Jharkhand High Court
The State Of Jharkhand vs Ajit Kumar Deo on 20 September, 2024
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 67 of 2024
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1. The State of Jharkhand
2. The Secretary, Water Resources Department, Govt. of Jharkhand, Project
Building, P.O. & P.S. Dhurwa, Dist. Ranchi, Jharkhand.
3. The Chief Engineer, Subernrekha Multi Project, Chandil, P.O. & P.S.
Chandil, Dist. Singhbhum East, Jharkhand
... Petitioners/ Respondents
Versus
1. Ajit Kumar Deo, S/o. Late Laxmi Deo, resident of village-Taraghat, P.O.
Jasidih, P.S. Jasidih, Dist. Deoghar, Jharkhand.
2. Jaideo Pradas Singh, S/o. late Shesha Prasad Singh, resident of village-
Jhalpur, P.O. & P.S. Deoghar, Dist. Deoghar, Jharkhand.
... Opposite Parties/ Respondents
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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK
For the Petitioners : Mr. Amit Kumar, SC(M)-II
For the Respondents : Mr. Saurabh Shekhar, Advocate
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04/ 20.09.2024 Instant Civil Review Application has been filed by the
petitioner-State for review of the order/ judgment dated 22.09.2017, passed
in W.P.(S). No.1255 of 2013 by this Court.
2. The Original Writ Petition was filed by the petitioners (opposite
parties herein) challenging the order dated 22.03.2011 by which the
respondents have denied to count the services rendered by the petitioners as
daily rated employees for the purpose of continuity of service. The matter
was heard on several occasions and by judgment dated 22.09.2017, this
Court by citing several judgments of Hon'ble Apex Court as well as of this
Court, allowed the writ petition by quashing the impugned order dated
22.03.2011. The relevant paragraphs of the said judgment reads as under:
"12. Similarly, this Hon'ble Court in case of " Shakuntla Devi
vs. The State of Jharkhand & Ors." (W.P.(S)No.1517 of 2008)
vide order dated 04.10.2012 taking into consideration the Rules
61 and 63 of the Jharkhand Pension Rules as well as
Notification No.12928F dated 04.09.1962 was of the considered
view that the period served by the Government servant on
temporary or officiating basis against the substantive
pensionable post shall be counted for the purpose of pension if
service is made permanent or such temporary officiating post is
converted into a permanent post. The substantive post existing,
therefore, petitioner is entitled for the pension after counting
the entire period of services even prior to regularization.
13. As a cumulative effect of the aforesaid rules, guidelines and
judicial pronouncements, I hereby direct the respondents to
consider the case of the petitioner counting the service of the
petitioner for pensionary benefits from the date of initial
appointment and not from the date of regularization. The order
dated 22.03.2011 memo No.623 is quashed and set
aside/modified to that extent.
14. As regards the arrears of salary are concerned, the
respondents are directed to take decision in accordance with
law within a period of six weeks from the date of receipt of a
copy of this order in view of the judgment rendered by the
Hon'ble Apex Court as well as that of this Hon'ble Court
referred above."
3. The case of the petitioner-State is that services of the opposite parties
as daily wages workers cannot be termed to be as against substantive and
permanent post. It is further stated that the period served by a government
servant on temporary or officiating basis against the substantive
pensionable post shall be counted for the purpose of pension if service is
made permanent or such temporary officiating post is converted into
permanent post. However, the services of the opposite parties were neither
under temporary establishment nor were in officiating nature in accordance
with PWD Code. Rather, they were working as daily wagers and wages
were paid on Muster Roll. Hence, their services cannot be counted for the
purpose of pension payable to the writ petitioners.
4. It has been argued by learned counsel for the petitioner-State that the
impugned order is not sustainable either in law or on facts since the same is
in contravention with the judgment dated 08.05.2013, passed in SPL(C).
No. 9080 of 2013 which has been squarely related with the issue involved
in the present case. Learned counsel further argues that State has come out
with a new Scheme known as 'Jharkhand Govt. Employee Contributory
Pension Scheme (CPF) vide memo dated 09.12.2004 w.e.f. 01.12.2004, and
it was decided that the Scheme is mandatory for all employees, who joined
the services on or after 01.12.2004 with a clear mandate that the existing
system of pension and general provident fund will cease to exist for those
government servants who join the service on or after 01.12.2004. In view of
the date of joining being in March, 2011, the writ petitioners come under
the purview of CPF Scheme. Therefore, they themselves accepted the same
and became subscribers of National Pension System holding their
respective PRAN. Hence, the contention of writ petitioners to calculate the
services rendered as daily wagers for the purpose of pension is not
sustainable in the eyes of law. Learned counsel further argues that order
dated 22.09.2017 is against the norms of Pension Rules since the difference
between pensionable substantive post and non-pensionable post has not
been properly appreciated.
5. On the other hand, learned counsel for the respondents-writ
petitioners justified the impugned order and submits that all the grounds
raised by the petitioner-State have already been argued before the Writ
Court and thereafter, this Court after perusal of the documents brought on
record and hearing the parties at length, allowed the writ petition filed by
the writ petitioners. Learned counsel further argues that the Civil Review
jurisdiction is absolutely a limited jurisdiction, as has been held by the
Hon'ble Apex Court as well as by this Court in plethora of judgments.
Hence, at this stage it is not open for the petitioner-State to challenge order
passed by the Writ Court and accordingly, the instant Civil Review is fit to
be dismissed outrightly.
6. Having heard the parties and perusing the records of the case, this
Court finds no merits in the instant Civil Review filed by the petitioner-
State and same is liable to be dismissed.
7. Admittedly, petitioners were taken into service though as daily wages
workers in the year 1981 and later on, were taken into regular establishment
in the year 2011. The past services of the petitioners as a daily wager ought
to have been counted for grant of pension. The respondents have tried to
distinguish the cases of appointees of work charge establishment and that of
the daily wagers appointed prior to regularization. The issue fell for
consideration before the Hon'ble Apex Court in the case of S. Sumnyan
and others Vs. Limi Niri and others reported in (2010) 6 SCC 791. The
Hon'ble Apex Court has held as under:
"44. We may here also appropriately refer to another decision of
this Court in G.P. Doval V. Govt. of U.P., wherein this court held
that regularization of the services of a person, whose initial
appointment although not in accordance with the prescribed
procedure but later on approved by an authority having power
and jurisdiction to do so would also relate back to the date of
initial appointment. Para 13 is reproduced hereinbelow: (SCC p.
341)
"13. ... If the first appointment is made by not
following the prescribed procedure but later on the
appointee is approved making his appointment
regular, it is obvious commonsense that in the
absence of a contrary rule, the approval which
means confirmation by the authority which had the
authority, power and jurisdiction to make
appointment or recommend for appointment, will
relate back to the date on which first appointment is
made and the entire service will have to be computed
in reckoning the seniority according to the length of
continuous officiation. That has not been done in this
case."
The Hon'ble Supreme Court in the case of Deokinandan Prasad Vs.
The State of Bihar and others reported in 1971(2) SCC 330 has held as
under:
"33. Having due regard to the above decisions, we are of
the opinion that the right of the petitioner to receive
pension is property under Article 31(1) and by a mere
executive order, the State had no power to withhold the
same. Similarly, the said claim is also property under
Article 19(1)(f) and it is not saved by sub-article (5) of
Article 19. Therefore, it follows that the order, dated June
12, 1968, denying the petitioner right to receive pension
affects the fundamental right of the petitioner under Article
19(1)(f) and 31(1) of the Constitution, and as such the writ
petition under Article 32 is maintainable. It may be that the
Pension act (Act 23 of 1871) there is a bar against a civil
court entertaining any suit relating to the matters
mentioned therein. That does not stand in the way of writ
of mandamus being issued to the State to properly consider
the claim of the petitioner for payment of pension
according to law."
The Hon'ble Apex Court in the case of Smt. Poonamal and others
Vs. Union of India and others, reported in (1985) 3 SCC 345, has held as
under:
"7. It is not necessary to examine the concept of pension.
As already held by this Court in numerous judgments
pension is a right not a bounty or gratuitous payment. The
payment of pension does not depend upon the discretion
of the Government but is governed by the relevant rules
and anyone entitled to the pension under the rules can
claim it as a matter of right [Deoki Nandan Prasad v.
State of Bihar reported in 1971 Supp SCR 634; State of
Punjab v. Iqbal Singh reported in (1976) 3 SCR 360 and
D.S. Nakara v. Union of India reported in (1983) 2 SCR
165] Where the Government servant rendered service, to
compensate which is a family pension scheme is devised,
the widow and the dependent minors would equally be
entitled to family pension as a matter of right. In fact we
look upon pension not merely as a statutory right but as
the fulfilment of a constitutional promise inasmuch as it
partakes the character of public assistance in cases of
unemployment, old-age, disablement or similar other
cases of underserved want. Relevant rules merely make
effective the constitutional mandate. That is how pension
has been looked upon in D.S. Nakara judgment. At the
hearing of this group of matters we pointed out that since
the family pension scheme has become non-contributory
effective from September 22, 1977 any attempt at denying
its benefit to widows and dependents of Government
servants who had not taken advantage of the 1964
liberalisation scheme by making or agreeing to make
necessary contribution would be denial of equality to
persons similarly situated and hence violative of Article
14. If widows and dependents of deceased Government
servants since after September, 22, 1977 would be entitled
to benefits of family pension scheme without the
obligation of making contribution, those widows who were
denied the benefits on the ground that the Government
servants having not agreed to make the contribution,
could not be differently treated because that would be
introducing an invidious classification among those who
would be entitled to similar treatment."
Further, the Hon'ble High Court of Punjab and Haryana in its decision
dated 31.8.2010 in case of "Harbans Lal Vrs. The State of Punjab and
others" which has been affirmed by the Apex Court in S.L.P.(C) No. 17901
of 2011, has categorically held that the clauses of the Scheme have to be
read by keeping in view the fact that pension is not a bounty of the State and
it is earned by employees after rendering long service to fall back upon after
their retirement. The same cannot be arbitrarily denied. The clause was
subjected to the principle of 'reading down' a well-known tool of
interpretation to sustain the constitutionality of a statutory provision and
accordingly it was read down to mean that the qualifying service could
commence either from the date of taking charge of the post to which the
employee was first appointed or from the date he started contributing to the
Contributory Provident Fund, whichever was earlier. The ratio of the above
mentioned judgment would apply to the facts of the instant case, inasmuch
as, the provision made in clause 6(6) of the 1992 Scheme has to be read
down to mean that qualifying service would commence from the date of
continuous appointment, which is 1981 in the present case, or from an
earlier date if the employer had started contributing to the Contributory
Provident Fund whichever is earlier. Therefore, the petitioners would be
entitled to count their service with effect from the date of their appointment
and approval i.e. 1981."
In the case of Ajit Kumar Deo and others Vs. The State of
Jharkhand and others reported in 2017 SCC OnLine Jhar 2940, this
Court has held as under:
"14. The Hon'ble High Court of Punjab and Haryana in
its decision dated 31.08.2010 in case of "Harbans Lal V.
The State of Punjab" which has been affirmed by the Apex
Court, has categorically held:
"Once the services of a work-charged employee
have been regularized, there appears to be hardly
any logic to deprive him of the pensionary
benefits as are available to other public servants
under Rule 3.17 of the Rules. Equal protection of
laws must mean the protection of equal laws for
all persons similarly situated. Article 14 strikes at
arbitrariness because a provision which is
arbitrary involves the negation of equality. Even
the temporary or officiating service under the
State Government has to be reckoned for
determining the qualifying service. It looks to be
illogical that the period of service spent by an
employee in a work-charged establishment before
his regularization has not been taken into
consideration for determining the qualifying
service. The classification which is sought to be
made among Government servants who are
eligible for pension and those who started as
work-charged employees and their services
regularized subsequently, and the others is not
based on any intelligible criteria and, therefore, is
not sustainable at law. After the services of a work
charged employee have been regularized, he is a
public servant like any other servant. To deprive
him of the pension is not only unjust and
inequitable but is hit by the vice of arbitrariness
and for these reasons the provisions of sub rule
(ii) of Rule 3.17 of the Rules have to be struck
down being violative of Article 14 of the
Constitution."
The aforesaid view was further reiterated by this
Court in the cases of Joginder Singh, Hazura Singh and
Nasib Singh (supra). A conjoint reading of the rules,
quoted above and the observations of the Full Bench
would reveal that it is by now well established that period
of service rendered on daily wage/work charges prior to
regularization of services is liable to be counted for the
purposes of gratuity and pension."
8. Further, petitioner-State has challenged the order passed by this Court
before the Division Bench in L.P.A. No. 624 of 2017, which was later on
withdrawn vide order dated 06.02.2024, seeking liberty to prefer a Civil
Review before the Writ Court. Since in the judgment dated 22.09.2017,
passed in W.P.(S). No. 1255 of 2013, the contention of the respondent-
petitioner herein has already been appreciated and thereafter, this Court has
passed the order citing the plethora of judgments of the Hon'ble Apex Court
as well as of this Court and the order passed by the Writ Court has not been
quashed or set aside by the Division Bench rather, the LPA preferred by the
State stood dismissed as withdrawn, this Court does not find any fresh
ground for interference in the instant Civil Review.
9. Accordingly, the instant Civil Review having no merit stands
dismissed.
(Dr. S.N. Pathak, J.)
Kunal
