Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 88 (JHR)

Kauleshwar Prasad v. State Of Jharkhand

2004-01-20

AMARESHWAR SAHAY

body2004
ORDER Amreshwar Sahay, J. 1. Heard the learned counsel for the parties. 2. The prayer of the petitioner in this writ petition is for direction to the respondents to fix his pension after counting his service period as extra clerk from 17.12.1958 to 10.2.1981 rendered in the establishment of the District Sub- Registrar Office at Chas and to pay retiral benefits and further prayer of the petitioner is for direction to the respondents to pay his salary from 2.2.1991 to 16.2.1992. 3. It is stated that the petitioner was appointed as extra clerk on 17.12.1958 under the District Sub-Registrar, Registry Office at Chas, Respondent No. 3 and worked till 10.2.1981 and as such he was absorbed as temporary clerk in the same department under the respondent No. 3. Thereafter he was superannuated on 31.12.1994. 4. While the petitioner was in service, a criminal case was instituted against him being Giridih PS case No. 22 of 1991 for committing of an offence under Section 304B of the Indian Penal Code. In the said case the petitioner was arrested and remanded on 4.2.1991 and thereafter he was released on bail on 15.2.1992. 5. Since the petitioner was sent to jail, he was suspended from service with effect from 2.2.1991 by issuing the order dated 20.3.1991 passed by the District Registrar-cum-Dy. Commissioner, Bokaro. On being released on bail the petitioner came out from the jail and then he went to join his service but he was not allowed to resume his duty and therefore, he challenged the said suspension order before this Court in CWJC No. 2288 of 1994 (R). This Court by order dated 20.12.1994 disposed of the said writ application (Annexure-3) wherein the following order was passed : "Counter affidavit filed on behalf of the State be kept on record. Learned GPI states that so far no order under Rule 100 of the Bihar Service Code has been passed suspending the petitioner. If it be the correct factual position, that there is no order of suspension against the petitioner, the petitioner cannot be prevented from performing the duties unless he is reverted for any other good reason. This writ petition is therefore disposed of with a direction that unless an order of suspension is passed against the petitioner, he should not be prevented from joining his duty. This writ petition is therefore disposed of with a direction that unless an order of suspension is passed against the petitioner, he should not be prevented from joining his duty. It is for the authorities to assign or not to assign work to the petitioner, but the petitioner will also be entitled to wage for the period from the date on which he reported for joining till date, This writ petition is disposed of accordingly." 6. After the aforesaid order of the High Court the petitioner joined on 29.12.1994 and only after two days i.e., 31.12.1994 after attaining the age of superannuation he retired from service. 7. Since he was not being paid retiral dues and therefore, he again moved before this Court by filing writ application being CWJC No. 2683 of 1998(R) which was disposed of by order dated 2.11.1999 the following terms : "Having regard to the stand taken in the counter affidavit, 1 dispose of this writ application with a direction to the respondents at least to pay the admitted legal dues to the petitioner as ex-peditiously as possible and preferably within a period of two months from the date of receipt of a copy of this order. If the petitioner is dissatisfied with the said payment and if he has any further claim, he is directed to make a detailed representation before the respondent No. 2, District Registrar-cum-Deputy Commissioner, Bokaro, Chas who shall take a decision in accordance with law for payment of further amount payable to the petitioner." 8. Thereafter, the petitioner made representation before the concerned respondent for fixation of his pension treating his service from the date he was appointed as extra clerk till the date of his superannuation but no action has been taken in this regard by the concerned respondent. Hence this writ petition has been filed. 9. A counter affidavit has been filed on behalf of the respondents in which it has been stated that according to Bihar Pension Rules, only temporary service of any employee is counted as qualifying service for pensionaries benefit and not as an extra clerk. Hence this writ petition has been filed. 9. A counter affidavit has been filed on behalf of the respondents in which it has been stated that according to Bihar Pension Rules, only temporary service of any employee is counted as qualifying service for pensionaries benefit and not as an extra clerk. However, so far as the second prayer of the petitioner regarding payment of salary for the period 2.2.1991 to 16.2.1992 is concerned, it has been stated in the counter affidavit that the same has been sanctioned by the respondent No. 3 but for the want of allotment by the Government, the same could not be paid to the petitioner and it will be paid as soon as allotment is received from the Government. 10. Having heard the learned counsel for the petitioner and as well the respondents. In my view, the stand taken by the respondents that for fixing the period of pensionaries benefit for which the petitioner worked as extra clerk will not be counted is contrary to the decision in the case of Upendra Prasad v. The State of Bihar and Ors., reported in 1995 (2) PLJR 822. It is relevant to quote paras 15 and 16 of the said judgment. "15. Had the petitioner not been appointed as temporary clerk while rendering continuous service as extra clerk he might not have at all been entitled to pension and pensionary benefit. In the instant case, while rendering continuous service as extra clerk for a long period, the petitioner was appointed to the post of temporary clerk and thereafter as payment clerk in the same establishment and the Government by the Order/Instruction dated 8th July, 1987 clarified that appointment from the post of extra clerk to the post of temporary clerk should be treated as promotion. This Court can also take Judicial notice of the fact that both the Central Government and the State Government are making schemes for granting old age pension to the citizens. The petitioner has rendered public service continuously from April, 1957 to 23.1.1981 as extra clerk and denial of pensionary benefit in the respect of the said period by taking super technical and pedantic approach is unjust and inequitable. The decision of this Court in the case of Janki Tante and Ors. The petitioner has rendered public service continuously from April, 1957 to 23.1.1981 as extra clerk and denial of pensionary benefit in the respect of the said period by taking super technical and pedantic approach is unjust and inequitable. The decision of this Court in the case of Janki Tante and Ors. (CWJC No. 7379 of 1992) on which the learned Standing Counsel has placed reliance has no application on the facts of the present case. In that case this Court held that a lecturer or an employee of a college was not entitled to claim pensionary benefit for the period of service rendered by him under the Managing Committee of the Private College before nationalisation thereof by the Government. But the petitioner after being appointed as extra clerk by the District Sub-Registrar under the provisions of the Bihar Registration Manual 1946, had rendered continuous public service holding civil post under the Government during the period In question. 16. For the reasons stated above I am inclined to hold that the continuous service by the petitioner as extra clerk from April, 1957 till his appointment as temporary clerk should be counted as qualifying service for the purpose of pension and pensionary benefits only. The petition is therefore, allowed and respondents No. 1 and 2 are directed to pass appropriate order in exercise of power under Section 59 of the Bihar Pension Rules declaring that service rendered by the petitioner as extra clerk from April, 1957 till the date of his appointment as temporary clerk should be treated as qualifying service for the purpose of pension and pensionary benefit only. The respondent shall ensure that passing of the appropriate order under Rule 59 of the Bihar Pension Rules and payment of consequential revised pension to the petitioner in pursuance of the order, is completed within six months from the date of receipt of a copy of this order." 11. The respondent shall ensure that passing of the appropriate order under Rule 59 of the Bihar Pension Rules and payment of consequential revised pension to the petitioner in pursuance of the order, is completed within six months from the date of receipt of a copy of this order." 11. The present case is fully covered by the decision in the case of Upendra Prasad (supra) and, therefore, this application is allowed and the respondents are directed to pass appropriate order fixingthe pension of the petitioner after counting the service rendered by the petitioner as extra clerk from 16.12.1958 to 10.2.1981 on which date he was made as temporary clerk till the date of his superannuation and the said period should be treated as qualifying service for the purpose of pension and pensionary benefit only. The respondent shall pass an order as Indicated above and pay the retiral dues to the petitioner within the period of six months from the date of receipt of a copy of this order.