LETTERS PATENT APPEAL No.1141 of 2010 ---------- 1. The State Of Bihar through the Industrial Development Commissioner-cum-Secretary, Department of Industry, Bihar, Patna 2. The Director of Industries, Bihar, Patna .......Appellants Versus 1. Narain Dutta Pandey son of Late Raj Kishore Pandey resident of village Kochinia, P.S. Dumraon, District Buxar at present residing at Mohalla Rajiv Nagar, Ajanta Colony, P.S Digha, District Patna 2. The Accountant General, Bihar, Patna ........Respondents ------------ For the appellants: Mr. Piyush Lal, AC to AAG III For the respondent no.1: Mr. Kripanand Jha, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA O R D E R Shiva Kirti Singh, J. The State of Bihar and the concerned officials have preferred this intra court appeal under Letters Patent of this court to assail the judgement and order dated 17-12-2009 whereby a learned Single Judge has 2 allowed a writ petition bearing CWJC no. 1836/2006 and directed to enhance the pensionary benefits of the writ petitioner by counting his service from 01-09-1969 to 30-04-1978 as pensionable service under the State of Bihar. Enhanced pension along with arrears has been directed to be paid within a fixed time. The essential facts may first be noticed in brief. 2. The writ petitioner claims that he was appointed as Planning-cum- Survey officer in a project known as Rural Industry Project (hereinafter referred to as the “RIP”) on 01-09-1969 and was promoted to the post of Project Officer w.e.f. 24-3-1975. The RIP is claimed to be sponsored and financed by the Government of India through the State Government since 1965-66. A note sheet dated 11-5-1977 has been annexed as annexure-2 to the writ petition to show that RIP was being managed through Khadi Gramodyog Sangh which made a request to the Government that the RIP, Darbhanga should be managed by the Government itself. In that context the Personnel Department gave certain suggestions contained in annexure-2 that if the RIP was taken over by the Government then for 3 appointment of gazetted posts recommendation of the Public Service Commission would be necessary and in anticipation only adhoc appointments may be made for a period of six months. Only on receipt of recommendation and on fulfilling the educational and other qualifications appointment may be possible in regular manner under the State. The note sheet also mentions that on being absorbed in the regular State service the concerned officials/employees may have to be given benefit of their past service under the RIP for the purpose of seniority. There is no material to show as to what decision was ultimately taken by the State Government on the basis of such notes. 3. On the basis of a letter of Director, Industries, Bihar dated 28-6-1978, contained in annexure-1 addressed to his subordinate officials at various places in the State, it has been alleged by the writ petitioner that the Central Government with consent of Industries Department, Government of Bihar decided to merge all the RIPs in the different Industry Centres and all the RIPs were merged with District Industry Centres with all its assets and liabilities. On behalf of the State it 4 has been replied that the aforesaid assertion of the writ petitioner is incorrect and annexure-1 merely relates to instructions for taking over charge upon establishment of District Industry Centers in the State of Bihar. On behalf of the State annexure-2 has been described as mere notings in the file and not a Government policy decision. 4. It is not in dispute that because of abolition/alleged take over of the RIP the writ petitioner was informed by letter dated 25-4-1978 (annexure-3 to the writ petition) that he had been selected for the post of Manager (Marketing) and that pursuant to such selection he was directed to join as Manager (Marketing) in District Industry Centre, Bhagalpur vide another letter of Deputy Director, Industries, Muzaffarpur dated 27-4-1978 (annexure-4 to the writ petition). The Industries Department describing the writ petitioner as ex Project Officer, RIP, Darbhanga (Non Government), by a notification dated 12-9-1979 appointed him by way of adjustment on the temporary post of Manager (Raw Material) in District Industry Centre, Bhagalpur on adhoc basis for six months from the date of taking over of charge. This fact was not mentioned in the writ 5 petition but was brought on record through a counter affidavit and notification dated 12-9-1979 is annexure-A to the counter affidavit of State. It shows that the appointment by way of adjustment was on adhoc basis for six months in anticipation of approval from the Bihar Public Service Commission. The notification further clarifies that his earlier service was a Non Government service. Writ petitioner retired on 31.3.1991. He received pension and retiral benefits as per his joining a post under the State Government service. In 1999, he filed his first writ petition to seek the same reliefs but that was dismissed as not pressed vide annexure-6 to writ petition, i.e. order dated 16.12.2004. The second writ petition filed in 2006 has given rise to this appeal. 5. The main issue is whether there was any policy decision by the State Government to take over the RIP where the petitioner was working along with the posts and employees/officials or not and whether the appointment of the writ petitioner in Government service was the result of absorption on account of such take over or a mere appointment by way of adjustment on account of abolition of the RIP. 6 6. The learned writ court has come to the conclusion on the basis of annexures- 3, 4, 8 and 9 that the writ petitioner was absorbed in the Government service w.e.f. 01-05-1978 and since fund for payment of salary under the services of RIP was from Central or State Government, the writ petitioner was entitled for counting his service under the RIP as pensionable service under the State. Stand of the State was held to be arbitrary. 7. On behalf of the appellants a serious dispute has been raised that the writ court has erred in presuming that the RIP was taken over by the State Government. It has been pointed out that had it been a case of merger or take over along with posts and employees, there would have been a clear decision of the Government to that effect and then there would have been no occasion of making selection and a fresh appointment on adhoc basis followed by regular appointment. It was pointed out that the RIP was still in existence when petitioner was selected and asked to join the post of Manager (Marketing) in District Industry Centre, Bhagalpur because annexure-4 contains the 7 direction that writ petitioner, described as Project Officer of RIP, Darbhanga, should hand over charge of his post to another officer of RIP. 8. On the other hand learned counsel for the respondent no. 1 supported the order under appeal on the ground that annexure-2 is a good material to show take over or merger of the RIP in the Industries Department of State of Bihar and the appointment of the writ petitioner afresh will not affect his claim of absorption and right to pension due to continuous service under the RIP and then under the State without break. He also relied upon Rules 58 to 61 of the Bihar Pension Rules to claim for counting of his past services under the RIP for the purpose of pension. He relied upon a Division Bench judgement of this court in the case of Shyam Kishore Singh Vs. State of Bihar & Ors 2007 (2) PLJR 239. In reply, learned counsel for the appellants submitted that the aforesaid Division Bench judgement in the case of Shyam Kishore Singh related to a case of take over of a private school under statutory provisions and in that case the State Government, as per its policy decision, was in favour of counting service in the school before take over 8 for the purpose of pension and in that view of the matter, the court did not approve of the objection raised by the Accountant General. He placed reliance upon another Division Bench judgement of this court in the case of the Secretary Finance (National Savings) Department, Government of Bihar & anr Vs Vinod Kumar & Ors, 2006 (1) PLJR 269 in support of a proposition that under the service law and the pension rules even service rendered earlier in a Corporation of the State Government cannot be treated at par with services under the State for the purpose of pension and retiral dues. In the aforesaid case of the Secretary Finance & anr Vs Vinod Kumar & Ors it was clearly pointed out that “.. .. .. ..It would be a grave error to consider the service rendered under the Corporation as Government service. .. .. ..A Corporation is certainly not at par with the Government in matters relating to service conditions, including payment of retiral dues and pension to its employees. The necessary corollary, therefore, is that the 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 retiral 9 dues and grant of pension.” 9. On considering the rival submissions and the various documents annexed to the writ petition, we are constrained to hold that there is no material to show that the State Government took a policy decision to take over the RIP along with posts and its officials so as to make them Government servants since their appointment in RIP. The materials available, to the contrary, show that the writ petitioner was asked to hand over charge under the RIP and was appointed in the District Industry Centre under the State Government afresh and not on account of absorption. There is no policy decision of the State Government or any provision in the relevant rules under Bihar Pension Rules requiring counting of past services of the writ petitioner under the RIP which was a Non Government organization as pensionable service under the State of Bihar. 10. We find that the Division Bench judgement in the case of Shyam Kishore Singh Vs State of Bihar (Supra) was rendered in different fact situation and has no application to the present case. On the other hand the judgment in the case of the Secretary Finance & 10 anr. Vs Vinod Kumar & Ors (supra) leaves no room for any doubt that service under different organizations or Corporations even belonging to the Government cannot be treated as service under the State. Hence, there can be no question of any arbitrariness in the stand of appellants that service rendered by writ petitioner under a non- governmental organization can not be counted towards pensionable service under the State. 11. In service jurisprudence arbitrariness can be alleged against State as an employer if two equals are treated differently or for unfair treatment. But that is not the case at hand. As discussed above, the two services are differently situated. Unfairness is also not established. Moreover, for any alleged unfairness in 1978, at the threshold of State service, grievance raised much after retirement in 1991 is apparently belated and stale. 12. Although it has been argued on behalf of the appellants that the writ petition was filed belatedly after acceptance of retiral benefits for a long number of years since superannuation on 31-3-1991, we have not gone deep into that aspect of the matter because the writ 11 court found some explanation available for delay such as filing of an earlier writ petition in the year 1999 which was dismissed as not pressed on 16-12-2004 and also because we have found the claim of the writ petitioner not acceptable on merits. 13. In view of aforesaid discussions and findings, we have no option but to set aside the order under appeal. Accordingly, this appeal is allowed and the writ petition is dismissed. There shall be no order as to costs. I agree. Hemant Kumar Srivastava, J. Patna High Court The 15th September, 2010 AFR/BKS (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J )