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Jharkhand High Court · body

2022 DIGILAW 418 (JHR)

Prem Kumar Thakur v. State of Jharkhand

2022-04-07

S.N.PATHAK

body2022
JUDGMENT : 1. The petitioners have approached this Court with a prayer for a direction upon the respondents to extend the benefits of Old Pension Scheme to the petitioners in view of the fact that they have been appointed in the year, 1987, but they have been regularized w.e.f. 1997 and as such, their services fall within the ambit of Old Pension Scheme. Further, prayer has been made for a direction upon the respondents to make the payment of current salary of the petitioners. 2. The case of the petitioners lies in a narrow compass. The petitioners were appointed in the year, 1987 as muster roll employees to the post of Assistant Tubewell Khalasi. Later on, their services have been converted in work charge establishment in the year, 1992. Since then the petitioners performed their duties to the satisfaction of the respondent –authorities, but their services have not been regularized and as such, the petitioners have earlier approached this Court by filing a writ petition being W.P.(S) No. 1932/2017, which was disposed of vide order 27.08.2018 with a direction upon the respondents to regularize their services. In compliance thereof, the services of the petitioners were regularized w.e.f. 1997 vide order dated 31.10.2020. It is specific case of the petitioner that after regularization of services of the petitioners, the petitioners ought to have been automatically come under the purview of Old Pension Scheme, but their cases have been considered under New Pension Scheme and hence, they have been constrained to knock the door of this Court, claiming Old Pension Scheme in view of the fact that their services have been regularized w.e.f. 01.10.1997 and this will be treated as a regular employee. 3. Mr. Abhijeet Kumar Singh, learned counsel for the petitioners submits that petitioners were to be covered under Old Pension Scheme, taking into consideration the fact that their services have been regularized w.e.f. 01.10.1997. He further submits that New Pension Scheme came into effect from 01.01.2004 and admittedly, the services of the petitioners were regularized w.e.f, 1997 though the order of regularization was passed in the year, 2020 and as such, a direction may be given upon the respondents to consider the case of the petitioners under Old Pension Scheme and also to release the current salary of the petitioners. 4. Per contra, counter-affidavit has been filed. 5. Mr. 4. Per contra, counter-affidavit has been filed. 5. Mr. Prabhat Kumar, learned counsel for the respondents very fairly submits that the services of the petitioners shall be considered under Old Pension Scheme in view of the ratio laid down by the Hon’ble Apex Court. Learned counsel places heavy reliance on para 16 of the judgment in the case of Amarkant Rai Vs. State of Bihar & Ors., reported in (2015) 8 SCC 265 and submits that the case of the petitioners shall be considered from the date of their regularization of services for pensionary benefits and as such, the respondents are bound to consider the case of the petitioners. However, he submits that if the petitioners prefer a fresh representation before the respondents, the same shall be considered in view of para 15 of the said judgment. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioners needs consideration. Admittedly, the services of the petitioners were regularized w.e.f. 01.10.1997 though in the year, 2020 and as such, the case of the petitioners falls within the ambit of Old Pension Scheme, the New Pension Scheme came into existence on 01.01.2004 and as such, there is no legal impediment to consider the case of the petitioners under Old Pension Scheme. The issue fell for consideration before the Hon’ble Apex Court in case of Prem Singh Vs. State of U.P., reported in (2019) 10 SCC 516 , it has been held in para 36 that:- 36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 7. Further, the Hon’ble Apex Court in case of Amarkant Rai (supra), it has been held in para 15, which reads thus:- 15. The impugned order of the High Court in Amarkant Rai v. State of Bihar [ LPA No. 1312 of 2012, order dated 20-2-2013 (Pat), 2013 SCC OnLine Pat 775] dated 20-2-2013 is set aside and this appeal is allowed. The authorities are directed to notionally regularise the services of the appellant retrospectively w.e.f. 3-1-2002, or the date on which the post became vacant whichever is later and without monetary benefit for the above period. However, the appellant shall be entitled to monetary benefits from 1-1-2010. The period from 3-1-2002 shall be taken for continuity of service and pensionary benefits. 8. Admittedly, the case of the petitioners are squarely covered by the judgment of Hon’ble Apex Court in case of Prem Singh (supra) as the services of the petitioner was regularized w.e.f. the year, 1997. 9. In view of the foregoing discussions, the petitioners are directed to file a fresh representation before the respondents, within a period of three weeks from the date of receipt of a copy of this order. Thereafter, the respondents are directed to consider the case of the petitioners, under Old Pension Scheme, giving the said benefits, taking into consideration the judgment of Hon’ble Apex Court in case of Prem Singh (supra), within a further period of four weeks. 10. The respondents shall also consider the case of the petitioners for making payment of current salary, if not paid, till date, within the aforesaid period. 11. Resultantly, writ petition stands allowed. 12. Pending I.A., if any, also stands disposed of.