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2010 DIGILAW 1126 (PAT)

Radhika Devi v. State Of Bihar

2010-05-04

MIHIR KUMAR JHA

body2010
ORDER : Mihir Kumar Jha, J. - Heard counsel for the petitioner and the counsel for the state as also the Accountant General. 2. In this writ application the petitioner has prayed for the following relief:- “1. By this writ application, the petitioner seek indulgence of this Hon’ble Court for issuance of writ in the nature of mandamus or appropriate direction commanding the respondents to consider the genuine claims of the petitioner for grant of family pension and death cum retiral benefits and also other consequential benefits of service after absorption the service in permanent establishment, in the light of the statutory provision and policy decision of the State Govt., when the similarly situated and junior persons have been absorbed in permanent establishment and getting all the benefits of service, although, there is no other sources of livelihood of the family of the petitioner. 2. That specifically and candidly the petitioner prays for the following reliefs:-(i) That an appropriate writ or directions be issued to the respondents commanding them to grant the family pensions and death cum retiral dues to the petitioner after absorption in service in the light of the policy decision of the State Government. (ii) That an appropriate writ or direction be also issued to the respondents commanding them to treating the service of the husband of the petitioner as permanent service with effect from the date of initial appointment in view of the statutory Rule and also decision of the Hon’ble Court.” 3. Counsel for the petitioner would submit that the husband of the petitioner was in work charge establishment and before his case could be considered for regularization in regular establishment he had died whereas the persons working with the husband of the petitioner were subsequently regularized in service and as such, this petitioner, the widow, should also be given the benefit of such regularization including payment of retirement benefit. 4. In this context he places reliance on the provisions of a Government letter dated 4.2.1949 which reads as follows:- “Subject- Revised conditions of service of work-charged establishment. The existing distinction between work charged establishment temporary and permanent establishment and daily labour as given in the P.W. Code and P.W.D. Accounts Code will be maintained but the conditions of service of work-charged establishment will henceforth be identical with those of temporary Government servants. The existing distinction between work charged establishment temporary and permanent establishment and daily labour as given in the P.W. Code and P.W.D. Accounts Code will be maintained but the conditions of service of work-charged establishment will henceforth be identical with those of temporary Government servants. The posts in work charged establishment which are of permanent nature that is required for 12 months in the year and for long and indefinite period will be made permanent and included in permanent establishment and the man employed on these posts, having one year’s approved service will be included amongst permanent Government employees. Details in this connection are being worked out and till this is done the conditions of service applicable to temporary Government servants will apply to all work-charged posts vide F.D. Memo No. 1344 dated 4.2.1949.” 5. Counsel further relies on the instruction of the State Government dated 31.3.1976 under the Bihar Pension Rules. 6. In the opinion of this Court the reliance placed by the counsel for the petitioner on either of the aforementioned two executive instructions is wholly misplaced, inasmuch as it is well settled that the work charge employee does not have a right to the post. His service starts and ends during the currency of the Scheme. The Scheme of regularization introduced by the State Government for work charge employees itself envisages screening and regularization as per availability of the sanctioned post. There is no difficulty in understanding the grievance of the petitioner that in the life time of her husband no such process of regularization was completed and later on such regularization of others was made when the husband of the petitioner was dead. That may be simply the misfortune of the husband of the petitioner but for that the concept of law cannot be changed, inasmuch as pension or other retirement benefit under Bihar Pension Rules can be given only to the holder of the post employed in regular establishment. Reference in this connection may be made to the Rule 58 of Bihar Pension Rule which reads as follows:- “58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- First – The service must be under Government. Second – The employment must be substantive and permanent. Third – The service must be paid by Government. These three conditions are fully explained in the following sub-sections.” 7. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:- First – The service must be under Government. Second – The employment must be substantive and permanent. Third – The service must be paid by Government. These three conditions are fully explained in the following sub-sections.” 7. Though in the case of the petitioner, her husband had fulfilled the first and third condition but he did not fulfill the second condition, namely, that his employment was not substantive and permanent. The expression ‘substantive and permanent’ has been also explained in Rule 61 laying down that “Service does not qualify unless the Government servant holds substantially a post of permanent establishment”. It is, thus, obvious that an employee, working in a work-charge establishment which continues on year to year basis till continuation of the scheme, cannot be said to be permanent establishment. 8. It is this aspect of the matter which has been settled by Division Bench of this Court in the case of Dilip Kumar Bhattacharya Vs. State of Bihar & Ors. reported in 2004(4) PLJR 889 wherein after noticing not only the Rules 59 to 62 of Bihar Public Worked Code dealing with the Work Charge establishment and their future prospect but also the JUDGMENT : of the Apex court in the case of Jaswant Singh vs The Union of India reported in (1979)4 SCC 440 and in the case of State of Rajasthan vs Kunji Raman reported in (1997)2 SCC 517 as with regard to the nature of work of Work charge employee it was held that:- “First it is apt to refer to the provisions of Bihar Public Works Department Code dealing with Work Charge employees and their future prospects. In this connection, it is relevant to quote part-K of Chapter-I, Rules 59 to 62 which run as follow:- 59. Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision of a specific work or of sub-works of a specific project, or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work of sub-work. When employees borne on the temporary establishment are employed on work of the nature, their pay should, for the time being, be charged direct to works. When employees borne on the temporary establishment are employed on work of the nature, their pay should, for the time being, be charged direct to works. Note.1-Chief and Superintending Engineers are empowered, in consultation with the Accountant General, to classify as ‘work charged’ or ‘temporary’ classes of establishment not covered by the definition, to waive the rule which prescribes that work-charged establishment must be employed on a specific work, and to determine in such cases the proportion in which the cost of such establishment shall be allocated between the works concerned. Note.2-No post carrying a remuneration, the maximum of which exceeds Rs. 400, can be sanctioned as work charged establishment. Note.3-Posts borne on work charged establishments which are required throughout the year for maintenance works, etc. or for along and indefinite period should be made permanent and included in the permanent establishment with the approval of Government. 60. Chief, Superintending and Executive Engineer may appoint members of work charged establishment up to the upper limit of pay of Rs. 400, Rs. 250 and Rs. 100 per mensem, respectively, for each person so employed, subject further to the condition that scales of pay of such work-charged posts have been approved by Government from time to time. Note.1-Sanctioned estimate includes rough estimate also. In such cases, however, details of works establishment should be specified. Note.2-Approval of Government will be required for sanction of and appointment to, posts borne on work-charged establishment on scales of pay outside the approved scale, notwithstanding the fact that the scales of such pay posts are within the upper limits of pay specified in the rule above. Note 3.- Where it is intended to give higher initial pay in the person of scale of pay, to members of work charged establishment appointed by the Executive Engineer, the higher initial pay should be sanctioned by the Superintending Engineer, the higher initial pay should be sanctioned by the Chief Engineer. Government sanction must be obtained for allowing premature increments in the time scale of pay of posts, the maximum of which exceeds Rs. 250. 61. The cost of works establishment must be shown as a separate sub head of the estimate. 62. Government sanction must be obtained for allowing premature increments in the time scale of pay of posts, the maximum of which exceeds Rs. 250. 61. The cost of works establishment must be shown as a separate sub head of the estimate. 62. The condition of service of members of work-charged establishment are the same as that of temporary Government Servants, in the matter of leave, traveling allowance and other allowances, etc., except festival holidays which must not exceed 12 days in a year. 10. Note-3 of Rule 59 clearly shows that the posts borne on work-charged establishments which are required throughout the year for maintenance works, etc., or for a long and indefinite period should be made permanent and included in the permanent establishment with the approval of Government. It further appears that the work-charged establishment is an establishment created to make temporary execution of work and the pay is charged direct to works. Only in cases when post is taken for indefinite period or for long period provision for converting them into permanent employment has been made. Rule 62 provides that the conditions of service of the members of work-charged establishment are the same as that of temporary Government servants in the matter of leave, traveling allowance and other allowances etc., except festival holidays which must not exceed 12 days in a year, meaning thereby, they acquire the status of Government servant only with regard to limited matters as enumerated therein. 11. About the nature of work of the work-charged establishment, the Apex court in the case of Jaswant Singh Vs Union of India, reported in (1979)4 SCC 440 and in the case of State of Rajasthan Vs Kunji Raman, reported in (1997) 2 SCC 517 , have held as follows:- 6. A work-charged establishment as pointed out by this Court in Jaswant Singh Vs Union of India broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to “works”. The pay and allowances of employees who are borne on a work-charges establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. The pay and allowances of employees who are borne on a work-charges establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. Thus a work-charged establishment is materially and qualitatively different from a regular establishment. 8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a “work” and availability of funds for executing it. So far as employees engaged in work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged in the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in a arbitrary and discriminatory manner by the Government. It is well settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that clauses (g), (h) and (i) of Rule 2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court”. 9. It would thus be clear that the work-charge employee form a different class and their service condition is covered by entirely different set of rules either for the purposes of payment of salary or promotion or other benefits. 9. It would thus be clear that the work-charge employee form a different class and their service condition is covered by entirely different set of rules either for the purposes of payment of salary or promotion or other benefits. Such separate service conditions cannot be said to be hit by the equality clause of Article 14 and 16 of the Constitution of India, inasmuch as, it is well settled that the Government has the power to lay down the service condition for separate class of employee. The work charge employee therefore, who could never be regularized would not be entitled for pension in terms of Bihar Pension Rules. Since, there is no dispute dispute that the husband of the petitioner was never regularized in service nor made part of permanent establishment, the petitioner cannot be held to be entitled for payment of retirement benefit i.e. pension and/or family pension in terms of Bihar Pension Rules. 10. That being so, this application fails and is, accordingly, dismissed. There would be, however, no ORDER :as to costs.