IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3911 of 2010 1. BIRENDRA PRASAD S/O SRI SHIVA PRASAD R/O PRASAD APPTT. FLAT NO.- 201, BLOCK B, MOH.- HANUMAN NAGAR, P.S.- PATRAKARNAGAR, TOWN AND DISTT.- PATNA 2. GAURI SHANKAR RAM S/O SRI SHEO NATH RAM R/O RAJAPUR, EMKA, P.S.- EKMA, DISTT.- SARAN 3. YUGAL KISHORE MISHRA S/O SRI CHITTARANJAN MISHRA R/O VILL.- BANDANWAR, P.S.- PATHARGAMA, DISTT.- GODDA 4. SHILA NATH PANDEY S/O SRI RAM NATH PANDEY R/O ROAD NO.-1, BUDDHA NAGAR, CHIRAIYATAND, P.S.- KANKERBAGH, DISTT.- PATNA 5. TAPAN KUMAR DAS S/O LATE CHITTARANJAN DAS VILL. AND POST AND P.S.- NOORSARAI, DISTT.- NALANDA 6. MD. PARWAIZ ALAM S/O MD, HASHIM ANSARI R/O VILL. AND P.S.- MADHEPUR, DISTT.- MADHUBANI 7. SHIVAJI PRASAD GUPTA S/O LATE RADHA KRISHNA PRASAD GUPTA R/O BARIAHI BAZAR, P.S.- BANGAON, DISTT.- SAHARSA 8. DINESH CHANDRA RAM S/O LATE MURLI RAM R/O VILL.- PALAUNJIA, P.S.- BIRNI, DISTT.- GIRIDIH Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY WATER RESOURCES DEPTT. SINCHAI BHAWAN, THIRD SECRETARIAT, PATNA 2. THE UNDER SECRETARY WATER RESOURCES DEPTT. SINCHAI BHAWAN, THIRD SECRETARIAT, PATNA 3. THE PRINCIPAL SECRETARY CUM COMMISSIONER FINANCE DEPTT. GOVT. OF BIHAR, MAIN SECRETARIAT, PATNA ----------- For the Petitioners:- Mr. Shivendra Kishore, Adv. For the State:- Mr. Roy Shivaje Nath, AAG-4 Mr. Roy Saurav Nath AC to AAG-4 ----------- 2. 01.10.2010 Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by order dated 22.1.2008. It directs them to furnish necessary application in the prescribed format for the Contributory Pension Fund Scheme failing which payment of salary shall be stopped. The petitioners were applicants for the 2 post of Bill Clerk in the Water Resources Department under Advertisement No. 4 of 1988 published by the erstwhile Bihar State Sub-ordinate Service Selection Board (hereinafter referred to as the „Selection Board‟). While the recruitment process was still pending, the selection Board was substituted by the Bihar Public Service Commission (hereinafter referred to as the „Commission‟). The petitioners competed in the written examination and interview leading to recommendations in their favour by the Commission in or about 11.3.2000. Appointments being still denied, they approached this Court in C.W.J.C. Nos. 12036 of 2000 and 826 of 2001. This Court on 6.10.2004 noticed the stand of the State with regard to non-availability of vacancies. When the petitioners questioned the stand and demonstrated vacancies, the State took the defence that vacancies had been filled by compassionate appointment. The petitioners again questioned that advertised vacancies could not be filled up by compassionate appointees. The Court observed that “this stand pointed out by the respondents raises doubt about their bona fide”. Disposing the matter on 11.7.2005 it was noticed that examinations were held in the year 1999, result published on 30.1.2000 3 and recommendations made on 11.3.2000. Though the State possess power not to make appointments on recommendations made by the B.P.S.C. but that it was not an arbitrary power. It had to be exercised on reasonable and cogent grounds. The Court held as follows:- “The reason assigned in the counter affidavit that recommendation took 12 years and during the period the vacancies were filled up by appointment on compassionate ground is fallacious one as the appointment on compassionate ground is made only in case of death of employees in harness i.e. after the death the post stands vacant and in his place the appointment is made. Therefore, it cannot be said that the post existing for which advertisement was published has been filled up by appointment on compassionate ground. So far as the delay of 12 years in recommending the names of the successful candidates is concerned, it is not a fraud of the petitioners/successful candidates, it happens only because of dissolution of the Bihar State Sub-ordinate Services Selection Board. Moreover, the delay as indicated above, is not at the instance of the petitioners. It is on the part of the respondents. The ground as stated above, for not appointing the petitioners by the respondents it cannot be said to be reasonable and cogent and has no leg to stand.” Directions were given to make appointment within a period of four months from the date of receipt/production of a copy of this order. Aggrieved by the order, the respondent 4 State preferred L.P.A. Nos. 1284 of 2005 and 1291 of 2005. The appeals were dismissed on 16.11.2006. The petitioners preferred M.J.C. No. 1829 of 2006 when appointment was finally made on 4.5.2007 on a pay scale lower than that contained in the advertisement. On 11.5.2007 in the contempt proceeding this Court permitted the petitioners to join without prejudice to their contentions with regard to the pay scale. Ultimately on 26.11.2007, this Court directed the grant of pay scale of Rs. 4000-6000 as per the advertisement which now has been done on 28.12.2007. Learned counsel for the petitioners contended that they were applicants under an advertisement of 1988. This Court in C.W.J.C. Nos. 12036 of 2000 and 826 of 2001 has already noticed that the delay in consideration of their claims for appointment was attributable to the respondents alone. The defence urged by the respondents was fallacious and mandamus was issued to appoint. The challenge to the same in appeal has been rejected. That confirms the denial of appointment in time without valid and cogent reasons. It was next urged that the petitioners shall therefore be deemed to be appointees in accordance with the 5 recommendation made on 11.3.2000 long before coming into force of the New Contributory Pension Scheme from 1.9.2005 (hereinafter referred to as the „CPF Scheme‟). The CPF scheme was to the disadvantage of the petitioners as it deprived them of regular pension, family pension etc. and only provides the benefit of a Contributory Provident Fund Scheme after retirement based on specified deduction from their salary as a corpus along with contribution made by the employer. The submission therefore was that pension being a condition of service, the petitioners are required to be treated at par with the conditions of service as existed on the date of the advertisement. Learned counsel relied upon certain observation of this Court in C.W.J.C. No. 6183 of 2008 and analogous cases affirmed in L.P.A. No. 787 of 2009 and analogous cases in turn confirmed in SLP Civil No. 8663 of 2010. Counsel for the State urged that if the petitioners had been recommended by the Commission for appointment that vests no right in them to claim a deemed appointment prior to 1.9.2005 if the actual appointment was subsequent to that date. It was next submitted that no 6 prejudice has been caused to the petitioners as they would still be entitled to benefits after superannuation though in a different form. The last submission was that this Court passed final orders on 11.7.2005 in the writ petition to provide appointment within four months. During the pendency of the period of four months, the new CPF scheme has come into force on 1.9.2005 and therefore the petitioners shall necessarily be governed by the latter scheme in terms of the order of the Court itself. Reliance was placed on a judgment of the Supreme Court in AIR 1994 SC 1722 (Ram Janam Singh Vs. State of Uttar Pradesh & Ors.) at Paragraph-10. It was submitted that the date of entry into a particular service was considered to be the most safe rule to follow and that seniority has been determined with reference to the date of entry in service. Further reliance was placed on a Bench decision of this Court in 2005(2) PLJR 436 (Jagdeo Ram Vs. The State of Bihar & Ors.) wherein directions had been given that the appointment made belatedly in terms of the directions of this Court be treated back in time reasonably by a period of one month only. The order of this Court in C.W.J.C. No. 7 6183 of 2008 has no application to the facts of the case as that related to persons who were in service and the claim was based on continuity. At the very outset learned counsel for the petitioner submitted that no relief was being sought in the writ petition seeking retrospective seniority or retrospective fixation of the date of appointment etc. The petitioners were seeking limited relief of being declared as deemed appointee prior to 1.9.2005 for the limited purpose of availing benefits of pension and not to be classified as an appointee liable to the C.P.F. Scheme, only. There can be no doubt that pension is a condition of service. Framing of the pension scheme is undoubtedly the privilege of the employer. If a pension scheme exists and the employer publishes an advertisement, an applicant who responds to the same proceeds on a basic premise and assurances of certain conditions of service explicit in the advertisement and others implicit as may be applicable to Government servants generally. When he enters service he takes into consideration these implicit conditions also as superannuation is a foregone conclusion on the date of entry into service itself. Therefore it can easily he held that when the 8 advertisement was published in 1988 and in response to which the petitioners applied, they were sanguine on their implicit understanding of a pensionary service being one of the conditions of service. This Court need not be detained any further from the earlier orders of this Court in C.W.J.C. No. 12036 of 2000 and 826 of 2001 except to notice the specific findings of this Court that the actions of the respondents was not bonafide in denying appointment to the petitioners after selection and recommendation, and availability of vacancies. This Court explicitly held that the fault lay with the respondents alone and not with the petitioners. At this stage to hold that merely because the actual appointment, after a protracted legal battle enured to the petitioners subsequent to 1.9.2005 it shall be sufficient justification to hold that they shall come under the CPF scheme, shall essentially be giving an advantage to the respondents for their own lapses. A finding has already been arrived at by this Court affirmed in LPA that withholding of the appointment on the recommendation dated 11.3.2000 was arbitrary, unjustified and not for any 9 cogent reasons. The petitioners came to this Court in due time in the years 2000-01. This Court holds that in view of their ultimate success, for the purposes of the present controversy, the petitioners shall stand relegated by fixation of law to their status as on the date that they preferred their respective writ applications. That, to this Court, shall be the crucial date whether the petitioners are entitled to the existing pension scheme or the C.P.F. scheme. Undoubtedly, if they are deemed to be appointee of the year 2000-01, that is much prior to 1.9.2005, the date the contributory pension fund scheme has been introduced they are eligible for pensionable service. The present is not a case simplicitor of a claim based on mere recommendation and empanelment for appointment. It goes much beyond that on facts and gives an indefeasible right to the petitioners in the nature of the present claim specially when the defence of the respondents have been found to be totally unjustified. C.W.J.C. No. 6183 of 2008 and analogous cases relied upon by the petitioners, related to appointment made on daily wage, induction into the work charge establishment, 10 reversion to daily wage states and subsequently final absorption on the orders of this Court after examination by a committee constituted for the purposes. To that extent it may be said that it was a case related to persons who were in service in one status or the other giving a continuity of their employment. But that alone shall not be sufficient to distinguish it. The crucial issue decided therein was that they were not fresh appointees but the appointment would be traced back to the original appointment on daily wages. This Court then observed as follows:- “If a citizen is expected to act with promptitude, the State is also expected to act with promptitude. A person who gets an employment in the Government builds up his whole life on basis of the terms of his employment, balances his life, makes his investments etc. If the State wishes to interfere, the State is expected to act promptly. It cannot be permitted to wake up at its own leisure. Declare a citizen to be an illegal entrant into the government arena and then in stead of throwing him out, urging compassion to bring him back into government service, imposing conditions that as the lord and master the Government was bestowing a grace on him and he had no jurisdiction to question the grace. No material has been brought on record in the counter affidavit as to why it took long years from 1988 to 2002 to discover the alleged illegality when all along the petitioners were in service and the officers who scrutinized their records were also in the office 11 discharging duties”. In the case of Ram Janam Singh (Supra) relied upon by the respondents the issue related to inter se seniority. In that context it was held that the date of entry into service was crucial. In the case of Jagdeo Ram (Supra) the petitioner was appointed after an order of the Court. He was subsequently reverted. In that context it was held that his date of appointment shall be from approximately one month of the order of the Court. The Court in view of the aforesaid discussion arrives at an unhesitating conclusion that the delay in the process of appointment commenced in 1988 is attributable to the respondents alone. The petitioners came to this Court in time. This Court held the action of the respondents to be arbitrary and unjustified giving directions for appointment. Any such appointment has therefore to be deemed from the date that the appointment should have been provided but was not done. The petitioners therefore, for the purpose of the present controversy, cannot be held to be persons appointed afresh after coming into force of the C.P.F. scheme on 1.9.2005. By a fiction of law for the purpose of the present controversy, they are deemed to be 12 appointed prior to 1.9.2005. Naturally they are entitled to the benefits of the then existing pension scheme. This Court does not subscribe to the contention of the respondents that the C.P.F. scheme does not prejudice the petitioners in any manner as they continued to receive benefit even after superannuation. Counsel for the petitioners has rightly pointed out that it deprives them of a regular pension, family pension and on the contrary visits them with a scheme where a corpus is created on a deduction from their salary measured by a contribution from the employee also. This Court therefore holds that the petitioners are entitled to be treated as persons eligible to pensionable service under the service rules as existing on the date that the recommendations came to be made in their favour and they are not required to comply with the C.P.F. scheme which comes into effect from 1.9.2005. The communication dated 22.1.2008 is therefore held to be unsustainable against the petitioners and they are not required to submit any information in the prescribed manner for opening of a C.P.F. scheme account. The order dated 22.1.2008 is therefore 13 quashed. Any arrears of salary from the actual date of appointment if withheld for that reason is required to be paid within a maximum period of two months from the date of receipt/production of a copy of this order. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)