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2018 DIGILAW 911 (PAT)

State of Bihar v. Rekha Jha

2018-06-20

RAJEEV RANJAN PRASAD, RAJENDRA MENON

body2018
JUDGMENT : Rajendra Menon, J. Delay of 95 days in filing of this appeal is condoned. I.A. No. 1024 of 2018 stands allowed and disposed of. 2. Heard on the question of admission. 3. Seeking exception to an order dated 04.10.2017 passed by the Writ Court in C.W.J.C. No. 7231 of 2012, this appeal has been filed by the State Government under Clause 10 of the Letters Patent. 4. The respondent-petitioners were appointed in the Adult and Non-Formal Education Project on various dates between 1985-87. They discharged their duties regularly and the entire project was scrapped in the year 1990. The services of the petitioners were terminated on retrenchment. Thereafter, a policy decision was taken to absorb all Non-Formal Education Supervisors on different sanctioned and vacant Class-III posts, in pursuance to which action was taken and the employees were absorbed. However, as the intervening period when they remained out of job was not counted for grant of pensionary benefits, the matter came to this Court. Initially in C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010 by a detailed order passed on 19.04.2011 available on the record from page 30 onwards the petitions were allowed and based on an earlier judgment rendered by a Division Bench of this Court in the case of The Bihar State Adult & Non-Formal Educational Employees Association & Ors. v. Bharat Kumar Srivastava & Ors.- 1996 (2) PLJR 394 both the writ petitions C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010 were allowed. In the writ petitions, the learned Writ Court took note of the provisions of Rule 103(d) of the Bihar Pension Rules and held that on abolition of post or loss of appointment owing to reduction of establishment or any other reason if there is interpretation of service and the Government subsequently absorbs or takes back the employees in service, the intervening period can be counted for pensionary benefits. 5. Interpreting the aforesaid rule, the writ petitions earlier filed by identically situated employees C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010 were allowed. 5. Interpreting the aforesaid rule, the writ petitions earlier filed by identically situated employees C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010 were allowed. When the present writ petition came up for hearing before the Writ Court on 04.10.2017 the detailed order passed goes to show that the Writ Court took note of the submission made in Paragraph 3 and in Paragraphs 4 and 5 dealt with the issue in the following manner after considering the submission made by the State counsel:- "4. Learned counsel for the respondents appears and has been heard. He fairly accepts that the issue at hand stands covered by the judgment dated 19.04.2011 in CWJC No. 20780 of 2010 and CWJC No. 20801 of 2010, relied upon by the petitioners. 5. Having heard the parties and on a consideration of the materials on record, this Court finds merit in the writ petition. This Court in its judgment dated 19.04.2011 passed in CWJC No. 20780 of 2010 and CWJC No. 20801 of 2010 after a detailed consideration of the matter and having interpreted the provisions of Rule 103(d) of the Rules, held as follows:- "15. Admittedly, in the present case, posts of Supervisors were abolished consequent to decision of the Central Government in 1998, on account of which petitioners and other Supervisors came on road, which situation, in the opinion of this Court, is clearly covered by the expression "Abolition of post or loss of appointment owing to reduction of establishment". Hence, this Court finds that the said sub-rule (d) of Rule 103 clearly comes to the aid of petitioners and others and not to aid of the respondents, as claimed by them, to deny them benefits of the period. 16. In the circumstances, the impugned order of the Principal Secretary dated 29.03.2010, as contained in Annexure-5, is unsustainable in law and the same is quashed. Respondents are directed to consider petitioners as continuing in service between 1992 to 1998 on notional basis only for the purpose of grant of monetary benefits from 1998 onwards and post retiral monetary benefits. 17. It is made clear that petitioners and other Supervisors shall not be entitled for salary of the period in any manner and shall not also claim any seniority over other Government servants. The period shall be counted in the service only for personal monetary benefits of the petitioners and nothing more. 18. 17. It is made clear that petitioners and other Supervisors shall not be entitled for salary of the period in any manner and shall not also claim any seniority over other Government servants. The period shall be counted in the service only for personal monetary benefits of the petitioners and nothing more. 18. These writ applications are allowed in the manner, as indicated above." 6. Once in identical matters the issue has been decided and the employees working in the same project have been granted benefit and when the Writ Court has allowed the writ petition on consideration of these facts, we see no reason to deviate and take a different view now only because the State Government feels that the present petitioners were appointed in the project on temporary basis and when their services were discontinued after the project was over. Even if that be so, it was the State Government which took them back into service and absorbed them in view of the policy decision as was done in the case of other employees who are petitioners in C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010 and when benefit is granted to such similarly situated employees who were also appointed in the same project, we see no reason to deviate and discriminate in the case of the present petitioners. The Writ Court having followed the principles of law based on the earlier decision, we see no error in the order passed warranting reconsideration. In fact there is no substantial material available on record to show that the case of the present petitioners are different from the case of the earlier employees who were considered in C.W.J.C. No. 20780 of 2010 and C.W.J.C. No. 20801 of 2010. 7. The Letters Patent Appeal is, therefore, dismissed.