th January, 50, shall, until provision is made by or under any Act of the State legislature to regulate such recruitment and conditions of service, be enforced as if they had been made by virtue of the power under the said proviso." 11. To my mind the notification refers to enactments, rules and orders regulating recruitment and condition of services of persons appointed through public services and on posts in the Government. To my mind the notification refers to enactments, rules and orders regulating recruitment and condition of services of persons appointed through public services and on posts in the Government. I find it difficult to extend this notification to apply to a circular in regard to employees in the Work-Charged Establishment who are appointed/engaged neither against any sanctioned post(s), permanent or temporary or are appointed through public services. 12. In any event the decision in Tulsi Pd. Singh does not advance the case of the petitioner in the present case. It is well settled that a previous decision is a binding precedent only in so far as the issue actually decided by it and the reasoning assigned for deciding the issue does not serve as a binding precedent. The decision in Tulsi Pd. Singh was on the question of time-bound promotion(s) and it cannot be relied upon for admissibility of pension and retiral dues to employees in the Work-Charged Establishment. 13. Moreover in this case the induction of the petitioners husband in the Work-Charged Establishment was in violation of the ban imposed by the Government and though it was expressly subject to the approval by the Superintending Engineer, there is nothing to indicate that the approval ever came. In these facts and circumstances, I find it difficult to hold that Rajendra Prasad or his widowed wife is entitled to pension/family pension, gratuity and leave salary. Therefore, no relief, as prayed for by the petitioner, can be granted to her. 14. This writ petition is dismissed, but, with no order as to costs.