Jharkhand High Court
Subhash Chandra Nayak vs The State Of Jharkhand on 6 January, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7231 of 2013
Subhash Chandra Nayak ..... Petitioner
Versus
1. The State of Jharkhand.
2. Chief Secretary, Jharkhand, Ranchi.
3. Secretary, Co-operative Department, Project Building, P.O.
& P.S.-Dhurwa, District-Ranchi.
4. Divisional Commissioner, Kolhan Division at Chaibasa, P.O.
& P.S. Chaibasa, District-West Singhbhum.
5. Dy. Commissioner, West Singhbhum, P.O. & P.S.-Chaibasa,
District-West Singhbhum.
6. Block Development Officer, Goelkera, P.O. & P.S. Goelkera,
District-West Singhbhum. ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Lakhan Sharma, Advocate
For the Respondent : Mr. Anish Mishra, Advocate
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03/Dated: 6th January, 2021
Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by
the petitioner praying for quashing the order dated
01.02.2011 passed by the Deputy Commissioner, West
Singhbhum in Misc. Case No. 12/2010-11, whereby the
claim of the petitioner for counting the period of service
rendered as Paid Manager prior to joining as Clerk has been
rejected.
3. Learned counsel for the petitioner submits that the
petitioner was initially appointed as Paid Manager in
Singhbhum District Cadre Co-operative Societies Ltd.,
Chaibasa and was subsequently taken in the service of the
State Government in compliance to the order of the Hon'ble
Apex Court on the post of Clerk on the basis of
recommendation of Jharkhand Public Service Commission
vide letter dated 16.10.2004.
Learned counsel further submits that the issue
involved in the instant writ application is now no more res
integra, inasmuch as, the same has been decided in the
case of Bijay Kumar Jaiswal and Ors. Vs. State of
Jharkhand and Ors. [W.P.(S) No. 4461 of 2009] along with
analogous cases, wherein this Court has held as under:
"13. On conjoint reading of the aforesaid provisions of
Jharkhand Pension Rules, there is no doubt or debate
that the petitioners' service rendered as paid
managers in PACS before absorption does not qualify
for pension since the conditions stated therein under
Rule 58 of the Pension Rules are not fulfilled. But at
the same time, the State is not denuded of its power
to exercise its discretionary powers by invoking Rule
203 of the Pension Rules so as to subserve the ends
of justice and enquity.
14. Viewed from another angle and to understand the
intent and purport of judgment passed in the case of
State of Bihar & Others Vs. Bihar Rajya Sahkarita
Prabandhak Seva Sangh Patna as reported in (1998)
8 SCC 218 in Civil Appeal No. 7357 of 1996, it would
be beneficial to quote the relevant paragraph of that
judgment, which is reproduced hereinbelow:
"8.A reasonable number of posts available -
including even those in the process of recruitment-
be set apart for being filled up by the respondents.
A separate recruitment test/examination be held.
They cannot be asked to take the same
examination prescribed for fresh candidates for
entering the government service. The question
paper(s) for the eligible respondents must be so
prepared bearing in mind the conditions of the
respondents such as age past service etc. After
taking such examination(s) the eligible
respondents may be absorbed subject to
reasonable conditions as to their past service
seniority and pension."
15. Admittedly, the petitioners, who are before this
Court and other employees/petitioners who were
party in C.W.J.C. No. 2312 of 1991, in pursuance to
the aforesaid judgment appeared in the recruitment
test/examination and after coming out successful
they were absorbed in government services.
16. According to Black Law Dictionary, absorption
means "The act or process of including or
incorporating a thing into something else" meaning
thereby on absorption an employee becomes part and
parcel of that department absorbing him and
partakes the same colour and character of the
existing employees of the department. Going by the
strict interpretation of the Rules, the past services
rendered by the petitioners would be wiped out for
the purpose of computation of pension. The literal
meaning of word absorption is continuation in
services of employees without interruption and the
consequence enabling from such absorption is
continuity in service without any break.
17. Moreover, once decision for absorption in service
under the scheme of absorption has been taken, the
services rendered before absorption would be deemed
to be legal and valid. And at such belated stage and
with a passage of years, it would not be fair on the
part of the welfare state to deny/wipe out or to
obliterate past services so as to deny counting their
past services for computation of pension.
18. In this context, the Hon'ble Apex Court in the case
of Usha Rani Dutta, Aaya/Attendant & Ors Vs. State
Industrial Court, Indore & Ors as reported in (1985) 3
SCC 148 has held that after the absorption of the
employees in Bhilai Steel Plant their services shall
be counted since the commencement of their
employment and treated to be continuous.
19. In the impugned order dated 07.03.2014, while
denying to count the earlier services rendered by the
petitioner in PACS, stand of paucity of funds has been
taken, which in my view, the State being a welfare
State, could not have taken to reject the claim of the
petitioners or to discard the claim of the petitioner.
20. Though, the resolution dated 26.02.2004 passed
by the State of Bihar for computation of period of
pension, is not binding on the State of Jharkhand but
on the ground that the employees have a human right
as also a fundamental right under Article 21 which
the States are bound to protect in furtherance of the
human and fundamental rights of the employees
concerned and not by way of an enforcement of their
legal rights. Hence, the State of Jharkhand may
emulate the decision taken by State of Bihar or draft
a new policy in this regard in deference to the purport
and intent of the judgment rendered by Hon'ble Apex
Court and for considering the fact that similarly
placed persons have been extended the benefit of
pension and the petitioners are unfortunate one who
have rendered their services in the territory of State of
Jharkhand have been deprived to enjoy the fruits of
pensionary benefits.
21. In view of the aforesaid facts, reasons and
judicial pronouncements, the impugned order dated
07.03.2014 is hereby quashed. The respondents are
directed to consider the matter afresh, taking into
account the observations made by this Court in the
forgoing paragraphs as expeditiously as possible
preferably within a period of six months from the date
of receipt/production of copy of this order."
4. Mr. Anish Mishra, learned counsel for the respondent
State fairly admits that the facts of the instant case is same
and similar to the facts of W.P.(S) No. 4461 of 2009 and
analogous cases; as such, the case of the petitioner can be
considered taking into account the observation made in the
said case.
5. In view of the specific submissions made by learned
counsel for the parties, the impugned order dated
01.02.2011 is quashed and set-aside. The respondent
authorities are directed to reconsider the case of the
petitioner with respect to calculation of retiral benefits and
other consequential benefits treating the period of service
from the date of his initial appointment as Paid Manager
and pass an appropriate order in the light of the judgment
referred to hereinabove within a period of four months from
the date of receipt/production of copy of this order. The
petitioner will also be at liberty to file a detailed
representation along with all necessary documents raising
his grievance before the concerned respondents.
The amount which would be found payable to the
petitioner shall be paid to him within a further period of two
months.
6. With the aforesaid terms, the instant writ application
stands allowed and disposed of.
(Deepak Roshan, J.)
Amardeep/
