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2019 DIGILAW 1396 (JHR)

Satyadeo Prasad v. State Of Jharkhand

2019-08-06

SANJAY KUMAR DWIVEDI

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JUDGMENT Sanjay Kumar Dwivedi, J. - Heard Mr. Ravi Kumar Singh, learned counsel for the petitioner, Mr. Ashok Kr. Singh, learned counsel for the Adityapur Industrial Area Development Authority (herein after referred as AIADA) and Mr. Brij Bihari Sinha, learned G.A.-II for the respondent State. 2. This is a very important matter, the employee who has been employed by the State Government has been transferred to Public Undertaking suo-motu and has been denied pension and dragged to this Court. 3. The petitioner has preferred this writ petition for sanction of retirement pension for the period 16.08.1962 to 28.02.1974. The petitioner was denied to serve the State of Government with due diligence one fine morning he was served with a government transfer order that he was transferred to the newly constituted authority AIADA w.e.f. 01.03.1974. 4. Mr. Singh, learned counsel appearing for the petitioner submits that no consent was taken from the petitioner before the transfer of services of the petitioner to AIADA. He further submits that the said Authority is a Public Sector undertaking fully owned by the State Government. As the petitioner was not confirmed during that time and having mis-apprehension about his future prospect, after the said transfer he filed representation before the State Government for confirmation in the service. His representation was forwarded to AIADA by letter dated 06.03.1975. Thereafter, the petitioner was absorbed in AIADA and after completion of 58 years of age the petitioner was superannuated w.e.f. 31.03.2000, the petitioner was served with necessary relieving orders by AIADA which is letter dated 30.03.2000. After the retirement, the petitioner applied for pension which was forwarded by the AIADA to the Government of Jharkhand which was rejected by the State Government vide Annexure-6 to this writ petition which is memo dated 05.06.2003 on the ground that the petitioner has not completed 15 years of service in the State Government Service which is required for getting pension. Aggrieved with this rejection order the petitioner has filed this writ petition. 5. Mr. Singh, appearing for the petitioner assailed the impugned order on the ground that the petitioner was transferred by the State Government to AIADA in the year 1974, which was the decision of the State Government for which no option has been taken from the petitioner if there would have any option the matter would have been different. 5. Mr. Singh, appearing for the petitioner assailed the impugned order on the ground that the petitioner was transferred by the State Government to AIADA in the year 1974, which was the decision of the State Government for which no option has been taken from the petitioner if there would have any option the matter would have been different. He further submits that in view of the Rules 58 and 59 of the Pension Rules, the petitioner is entitled for pension. He further submits that the rejection order is not tenable even if stand taken by the State Government is accepted. He draws the attention of this Court to clause 20 of the letter dated 31.07.1980 which is annexure-7 to the writ petition and submits that in view of the Clause 20 wherein it is said that the same will apply for the pension matters which are still pending since before. He further submits that the matter is covered by the order of the Hon''ble Patna High Court passed in the case of Hemchandra Jha Vs. State of Bihar in case no. C.W.J.C. NO. 5570 of 1999 which was disposed of vide order dated 12th April, 2001, also by the case of Mridul Kumar Sinha V. State of Bihar, (2010) 1 PLJR 124 and by the case of Vijay Kumar Thakur V. State of Bihar, (2013) 2 PLJR 862 . Further, he submits that the impugned order cannot sustain in the eyes of law and the petitioner is entitled for pension from the State Government. In the case of Mridul Kumar Sinha V. State of Bihar paragraph nos. 4 and 5 held as under:- 5. The Court has certain reservation and difficulty in extending the reasoning which may have weighed in matter of grant of pension to Kamal Bansh Narayan Singh, specially in the background that the petitioner is challenging the reasoning, which has been given by the Additional Director in impugned Annexure-1. Attention of the Court, however, has been drawn to a decision which has been rendered by the Court in C.W.J.C No. 5570 of 1999, which is dated 12th April, 2001. Attention of the Court, however, has been drawn to a decision which has been rendered by the Court in C.W.J.C No. 5570 of 1999, which is dated 12th April, 2001. It is the case of Hem Chandra Jha, where an identical issue emerged, whether the person could be denied grant of pension, if he had not completed 15 years of service in terms of Rule 58 read with Rule 59 of the Bihar Pension Rules but it is also not disputed that the State Government in its wisdom vide Resolution No. 3014 dated 31.7.1980 reduced this service period to 10 years uniformly for temporary or permanent employees. Even in the case of Hem Chandra Jha, State raised a defense that the benefit of pension with a minimum qualifying period of 10 years will only be prospective and a person retiring or leaving service of the State before 31st March, 1980 cannot avail of such a chance but the Court after taking into consideration all these aspects including the provisions contained in Rule 109 of the Pension Rules came to a considered opinion that since Hem Chandra Jha has superannuated only on 31.8.1997, therefore, in terms of Clause 20 of the Government Resolution dated 31.7.1980 read with Rule 109 of the Pension Rules held that the period of 10 years was good, enough for making the employee eligible for pension. 5. Since the facts and the questions of law raised by the petitioner is identical to the decision of Hem Chandra Jha, the court is bound and inclined to apply the ratio of the said decision to the case of the present petitioner." 6. Learned counsel for the AIADA submits that there is no provision of pension in AIADA. Accordingly, the AIADA forwarded the claim of the petitioner to the State Government. So far as other retiral dues are concerned that has already been released in favour of the petitioner. 7. Mr. Brij Bihari Sinha, learned counsel for the State of Jharkhand submits that in view of the letter dated 31.07.1980 the Finance Department of Government of Jharkhand rejected the claim of the petitioner as the petitioner has not qualified the service of 15 years which is a condition precedent for pension. He justified the impugned order and contends that there is no illegality in the impugned order. 8. He justified the impugned order and contends that there is no illegality in the impugned order. 8. Having heard, learned counsel for the parties, this Court finds that the State is an abstract entity and so can act only through the instrumentality or agency of natural or juridical persons. The State thus acts through public corporations which are its instrumentalities. The public corporation has thus emerged into a third arm of government. In so far as public corporations fulfill public tasks on behalf of the government, they are public authorities and as such subject to control by government. Therefore, there is nothing strange in the notion of the state acting through a corporation and making it an agency or instrumentality of the state. In the modern era of welfare State, when there is government action on a vast scale, a procedure to obtain speedy and effective redress against an illegal exercise of power by the executive is extremely desirable. 9. For the sake of convenience Rule 58 and 59 of pension rules which is extracted herein below 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. Third - The service must be paid by Government. These three conditions are fully explained in the following sub-sections. 59. The Provincial Government may, however, in the case of service paid from general revenues, even though either or both of conditions (1) and (2) are not fulfilled - (1) declare that any specified kind of service rendered in a nongazetted capacity shall qualify for pension; (2) in individual cases, and subject to such conditions as it may think fit to impose in each case, direct that service rendered by a Government servant shall count for pension. *Regarding:- Declaration of temporary service of a Government Servant who is not confirmed as pensionable. Under the existing pension rules, a temporary Government servant if not confirmed in any post, is not entitled to pension unless his services are declared pensionable under rule 59 of the Bihar Pension Rules. 2. There are large numbers of temporary Government Servants employed under different schemes which are in existence for the last 15-20 years and it will cause hardship to them, if they are not allowed pension after their retirement. 3. 2. There are large numbers of temporary Government Servants employed under different schemes which are in existence for the last 15-20 years and it will cause hardship to them, if they are not allowed pension after their retirement. 3. The State Government after careful consideration have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more than 15 years, it will be considered as pensionable under rule 59 of the Bihar Pension Rules. 4. These order s will be applicable to Government servants retiring on or after 12 August, 1969 [Vide Memo No. Pen 1024/69/11779 F., dated 12-8-1969] 10. The State Government came with the notification dated 12.08.1969 wherein it is decided that "The State after careful consideration have, therefore, been pleased to decide that, if the service of the temporary or officiating Government servant who is not confirmed in any post is continuous and is more than 15 years, it will be considered as pensionable under Rule 59 of Bihar Pension Rules". 11. From perusal of letter dated 31.07.1980 particularly the clause 20 it transpires that the government resolution dated 31.05.1980 provided that the condition precedent prescribed in the said letter shall also apply in the pension matters which are still pending since before. Accordingly, the amendment brought wherein the minimum service period has been prescribed as 10 years is also applicable in the case of the petitioner. This aspect has been considered by the Patna High court in the case of Hem Chandra Jha (Supra) working in a Government company or State public undertaking is a public servants. In the present case the recruitment was made in the year 1962 and the petitioner was sent to AIADA in the year 1974. He retired in the year 2000. He discharged 38 years of service. Today he is not entitled for pension. It is very easy to tell a petty official that his pension disappeared whatever may be the reason. The explanation must meet the requirement of law. 12. As a cumulative effect of the observations made herein above and looking into the Clause 20 of resolution dated 31.07.1980 and the judgment of the Patna High Court rendered in the case of Hem Chandra Jha (Supra), the impugned order dated 05.06.2003 contained in Annexure-6 is, hereby, quashed. 13. The explanation must meet the requirement of law. 12. As a cumulative effect of the observations made herein above and looking into the Clause 20 of resolution dated 31.07.1980 and the judgment of the Patna High Court rendered in the case of Hem Chandra Jha (Supra), the impugned order dated 05.06.2003 contained in Annexure-6 is, hereby, quashed. 13. The writ petition is allowed. The Government is directed to process the pension of the petitioner forthwith within six weeks and deliver by presenting a pension payment order. For the delayed pension the Supreme Court had given a direction in re State of Kerala v. M. Padmanadhan Nair, (1985) 1 SCC 429 that the incumbent will be entitled to 6 percent interest. The employee retired in the year 2000. If the pension had been given to him within time he would have been in position to deposit the same in any fixed deposit scheme or any other progressive scheme. Accordingly, the petitioner is entitled for interest at the rate of 6% per annum for the said delayed period 14. With the above observations and directions, the writ petition allowed and disposed of.