IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5050 of 2005 ***** 1. Bihar Rajya Nibandhan Bibhag Arajpatrit Karamchari Sangh, having its head office at Gaya through its General Secretary, Kapildeo Prasad Sinha. 2. Ram Shankar Prasad Singh, son of Shri Harshit Narayan Singh, resident of village & P.O. Meghaul, P.S.Khodawanpur, District Begusarai, President of the Association. 3. Nand Kishore Prasad, son of Late Ram Narayan Prasad, resident of village & P.O. Raghunandanpur, P.S. Bhagwanpur, District Begusarai, Joint Secretary of the Association. 4. Kapildeo Prasad Sinha, son of Late Paras Nath Sinha, resident of Mohalla Janakpur, P.S. Gaya Mufassil, District Gaya, at present posted at District Sub-Registration Office, Gaya. …. …. Petitioners Versus 1. The State of Bihar. 2. Shri Vijay Prakash, Inspector General of Registration, Bihar, Patna. 3. Shri Saryug Prasad Prabhakar, A.I.G., Registration, Bihar, Patna. 4. Shri R.K.Verma, Accountant General, Bihar, Patna. …. …. Respondents ----------- For the Petitioners : Mr. Y.V.Giri, Senior Advocate Mr. Raju Giri, Advocate For the State : Mr. Harendra Prasad Singh, G.A.-VI Dr. Kumar Amitesh, Advocate For the Accountant General : Mr. Raj Nandan Prasad, Advocate ------------ 11. 8.4.2009. Petitioner No.1 is an Association of Extra Clerk working in the Registration Department of the State of Bihar over various time period. Petitioner no. 2, 3 and 4 are the members of the Association. They had occasion to move this High Court earlier in C.W.J.C. No. 5866 of 2000. They wanted a mandamus upon the respondent State authorities to issue a general direction to account the period of service span by the Extra Clerks as employees of the Registration office in the State of Bihar for the purposes of computation of full pension. The said writ application was filed on the basis of a judgment dated 23rd May, 1995 passed in C.W.J.C. No. 11980 of 1993, which was the case of Upendra Prasad v. State of Bihar & Ors. 1995(2) PLJR 822. - 2 - C.W.J.C. No. 5866 of 2000 was heard and vide order dated 28.11.2001 the writ application was allowed with a direction that in view of the settled principles period of service rendered by members of the Association of Extra Clerks serving in the Registration Department across the State should be construed as qualifying service during the period span as the Extra Clerk for the purpose of grant of pension and pensionary benefits. When despite the said order of the High Court the respondents did not take any action they filed a contempt application, namely, M.J.C. 2323 of 2002 for willful and deliberate disobedience of the order contained in Annexure-1. In the contempt application in their second show-cause they brought a memo No.2378 dated 22.7.2003 on record which is Annexure-4 to the writ application. By virtue of this annexure certain terms and conditions or guidelines came to be laid down by the State of Bihar in matter of settlement of pension claim of such employees. The High Court taking the same into consideration allowed the petitioners to convert the contempt application into a regular writ application and this is how the present writ application has been listed for decision before this Court. The submission on behalf of the petitioners is that there is a deliberate mischief having been played by the Finance Department in the circular dated 22.7.2003 (Annexure-4). They submit that a mischief has been incorporated in Clause (5) where they have laid down that an Extra Clerk must render 240 days of service in a calendar year before their regular appointment for deriving the benefit of the period of service which - 3 - was rendered by them as an Extra Clerk. It is submitted that this clause has been intentionally inserted to overreach the law laid down in the case of Upendra Prasad v. State of Bihar (supra) as well as the decision of the High Court in Annexure-1. They further urge that the requirement of 240 days of work is misplaced because the petitioners are not seeking regularization as a industrial worker under the Industrial Disputes Act. The very nature of their work as an Extra Clerk is such that they are present on each and every working day at the Registration Office but the work assigned to them is dependent on the availability and assignment by the concerned Registry Office. They further submit that even according to the Manual and the Rules relating to the Extra Clerks laid down in the State of Bihar with special reference to Rule 26(g) of the Bihar Registration Manual, the condition of 240 days is misplaced and incongruous. In fact it is also submitted that by introduction of this clause in Annexure-4, it has the effect of taking away the benefit because there is no way the factum of continuous service can be verified since in terms of appendix IV-B of Bihar Registration Manual these records are not preserved for more than three years. It is also the stand of the petitioners that this aspect was never urged or pleaded at any point of time when the two writ applications came to be decided earlier. Petitioners have also pleaded that by virtue of the earlier decision many similarly situated persons have walked away with the benefit of pension but by virtue of Annexure-4 dated 22.7.2003 a class amongst a class is sought to be created. Learned counsel representing the respondent State have - 4 - filed their counter affidavit and have tried to justify the clause of 240 days. They state that no doubt in the Registration Department Extra Clerks were employed on remuneration basis or salary for copying work but from the year 1981 they came to be appointed on the post of temporary or permanent Clerks as and when the vacancies arose. They are not Government servants and are engaged in the copying work only when the permanent Clerks are not able to cope with the work load or where there are arrears. Their stand on the restriction of 240 days has been explained in paragraph 11 of the counter affidavit they state that the Government has adopted the principle of no work no pay on the ground that by implementing the benefit of pension for the past service even those Extra Clerks would have got benefit who could have worked only for a few days in a year and not continuously. The decision of the respondents taken by the Finance department is in right perspective and in the interest of the State. The court has difficulty in accepting the stand of the respondents moreso when by virtue of a detailed decision the High Court in the case of Upendra Prasad (supra) categorically held that the past service as Extra Clerks has to be accounted for in matters of grant of pension as a period for qualifying Government service. This decision of Upendra Prasad (supra) was never challenged and the matter came to rest. Based on the same reasoning Annexure-1 order was passed. If the respondents are now allowed by virtue of Annexure-4 to incorporate the condition of 240 days then no doubt it has the effect of nullifying the judgment rendered on the issue and the subject. Further, the petitioners - 5 - are not seeking a kind of regularization that the principle of Industrial Disputes Act can be incorporated in matter of grant of benefit of pension and for counting the period of service rendered by them as Extra Clerks. The logic and the reasoning assigned by the respondents for incorporation of such a clause defies the logic and it is sure an effort to not only to anal but to overreach the decision rendered by the High Court on the subject. It is also a fact that many persons by virtue of the order passed earlier right from 1995 have been able to get the benefit of pension by treating their past service as Extra Clerks. If the respondents are allowed to now take decision based on Anenxure-4 from 22.7.2003 a kind of class within a class would be created which would be in violation of Article 14 of the Constitution of India. In that view of the matter, the Court has no hesitation in quashing that part of the clause contained in Annexure-4 where an Extra Clerk will have to establish that he has rendered 240 days of service before this regular appointment on the next higher post. The writ application is allowed. The respondents are directed to consider the period the petitioner’s members have rendered service as Extra Clerk in the State of Bihar in matter of computation of pension. The writ application stands allowed. Pawan/- (Ajay Kumar Tripathi, J.)