CIVIL WRIT JURISDICTION CASE No.11824 OF 2009 In the matter of an application under Article 226 of the constitution of India BASUDEO PRASAD, AGED ABOUT 72 YEARS, SON OF LATE SRI RAM DAS RAI, RESIDENT OF MOHALLA - SOUTH MANDIRI, (KATH KA POOL), P.S. BUDHA COLONY, DISTRICT - PATNA Versus 1. THE STATE OF BIHAR THROUGH SPECIAL SECRETARY-CUM COMMISSIONER, DEPARTMENT OF INDUSTRY, GOVERNMENT OF BIHAR, NEW SECRETARIATE BUILDING, BAILEY ROAD, PATNA. 2. DIRECTOR OF INDUSTRY, GOVERNMENT OF BIHAR, PATNA. 3. DY. DIRECTOR, DEPARTMENT OF INDUSTRY, PATNA. 4. JOINT SECRETARY INDUSTRY DEPARTMENT, PATNA ----------- For The Petitioner : Mr. ASHOK KUMAR KESHARI, Advocate For The State : Standing Counsel No. 17 P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA SHAILESH KR. SINHA, J. The petitioner, on being aggrieved for rejecting his request for grant of pension upon his superannuation on 31st of December 1995 as Junior Manager from the Darbhanga Industrial Area Development Authority, Darbhanga vide letter no. 4420 dated 06.11.2008 followed by letter no. 2620 dated 14.07.2009 (Annexure-13), whereby Deputy Director of Industries, Government of Bihar informed the petitioner of the above decision, has filed this writ application praying for quashing of the above orders. 2 The short facts are that the petitioner claims to be appointed by the State Government as Radio Mechanic under the Public Relation Department, Government of Bihar, Patna and posted pursuant to the order dated 03.01.1957 vide Annexure-1. Subsequently, the petitioner pursuant to an advertisement applied and was appointed on the post of Supervisor on temporary basis by the Department of Industries Government of Bihar in the Industrial Estate Patna with the initial pay of Rs. 125/- per month as per Memo No. 4866 dated 11.04.1961 vide Annexure-3. The petitioner served as per his said appointment from 18.04.1961 to 31.01.1962. Thereafter, petitioner joined service under the Bihar Small Scale Industries Corporation Ltd. , Patna from 01.02.1961 to 31.01.1979 and later served under the Darbhanga Industrial Development Authority from 01.01.1979 to 31.12.1995 the date of his retirement. After retirement, petitioner claimed for grant of pension vide his representation dated 20.09.1996, as contained in Annexure-6, which upon consideration, was rejected and the application filed by the petitioner for receiving the pension was returned back by the Additional Director , Government of Bihar, Patna as per Memo No. 9201 dated 20.12.1996 vide Annexure-A to the counter affidavit filed on behalf of the respondent nos. 1 & 2 . Thereafter, petitioner received his retiral dues including 3 the contributory provident funds (CPF) for the period he worked with the Bihar State Industrial Area Development Authority. The petitioner disputed the quantum of the contributory provident fund challenged as such, the same through a writ petition in this court vide C.W.J.C. No. 1218 of 2000 alleging that correct deductions by way of his contribution towards the P.F. were not made from his salary which however, was denied by the Darbhanga Industrial Area Development Authority, Darbhanga, from where the petitioner had retired. The court upon considering the matter disposed of the case by order dated 05.01.2004 with the following observations :- “ In view of the clear denial in the supplementary counter affidavit no relief can be granted to the petitioner in this writ proceeding. In case the petitioner is left out with any grievance, he may seek his remedy before the Authorities under the Act.” The petitioner assailed the above order by filing an appeal vide L.P.A. No. 106 of 2004, which was dismissed by order dated 09.02.2004, vide Annexure-8. The petitioner again agitated his claim for pension taking shelter under the orders dated 07.03.2005 4 passed in C.W.J.C. No. 13821 of 2004 in the case of an other employee namely Upendra Thakur Versus State of Bihar and also the order dated 12.02.2004 passed in L.P.A. No. 154 of 2004 in the case of Kamal Bansh Narain Singh Versus State of Bihar and not interfered by the Apex Court in Civil Appeal No. 1684 of 2005 along with some other cases vide order dated 02.08.2007 (Annexure- 16). The Respondent-State Government, however, again rejected the claim for pension as per the impugned order as per letter no. 4420 dated 16.11.2008 as contained in Annexure- 12 followed by letter no. 2620 dated 14.07.2009 (Annexure- 13) whereby the petitioner was informed that Government Rule requires that in order to get pension the employees must serve a minimum period of ten years in the service of government as such, he is not entitled to claim pension and it was also informed that the order of the Apex Court as referred by the petitioner, is not applicable in the facts of his case. The petitioner as such, has now assailed the above said orders as contained in Annexure-12 and 13 and prayed for their quashing. A counter affidavit has been filed on behalf of respondent – State of Bihar that the claim for pension of the petitioner was considered and rejected long ago 5 which was communicated as per aforesaid memo No. 9201 dated 20.12.1996 as contained in Annexure- A, assigning the reason to the effect that for want of requisite number 10 years of service with State Government as required under the Rules for sanction of pension. The claim for pension as such, is declined. The said order was accepted by the petitioner as he did not challenge the order. Petitioner, however, agitated his grievance against the Darbhanga Industrial Area Development Authority, Darbhanga with regard to the amount of contributory provident funds paid to him through writ petition vide C.W.J.C. No. 1218 of 2000 which was disposed of by order dated 05.01.2004 (Annexure-7) with observation that petitioner is not entitled to any relief as claimed in the said writ petition. The order was affirmed on appeal vide L.P.A. No. 154 of 2004 (Annexure-9). It was also stated to the effect that the case of Upendra Thakur as also the case of Kamal Bansh Narayan Singh on which the petitioner base his claim did not apply to the facts of the present case as stated in paragraphs 33 and 34 of the counter affidavit :- “Paragraph – 33 :- That with regard to the statement made in paragraph no. 30 of the writ petition, it is stated that 6 the case of Upendra Thakur is clearly distinguishable from the case of present writ petitioner namely Basudeo Prasad as Sri Thakur was permanent employee and has served the Government for more than ten years, whereas the services of the present petitioner is for few months and purely temporary. Paragraph – 34 -: That with regard to the statements made in paragraph nos. 31 and 32 of the writ petition, it is stated that the case of Kamalbansh Narain Singh is also distinguishable from the case of Basudeo Prasad as Kamal Bansh Narain Singh has served for more than ten years and before his services were engaged/transferred to authority where as the present petitioner has served for few months.” Besides the above, it has also been stated that as per the Circular No. 1950 dated 18.02.1974 (Annexure-B) issued by Department of Finance, government of Bihar it is stated that only such employees who have served in the Government of Bihar for not less than 10 years and later on merge/transfer to the Private Enterprises/ Undertaking are only 7 entitled to pension. Petitioner since was not a permanent employee of the government nor had completed 10 years of service with the State Government is not entitled to pension. In the rejoinder filed by the petitioner, it has been stated to the effect that petitioner received the post retiral dues on being misguided by the Officers of the State Government and since there appeared some mistake in calculating of the amount of contributory provident fund, the writ petition vide C.W.J.C. No. 1218 of 2000 was filed and disposed of by order dated 05.01.2004 (Annexure-7). Petitioner claimed himself to be a permanent government servant as he was allowed two time bound promotions by the Industrial Area Development Authority, Darbhanga and therefore, petitioner claimed that entire period of his service rendered by him in the Government of Bihar as well as Corporation/Authority is liable to be counted for the purpose of sanctioning the pension. Mr. Ashok Kumar Keshri, learned counsel appearing on behalf of the petitioner submits that since petitioner was allowed first and second time bound promotions while serving under Industrial Area Development Authority, Darbhanga, he should be deemed to be a government employee. Even though, he 8 was appointed initially by the State Government as temporary government servant and thereafter, the period rendered by him in the State Government as well as the Corporation/Authority should be counted which is more than 39 years. It has also been submitted that petitioner is prepared to refund back the share of the employer’s contribution towards provident fund dues to enable sanction of pension as done in the case of Kamal Vansh Narain Singh as per letter no. 1627 dated 27.05.2000 (Annexure- 19). Learned counsel however, is not in a position to controvert the fact that the aforesaid two employees namely Upendra Thakur and Kamal bansh Narayan Singh had served the State Government for more than 10 years whereas the petitioner did not serve the State Government for said period of 10 years. Mr. Keshri, however, submits that petitioner did not raise the question of pension in his previous writ application as the petitioner was misguided by officers of the Industries Department of Government as such had accepted that he is not entitled to pension and therefore, did not raise this issue in the earlier writ petition and for the same reason, he did not assail the order dated 20.12.1996 (Annexure-A) whereby his request for grant of pension was rejected. Learned counsel for the petitioner besides the case of 9 the aforesaid two persons, relied upon the decision of the case reported in PLJR 2009(3) page 300, PLJR 2009(3) page 471 and PLJR 2009 (4) page 226. Learned counsel for the State on the other hand submits that the petitioner retired form Darbhanga Industrial Area Development Authority, Darbhanga on 31.12.1995 and thereafter, requested for payment of retiral dues including pension. Petitioner was paid the retiral dues including the contributory provident fund since petitioner was not eligible for pension. The claim of the petitioner for pension upon consideration was rejected and communicated to the petitioner as per memo no. 9201 dated 20.12.1996 vide Annexure- A to the counter affidavit, petitioner did not assail the said order till date. More so, in the earlier writ petition filed by the petitioner which was disposed of 05.01.2004 vide Annexure- 5 did not raise the issue of pension, but agitated his grievance with regard to quantum of contributory provident fund. Even the said grievance of the petitioner was found not correct and as such, this court disposed of the case without granting any relief to the petitioner as per the aforesaid order with observation however, that for left out grievance if any, petitioner may seek his remedy before the concerned 10 authorities under the Act i.e. relevant P.F. Act. Since there remained no left out grievance petitioner did not pursue further. Petitioner after long time turned around and started claiming parity in the matter of grant of pension with certain other employees on whose petition orders were passed by this court and on appeal by State, the Apex Court did not interfere. The basic facts of the case of the concerned employees and the writ petitioner are different for the reason that the aforesaid employees were the permanent government employees and had served the State Government for more than 10 years before they served in the concerned Corporation/Authority whereas petitioner was a temporary employee and had also not served the State Government for a period of 10 years as required under the rules. In this connection, learned counsel placed reliance on a decision of this court in the case of Birendra Kumar Singh Vs. The State of Bihar & Ors. reported in 2001(1) PLJR Page 630 (DB) in which virtually on similar basic facts similar prayer on consideration was rejected. Upon hearing rival submissions of the parties and considering their respective pleadings/affidavit, the admitted fact is that the petitioner did not serve in the State Government for a 11 period of 10 years . It is not in dispute that the petitioner was appointed on Radio Mechanic by the Public Relation Department, Government of Bihar as per order no. 7 dated 3rd of January 1957 (Annexure-1). Thereafter against a new advertisement issued by the Department of Industries, Govt. of Bihar petitioner was temporarily appointed as Supervisor and posted in Industrial Estate Patna as per order no. 4866 dated 11.04.1961 . Thereafter, petitioner joined the service of Bihar State Small Scale Industries Corporation from 01.02.1962 to 01.02.1979 subsequently joined the service of Industrial Area Development Authority, Darbhanga from 01.02.1979 to 31.12.1995. The claim of the petitioner that since he got first and second time promotions by the Industrial Area Development Authority, Darbhanga while he was under the service of State Authority, the petitioner will be deemed to be a permanent Government Servant. However, petitioner could not support by law/rule in favour of such proposition. The submission of the petitioner are ill founded and devoid of any merit. The other submission of the petitioner that on being misguided by the officers of the Industries Department of the State Government that he is not entitled to pension therefore, petitioner did not 12 challenge the order rejecting his request for pension as per order dated 20.12.1996, was noticed only to be rejected. The earlier writ petition filed by him vide C.W.J.C. No. 1218 of 2000, petitioner’s challenge was limited with regard to the quantum of contributory provident fund paid to the petitioner. Petitioner realizing that he is not eligible for pension under the rules for not serving the State Government for a minimum period of ten years did not agitate his claim for pension even in the said writ petition which was disposed of by order dated 05.01.2004 (Annexure-7) without granting any relief and affirmed by the Appellate Court as per order dated 09.02.2004 passed in L.P.A. No. 106 of 2004 vide Annexure-8. Petitioner tried to justify the filing of the present writ application and as such submitted that after passing order in the case of Upendra Thakur and Kamal Bansh Narayan Singh as referred to the above and also taking into consideration the decision of the government permitting refund of employers’ share of the contribution in the P.F. account of Kamal Bansh Narain Singh so as to sanction the pension to him, the petitioner started his claim for pension afresh has no valid justification. It has already taken notice of the fact that the distinguishing facts of the case of Upendra 13 Thakur and Kamal Bansh Narain Singh vis-à-vis petitioner do not stand on the same platform. The aforesaid two employees had served the State Government for a period of more than ten years, thereafter, they had served under the Corporation/ Authorities whereas the petitioner did not serve the State Government for a period of ten years before leaving the service of State Government and was also not a permanent Government Servant like the aforesaid two employees . The claim of the petitioner claiming parity with the above two employees in making a fresh claim for pension was rightly rejected by the orders under challenge. The decisions relied in 2009(3) PLJR Page 300 in the case of Md. Leiaquat @ Leiaquat Ali Versus State of Bihar, 2009(3) PLJR, Page 471 in the case of Ramashray Singh Vs. State of Bihar and 2009(4) PLJR 226 in the case of Bihar Rajya Nibhandan Bibhag Arajpatrit Karamchari Sangh Vs. State of Bihar relied by the petitioner are not applicable in the facts of the present case. The material relevant distinguishable facts in all the above cases are that the employees concerned had served the State Government for the total period of more than ten years and were transferred by the order of the State Government to serve in the Corporation as such, they remained the 14 Government employee whereas the petitioner of the present case did not serve for the minimum period of ten years with the government so as to count the service rendered in the Corporation could be counted for the purpose of pension and that too in case the State Government would had transfer the service of petitioner vide State Government decision contained in memo No. Pen1044/70/1950 dated 18.02.1974 under Rule 134 of Bihar Pension Rule, the extract of which annexed as Annexure- B to the Counter Affidavit. Therefore, the decision relied upon is of no help to the petitioner Notwithstanding the fact, petitioner did not challenge the very initial order for rejecting his pension on 20.12.1996 (Annexure- A) and also did not agitate his claim for pension in his previous writ petition which was disposed of without granting any relief and later on affirmed by the Appellate Court in L.P.A. No. 106 of 2004 disposed of by order dated 09.02.2004 (Annesure- 8). The decisions relied by the petitioner are not applicable in the facts of the present case for having the basic distinguish facts as noticed above whereas the decision in the case of Birendra Kumar Singh Vs. The State of Bihar & Ors. (Supra) as relied by State are very much similar to the facts of the present case in 15 which similar prayer for claiming pension was rejected. In view of the discussions made above and considering the entire facts and circumstances of the case, I do not find any merit in this writ application, the same is accordingly dismissed. No cost. Patna High Court Date 16th March 2010 AFR/Jagdish. ( Shailesh Kumar Sinha, J.)