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2025 DIGILAW 445 (PAT)

State of Bihar v. Ishwar Chandra Sharma

2025-04-23

P.B.BAJANTHRI, S.B.PD.SINGH

body2025
P. B. Bajanthri, J. – The state Appellants have assailed the order of the learned Single Judge dated 19.07.2022 passed in C.W.J.C. No. 11654 of 2018. Grievance of the Respondent-Ishwar Chandra Sharma is that he is entitled for retiral benefits while counting service rendered in the Bihar State Construction Corporation Limited or not? 2. Brief facts of the case are that Respondent-Ishwar Chandra Sharma was appointed in the then Bihar State Construction Corporation Limited on 28.03.1977 to the post of Typist and he had joined in service on 15.05.1977. On 05.05.1979, State of Bihar evolved a policy decision relating to absorption of surplus employees working in various Boards and Corporations in the State of Bihar. It is learnt that Respondent’s case was processed for absorption in the year 1990. However, it was not finalized, resultantly, Respondent filed C.W.J.C. No. 4438 of 1995 and it was disposed of asking the petitioner to approach Health Commissioner with representation. The Respondent’s representation was rejected on 04.09.1996. Once again Respondent invoked filing C.W.J.C. No. 11141 of 1996. The order dated 04.09.1996 of the Health Commissioner was set aside and further directed to reconsider the grievance of the Respondent for absorption by the Principal Secretary, GAD. The Principal Secretary, GAD proceeded to consider name of the Respondent for absorption. Similar view has been taken by the Principal Secretary, Health Department on 07.03.2013. Thereafter, absorption order has been issued by the Director on 13.03.2013. In this backdrop, Respondent’s services have been relieved from the Bihar State Construction Corporation Limited and he had joined service in the Health Department at Muzaffapur Sergeancy on 23.03.2013 and he has attained age of superannuation and retired from service on 30.09.2015. In this backdrop, for non-consideration of Respondent’s services rendered in the Corporation towards extension of retiral benefits and pension, the Respondent has invoked remedy of filing C.W.J.C. No. 11654 of 2018, the learned Single Judge has allowed the Respondent’s Writ petition. Feeling aggrieved by the learned Single Judge order dated 19.07.2022 passed in C.W.J.C. No. 11654 of 2018, State-Appellant preferred the present L.P.A. 3. Learned counsel for the Appellant-State submitted that the Appellant case is not similarly situated person like earlier litigations in the case of Mukteshwar Prasad Singh & Ors. vs. The State of Bihar & Ors. (L.P.A. No. 716 of 2017). Learned counsel for the Appellant-State submitted that the Appellant case is not similarly situated person like earlier litigations in the case of Mukteshwar Prasad Singh & Ors. vs. The State of Bihar & Ors. (L.P.A. No. 716 of 2017). In Mukteshwar Prasad Singh & Others, who were also working in the Corporation or Board they were on deputation to various State Government Department in the year 1997. In that context, they have been extended benefit of absorption with earlier date. Whereas, in the present case, Respondent- Ishwar Chandra Sharma, who was working in the Bihar State Construction Corporation Limited was not deputed to any of the Government department. Therefore, the cited decision by the learned Single Judge and taking note of the same and extending the benefit of retiral benefits to the Respondent- Ishwar Chandra Sharma is incorrect. It is further submitted that as on the date of absorption of the Respondent- Ishwar Chandra Sharma, new pension scheme was introduced in the year 2005. Having regard to the fact that as on the date of absorption of Respondent- Ishwar Chandra Sharma in the year 2013, earlier pension scheme was not existing in the eye of law. Therefore, question of extending retiral benefits and pension is not permissible while invoking non-existing statutory provision. Therefore, rightly in the absorption order Authority has conveyed the message to the Respondent to the extent that new pension scheme is applicable to the Respondent. It is also submitted that the service rendered in Bihar State Construction Corporation Limited cannot be counted for the purpose of retiral benefits and pensionary benefits under the old Bihar Pension Rules. In the light of these facts and circumstances, order of the learned Single Judge is liable to be set aside. 4. Per contra, learned counsel for the Respondent resisted the aforementioned contentions and submitted that the Respondent’s case for absorption was under process in the year 1990. On two occasions, he had invoked remedy before this Court in C.W.J.C. No. 4438 of 1995 and C.W.J.C. No. 11141 of 1996. Thereafter, absorption order has been passed in the month of March, 2013. Therefore, the Respondent is entitled to count the past service rendered in the Bihar State Construction Corporation Limited for the purpose of extending retiral benefits and pension on par with others. 5. Heard the learned counsel for the respective parties. 6. Thereafter, absorption order has been passed in the month of March, 2013. Therefore, the Respondent is entitled to count the past service rendered in the Bihar State Construction Corporation Limited for the purpose of extending retiral benefits and pension on par with others. 5. Heard the learned counsel for the respective parties. 6. Core issue involved in the present lis is whether Respondent- Ishwar Chandra Sharma is entitled to have the benefit of counting past service rendered in Bihar State Construction Corporation Limited for the purpose of seeking retiral benefits and pension or not? Whether, Respondent- Ishwar Chandra Sharma service particulars is on par with Mukteshwar Prasad Singh or not? Dates and events are not disputed insofar as appointment and joining of the Respondent in Bihar State Construction Corporation Limited in the year 1977. It is also not disputed Government of Bihar evolved a policy decision regarding absorption of surplus employees working in various Boards and Corporation in the State of Bihar. The Respondent’s case for absorption was processed in the year 1990. Further, he had approached this Court on an earlier two occasions for the purpose of absorption in the year 1995 and 1996. Thereafter, for the first time, his services have been absorbed in the month of March, 2013. The Respondent’s case for absorption was processed in the year 1990. Further, he had approached this Court on an earlier two occasions for the purpose of absorption in the year 1995 and 1996. Thereafter, for the first time, his services have been absorbed in the month of March, 2013. It is necessary to reproduce absorption order dated 13.03.2013, it is at page-62 of Writ petition and it reads as under: – ^^funs'kky;] LokLF; lsok,a] fcgkj iVuk vkns'k vkñlañ&4@fofoèk&6&88@2011&611¼4½@iVuk] fnukad&13-3-13 lekns'k ;kfpdk lañ 4438@95 ,oa 1141@96 esa Øze'k% 15-09-95 ,oa 23-11-10 esa ikfjr U;k;kns'k rFkk] mlds vuqikyu esa lkekU; iz'kklu foHkkx ds lanfHkZr vkns'k ds vuqikyu esa izèkku lfpo] LokLF; foHkkx] fcgkj] iVuk ds Kkikad 578 ¼4½ fnukad 07-03-13 ds }kjk frjsd ?kksf"kr deZpkjh Jh bZ'oj pUnz 'kekZ ¼tUe frfFk 26-09-1955½ Vadd] fcgkj LVsV dULVªD'ku dkWjiksjs'ku fyfeVsM] iVuk dks uu&esfMdy vflLVsUV ¼oxZ rhu½ ds in ij lek;ksftr djus dk fu.kZ; fy;k x;k gSA mDr vkns'k ds vkyksd esa fcgkj LVsV dULVªD'ku dkWjiksjs'ku fyfeVsM] iVuk }kjk ?kksf"kr vfrjsd deZpkjh Jh bZ'oj pUnz 'kekZ] firk&Jh d`".k 'kekZ] xzke&vgykniqj] iksñ&gfjnkliqj] Fkkuk&dkWVh] ftyk&eqtQjiqj dks flfoy ltZu] eqt~Qjiqj ds vèkhu izkñLokñdsUnz] dqBuh esa uu&esfMdy vflLVsUV ds fjDr in ij osrueku 5200&20200 xszM is 2800 ds izØe esa ,oa ljdkj }kjk le;≤ ij Lohd`r HkRrksa ds lkFk fuEukafdr 'krkZsa ij vLFkk;h :i ls lek;ksftr fd;k tkrk gSA muds osrukfn dk Hkqxrku ;ksxnku dh frfFk ls ns; gksxkA 1- ;ksxnku ds le; Jh 'kekZ dks vlSfud 'kY; fpfdRld≶&eq[; fpfdRlk inkfèkdkjh ls viuk LokLF; izek.k i=k] 'kS{kf.kd ;ksX;rk izek.k i=k ,oa tUe frfFk izek.k i=k izLrqr djuk gksxkA 2- ;g fu;qfDr fcYdqy vLFkk;h gS rFkk fdlh Hkh le; fcuk fdlh iwoZ lwpuk ds lsok lekIr dh tk ldrh gSA 3- fnukad 01-09-05 ls isa'ku dh ubZ Ldhe ykxw gks x;h gSA Jh 'kekZ ds ekeyksa esa Hkh ogha isa'ku Ldhe ykxw gksxhA 4- ;ksxnku ds fy, fdlh izdkj dk ekxZ O;; ns; ugha gksxk ,oa ;ksxnku djus dh frfFk ls gh mudh fu;qfDr ekU; gksxhA 5- vkns'k fuxZr dh frfFk ls 15 fnuksa ds vUnj ;ksxnku nsuk gksxk ugha rks ;ksxnku Lohd`r ugha fd;k tk ldrk gSA 6- Jh 'kekZ ds osru dk Hkqxrku muds izFke osru foi=k vèkksgLrk{kjh ds izfrgLrk{kj gksus ds mijkar gh fd;k tk;sxkA gñ@& ¼MkWñ lqjsUnz izlkn½ funs'kd izeq[k] LokLF; lsok,W¡] fcgkj] iVuk Kkikad&611¼4½@iVuk] fnukad&13-3-13 izfrfyfi&flfoy ltZu] eqt~Qjiqj dks lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA izfrfyfi&{ks=h; mi funs'kd] LokLF; lsok,a] eqt~Qjiqj dks lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA izfrfyfi&laqDr lfpo] lkekU; iz'kklu foHkkx] fcgkj] iVuk dks muds vkns'k lañ 8403 fnukad 26-07-11 ds izlax esa lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA izfrfyfi&izcaèk funs'kd] fcgkj LVsV dULVªD'ku dkWjiksjs'ku fyfeVsM] [oktk bZeyh] vfulkckn] iVuk&800002 dks lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA izfrfyfi&Jh bZ'oj pUnz 'kekZ] Vadd] fcgkj LVsV dULVªD'ku dkWjiksjs'ku fyfeVsM] [oktk bZeyh] vfulkckn] iVuk & 800002 LFkk;h irk&xzke& vgykniqj] iksñ & gfjnkliqj] Fkkuk&dkWVh] ftyk&eqt~Qjiqj dks lwpukFkZ izsf"krA izfrfyfi&dks"kkxkj inkfèkdkjh] eqt~Qjiqj dks lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA izfrfyfi&ftyk inkf/kdkjh] eqtQjiqj dks lwpukFkZ izsf"krA izfrfyfi&izèkku lfpo] LokLF; foHkkx ds izèkku vkIr lfpo dks lwpukFkZ izsf"krA izfrfyfi&funs'kd izeq[k] LokLF; lsok,a] fcgkj ds futh lgk;d dks lwpukFkZ ,oa vko';d fØ;kFkZ izsf"krA gñ@& funs'kd izeq[k] LokLF; lsok,a] fcgkj] iVuk^^ Underline supplied 7. Clause-3 stipulates that for Respondent’s absorption read with his service particulars would be in respect of New Pension Scheme. The Respondent- Ishwar Chandra Sharma has not assailed the aforementioned Clause-3 and so also absorption order to the extent that he is entitled to absorption on par with Mukteshwar Prasad Singh, the date on which their services have been absorbed. Further, it is to be noticed that Respondent-Ishwar Chandra Sharma case is not comparable with Mukteshwar Prasad Singh for the reasons that Mukteshwar Prasad Singh and others, who were working in Board or Corporation, their services have been deputed to State Government department in the year 1997. Therefore, this Court has taken note of the fact that they were on deputation for a long period more than decades. In that context, it was directed for absorption while counting service rendered in the respective Corporation or Board. On the other hand, in the present case, Respondent- Ishwar Chandra Sharma was not deputed to any of the department and he continuously worked in the Bihar State Construction Corporation Ltd. from the date of his appointment namely 28.03.1977 till he was relieved from the Corporation on 20.03.2013. It is to be noted that as on 20th March, 2013, Old Bihar Pension Scheme was not existing in the eye of law. What was prevailing as on 20th March, 2013 is New Pension Scheme introduced in the year 2005. As long as Respondent- Ishwar Chandra Sharma services have not been absorbed with retrospective date i.e. one day prior to introduction of New Pension Scheme, the Respondent is not entitled to have the benefit of old pension scheme for the reasons that it ceases as and when new pension scheme was introduced in the year 2005. These material information have not been taken note of and apprised by the learned Single Judge. In other words, service particulars should have been compared on par with Mukteshwar Prasad Singh and Respondent-Ishwar Chandra Sharma. In the absence of comparing service particulars, the Respondent- Ishwar Chandra Sharma has not made out a case that he is entitled for counting services rendered in Bihar State Construction Corporation Limited from 15.05.1977 to 23.03.2013 and from 23.03.2013 to 30.09.2015, the date on which he has attained age of superannuation and retired from service. Thus, Appellants have made out a case so as to interfere with the learned Single Judge. 8. Thus, Appellants have made out a case so as to interfere with the learned Single Judge. 8. Accordingly, order of the learned Single Judge dated 19.07.2022 passed in C.W.J.C. No. 11654 of 2018 stands set aside. The C.W.J.C. No. 11654 of 2018 filed by the Respondent stands rejected. 9. Accordingly, the present Letters Patent Appeal No. 584 of 2022 stands allowed.