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2014 DIGILAW 181 (PAT)

Upendra Kumar Sinha v. State Of Bihar

2014-02-06

HEMANT KUMAR SRIVASTAVA

body2014
ORDER 1. Petitioner has prayed for quashing the memo no. 361 dated 21.11.2006 issued by the Deputy Director, Water Investigation Division, Bhagalpur by which he reported to the Accountant General, Bihar, Patna that petitioner’s service from 17.03.1979 to 12.08.1986 was not pensionable and as such a request was made to amend the earlier issued pension approval order of the petitioner. Petitioner has also prayed for quashing the letter no. 4217 dated 01.12.2006 issued from the office of Accountant General, Bihar, Patna by which and where under petitioner’s pension was revised and fixed at the rate of Rs. 2726/- per month with effect from 01.12.2004. Furthermore, petitioner has prayed for directing the concerned authorities to refund the amount with interest to the petitioner which has been recovered from him on account of reduction of his pension from Rs. 3596/- per month to Rs. 2726/- per month. Petitioner has also prayed to issue a writ in the nature of mandamus commanding the respondents to treat and count the entire service period of petitioner in Bihar Water Development Corporation as pensionable and direct the respondents to pay all the consequential dues of the petitioner. 2. Petitioner was appointed on the post of Tubewell Operator in the State Tubewell under the State of Bihar in the year 1973. The State Government constituted Bihar Water Development Corporation in the year 1974 and the entire State Tubewell vested in the Bihar Water Development Corporation and the petitioner became employee of the Bihar Water Development Corporation. Petitioner was a diploma holder in engineering. The Bihar Water Development Corporation promoted the petitioner to the post of Junior Engineer in the year 1979. In 1986, Government decided to take over the assets, liabilities as well as existing employees of the said corporation as a result of which the petitioner became an employee of Minor Irrigation Department, State of Bihar with effect from 1986. Petitioner superannuated from the post of Junior Engineer on 30.11.2004 i.e. after 31 years of continuous service. On 10.12.2003, a show cause notice was issued to the petitioner stating therein that petitioner could not be appointed as Junior Engineer as he was appointed by the said corporation for which the above stated corporation did not obtain the sanction of the government for according such appointment. On 10.12.2003, a show cause notice was issued to the petitioner stating therein that petitioner could not be appointed as Junior Engineer as he was appointed by the said corporation for which the above stated corporation did not obtain the sanction of the government for according such appointment. After retirement of the petitioner, the State Government reverted the petitioner to his initial post of Tubewell Operator vide order dated 08.08.2005 and ordered for recovery of dues in between the salary of a Tubewell Operator and a Junior Engineer for the period 1979 to 30.11.2004. The aforesaid order dated 08.08.2005 was challenged by the petitioner in CWJC No. 13877 of 2005 which was allowed by a Bench of this Court vide order dated 18.01.2006 quashing the order dated 08.08.2005 directing the concerned respondents to treat the petitioner as Junior Engineer with effect from his appointment thereto till his retirement and by the aforesaid order, it was also observed that petitioner was entitled to salaries and remuneration of Junior Engineer and it was also observed that the pensionary terminal and other dues of the petitioner be settled and paid treating him as Junior Engineer between the above stated period. The above stated order of this Court was not complied with by the concerned authorities and thereafter, petitioner filed MJC No. 762 of 2006 and after that his pension was fixed at the rate of Rs. 3596/- per month with effect from 01.12.2004 by the Accountant General’s Pension Approval order dated 07.09.2006. The aforesaid fixation was made on the basis of 31 years of continuous service of the petitioner but subsequently, the State took a new stand informing the petitioner that the service rendered by the petitioner in corporation as Junior Engineer was not pensionable and, accordingly, service rendered by the petitioner in corporation from 17.03.1979 to 12.08.1986 was not reckoned by the State Government for the purpose of determination of pension and accordingly, the State Government issued letter to Accountant General for not reckoning the above stated period of service of the petitioner for the purpose of determination of his pension and accordingly, the Accountant General amended/modified his previous approval order reducing the amount of pension of the petitioner and also giving order of recovery from the pensionary benefit of the petitioner and subsequently, the recovery of Rs. 1,29,222/- was made from the petitioner. 1,29,222/- was made from the petitioner. Since the aforesaid reduction was made during pendency of MJC No. 762 of 2006, the aforesaid matter was raised before a Bench of this Court and the said Bench of this court while disposing of MJC No. 762 of 2006 vide order dated 08.02.2007 gave liberty to the petitioner to agitate his grievance before the appropriate forum and accordingly, the petitioner filed the present writ petition. 3. Counter affidavit has been filed on behalf of the respondents in which it has been averred that initially petitioner was appointed as Tubewell operator in the State Tubewell in the year 1973 and after constitution of corporation, his service was taken over by the Bihar Water Development Corporation as Tubewell Operator in the year 1974 and he worked in the above stated corporation as Tubewell Operator from 01.04.1974 to 16.03.1979 but on 17.03.1979, he was appointed as Junior Engineer by the said corporation and, therefore, he became employee of the aforesaid corporation with effect from 17.03.1979. It has also been averred that the aforesaid corporation was taken over by the Minor Irrigation Department in the year 1986 and after that from the year 1986, the petitioner became the employee of the State Government and that was the reason the service of petitioner from 17.03.1979 to 12.08.1986 has not been treated as pensionable service because between the aforesaid period, he was an employee of the corporation and according to Rule 58 and 75 of Bihar Pension Rules, 1950, the aforesaid period of service of the petitioner was not pensionable. 4. Learned counsel appearing for the petitioner submits that it is an undisputed fact that petitioner was appointed as Tubewell Operator in the year 1973 and subsequently, after constitution of Bihar Water Development Corporation entire State Tubewells vested in Bihar Water Development Corporation in the year 1974 and thereafter, petitioner became employee of the Bihar Water Development Corporation. 4. Learned counsel appearing for the petitioner submits that it is an undisputed fact that petitioner was appointed as Tubewell Operator in the year 1973 and subsequently, after constitution of Bihar Water Development Corporation entire State Tubewells vested in Bihar Water Development Corporation in the year 1974 and thereafter, petitioner became employee of the Bihar Water Development Corporation. Learned counsel for the petitioner drew my attention towards Annexure-12 to the writ petition and submitted that when State Tubewells and its existing staffs were vested in the Bihar Water Development Corporation Private Limited, it was decided that the officers and staffs whose services have been placed to the Bihar Water Development Corporation shall continue to enjoy under the corporation the same service condition in respect of pay, increments, leave, promotion, discipline and other fringe benefits as are admissible under the State Government till framing of service condition of its employee by the above stated corporation. Furthermore, it was decided that the officers and staffs will continue their pensionary right and the pensionary benefits admissible shall be subject to the same conditions and restriction as may be applicable under the pension rules of the State Government as amended from time to time on the date of their retirement. It is contended by him that admittedly, initial appointment of the petitioner to the post of Tubewell Operator was made under State Government and when his service was handed over to above stated corporation, he was an employee of the State Government. It is further contended by him that in the year 1986, the aforesaid corporation was taken over by the State Government and till 1986 no rule for service condition of employee of the corporation was framed and, therefore, from 1974 to 1986, the employees of the aforesaid corporation were enjoying the benefit of same service conditions as were admissible to the employees of the State Government and, therefore, it cannot be said that the service rendered by the petitioner in corporation as Junior Engineer was not liable to be reckoned. It is further contended by him that when the above stated Bihar Water Development Corporation was taken over by the State government in the year 1986, the State Government took all the assets and liabilities of the aforesaid corporation and admittedly, before 1986 petitioner was working as Junior Engineer in the aforesaid corporation and his service as Junior Engineer was taken over by the State Government. It is further contended by him that in CWJC No. 13877 of 2005, this Court directed the concerned respondents to settle the pensionary terminal and other dues of the petitioner treating him as Junior Engineer. 5. Learned counsel for the petitioner referred a decision reported in 2010(2) PLJR 387 (Priya Ranjan Sharma vs. State of Bihar and others) in which it has been held by a Bench of this Court that if the period of service in the Corporation under a policy scheme for absorption has to be considered for grant of time bound promotion, it shall also have to be computed for the purpose of reckoning period of pensionary service. 6. On the other hand, learned counsel appearing for the respondents refuted the above stated submissions arguing that petitioner was appointed in the State Tubewell as Tubewell Operator in the year 1973 and his service was handed over to Bihar Water Development Corporation in the year 1974 as Tubewell Operator and later on, he was appointed by the Bihar Water Development Corporation as Junior Engineer and, therefore, from the date of his appointment to the post of Junior Engineer in the said corporation he shall be treated as employee of the corporation and according to Rules 58 and 75 of Bihar Pensions Rules, he is not entitled to get pension for the aforesaid period. 7. Certain facts in this writ petition are not disputed. 7. Certain facts in this writ petition are not disputed. It is an admitted position that in the year 1973, petitioner was appointed as Tubewell Operator in State Tubewell Department and later on, his service was handed over to Bihar State Development Corporation Private Limited and Government of Bihar agreed on the terms and conditions that until the corporation has finalized service condition of its employees, the officers and staffs whose services have been placed at the disposal of corporation shall continue to enjoy under the corporation the same service condition in respect of pay, increments, leave, promotion, discipline and other fringe benefits as are admissible under the State government and their pensionary right shall continue subject to provisions of Pension Rules of the State Government. The aforesaid fact is evident from perusal of Annexure-12 to the writ petition. Admittedly, the above stated corporation did not frame any service condition for its employees and later on, the aforesaid corporation was taken over by the State Government in the year 1986 with all its assets and liabilities. Admittedly, while petitioner was working in corporation, the rules and service condition of State Government were applicable in respect of the petitioner as no rules for service condition of employees of the corporation had been framed during the aforesaid period. The State Government has decided not to count the service period of the petitioner from 17.03.1979 to 12.08.1986 and, therefore, it is obvious that the service of the petitioner from 1974 to 17.03.1979 is being counted for determination of his pension though between the aforesaid period petitioner was working under the aforesaid corporation. The ground for not treating the petitioner as an employee of the State Government from 17.03.1979 to 12.08.1986 is that the petitioner was appointed as Junior Engineer by the Corporation but admittedly, when the above stated corporation was taken over by the State Government, the State Government took all the assets and liabilities of the above stated corporation and the service of the petitioner was taken over as Junior Engineer and he worked with State Government after 1986 as Junior Engineer and retired on 30.11.2004. Therefore, it is obvious that only because the petitioner was appointed/promoted by the corporation to the post of Junior Engineer, it cannot be said that status of the petitioner was changed and he became employee of the corporation. Therefore, it is obvious that only because the petitioner was appointed/promoted by the corporation to the post of Junior Engineer, it cannot be said that status of the petitioner was changed and he became employee of the corporation. Therefore, in my view, the State Government has committed error in not reckoning the period from 17.03.1979 to 12.08.1986 for the purpose of pensionary benefits. 8. On the basis of aforesaid discussions, this writ petition succeeds and accordingly, memo no. 361 dated 21.11.2006, letter no. 4217 dated 01.12.2006 are hereby quashed and all the respondents are directed to treat the entire service period of petitioner in Bihar Water Development Corporation as pensionable and also determine and fix his pension taking into account the entire period of service rendered by him in State Tubewell, Bihar Water Development Corporation Private Limited and Minor Irrigation Department and to pay all the consequential dues/benefits to the petitioner with statutory interest within a period of three months from the date of receipt/production of a copy of this order and furthermore, the amount recovered from the pensionary benefits of the petitioner shall be returned to the petitioner with statutory interest within three months from the date of receipt/production of a copy of this order. 9. Accordingly, this writ petition stands disposed of.