Tuntun Prasad Singh vs The State Of Bihar And Ors
2023 Latest Caselaw 227 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Letters Patent Appeal No.614 of 2017
                                         In
                   Civil Writ Jurisdiction Case No.18478 of 2011
     ======================================================

Tuntun Prasad Singh Son of Late Rijhan Singh Resident of Mohalla - Kadam Kuan, P.S. - Kadam Kuan, Dist.- Patna.

... ... Appellant/s Versus

1. The State Of Bihar through the Chief Secretary, Government of Bihar, Main Secretariat, Patna

2. Principal Secretary, Human Resources Development Department, Government of Bihar, New Secretariat,

3. Principal Secretary, Finance Department, Government of Bihar, Main Secretariat, Patna.

4. The District Education Officer, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. S. K. Agrawal, Advocate Mr. Shanti Pratap, Advocate For the Respondent/s : Ms. Namrata Singh, AC to GA-12 Mr. Apurva Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 19-01-2023

Short question for consideration in the present

litigation is whether appellant is entitled to count service

rendered in the Census Department on temporary basis during

the period from 1984 to 1999 or not?

2. On 10.10.2022, the following order was passed:-

"Heard learned counsels for the parties.

Short question for consideration in Patna High Court L.P.A No.614 of 2017 dt.19-01-2023

the present litigation is whether appellant is entitled to count service from the year 1984 to 1999 for the purpose of retiral benefits or from the year 1999 till 31st January, 2007, the date on which he has attained age of superannuation and retired from service.

Learned counsel for the appellant intends to furnish relevant notification of the Government which provides that such of those employees who worked in the census programme during the period from the year 1984 to 1999 are entitled to count service towards retiral benefits. He is permitted to produce relevant government notification/Rules/executive order, if any, before the next date of hearing failing which matter would be dealt with that appellant has no statutory right to seek direction to count the past service from the year 1984 to 1999 towards extension of retiral benefits from the year 1984 to 1999, the date on which he has retired from service.

Re-list this matter on 07.11.2022."

3. Thereafter on 28.11.2022, the following order

was passed:-

"Appellant could not apprise this Court pursuant to the previous order.

Therefore, State counsel is hereby directed Patna High Court L.P.A No.614 of 2017 dt.19-01-2023

to get an affidavit of one of the officer from the Finance Department to the extent that whether is there any policy decision of the State of Bihar in respect of counting service rendered in the Census Department by an employee or not? To that effect an authorized officer of the Finance Department shall file an affidavit as to whether is there any policy or not, on the next date of hearing.

Re-list this matter on 12.12.2022."

4. The 3rd Respondent has filed counter affidavit,

Para-10 and Para-11 reads as under:-

"10. That in this context it is humbly stated that there is no such policy decision of the State Govt. to add the Services rendered in Census Operation for the purpose of pensionary benefits.

11. That it is made clear that unless a Govt. Servant fulfills the three requisite criteria mentioned in Rule 58 of the Bihar Pension Rules, his services shall not be pensionable:-

i. The Service must be under Government;

ii. The Employment must be Substantive and permanent;

iii. The service must be paid by Patna High Court L.P.A No.614 of 2017 dt.19-01-2023

the Government."

5. The eligibility criteria to have the benefit of

pension, a person must be under the Government service, he

must be substantive and permanent holder of the post and

service must be paid by the Government. The appellant could

not satisfy Clause (ii) that he was holding the substantive and

permanent post in the Census Department during the

intervening period from the year 1984 to 1999. In other words,

it was a temporary service. Further, he has been retrenched

from the Census Department while holding the temporary post.

The appellant could not apprise this Court any provision with

the Bihar Pension Rules that the temporary services rendered in

the Central Government could be counted for the purpose of

calculating number of years of service towards pension.

6. On the other hand, learned counsel for the

appellant relied on a Full Bench decision of this Court, which

has been annexed as Annexure-4, passed in C.W.J.C. No. 2346

of 1990 decided on 23.04.1992. The Full Bench has not

examined any of the provisions of Bihar Pension Rules so as to

take assistance of the Full Bench decision. As long as statutory

provisions like the Bihar Pension Rules do not provide for

counting temporary service rendered by a person in the Central Patna High Court L.P.A No.614 of 2017 dt.19-01-2023

Government, the Full Bench decision is not assisting the

appellant. It is further submitted that Government of India has

issued a circular to count the temporary service rendered by

such of those persons in the Census Department and necessary

directions have been given to the State Government. The

aforementioned circular has not been placed on record, that

apart, the circular cannot over-right the statutory provisions like

Bihar Pension Rules, therefore, the aforesaid contention of the

appellant is hereby rejected.

7. In the result, the L.P.A. stands dismissed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) Ashish/Daya/-

AFR/NAFR
CAV DATE
Uploading Date          25.01.2023
Transmission Date