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2018 DIGILAW 2646 (JHR)

Ram Chandra Oraon v. Jharkhand State Pollution Control Board

2018-12-04

APARESH KUMAR SINGH

body2018
ORDER : 1. Heard learned counsel for the petitioners and Jharkhand State Pollution Control Board. 2. These four writ petitioners had claimed post-retirement benefits like gratuity, general provident fund, group insurance, leave encashment etc. on their retirement from the Board on different dates i.e. 31st August, 2011, 31st July, 2012, 30th June, 2012 and 31st July, 2012 respectively from the post of Driver, Routine Clerk, Sample Taker and Section Officer. They were employees of erstwhile Bihar State Pollution Control Board and their services fell under Jharkhand State Pollution Control Board on its constitution on 9th September, 2001 after bifurcation of Parent State of Bihar. Petitioners also contended that they have been deprived of pensionary benefits in spite of resolution of Pollution Control Board of Bihar dated 11th August, 1986 and 29th December, 2005 (Annexures- 1 and 2). 3. As per the decision of Jharkhand State Pollution Control Board in its 10th meeting held on 29th December, 2005 till the service conditions and recruitment Rules for the Board officers/employees are framed, service conditions, recruitment procedure, pay allowance and other facilities, rules, regulations of officers/employees of the Government of Jharkhand will be applicable to the officers/employees of Jharkhand State Pollution Control Board. Earlier Bihar Board had also taken a decision in its 26th Meeting held on 25th July, 1986 that in absence of service rules of Board employees, service rules of employees of Bihar State Government will be applicable to the Board’s employee. This is the basis for the petitioners to claim pension in particular at par with the State Government employees. Board has contested this submission inter alia on the following specific counts: (i) These petitioners were governed by the Contributory Fund Scheme applicable under the Board since their appointment. On their retirement they have been paid CPF dues, Gratuity and other benefits but are not entitled for pension and group insurance. (ii) Employees of the Board though are guided by the service rules /retirement benefits applicable to State Government employees but are not entitled for pension and group insurance. (iii) Board is an independent Statutory Body. It is within the domain of the Board to take a decision whether the services of its employees are pensionable or not depending upon the financial resources of the Board. (iii) Board is an independent Statutory Body. It is within the domain of the Board to take a decision whether the services of its employees are pensionable or not depending upon the financial resources of the Board. (iv) Services of the petitioners are not under the State Government, as such claim of pension at par with the State Government employee is not entertainable. 4. Learned counsel for the Respondent-Board has placed reliance upon the decision of the Apex Court in the case of State of Himachal Pradesh and others Vs. Rajesh Chander Sood and others reported in (2016) 10 SCC 77 . He submits that the State Government of Himachal Pradesh had introduced pension scheme, not in the capacity of employer but as a welfare measure for the employees of Corporate Bodies but had withdrawn the scheme by a subsequent administrative review as it was financially non-viable. This matter was taken up to the Apex Court. The Apex Court examined the issue from different angles and held that employees of the Corporate Bodies cannot demand as a matter of right to be similarly treated as Government employees. While the government employees of State of Himachal Pradesh were civil servants, the same is not true for employees of corporate bodies. Corporate Bodies are independent entities, and their employees cannot claim parity with employees of the State Government. The State Government has a master-servant relationship with the civil servants of the State, whilst it has no such direct or indirect nexus with the employees of corporate bodies. The State Government may agree or disagree to extend the same benefits to employees of Corporate Bodies. It was also observed that it is common knowledge that when pay scales are periodically reviewed for civil servants, they do not automatically become applicable to employees of corporate bodies, which are wholly financed by the Government and similarly, not even to employees of government companies. Likewise, there cannot be parity with government employees, in respect of allowances, so also retiral benefits. The claim for parity with government employees is, therefore, wholly misconceived. Learned counsel for the Board submits that these petitioners therefore after having accepted the benefits of C.P.F on their retirement cannot claim pension as a matter of right. 5. Likewise, there cannot be parity with government employees, in respect of allowances, so also retiral benefits. The claim for parity with government employees is, therefore, wholly misconceived. Learned counsel for the Board submits that these petitioners therefore after having accepted the benefits of C.P.F on their retirement cannot claim pension as a matter of right. 5. Learned counsel for the petitioners has submitted that resolution dated 29th December, 2005 passed by the respondent-Board had made applicable the Pension Rules to the employees of the Board as well. Pension is also such a benefit accruable to the Board’s employees if all such service conditions and benefits have been made applicable to the Board employees. Learned counsel has also placed reliance on a judgment of learned Division Bench of the Court in L. P. A. No.66 of 2007 [State of Jharkhand and others Vs. Shiv Kumar Singh and others] dated 17th July, 2007 (Annexure-3). It is pointed out that this Court was pleased to set aside the decision of the State Government, whereunder it had stayed the decision taken by the Board for enhancing the age of retirement of its employees to 60 years at par with the State Government employees in view of the resolution of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand contained in Memo dated 26th October, 2004. She submits that for all practicable purposes, these employees have been treated at par with the State Government employees and should not be denied the pension benefits as well. Learned counsel for the petitioners has on instruction further submitted that Member Secretary of the Board has issued a notification on 18th May, 2018 which conveys that the Board in its 34th meeting held on 15th March, 2018 under Agenda no. 14 has in principle taken a decision to extend the benefit of pension to the employees of the Board. This decision however has not been brought on record. 6. Learned counsel for the Board in retort submits that neither is such decision on record and even if assuming any such decision is taken, it could only be made applicable prospectively, the benefit of which cannot accrue to employees like the petitioners who have not only retired long back but availed of benefits of post- retirement benefits as well. 7. Considered the submission of parties in context of the material pleadings on record and taken note above. 7. Considered the submission of parties in context of the material pleadings on record and taken note above. I have also gone through the decisions rendered in the case of State of Himachal Pradesh and others Vs. Rajesh Chander Sood (Supra) relied upon by the learned counsel for the Board. The issue whether the employees of Corporation or Board can legitimately claim parity in matters of pay revision or other service benefits including pension have been the subject matter of controversy since long. However, the Apex Court from time to time has categorically held that corporate bodies being independent entities, their employees cannot claim parity with employees of the Central or State Government as a matter of right. In the case of Sureshchandra Singh and others Versus Fertilizer Corpn. of India and others [ (2004) 1 SCC 592 , the Apex Court observed as under: “: 5. Here the Government of India took a policy decision to increase the retirement of Central Government employees. Application of that decision in respect of employees of public sector enterprises is dependent upon so many factors that are to be taken into account in the light of the peculiar characteristics of each company or corporation or department…………………………………………………….” “7. …………………………..We also find that the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently, the argument that there is discrimination of appellants vis-à-vis employees of other corporations also cannot be accepted. ………………” 8. Reliance is also placed on the ratio rendered in the case of State of Himachal Pradesh and others Vs. Rajesh Chander Sood (Supra), where this issue was squarely under consideration. The most important factor which has been weighed upon the Court while answering the issue is of financial burden or resources of the Corporate Bodies or the Board which entails on such decision. It is the employer who has to bear the financial burden of any such increase in salary pursuant to pay revision implemented in the Central Government or the State Government or other service benefits at par with the government employees. The Board has taken a definite stand that these employees cannot claim benefits at par with the employees of the State Government, nor are their salaries etc. paid from the government exchequer. The Board has taken a definite stand that these employees cannot claim benefits at par with the employees of the State Government, nor are their salaries etc. paid from the government exchequer. They have accepted post-retirement benefits like gratuity and C.P.F benefits under the C.P.F scheme which governed their cases right since their appointment. Having accepted that, they could not claim double benefits. These employees are getting L.I.C benefits and pension admissible under the said retirement benefits. 9. Dealing with the issue at hand it is also relevant to make a mention of the provisions of Jharkhand Pension Rules which lay down the conditions of qualification for pension. Under Section II Sub-Section (1)-General, Rule 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 and Third- The service must be paid by Government. Evidently, service of these employees were not under the Government, though may be appointed on substantive basis on permanent posts under the Board. It is also not denied that the services of these employees were not paid by the government. Apart from that, if the employees had chosen to continue under the Contributory Provident Fund Scheme since their appointment under the Board and have never questioned it all along, it is too late in the day for them to turn around and seek benefits of pension as are applicable to the State Government employees and that too after having accepted the benefits under the C.P.F scheme. Plea of discrimination is also not available to these petitioners as they a form class distinct from the State Government employees. For all these reasons the State Government has also not chosen to extend such benefits to the employees of the Board. If the Board for its own reason and that too on grounds of financial worthiness chosen not to make the services of its employees pensionable, these petitioners cannot demand as a matter of right to be similarly treated as government employees. It would also be not out of place to mention here that resolution dated 29th December, 2005 does not specifically speak of the pension rules being made applicable to these employees. 10. It would also be not out of place to mention here that resolution dated 29th December, 2005 does not specifically speak of the pension rules being made applicable to these employees. 10. As a result of the aforesaid discussions, this Court does not find any substance in the plea raised by the petitioner for grant of pension at par with the State Government employees. This Court however refrains from making any observation on any such notification issued by the Board on18th May, 2018 as it is neither on record and appears to have been made much after the retirement of the petitioners. 11. Writ petition is accordingly dismissed. Consequently, I. A. No. 7148 stands closed. Petition dismissed.