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2008 DIGILAW 889 (JHR)

Dhaneshwar Prasad v. State of Jharkhand

2008-08-07

AJIT KUMAR SINHA

body2008
Order The present writ petition has been filed seeking an appropriate writ, order or direction commanding upon the respondents to count his service since 1964 when he joined and worked as Extra-Clerk for the purposes of payment of full pension. 2. The petitioner's case, in brief, is that he had actually joined on ad hoc basis in the year, 1964 and his name was entered in the service records/register in the year, 1967 and he was finally regularized in service in the year, 1981. The petitioner retired from service on 31.1.2003 and, according to him, he had completed over 30 years of service and is entitled to full pension. The petitioner further submits that even assuming 1967 as the cut-off date, when his name was actually entered in the Office Register, he has completed 30 years of service and was, thus, entitled to full pension. He has further submitted that the denial of full pension is not only illegal and arbitrary but also violative of Articles 19(1)(g) and 300A of the Constitution of India. 3. The petitioner has further filed a supplementary affidavit, wherein he has annexed a resolution of the State of Bihar dated 22.7.2003, which has been adopted by the State of Jharkhand. His contention is that even as per the resolution, the initial appointment as Extra-Clerk will be taken into account for grant of pensionary benefits to the persons like the petitioner. Clause 4(iii) of the resolution dated 22.7.2003, issued by the Finance Department, State of Bihar, is based upon a judgment, passed in C.W.J.C. No. 5866 of 2000. 4. The respondents in their counter affidavit have denied the fact that the petitioner was appointed on ad hoc basis in the year, 1964, Further they have submitted that there is no proof, filed by the petitioner to support his contention. It is further submitted by the respondents that the Extra-Clerk was neither treated as Government servant nor was drawing any salary and was only paid remuneration of Rs. 2/- per actual day worked under Order 29 of the Bihar Registration Manual, 1946 and, thus, at best the Extra-Clerk was a daily wager and nothing more. It is further submitted by the respondents that the Extra-Clerk was neither treated as Government servant nor was drawing any salary and was only paid remuneration of Rs. 2/- per actual day worked under Order 29 of the Bihar Registration Manual, 1946 and, thus, at best the Extra-Clerk was a daily wager and nothing more. According to the respondents, the petitioner was appointed on 27.2.1981 and served at Gumla Sub-Registry, Gumla, from 27.2.1981 up to 11 .2.1992 as a Clerk and was transferred to Sub-Registry Office, Simdega, on 12.2.1992 and, thereafter, he continued to work till retirement i.e. 31.1.2003. In the aforesaid background, the contention raised by the respondents that the petitioner has completed 30 years of service is not correct and, thus, he was not entitled for payment of full pension. 5. It appears that the petitioner was engaged on daily wage since 1967 and he was appointed on regular basis on 27.2.1981 and he retired on 31.3.2003. Rule 45 read with Rule 58 of the Bihar Pension Rules, 1950, clearly indicates that such persons, who are working as Extra Clerk, cannot claim pension as a matter of right. Extra-Clerks are engaged admittedly on piece rate basis and are paid for the actual work done. Their employment was not substantive and/or permanent nor they are paid by the Government instead they are paid from the amount collected for writing per page of copies. Further under Rule 61 of the Bihar Pension Rules, there is a bar of admitting the claim of pension unless a Government servant holds a substantive post of permanent establishment. 6. The Hon'ble Supreme Court had an occasion to deal with a similar matter in the case of K. Madalaimuthu & Anr. VS. State of Tamil Nadu & Ors., reported in (2006)6 SCC 558 and it was specifically held that the past services rendered on temporary basis cannot be counted for the pensionary benefits or retiral benefits and the same can be counted only from the date of regular appointment. Even under Rule 58 of the Bihar Pension Rules, the service of a Government servant does not qualify for pension unless it conforms to the following three conditions: (i) The service must be under Government, (ii) The employment must be substantive and permanent, and (iii) The employee must be paid by Government. 7. Even under Rule 58 of the Bihar Pension Rules, the service of a Government servant does not qualify for pension unless it conforms to the following three conditions: (i) The service must be under Government, (ii) The employment must be substantive and permanent, and (iii) The employee must be paid by Government. 7. On conjoint reading of Rules 40, 45(b), 56 and 58 of the Bihar Pension Rules it is clear that the past services rendered by a person temporarily or on ad hoc basis cannot be considered for the purposes of pensionary benefits or retiral benefits unless he has been appointed in a substantive capacity on a permanent post. 8. In the present case, admittedly the earlier period was temporary/ad hoc as a daily wager, which cannot be termed as employment to a substantive and permanent post. The regular appointment of the petitioner to a substantive post was made on 27.2.1981 and, thus, that will be the effective date for the purposes of computing the pensionary benefits. A Division Bench of this Honoble Court also had the occasion to deal with an identical matter in the case of State of Jharkhand vs. Kauleshwar Prasad, reported in 2006(3) J.C.R. 233 (Jhr.) [: 2007(2) JLJR 367 ], wherein, the Honoble Division Bench specifically held that the employment of Extra-Clerks is not substantive and permanent and they are not paid by the Government rather paid from the amount, collected for writing per page of copies. Therefore, they cannot claim pension as a matter of right. The Division Bench has further held that the guideline under Rule 203(a) of the Pension Rules, issued vide Memo No. PC 2-9-45/78-792F dated 16.1.1979 was neither brought to the notice of the learned Single Judge nor was discussed in the case of Upendra Prasad vs. State of Bihar, reported in 1995(2) P.L.J.R. 822 and, accordingly, the Division Bench held that the said case was not a good law and hence not binding on the Division Bench. Another Division Bench of this Honoble Court in a recent judgment rendered in the case of Munshi Sharma vs. State of Jharkhand, reported in 2008(2) J.L.J.R. 451 held that the services rendered on daily wages cannot be counted for the purposes of full pension as the service, rendered on daily wages cannot be said to be substantive and permanent, which is the statutory requirement for being eligible to claim full pension. In any case, the circular dated 22.7.2003, which was based on the order, passed by the learned Single Judge, is deemed to have been set aside by the Hon'ble Division Bench. Even otherwise, the circular cannot override the statutory Rules. 9. In the aforesaid background, this writ petition is devoid of any merit and is accordingly, dismissed but without any order as to costs.