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2014 DIGILAW 434 (PAT)

Durga Prasad v. State Of Bihar

2014-04-09

HEMANT KUMAR SRIVASTAVA

body2014
ORDER 1. Petitioner under Article 226 of the Constitution of India has prayed for issuance of writ of mandamus for following reliefs: I) Direction to the respondents to pay gratuity on the revised pay scale on the basis of 6th pay commission; II) Direction to the respondents for fixation of pension as well as arrears of full pension, III) Direction to the respondents to pay the GPF amount on the revised pay scale on the basis of 6th pay commission; IV) Direction to the respondents for payment of leave encashment amount on the revised pay scale on the basis of 6th pay commission; V) Direction to the respondents to pay the statutory interest as well as panel interest till the payment is made; VI) Any other relief or reliefs to which the petitioner is entitled. 2. Petitioner was appointed on 04.06.1975 in the Bihar State Agro Industries Development Corporation Limited and discharged his duty in the above stated Corporation up to 13.09.1998. An advertisement was made by Bihar Rajya Awar Seva Chayan Parishad, Patna for appointment of assistants in the Secretariat and the petitioner applied for the post. His application was duly recommended and forwarded by the Bihar State Agro Industries Development Corporation Limited through letter no. 3628 dated 25.09.1985. Petitioner got selected in the aforesaid examination and he was directed to get scrutinize his certificate on 19/20.12.1995 and accordingly, petitioner appeared and got his educational certificates verified but due to pendency of lis up to Hon’ble Apex Court, appointment process was kept in abeyance and subsequently, Personal and Administrative Reforms department issued office order no. 710 dated 07.12.1995 directing the petitioner and others successful candidates to join their respective places of posting by 30.12.1995. Petitioner was directed to join in the Revenue Board, Patna. 710 dated 07.12.1995 directing the petitioner and others successful candidates to join their respective places of posting by 30.12.1995. Petitioner was directed to join in the Revenue Board, Patna. Unfortunately, the aforesaid letter was not made available to the employer of the petitioner and thereafter, petitioner made representation to concerned authority but no appointment letter was issued to the petitioner and after great persuasion and efforts, Deputy Secretary, Personal and Administrative Reforms department, Bihar, Patna issued office order dated 13.05.1998 directing the petitioner to join his duty by 30.05.1998 on the post of assistant in the Revenue Board, Patna and lastly, appointment letter of the petitioner was made available to Bihar State Agro Industries Development Corporation Limited requesting the Corporation to relieve the petitioner by 15.09.1998 and thereafter petitioner was relieved from Bihar State Agro Industries Development Corporation Limited and Bihar State Minorities Financial Corporation Bihar, Patna on 14.09.1998 and on the same day, he joined his duty in the Revenue Board, Patna. The joining of the petitioner was accepted on 14.09.1998. Petitioner started working in the concerned department but his service was not confirmed/ regularized and then he filed CWJC no.8571/2008 which is pending in this court. 3. After the cadre division, the service of the petitioner was allocated to the Jharkhand State where the petitioner joined and discharged his duty but soon after the petitioner returned to Government of Bihar and joined the duty in General and Administration department, Government of Bihar, Patna. The service book and other relevant documents of the petitioner were not sent to the General and Administration department, Government of Bihar, Patna by State of Jharkhand and lastly, the service book and other relevant documents were sent by State of Jharkhand to concerned department after superannuation of the petitioner. Petitioner superannuated from service on 30.06.2012. Petitioner submitted his pension paper to Deputy Secretary (Establishment), General and Administration department, Government of Bihar, Patna who sent letter to Accountant General, Bihar, Patna fixing a sum of Rs 7713/- towards provisional pension and a sum or Rs 4,02,152/- was also approved. The Deputy Secretary (Establishment), General and Administration department, Government of Bihar, Patna sent letter to Director, Provident fund, Patna for issuance of authority slip for payment of amount of general provident fund but the same was not paid to the petitioner. Petitioner made several representations but of no avail and lastly, he filed this writ petition. The Deputy Secretary (Establishment), General and Administration department, Government of Bihar, Patna sent letter to Director, Provident fund, Patna for issuance of authority slip for payment of amount of general provident fund but the same was not paid to the petitioner. Petitioner made several representations but of no avail and lastly, he filed this writ petition. 4. A separate counter affidavit has been filed on behalf of the respondent no. 6. It has been stated in the aforesaid counter affidavit that the petitioner joined Rural Development department, Government of Jharkhand, Ranchi on 06.09.2008 but service book of the petitioner was made available to the above stated department on 29.12.2008 and after receipt of the service book, the pay fixation of the petitioner in terms of 6th pay revision was done vide office order no. 40 dated 13.03.2009 and the same was sent to the Finance department, Government of Jharkhand, Ranchi for verification. During the pay verification of the petitioner by the Finance department, Government of Jharkhand, Ranchi, it was detected that earlier pay fixation of the petitioner with effect from 01.04.1981, 01.01.1986 and 01.01.1996 were not verified by the State of Bihar and thus, service book was sent to the Revenue Board, Patna for taking appropriate action but in spite of issuance of several reminders, petitioner’s service book was not made available to Jharkhand State. Respondent no. 6 has also pleaded that the petitioner’s contribution towards group insurance scheme for the period 01.08.2008 to December, 2010 has already been made available to General and Administration department, Bihar, Patna. 5. A separate counter affidavit has been filed on behalf of the respondent no. 2 and it has been pleaded in the aforesaid counter affidavit that the petitioner was initially appointed on 04.06.1975 in the Bihar State Agro Industries Development Corporation Limited and subsequently, he was appointed on the post of assistant in the Secretariat and its attached office on 14.09.1998. It has also been pleaded that the petitioner had filed representation on 31.12.2011 and in the light of his representation Bihar State Agro Industries Development Corporation Limited was consulted. The Bihar State Agro Industries Development Corporation Limited vide letter no. It has also been pleaded that the petitioner had filed representation on 31.12.2011 and in the light of his representation Bihar State Agro Industries Development Corporation Limited was consulted. The Bihar State Agro Industries Development Corporation Limited vide letter no. 210 dated 01.08.2012 reported the service rendered by the petitioner in the Corporation was not pensionable service and thereafter, the above stated reply of Bihar State Agro Industries Development Corporation Limited was sent to Department of Finance, Government of Bihar for taking opinion and thereafter, Department of Finance, Government of Bihar opined that only two pensionable services can be clubbed with each others and service of the petitioner rendered in Bihar State Agro Industries Development Corporation Limited was not pensionable service and therefore, the aforesaid service can not be clubbed with the service at Secretariat and its attached offices. 6. The grievance of the petitioner was considered in the light of report of Bihar State Agro Industries Development Corporation Limited as well as opinion of the Department of Finance, Government of Bihar, Patna and representation of the petitioner was rejected vide memo no. 367 dated 26.08.2013 (Annexure A). It has also been pleaded that appointment of the petitioner in the Secretariat was a fresh appointment and therefore, question of adjustment of the service rendered by the petitioner in Bihar State Agro Industries Development Corporation Limited for pensionary benefit does not arise. It has also been pleaded that so far as confirmation of service of the petitioner is concerned, his service can not be confirmed prior to his date of joining i.e. 14.09.1998. It has also been pleaded that the service book of the petitioner has been sent to concerned department for proper entry and in the meanwhile 90% pension and gratuity has been sanctioned provisionally. 7. Reply to the counter affidavit of respondent no. 2 has been filed on behalf of the petitioner and it has been pleaded that the gratuity and other benefits have been given to the petitioner on the basis of his initial pay and after joining in the department of the Revenue Board, Patna pay protection was given to him. 7. Reply to the counter affidavit of respondent no. 2 has been filed on behalf of the petitioner and it has been pleaded that the gratuity and other benefits have been given to the petitioner on the basis of his initial pay and after joining in the department of the Revenue Board, Patna pay protection was given to him. It has also been pleaded that the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited has not been taken into consideration at the time of reckoning his pensionary benefit though the service rendered by the petitioner in Corporation was also a pensionable service. 8. Learned counsel appearing for the petitioner submits that admittedly, petitioner was appointed on 04.06.1975 in the Bihar State Agro Industries Development Corporation Limited and worked there up to 13.09.1998. It is further contended by him that he was relieved from the Bihar State Agro Industries Development Corporation Limited on 14.09.1998 and on the same day, he joined in the Secretariat as assistant. He further submits that the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited was taken into consideration at the time of fixation of pay scale of the petitioner in the light of rule 85 of Bihar Service Code and when the service rendered by the petitioner in Bihar State Agro Industries Development Corporation Limited was taken into consideration for fixation of pay and when the petitioner was granted pay protection, it can not be said that the service rendered by the petitioner in Bihar State Agro Industries Development Corporation Limited can not be clubbed for the purpose of pensionary benefit as the service rendered by the petitioner in Bihar State Agro Industries Development Corporation Limited was not pensionable service. 9. Learned counsel for the petitioner refers a decision reported in 2007 (3) PLJR 633 ( Anil Bishnu Raman vs. State of Bihar & ors) in which at para 6, Division bench of this court has held as follows: “Upon getting an opportunity to serve as District Industries Officer, he applied. He was then selected and appointed as such. Because this was a fresh appointment, and not a transfer, whatever the appellant earned by serving as an Assistant Professor, he did not carry with him to the newly appointed post. He was then selected and appointed as such. Because this was a fresh appointment, and not a transfer, whatever the appellant earned by serving as an Assistant Professor, he did not carry with him to the newly appointed post. But by granting pay protection to the appellant, the employer, in fact, acknowledged that the appellant is being merely transferred from the post of Assistant Professor to the post of District Industries Officer. By reason of such pay protection, he carried with him whatever he had earned by working as Assistant Professor. However in the matter of acknowledging his seniority, it was contended by the employer erroneously that since he was freshly appointment, his seniority shall be counted from the date of his fresh appointment. This is double standard.” 10. He further submits that similar matter was decided by a bench of this court vide order dated 27.11.2001 passed in CWJC no. 11957/2001 (Ramashish Rajak vs. State of Bihar & others) having relied upon judgment and order dated 31.08.2000 passed in CWJC no. 12048/1998 (Prem Prakash case) and came to the conclusion that Bihar State Agro Industries Development Corporation Limited is also an instrumental to the State and therefore, the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited should be taken into consideration for the pensionary benefit. He further submits that case of the petitioner is also covered by the case of Ramashray Singh vs State of Bihar & ors in which order was passed on 17.12.2008 in CWJC no. 150/2006 and finding of the aforesaid case was upheld up to the Hon’ble Apex Court. 11. On the other hand, learned counsel appearing for the State submits that the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited was not a pensionable service and that was the reason at the time of consideration of pensionary benefit the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited was not counted and except the aforesaid submission, learned counsel appearing for the State did not raise any other point. 12. 12. The only dispute between the parties is as to whether the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited is liable to be counted or not at the time of consideration of pensionary benefit to the petitioner because other facts of the present case are almost admitted between the parties. 13. It is an admitted position that petitioner joined in Bihar State Agro Industries Development Corporation Limited as assistant on 04.06.1975 and worked there till 13.09.1998. It is also an admitted position that while the petitioner was working in the above stated Corporation, an advertisement was issued by Bihar Rajya Awar Seva Chayan Parishad, Patna for appointment of assistants in the Secretariat and the petitioner sent his application in response to the above stated advertisement through proper channel and subsequently, he was selected for the post of assistant in the Secretariat. The petitioner was relieved from the aforesaid Corporation on 14.09.1998 and on the same day he joined to his new post. It is also an admitted position that at the time of pay fixation, petitioner was granted pay protection meaning thereby, the service rendered by the petitioner in Bihar State Agro Industries Development Corporation Limited was taken into consideration for fixation of pay of the petitioner and therefore, it is apparent that the petitioner was given pay protection under the provision of Bihar Service Code. There is no specific provision in the Bihar Pension Rule to club non-pensionable service with pensionable service at the time of fixation of pensionary benefit. 14. In the present case, State Government acknowledged the previous services of the petitioner by giving him pay protection and therefore, at the time of consideration of pensionary benefit the State Government can not say that the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited shall not be counted for pensionary benefit because of that the above stated service was not pensionable service. 15. The case of the petitioner is squarely covered by the case of Ramashray Singh vs State of Bihar & ors decided on 17.12.2008 in CWJC no. 150/2006 by learned Single judge of this court and judgment of learned Single Judge was affirmed up to the Hon’ble Apex Court in Special Leave to Appeal (Civil) no. 11376/2012 vide judgment dated 04.10.2013. 16. 150/2006 by learned Single judge of this court and judgment of learned Single Judge was affirmed up to the Hon’ble Apex Court in Special Leave to Appeal (Civil) no. 11376/2012 vide judgment dated 04.10.2013. 16. In the above stated case of Ramashray Singh (supra) learned Single judge of this court came to the conclusion that Bihar State Agro Industries Development Corporation Limited is for the purpose of pension, it is public service and the aforesaid stand has also been taken by division bench of this court in the case of Sri Nankhu Prasad Singh @ Sri Nankhu Prasad Sinha vs. State of Bihar & ors in LPA no. 497/2004 and in the aforesaid case, it was held that service in the above stated Corporation is pensionable service and therefore, State can not escape from its liability. 17. Admittedly, there was no breakage in the service of the petitioner and he continued work in the Corporation from 04.06.1975 to 14.09.1998 and under Secretariat from 14.09.1998 till the date of his superannuation and therefore, in my view, the respondents erroneously rejected the claim of the petitioner and the respondents should have reckoned the service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited for pensionary benefit. 18. On the basis of the aforesaid discussions, this writ petition stands disposed of with direction to the respondents to reckon the entire service rendered by the petitioner in the Bihar State Agro Industries Development Corporation Limited as well as the service rendered by the petitioner on the post of assistant under Secretariat, State of Bihar for fixation of pensionary benefit of the petitioner and ensure sanction and payment of entire retiral dues of the petitioner to him within four months from the date of receipt/production of copy of this order.