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2016 DIGILAW 967 (JHR)

Mohammad Abid Hussain v. State of Jharkhand

2016-06-23

H.C.MISHRA

body2016
ORDER : By this Court - Heard learned counsel for the petitioner and the learned counsel for the respondents. 2. This is the third round of litigation, which the petitioner has to undertake for getting his pensionery benefits, in which he claims that the period of service rendered by him as seasonal employee should also taken into consideration for calculation of his pension. 3. The petitioner was working as Moharrir as seasonal employee from 21.12.1971 to 16.10.1990. Thereafter, the petitioners' service was regularised with effect from 17.11.1990. The petitioner retired from service on 31.01.2008. The petitioner is getting the pensionery benefits on the basis of his regular service of 17 years 2 months and 14 days, i.e., from 17.11.1990 to 31.1.2008. The claim of the petitioner for counting the services rendered by him from 1971 to 1990 as seasonal Moharrir in Revenue Division, Ranchi, for the purposes of pensionary benefits, has been rejected by the respondent State. 4. The petitioner initially moved this Court in W.P (S) No. 5557 of 2010, which was disposed of by order dated 07.01.2011 as contained in Annexure-3 to the writ application. The said writ application was disposed of taking into consideration the fact that the representation of the petitioner was still pending before the respondent authorities and accordingly, the writ application was disposed of directing the respondents to consider the representation of the petitioner and pass appropriate order in accordance with law within a period of six weeks. 5. Pursuant to the said order, an order was passed by the State Government denying the claim of the petitioner, stating that the petitioner could be given the pensionery benefits only for the period he had worked in the regular service of the State Government and accordingly, the prayer for calculating the period on which the petitioner worked as seasonal Moharrir was rejected by the State Government. The said order was communicated to the petitioner under memo No.1207 dated 30.4.2011, which has been brought on record as Annexure-2 to the writ application. 6. The petitioner again moved this Court in W.P(S) No. 3945 of 2011, which was disposed of by order dated 27.9.2012, wherein this Court took note of the fact that the similar benefit was given to the other similarly situated employees. 6. The petitioner again moved this Court in W.P(S) No. 3945 of 2011, which was disposed of by order dated 27.9.2012, wherein this Court took note of the fact that the similar benefit was given to the other similarly situated employees. This Court, however, directed the petitioner to make fresh representation to the respondent No.1 annexing therewith a list of similarly situated employees, who were given the benefit of the period of working as seasonal employees, and the respondents were directed to take fresh decision in the matter within a period of 90 days. 7. Pursuant to the direction of this Court, the State Government has passed the order as contained in memo No. 1550 dated 11.3.2013, which has been brought on record as Annexure-1 to the writ application. In the said order, after discussing the case of the petitioner, it has been held that the petitioner had worked as seasonal Moharrir for the period of 12 years 6 months and the advise of the Finance Department was taken in the matter of the petitioner. The Finance Department advised to take decision strictly in view of the Pension Rules. According to the Pension Rules, the services rendered by the petitioner as seasonal employee cannot be taken into consideration and accordingly, the claim of the petitioner was again rejected by the respondent State. Hence, the present writ application. 8. Learned counsel for the petitioner has submitted that the claim of the petitioner is illegally and arbitrarily rejected by the State Government, inasmuch as, one Ramashray Dubey, whose case was also working as seasonal Moharrir, and he was denied pension as he had not completed ten years of regular service, moved this Court in W.P.(S) No.498 of 2009, which was disposed of by order dated 18.8.2009. The order rejecting the claim of said Ramashray Dubey was quashed by this Court and the respondents were directed to take fresh decision in the matter. It is the case of the petitioner that Ramashray Dubey has since been granted the entire pensionery benefits taking into consideration the past service rendered by him as seasonal Moharrir as well. 9. The order rejecting the claim of said Ramashray Dubey was quashed by this Court and the respondents were directed to take fresh decision in the matter. It is the case of the petitioner that Ramashray Dubey has since been granted the entire pensionery benefits taking into consideration the past service rendered by him as seasonal Moharrir as well. 9. Learned counsel also placed reliance upon a decision of Patna High Court in C.W.J.C No. 9547 of 1997 (Chandrika Rai & Ors v. The State of Bihar & Ors.), in which the cases of similarly situated seasonal Moharrirs, who were initially appointed between the year 1954 to 1957 on the post of Seasonal Moharrirs, and who subsequently, retired after completing 38 years of continues service in between 1994 to 1996, were denied their retiral benefits by the respondent authorities on the ground that the those petitioners' were engaged as Seasonal employees and their services were terminated after the season was over, Ultimately their services were regularised w.e.f 1992, but they had not completed ten years of service till the date of their retirement. The Patna High Court, taking into consideration Rules 45, 58 & 145 of the Bihar Pension Rules, negated the stand of the State Government and directed to make the payment of pension to those petitioners on the basis of the past services rendered by them as seasonal employees. The State Government filed L.P.A against the said order being L.P.A No. 1343 of 1998 which was also dismissed by a reasoned order, by the Division Bench of the Patna High Court on 5.1.1999. Against the said order appeal was filed by the State Government in the Supreme Court of India, and the same was also dismissed. Accordingly, those petitioners were paid their pensionery benefits taking into consideration the period of service rendered by them as seasonal Moharrir. 10. Placing reliance on these decisions, learned counsel for the petitioner submitted that the impugned order contained in Annexure-1 is absolutely illegal and violative of article 14 of the Constitution of India and the same cannot be sustained in the eyes of law. 11. Learned counsel for the State, on the other hand, has opposed the prayer and has drawn the attention of this Court towards the counter affidavit filed on behalf of the Under Secretary to the State Government in the Department of Planning & Finance. 11. Learned counsel for the State, on the other hand, has opposed the prayer and has drawn the attention of this Court towards the counter affidavit filed on behalf of the Under Secretary to the State Government in the Department of Planning & Finance. The notings of the concerned file with respect to the claim of the petitioner have been brought on record as Annexure-A to the said counter affidavit, in which the service history of the petitioner has been detailed, vis-a-vis, the case of Ramashray Dubey, from whom the petitioner claims parity. It is pointed out from the noting in the file that the claim of Ramashray Dubey was also rejected by the State Government and it was decided that the service rendered by him as seasonal employee could not be taken into consideration for pensionery benefits. Against the said order, Ramashray Dubey moved this Court in W.P(S) No.498 of 2009 in which the said order was quashed. The State Government filed L.P.A No. 588 of 2009 against the said order. In the meantime, Ramashray Dubey had also filed contempt case in this Court and accordingly, for saving themselves from contempt case, the State Government issued the order granting pensionery benefits to Ramashray Dubey adding the period of services rendered by him as seasonal employee, but it was made clear that the said order shall be subject to the final order passed by this Court in L.P.A. Subsequently, the L.P.A No.588 of 2009 was also dismissed by this Court on 23.6.2010, but for some reasons, the State Government could not move the Supreme Court against the said order. It is stated in the noting that the decision with respect to Ramashray Dubey was taken in adverse situation by the State Government, and the same cannot be made a precedent for all times to come. It is also pointed out from the notings of the file that the advise of the Finance Department was sought in the matter and the Finance Department advised the concerned department to take decision strictly in accordance with Pension Rules only, and to firmly place the stand of the State Government before the Court, so that the mistake committed in the case of Ramashray Dubey could not be perpetuated. Placing these notings of the file, learned counsel for the State has drawn the attention of this Court towards Rule 45(b) of the Bihar Pension Rules, 1950, which provides that when a person has worked temporarily on the monthly wages without specified limit of time or duty, no claim of pension is admitted. 12. Learned counsel for the State accordingly, submitted that the case of the petitioner cannot be considered, treating the case of Ramashray Dubey or other such persons as precedents, in view of the express provision of Bihar Pension Rules which clearly stipulates that the period rendered by the petitioner as seasonal Moharrir cannot be taken into consideration for the computation of his pension. Learned counsel also submitted that the case of the petitioner cannot be treated at par with the case of Ramashray Dubey or of Chandrika Rai & Ors., in view of the fact that those employee had been denied the pension because they had not completed ten years of regular service till the date of their retirement, but in case of the petitioner, he had rendered more than ten years of regular service, and he has been paid the admissible pension. Learned counsel accordingly, submitted that the petitioner cannot be given the retiral benefits by taking into consideration the period of his services rendered as seasonal Moharrir for the purpose of computation of pension. 13. Having heard the learned counsels for both sides and upon going through the record, I find that by order dated 27.9.2012 passed in W.P(S) No.3945 of 2011, filed by this petitioner, it was directed as follows :- "It goes without saying that if similarly situated employees were given benefits of the period when they had worked as seasonal employees, same benefits may be extended to the petitioner. Order accordingly." 14. Thus, there was a clear direction by this Court that if similarly situated other persons have been given the benefit of the period when they had worked as seasonal employees, the same benefit has to be extended in case of the petitioner also. The State Government, however, has denied the benefit to the petitioner, stating that the benefit to the other employee was given in adverse situation which may not be taken as a precedent. I do not find force in the stand taken by the State Government. The State Government, however, has denied the benefit to the petitioner, stating that the benefit to the other employee was given in adverse situation which may not be taken as a precedent. I do not find force in the stand taken by the State Government. There was specific direction that if the benefit was given to similarly situated employee, the same must be given to the petitioner also, and this direction of this Court was binding on the State Government. This apart, even Patna High Court has given same benefit to the employees, taking into consideration the period rendered by them as seasonal Moharrir, and the order passed by the Patna High Court has been upheld up to the Hon'ble Apex Court. 15. In these facts and circumstances, I do not find any valid reason for denying the claim of the petitioner of calculating his pensionery benefits taking into consideration also the period from 1971-1990 rendered by him as seasonal Moharrir. 16. In view of the aforementioned discussions, the impugned order communicated to the petitioner under Memo No. 1550 dated 11.3.2013, passed by the Principal Secretary, Department of Water Resources, Government of Jharkhand, Ranchi, as contained in Annexure-1 to the writ application, is hereby, quashed. 17. The State Government is directed to make the payment of the pensionery benefits to the petitioner, taking into consideration the past services rendered by him as seasonal Moharrir also, as has been done in the case of Ramashray Dubey and Chandrika Rai & Ors. The respondents are directed to calculate and give all the pensionery benefits, along with arrears, to the petitioner positively within a period of four months from today. 18. This writ application is accordingly, allowed with the directions as above. Application allowed.