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2007 DIGILAW 44 (PAT)

Sheo Pukar Roy v. State Of Bihar

2007-01-08

S.K.KATRIAR

body2007
Judgment S.K.Katriar, J. 1. This writ petition has been preferred for a direction to the respondent authorities for payment of pensionary benefits to the petitioner after taking into account his service for the period 1.5/1957 to 30.4.1973, after prefixing the same to the period 30.4.1973 to 31.1.1991, for which pensionary benefits have been granted to the petitioner. 2. According to the writ petition, the petitioner served the State Government in the following manner stated chronologically: 1.5.1957-Petitioner was earlier appointed as a Karmchari and had joined Simri Block Circle, District-Sahabad. On this date he was transferred to Chainpur in Bhabhua Sub-Divison where he was retrenched with effect from 21.11.1962, vide order dated 7.11.1962 (Annexure-1). The order clearly stated that the service was temporary and could be dispensed with without assigning any reason and without prior notice. 22.10.1964-Petitioner was appointed as Moharir by the Settlement Officer, Arrah, vide letter no. 8132, dated 22.10.1964 (Annexure-2). The order clearly stipulated that the appointment was temporary and can be dispensed with without any prior notice. The petitioners services were retrenched from the office of the Assistant Settlement Officer, Sahabad, vide Memo no. 2121, dated 18.5.1967 (Annexure-3), with effect from 20.5.1967 (afternoon) for lack of allotment of funds and postponement of the survey work. 7.9.1967-The petitioner was appointed as Extra Clerk in the District Registration Office, Arrah, vide Memo no. 2092, dated 7.9.1967 (Annexure-4). The letter stated that payment shall be made on piece-rated basis along with the amount of clearness allowance stated therein. The petitioner had joined on the same date. His services were dispensed with by letter dated 19.1.1968 (Annexure-5) on the ground that the pending works had been cleared. 30.4.1969-The petitioner was appointed on the post of Moharir, vide Office Order No. 1253 dated 30.4.1969 (Annexure-6). The order clearly stipulated that the appointment was temporary and can be dispensed with without assigning any reason and prior notice. The petitioner had joined on 1.5.1969. His services were dispensed with on 8.8.1970 from the office of the Settlement Officer, Head Quarter, Arrah for the reasons that his services were no-longer required and will be deemed to have been dispensed with effect from the date he was absent vide Memo no. 2153 dated 8:8.1970 (Annexure-7). 22.6.1970-The petitioner was appointed on the post of Seasonal Receipt Clerk in the office of Deputy Collector, Revenue Division, Arrah, vide Memo no. 7933 dated 22.6.1970 (Annexure-8). 2153 dated 8:8.1970 (Annexure-7). 22.6.1970-The petitioner was appointed on the post of Seasonal Receipt Clerk in the office of Deputy Collector, Revenue Division, Arrah, vide Memo no. 7933 dated 22.6.1970 (Annexure-8). The order stated that the appointment was temporary and could be dispensed with without assigning any reason and prior notice. The petitioners service was extended upto 29.2.1973 vide letter No. 7733 dated 6.11.1972 (Annexure-9), whereafter he automatically ceased to be in service. 30.4.1973-The petitioner was appointed to the post of Temporary Clerk in .the office of Circle Officer, Natwar, in the district of Rohtas in the pay scale of Rs. 220-315/-, vide order bearing Memo no. 3012, dated 30.4.1973 (Annexure-10). 22.9.1986-On completion of ten years of service, the petitioner was given first time-bound promotion with effect from 6.11.1982, vide letter bearing Memo no. 1413, dated 22.9.1986 (Annexure-11). 31.1.1991-The petitioner superannuated from the services of the Bihar Government, vide Memo no. 1263 Arrah, dated 30.11.1990 (Annexure-12). 3. The petitioner was given post-retirement benefits on the basis of continuous service from 1.5.1973 to 31.1.1991, and his service for the period 1.5.1957 to 30.4.1973 was ignored. He had, therefore, preferred C.W.J.C. No. 3775 of 1994 (Annexure-13) which was disposed of with the liberty to the petitioner to approach the authorities "...for condonation of interruptions in his service for the purpose of calculating his pension...". The petitioner accordingly submitted his representation dated 22.10.1997 (Annexure-14) which has remained pending till date. Hence this writ petition for direction to the respondent authorities to give to the petitioner the benefit of continuous officiation from 1.5.1957 to 30.4.1973, for the purpose of post-retirement benefits. 4. The respondents have placed on record their counter affidavit and have opposed the writ petition. 5. I have perused the materials on record and considered the submissions of learned counsel for the parties. Rule-61 of the Bihar Pension Rules, 1950 reads as follows: "Service does not qualify unless the Government servant holds substantively a post on a permanent establishment" Learned counsel for the petitioner submits that the rigors of Rule 61 has been softened by notification No. 12928F, dated 4.9.1962, enforced with effect from 1.8.1962, which is reproduced hereinbelow for the facility of quick reference: Regarding:- Temporary Service counting for pension. It has now been decided that tem-I porary service or officiating service under the State Government when followed by permanency whether in the same or any other post should count in full for pension except in respect of- (i) period of temporary service in non-pensionable establishment, and (ii) period of service paid from contingencies. The concession of counting officiating and temporary service in full for pension will be available to Government servants who are governed by the Old Pension Rules, or the Liberalised Pension Rules. 6. It is, therefore, submitted that in view of the position that the petitioners service from 1.5.1973 to 31.1.1991 has been treated to be of a permanent nature qualifying him for post-retirement benefits, the petitioners temporary service/officiating service preceding thereto, should be treated to qualify for post-retirement benefits. On the other hand, learned Government Counsel relies on Clause-4 of Finance Departments Resolution No. 3014F dated 31.7.1980 and is reproduced hereinbelow: LOCAL LANGUAGE 7. On a consideration of the materials placed before me, it appears to me that the aforesaid notification dated 4.9.1962 applies to employees who were initially in temporary service or officiating service by itself not qualifying for pension, but was followed by permanancy. It is inherent in the provisions that temporary service or officiating service should be continuous and uninterrupted. The provision comes out in sharp relief if considered in juxtaposition with clause-4 of the aforesaid resolution dated 31.7.1980 which clearly stipulates that break in service for the reasons stated therein cannot enure to the benefit of a retired employee. Learned Government Counsel is right in his submission that the petitioners service from 1.5.1973 to 31.1.1991 was continuous and uninterrupted and, therefore, post-retirement benefits have been granted to him. His service from 1.5.1957 to 30.4.1973 were broken and interrupted and, therefore, is hit by clause-4 of the resolution dated 31.7.1980. His letters of appointment were for broken periods and the letters of appointment had on all occasions clearly stated that it was on temporary basis and could be dispensed with without assigning any reason and prior notice. One appointment letter clearly indicated the time-bound nature of the work assigned to him, and another letter assigned him work on piece-rated basis. His letters of appointment were for broken periods and the letters of appointment had on all occasions clearly stated that it was on temporary basis and could be dispensed with without assigning any reason and prior notice. One appointment letter clearly indicated the time-bound nature of the work assigned to him, and another letter assigned him work on piece-rated basis. It is manifest on the basis of chain of appointment letters that the appointment letters clearly conveyed to the petitioner that those were stop-gap arrangements, no hope was held out to him, and he was at no stage taken by surprise. The impugned action of the respondents cannot, therefore, be faulted. 8. The writ petition is dismissed.