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2005 DIGILAW 1080 (PAT)

Sudhakar Jha v. State Of Bihar

2005-12-21

AFTAB ALAM, REKHA KUMARI

body2005
Judgment 1. This appeal is directed against the order dated 27.4.2004 passed by the learned Single Judge in C.W.J.C. No. 3765/2004 dismissing the prayer of the appellant for full pension and gratuity. 2. The appellant was initially appointed on Class IV post on 7.7.1957 under the Department of Industries and Mines, Government of Bihar. With the creation of Bihar State Small Industries Corporation, his service was transferred to the Corporation with effect from 1.2.1962. Subsequently, he was transferred as Salesman, Bihar Cottage Industries Sales Emporium, Bhagalpur. He joined there on 19.1.1965. However, all the units of Bihar Cottage Industries scheme including the Bihar Cottage Industries Sales Emporium, Bhagalpur were handed over to the Industries Department with effect from 1.4.1965. Accordingly, the services of the appellant was again transferred to the Industries Department. In the year 1975, the units of the Cottage Industries Scheme under the Industries Department were again handed over to the Bihar State Handloom, Power loom and Handicrafts Development Corporation. Accordingly, the services of the appellant were transferred to the said Corporation. He was appointed on the post of Salesman, Bihar Cottage industries Emporium, Jamshedpur. Thereafter he was transferred to Handloom and Handicrafts Sales Emporium, Jamui and on 30.4.1997 after completing his service, he superannuated from there. After superannuation the Director, Handloom and Sericulture, Bihar, under his letter No. 1244 dated 13.4.2000 confirmed the services of the appellant on the post of Salesman. The Director, however, under his Memo No. 1620 dated 21.8.2003 granted only provisional pension to the appellant for the period of 15 years 14 days, i.e. from 7.7.1957 to 31.1.1962 and 1.4.1965 to 22.9.1975, he spent in the Government service excluding the services rendered by him in the Bihar State Small Industries Corporation as well as in the Bihar Handloom and Handicrafts Corporation. The grievance of the appellant is that as he was confirmed in the post of Salesman, in view of the decision of the State Government taken with the approval of the Finance Department vide Industries Department letter No. 4589 dated 22.11.2000 (Annexure 4 of the writ petition), he is entitled to get the pensionary benefits for the whole period of service from 7.7.1957 to 30.4.1997. 3. The appellant, hence, filed the above C.W.J.C. for grant of full pension and gratuity by taking into consideration his entire service. 3. The appellant, hence, filed the above C.W.J.C. for grant of full pension and gratuity by taking into consideration his entire service. His prayer, however, did not find favour with the learned Single Judge and by the impugned order he dismissed the prayer. Being aggrieved, the appellant filed this appeal. 4. Learned counsel for the appellant submitted that as the appellant was confirmed in the Government service; the entire period of service rendered by him both in the State Government and in Corporations should be counted for the purpose of pensionary benefits. He further contended that though the appellant was confirmed by the Government after his retirement, there was no fault on his part and in view of a Division Bench decision of this Court in the case of Santosh Kumar Singh vs. the State of Bihar & Ors., reported in 1993(2) BLJ 13 [: 1993(1) PLJR 513], the order of confirmation would have retrospective effect; and the appellant would be deemed permanent from the very beginning and as after confirmation his service was placed at the disposal of the Corporations, he would be treated on Foreign service in the Corporations and the entire period of his service would be counted for the purpose of pension. He further submitted that on similar facts, this Court in C.W.J.C. No. 14010/2001 (Daroga Tiwari vs. the State of Bihar & ors.) had granted relief to the petitioner of the said writ. 5. Learned counsel for the State, on the other hand, submitted that under similar circumstances in C.W.J.C. No. 6574/2003 (Ramanand Prasad vs. the State of Bihar & ors.), the prayer of the petitioner for grant of full pension was rejected which was confirmed in L.P.A. No. 973/2003 and as the impugned order has been passed relying on the decision of that case, there is no infirmity in the order. 6. It is admitted that when the services of the appellant was transferred to the Bihar State Small Industries Corporation, he was a temporary staff of the State Government. In letter No. 1107 dated 22.1.1962 (Annexure 1 of the writ petition) it is mentioned that such temporary staff whose services were transferred to the Corporation shall be Corporations servant with effect from 1.2.1962 and with regard to the permanent staff of the Industries Department it was mentioned that they would be placed at the disposal of the Corporation on Foreign service. Therefore from 1.2.1962 the appellant became an employee of the Bihar State Small Industries Corporation and ceased to be a Government servant. Similarly, when the State Government created Handloom and Handicrfts Corporation by the notifications dated 13.8.1975 (Annexure A of the counter affidavit), the services of the Government employees, who were permanent, were transferred on deputation on Foreign service terms and with regard to the temporary employees, it was provided that their services would stand terminated with effect from 22.9.1975. Therefore, when the services of the appellant was transferred to this Corporation, he being a temporary Government servant his service as Government servant terminated on 22.9.1975 and he was absorbed in the Handloom and Handicrafts Corporation. So, when on both the occasions, his services as State Government was terminated and he was absorbed in the Corporation and became the employee of those Corporations, even if the order of confirmation has retrospective effect, on the basis of the order of confirmation under the schemes, the position cannot be changed and in view of Annexure 4 his services in the Corporations cannot be treated as deputation on Foreign service, and the services rendered by the appellant in the Corporations cannot be counted towards the pension. In the letter dated 22.1.1962 (Annexure 1) with regard to temporary staff, it is, of course, mentioned that the transfer from Government would not constitute a break in service, but from this it cannot be deduced that the State Government undertook to pay pension for the period such staff would serve under the Corporation specially when a distinction has been made therein between the temporary staff and permanent staff and the services of permanent staff only were placed as on Foreign service. 7. In the case of Datoga Tiwary (supra) relied on by the appellant, of course, the petitioner Daroga Tiwari was granted pensionary benefit for whole of service including the period of Government service and the period in Corporation; but in that case the petitioner was already confirmed in the State Government service and then he was transferred to the Corporation. But this was not the case here. So, this decision does not apply to the facts of this case. The learned lawyer for the appellant has also relied on the decision of the Apex Court in the case of S.B. Patwardhan & Anr. But this was not the case here. So, this decision does not apply to the facts of this case. The learned lawyer for the appellant has also relied on the decision of the Apex Court in the case of S.B. Patwardhan & Anr. vs. State of Maharashtra & Ors., reported in AIR 1977 SC 2051 , but the same is also not applicable in this case. 8. On the other hand, in the case of Ramanand Prasad (supra) the petitioner was temporary employee of the Industries Department. He remained there from 1.4.1963 to 21.9.1975. In the meantime the State Government created Handloom and Handicrafts Corporation by the notification dated 13.8.1975. The services of the petitioner Ramanand Prasad was transferred like the appellant to the Corporation. The petitioner remained in the Corporation from 22.9.1975 till his retirement on 31.7.1976. He was subsequently confirmed by the Bihar Government on 13.1.1999. He was paid retiral dues for the services of the Corporation. On the basis of the order of confirmation he claimed that he should -be treated as a Government servant throughout and he should be paid pension taking into consideration the services rendered in the State Government as well as in the Corporation. As in the above notification with regard to temporary employees it was provided that their services would stand terminated with effect from 22.9.1975, this Court in the above L.P.A. confirming the order of the single Judge held that the appellant cannot take the benefit of the order of confirmation which was passed subsequent to the retirement. In terms of the Government policy, the appellants service stood terminated in the year 1975 and he was absorbed in the Corporation and as such, there was no question of his confirmation in the State service. 9. This decision is fully applicable in this case and the learned Single Judge relying on this decision has rightly dismissed the prayer of the appellant. 10. Accordingly, we do not find merit in this appeal and the same is dismissed.