IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1073 of 2007 Mohan Prasad, son of Late Saryug Prasad Verma, Resident of Laxhamanpur Math, Koiri Tola, Gulzarbagh P.S.- Alamganj, District- Patna, Parmanent resident of village-Jaitpur P.S.Chani, District- Nalanda. … Appellant/petitioner. Versus 1. The State Of Bihar through the Industrial Development Commissioner-cum-Secretary to the Govt of Bihar in the Department of Industries, Patna. 2. Director of Industries, Bihar, Patna 3. Bihar State Small Industries Corporation through the Managing Director, Bihar, Patna. … Respondents/ Respondents ----------- For the appellant : Mr. Rajendra Kumar Jain, Advocate For the respondents: Mr. Braj Kishore Prasad Sinha, Government Pleader-III ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 25th September, 2008 We heard Mr. Rajendra Kumar Jain, counsel for the appellant and Mr. Braj Kishore Prasad Sinha, government pleader-III, for the respondent nos. 1 to 3. 2. The appellant was purely temporary employee, when his service was transferred to Bihar State Small Scale Industries Corporation Limited in the year 1963. He continued in the service of Bihar State Small Scale Industries Corporation Limited until the date - 2 - of his retirement. His claim for pension came to be negatived by the state government as he did not hold civil post and he retired as an employee of the Corporation. The appellant filed a writ petition before this court for direction to the state government to treat him its employee and give him legitimate benefits as a government servant. 3. The single judge dismissed the writ petition by holding that the petitioner was in employment with the Corporation until his contract of employment with the Corporation came to an end upon his superannuation. The claim of the petitioner for terminal/pensionary dues from the government was held not maintainable. It is from this order that the present appeal has been preferred. 4. The counsel for the appellant submitted that the case of the appellant is identical to that of Nanhku Prasad Singh @ Nankhu Prasad Sinha Vs. The State of Bihar & others, 2005(1) BLJ 298. He also submits that for a similarly situated employee, namely Shiwadhar Mishra, the pension benefits have been granted by this court in writ petition filed by him being CWJC No.1887/1987 decided on 11th September, 1990. 5. On the other hand, the government pleader submits that the controversy raised by the appellant stands concluded by a Division Bench judgment of this court in the case of Birendra Kumar Sinha Vs. The State of Bihar & Ors, 2001(1) PLJR 630. 6. Having given our thoughtful consideration of the matter, in our view, the appeal has no merit. 7. In so far as the case of Shiwadhar Mishra is concerned, - 3 - suffice it to say that the said case cannot be applied to the case of the appellant, as admittedly Shiwadhar Mishra was a permanent employee of the state government at the time of his transfer to the Corporation. In other words, he held the civil post at the time of his transfer, while the appellant was only a temporary employee in the Government of Bihar at the time of transfer of his service to the Corporation in the year 1963. 8. Although the counsel submits that the case of the appellant is identical to that of Nanhku Prasad Singh, there is nothing on record to show to that effect. 9. In our view, the case is concluded by the Division Bench decision of this court in the case of Birendra Kumar Sinha where identical issue was under consideration. That was a case of a treasury clerk. He was transferred to Bihar State Small Industries Corporation Limited in the year 1962. He continued in employment with the Corporation for twenty nine years and superannuated in the year 1991. He claimed that he be treated as government employee and should be paid retiral dues under the provisions of the Bihar Pension Rules, which were applicable to government employees. The Single Judge dismissed the writ petition and the matter reached the Division Bench. The Division Bench held that nothing has been averred in the writ petition that he was a permanent government employee at the time of his absorption in the Corporation. He continued to be the employee of Corporation since 1962 and retired as such in the year 1991. In the circumstances, it was held that he could not be treated as - 4 - an employee of the state government. This is how the matter was considered by the Division Bench. “4. Nowhere in the writ petition, it has been stated that the appellant was the permanent employee of the State Government. The appellant right from 1962 till his superannuation in 1991 continued in the service of the Corporation and, thereafter, he took retiral benefits from the Corporation. Now, he claims that he should be treated as a Government employee and he should be paid retiral dues under the provisions of the Bihar Pension Rules, which are applicable to the Government employees. The learned Single Judge has dismissed the writ application on two grounds; firstly on the ground of delay and secondly that the appellant cannot be allowed to approbate and reprobate in the sense that having taken the benefit as an employee of the Corporation, he cannot be allowed to take the benefit of a Government employee under the provisions of the Bihar Pension Rules. 5. Learned counsel for the appellant submitted that the lien of the appellant was never terminated by the State Government and as such he continued to be an employee of the State Government for all practical purposes and by reason of his having been agitating the matter since 1992, on the ground of delay, the writ application cannot be dismissed.” 10. In view of what has been held by the Division Bench in the case of Birendra Kumar Sinha, with which we concur, the view of the single judge cannot be faulted. 11. Letters Patent Appeal does not deserve to be admitted. It is dismissed in limine, accordingly. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil