CIVIL WRIT JURISDICTION CASE No.1740 OF 2007 In the matter of an application under [SECTION] of the [ACT]. BABU RAM YADAV, son of Late Musho Yadav, resident of Village - Barhiya (Purani Chhabani English), PS Barhiya, District Lakhisarai Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Road Construction Department, Govt. of Bihar, Patna 2. The [ENTITY] 3. The [ENTITY] 4. The [ENTITY] 5. The [ENTITY] 6. The [ENTITY] 7. The [ENTITY] 8. The [ENTITY] 9. The [ENTITY] Respondents With CWJC No.3711 oF 2006 MD. ABDUL HASEEB MALICK Petitioner Versus THE STATE OF BIHAR & ORS. Respondents In [CASE NUMBER] For the Petitioner : Mr. [ENTITY] For the State of Bihar: Mr. [ENTITY] Standing Counsel no.16 For the Accountant General : Mr. [ENTITY] In CWJC No.3711 of 2006 For the Petitioner : Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr.[ENTITY], Advocate For the State of Bihar: Mr. [ENTITY] Standing Counsel 16 Mr. [ENTITY] Asstt. Counsel to GP 16 For the Accountant General: Mr. [ENTITY], Sr. Advocate PRESENT THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH [ENTITY], J.
Both the writ petitions raise common issues of facts and law and are, therefore, being disposed of by a common judgment. The primary issue for our decision is whether or not the petitioners who were earlier employees of the District Board, and joined the services of the Bihar Government, are entitled to count their services rendered to the District Board for purpose of continuity of service and computation of post-retirement benefits after superannuation from service of the Bihar Government.
2. We shall first take up [CASE NUMBER]. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner was appointed as a Doctor by the District Board, Bhojpur, Ara, on 2.12.1975, which he continued to serve till the end of 1989. In pursuance of an advertisement published by the Bihar Public Service Commission, the petitioner was on the recommendation of the Commission appointed on temporary basis as Assistant Civil Surgeon, initially for a period of six months by the State Government by Government notification dated 31.12.89 (Annexure 2). He was in due course confirmed in the medical service of the Bihar Government, and ultimately superannuated from the service of the Bihar Government with effect from 30.4.2003. It is relevant to state that the service under the District Board was non-pensionable and the petitioner had the benefit of Contributory Provident Fund (CPF), whereas he joined pensionable service under the Bihar Government. In view of the letter of the State Government dated 22.2.1993 (Annexure 5), issued by the State Government in terms of [SECTION] of the [ACT] (hereinafter referred to as `the Rules'), the State Government relaxed the rigors of [SECTION] of the Rules with respect to employees of the District Board who had mid-way joined the services of the Bihar Government, and granted them the continuity of service for the purpose of computation of post-retirement benefits, provided such employee had refunded with interest the proceeds of CPF to the State Government. The petitioner had refunded the amount of CPF to the State Government on 10.11.2004. The petitioner's representation for continuity of service and computation of post- retirement benefits after counting the service rendered to the District Board was rejected by the State Government by communication dated 3.7.2006 (Annexure 4), and impugned herein.
3. While assailing the validity of the impugned order, learned counsel for the petitioner relied on the following reported judgments:-
(i) Judgment dt. 13.7.94 passed by a Division of this Court in [CASE NUMBER] (Dr. [ENTITY] v. State of Bihar & Ors.) (Annexure 11 to [CASE NUMBER]).
(ii) Judgment dated 3.7.1989 passed by a Division Bench of this Court in [CASE NUMBER] ([ENTITY] vs. State of Bihar & Ors.)
(iii) Judgment of a learned single Judge of this Court in [PRECEDENT].
Relying on the provisions of [SECTION] of the Rules, he invites our attention to the Government letter dt. 22.3.93 (Annexure 5), whereby the rigors of [SECTION] has been relaxed and the doctors and school teachers of the District Board, who had joined mid-way the services of the Bihar Government, would be entitled to count their services rendered earlier for purpose of post-retirement benefits provided they deposit the proceeds of CPF with interest.
4. Learned counsel for the State of Bihar has opposed the writ and submits that, in view of [SECTION] of the Rules, the petitioner is not entitled to count the services rendered to the District Board. He relies on the following orders/judgments of this Court:-
(i) Judgment of the Supreme Court in [PRECEDENT].
(ii) Order dated 2.9.02 passed by a Division Bench of this Court in [CASE NUMBER] ([PRECEDENT])
(iii) [PRECEDENT]. [PRECEDENT]
(iv) Judgment of one of us ([ENTITY], J) sitting singly, in [ENTITY] vs. State of Bihar [2010 (1) PLJR 495]
5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is that the petitioner had served the District Board of Bhojpur as a Doctor from 2.12.75, till November 1989, and it is equally admitted position that he served the Bihar Government as a Medical Officer from 31.12.1989 till his superannuation on 30.4.2003. In order to determine the primary question in this writ petition, whether or not the period 2.12.75 till November 1989, spent by the petitioner as a Medical Officer of the District Board will count for purpose of his post-retirement benefits. The provisions of [SECTION] of the Rules may be noticed which reads as follows:-
"58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:-
First - The service must be under Government. Second - The employment must be substantive and permanent. Third - The service must be paid by Government.
These three conditions are fully explained in the following sub-sections."
In order to qualify for pension from the Bihar Government, the employee must satisfy the three conditions mentioned in [SECTION]. It is evident on the face of it that the services rendered by the petitioner to the District Board was not under government, and it is equally evident that the services rendered by him to the Bihar Government qualifies for pension provided he has completed ten years of service, being the qualifying service under the Rules.
6. This aspect of the matter has been considered by Courts quite often, the latest judgment being by one of us ([ENTITY],J.), sitting singly, in [ENTITY] vs. State of Bihar (supra), wherein this limited aspect of the matter was considered. We wish to make it clear that the judgment is being relied on by us sitting in Division Bench for the limited purpose of disposal of these writ petitions and not beyond that for two reasons. The correctness or otherwise of the judgment in [ENTITY] has not been raised before us, and the judgment is by one of us. The petitioner has obviously completed 10 years of qualifying service in Bihar Government to earn pension.
7. Status of the District Board is an important aspect of the matter and must be ascertained clearly. The District Board at the relevant point of time was constituted in terms of [SECTION] and [SECTION] of the [ACT]. It is evident on a perusal of the provisions of these two sections that the District Board is a separate legal entity with its common seal, can sue and be sued in its own name, and is "State" within the meaning of [SECTION] of the [ACT]. [SECTION] of the Rules read in isolation does not give any benefit to the petitioner in the present context. This has, however, to be read with [SECTION] of the Rules, and is reproduced hereinbelow:-
"203. (a) The Provincial Government reserve to themselves the powers of interpreting the rules and of granting any indulgence not provided for by the rules.
If any interpretation of the rules is involved, or if any indulgence not provided for by the rules is proposed, the head of department or the head of the office shall submit the case with his opinion and recommendation, to the Provincial Government in the Administrative Department concerned.
(b) Until the orders of the Government are received, a recommendation for any special indulgence shall never be communicated, directly or indirectly, to the Government servant concerned.
(c) An application in Pension Form 4, together with the statement of service in the second page of that form or in forms prescribed in [SECTION], as the case may be, shall accompany very special recommendation made under this rule." (Emphasis added) In exercise of its powers under [SECTION] of the Rules, the State Government has issued letter no.14/4 -24168, dated 22.3.1993 (Annexure 5), whereby the rigors of [SECTION] has been softened with respect to the erstwhile school teachers and doctors of the District Boards, and it has been decided that such employees who joined the service of the State Government shall be given the benefit of past service rendered to the District Board, and the post-retirement benefits shall accordingly be computed provided the employees refund the proceeds of the CPF with interest to the State Government. Paragraph 3 of the same is reproduced hereinbelow:-
"3. mudh ekax ij lko/kkuh iwoZd fopkj djus ds i'pkr jkT; ljdkj us fcgkj isa'ku fu;ekoyh ds fu;e 203 (d) ds rgr fpfdRlk inkf/kdkfj;ksa@vU; dksfV ds deZpkfj;ksa n~okjk fnukad 1&4&49 ;k fu;qfDr dh frFk tks ckn esa gks esa ftyk i"kZn esa dh x;h lsok dks isa'ku iznk;h ekuus dk fu.kZ; fy;k gSA isa'ku miknku gsrq i"kZn dh lsok dh x.kuk bl 'krZ ds lkFk dh tk;xh fd ftyk i"kZn ls izkIr va'knk;h Hkfo"; fuf/k dh jkf'k lwn lfgr ,sls fpfdRlk inkf/kdkfj;ksa@vU; dksfV ds deZpkfj;ksa n~okjk ,d eq'r jkT; dks"k esa tek dj nh tk;sxh vkSj mlds mijkUr gh mudh lsok fuo`fr;k fu/kkZju ds le; izpfyr isa'ku@miknku rFkk ikfjokfjd isa'ku ds fu;eksa ds vuqlkj fu/kkZfjr fd;k tk;sxkA"
8. The provisions of [SECTION], read with the said letter dated 22.3.93 (Annexure 5), have to be judiciously applied to the facts and circumstances of the present case. The petitioner had joined the services of the Bihar Government on 31.12.89, and the aforesaid letter of the State Government was issued on 22.3.93, wherein it was incumbent on the petitioner to refund the proceeds of CPF with interest. It is evident that the petitioner had the option to accept the benefit offered under the letter dt. 22.3.93, or to accept the position as per the impugned order. In order to exercise the former option, it was incumbent on the petitioner to refund the proceeds of the CPF within a reasonable period of issuance of the letter dt. 22.3.93. He had superannuated on 30.4.2003, and had admittedly refunded the amount on 10.11.2004. In the peculiar facts and circumstances of this case, we are inclined to condone the delay in deposit, inter alia, for the reason that, after the petitioner joined the services of the Bihar Government, he had no option but to accept the benefits of the scheme of post-retirement benefit admissible to the employees of the Bihar Government. The position would have been different, had the petitioner been faced with two courses opened to him after he had joined the service of the State Government. The impugned order dated 3.7.2006 (Annexure 4), does not at all take notice of the provisions of [SECTION] of the Rules, read with the letter dt. 22.3.93 (Annexure 5), and is hereby quashed. In that view of the matter, the petitioner, in the peculiar facts and circumstances of the case, is entitled to count his service rendered to the District Board for computation of post-retirement benefit.
9. We wish to make one thing clear at this stage that the question whether or not the State Government is justified in extending the benefit of [SECTION] only to the two categories of employees of the District Boards in Bihar, and whether or not the same is discriminatory and violative of [SECTION] of the [ACT], not an issue before us, inter alia, for the reason that the petitioners of both the writ petitions before us were employees of the District Boards. We are, therefore, not called upon to decide the discriminatory nature, if any, of the letter dated 22.3.93.
10. We must consider some of the judgments cited by learned counsel for the parties. We must first of all notice the judgment of the Supreme Court in [PRECEDENT] (supra). That was a case where the respondents before the Supreme Court, the writ petitioners before the High Court, had earlier joined in a medical college as Doctors when it was under private management. The college had been taken over by the State Government by an Act of the State Legislature, namely, the [ACT]. Consequently, the writ petitioners had become government servants and superannuated as such. The State Government declined to grant them the benefit of service rendered under the private management leading to the writ petition in this Court which was allowed. The State of Bihar challenged the same by preferring appeal before the Supreme Court which was allowed in view of the provisions of [SECTION] of the Rules. Paragraph 13 of the judgment is reproduced hereinbelow for the facility of quick reference:-
"13. [SECTION] is clear that a Government servant does not qualify for pension unless he conforms to three conditions viz. (1)his service must be under Government, (2)the employment must be substantive and permanent, and (3)service must be paid by the Government. In view of this rule the respondents cannot claim the period of their service before the college was taken over as they were neither under the employment of the Government nor their salaries were paid by the Government. Under the specific [SECTION] the past service rendered by the respondent in the college while it was under the private management cannot be counted."
That case stood on its own facts, because the past services of the respondents therein was rendered to a body which was not "State" within the meaning of [SECTION] of the [ACT], and is not the case here. Secondly, [SECTION], read with the letter dated 22.3.93 (Annexure 5), had not come to the aid of the respondents in that case which distinguishes the present case completely. In that view of the matter, the judgment of the Supreme Court in [PRECEDENT] is inapplicable to the facts and circumstances of the present case.
11. We may next consider the judgment of a Division Bench of this Court in [PRECEDENT]. (supra). That was a case where the respondent therein had served Bihar State Agro Industries Development Corporation, a public sector undertaking of the Bihar Government. The Corporation had become moribund and was for a long time unable to pay salaries to its employees and, therefore, the writ petitioner was sent on deputation to the Bihar Government as an Accountant in the Finance (National Savings) Department, where he ultimately superannuated. The same question arose there also. The writ petition of the superannuated employee was allowed leading to the appeal in this Court. The Division Bench disagreed with the order of the learned single Judge, allowed the appeal, and held that the brief service rendered under the Corporation cannot be deemed to be service under the State Government, and cannot be added to the latter for computation of retrial dues and grant of pension. The Division Bench rested its judgment on different considerations and was not called upon to consider the effect of [SECTION], and [SECTION], read with the letter dt. 22.3.93 (Annexure 5). The judgment is, therefore, of no assistance in the present case.
12. We now pass on to the judgment of one of us ([ENTITY], J.) in [ENTITY] v. State of Bihar (supra). The facts of that case were akin to that of [PRECEDENT]. The original writ petitioner had initially joined the service of a private medical college whose services had been taken over by the State Government in terms of the [ACT]. The writ petition was dismissed in view of [SECTION] of the Rules. There was no occasion to consider [SECTION], and the letter dated 22.3.93 (Annexure 5). Therefore, for identical reasons, the judgment is of no assistance in the present case.
13. Learned counsel for the respondents has relied on the order dated 2.9.2002 passed in [CASE NUMBER] ([PRECEDENT]. The appeal was dismissed by a brief order which is really not a binding precedent within the meaning of the law of precedents. Reliance on such brief orders, which do not take into account the entire range of relevant circumstances, and are meant to dispose of the matters at the stage of admission under the weight of arrears in courts, cannot be a binding precedent and should not be cited at the Bar. Such an approach has developed and is doing incalculable damage to the Indian Judiciary. This tendency must be curbed forthwith. However, having been cited at the Bar, we have no option but to deal with it. That was a case where the writ petitioner, earlier an employee of the District Board, had superannuated as an employee of the Bihar Government. Identical question arose and the writ petition was dismissed. The employee's appeal was also dismissed on the sole ground of [SECTION] of the Rules. It is not clear from the brief order as to the nature of the employment with the District Board. Furthermore, [SECTION], and the letter dated 22.3.93, were not brought to the notice of the Division Bench. The order is, therefore, of not much assistance in the present case.
14. We now deal with the judgment relied on by learned counsel for the petitioner in the case of Dr. [ENTITY] vs. State of Bihar (supra). The facts of that case are comparable to the present one and the writ petition was allowed. That writ petitioner had joined the services of the Patna District Board as a Medical Officer. Neither the provisions of [SECTION], nor [SECTION], and the letter dated 22.3.93, was considered. Though we agree with the conclusion, but the relevant provisions of law were not brought to the notice of the Division Bench.
14.1) Learned counsel for the petitioner has also relied on the judgment of a Division Bench of this Court in [ENTITY] vs. State of Bihar (supra), and the analogous writ petitions. That was a case where the writ petitioners had served the District Boards as Dresser, Health Inspector, District Engineer, Male Attendant, and Overseer. None of them was a school teacher or a doctor. Identical question arose for consideration there also, and the writ petitions were allowed on the lines comparable to the decision in Dr. [ENTITY]. The same was rendered without consideration of [SECTION], [SECTION], and the letter dated 22.3.93. Though once again we agree with the conclusion, but we rest our decision on different grounds.
14.2) Learned counsel for the petitioner has relied on the judgment of a learned single Judge of this Court in [PRECEDENT] (supra). That was a judgment on the lines of Dr. [ENTITY] (supra), and [ENTITY] (supra), and we have the same observations to make with respect to this judgment also.
15. We, therefore, allow [CASE NUMBER]. The petitioner shall be entitled to count the services rendered by him to the District Board for the purpose of computation of his post-retirement benefits.
16. We now pass on to [CASE NUMBER]. The petitioner was appointed as Watchman under work charge establishment of the District Board, Munger, on 25.12.71. He was looking after one of the Dak Bungalows of the District Board. By a policy decision of the State Government, the Dak Bungalows of the Munger District Board were transferred to the Public Works Department of the Bihar Government on a lease for a period of thirty years with effect from 1.4.1979 which position is manifest from the inter-departmental communication dated 5.3.82 (Annexure 2). It was further stated therein that the services of the petitioner ([ENTITY]), stood transferred to the Public Works Department with effect from 1.4.79. It further appears from the office order dated 23.9.85 (Annexure 3), issued by respondent no.6, that the services of 17 persons mentioned therein including the petitioner herein, all of whom were work charge employees, were regularized in the regular establishment of the State Government. By order dated 28.11.87 (Annexure 5), issued by respondent no.6, the 46 persons mentioned therein including the writ petitioner herein, were granted the benefit of the first time-bound promotion and the second time-bound promotion with effect from the dates mentioned therein. The petitioner superannuated from the services of the Bihar Government as a Watchman, Road Construction Division, Lakhisarai, on 31.1.2003 (Annexure 6). The petitioner represented for identical relief before the State Government which was rejected by order dated 26.2.2004 (Annexure 8), and impugned herein.
17. Identical submissions have been advanced by learned counsel for the parties in the present writ petition.
18. We have perused the materials on record and considered the submissions of learned counsel for the parties in the present writ petition. The present writ petition is distinguishable and different from the aforesaid [CASE NUMBER] at least in two respects. The said letter dated 22.3.93, is confined to the categories of employees of the District Board, namely, school teachers and doctors, which the petitioner is not. The letter dated 23.3.93 incorporates a policy decision of the State Government and we would not like to interfere with the same lightly, particularly in a situation where the writ petition does not challenge its validity. No other circular or administrative instruction of the State Government in consonance with [SECTION] of the Rules has been brought to our notice, extending identical benefit to the category of employees to which the petitioner belongs. Secondly, the present petitioner never refunded the proceeds of his CPF to the State Government. In fact, he could not have done so in the absence of any circular, order, or policy decision. We are of the view that the present case is governed by [SECTION] of the [ACT], and is also covered by some of the decisions cited by learned counsel for the respondents and indicated hereinabove. We are, therefore, constrained to dismiss [CASE NUMBER].
19. In the result, [CASE NUMBER] is hereby allowed. [ENTITY], the writ petitioner, is entitled to count his services rendered to the District Board giving him continuity of service for the limited purpose of computation of post-retirement benefits under the [ACT]. [CASE NUMBER] is hereby dismissed for the reasons indicated hereinabove. In the circumstances of the case, there shall be no order as to costs in both the writ petitions.
( [ENTITY], J. ) [ENTITY], J. I agree. ([ENTITY],J.) Patna High Court, Patna The 30th of November 2010 AFR/mrl