IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1836 of 2006 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 Colongy, P.S. Digha, District-Patna -------------- Petitioner Versus 1. THE STATE OF BIHAR , through the Industrial Development Commissioner-cum-Secretary, Department of Industry, Bihar,Patna 2. The Director of Industries, Bihar,Patna 3. The Accountant General, Bihar,Patna ---------------- Respondents ----------- For the petitioner: Mr. Kripa Nand Jha, Advocate For the State : Mr. Girjesh Kumar, AC to AAG-3 For Respondent no.3: Mr. Sudhir Singh, Advocate. ----------- 07 17-12-2009 Heard Mr. Kripa Nand Jha, learned counsel appearing on behalf of the petitioner, Mr. Girjesh Kumar, learned assisting counsel to AAG-3 representing the State and its authorities and learned counsel appearing for the Accountant General. The brief fact of the case is that the petitioner was appointed as Planning –cum-Survey Officer in the Rural Industry Project of the Central Government on 1.9.1969 and was promoted to the post of Project Officer under the same project with effect from 24.3.1975. It is contended that under a policy decision taken by the State Government to merge the projects being operated under the District - 2 - Industry Centre in the year 1978, the project under which this petitioner was working i.e. Rural Industry Project, Darbhanga, also came to be merged with the Industry Department. The petitioner in support of his contention relies upon a letter of the Industry Department dated 28.6.1978, placed at Annexure-1 of the writ petition. Learned counsel submits that pursuant to such policy decision, the terms and conditions of service was set out and under which the service rendered by the employees under the Rural Industry Project was to be counted for consideration of their case for absorption under the State Government in its Industry Department. In support of this contention, learned counsel relies upon a file noting dated 11.5.1977 placed at Annexure-2 of the writ petition. It is submitted that pursuant to such decision, the petitioner serving on the post of Project Officer in the Rural Industry Project, Darbhanga, was initially sent on deputation/transferred on the post of Manager (Marketing) under the Industry Department vide Memo No.8726 dated 25.4.1978 ( Annexure-3) requiring to give his joining by 1.5.1978, issued under the signature of the Secretary to the - 3 - Government of Bihar in its Industry Department. Following the said direction, another letter came to be issued bearing no.896 dated 27.4.1978(Annexure-4) issued under the signature of the Dy.Director, Industries, Muzaffarpur directing the petitioner to hand over his charge as a Project Officer in his earlier establishment and for taking over the charge at his new place of posting under the Industry Department. Learned counsel submits that as he was being considered for appointment against the gazetted post, hence the approval of the B.P.S.C. was required which was granted under letter dated 20.8.1981( Annexure-8) issued by the Special Officer, B.P.S. C. approving the absorption of the petitioner in government service. Learned counsel submits that the said order was followed by a resolution dated 25.11.1983, placed at Annexure-9 , whereby it was resolved that the petitioner was absorbed in government service with effect from 1.5.1978, i.e. the date, on which the petitioner assumed charge under the Industry Department , Government of Bihar. Learned counsel appearing on behalf of the petitioner submits that since after his absorption in - 4 - government service, he was granted promotion(s) and he superannuated with effect from 31.3.1991 while serving on the post of Dy.Director, Industry Department. It is submitted that although the respondent authorities of the State Government took into consideration the period of service rendered by this petitioner with effect from 1.5.1978 to 31.3.1991 i.e. for about 13 years for the purpose of calculation of post retiral benefits but they arbitrarily ignored the services rendered by this petitioner for the period from 1.9.1969 to 30.4.1978 i.e. the period during which the petitioner was under employment of the Rural Industry Project of the Central Government. Learned counsel submits that the action of the authorities in ignoring the said period is patently arbitrary and in the teeth of the relevant rules and the judicial pronouncement. Learned counsel submits that even though for the purpose of absorption, pay protection, promotion etc., the State authorities took into consideration the services rendered by this petitioner under the said project but the same has been ignored in the matter of calculation of his post retiral benefits. Learned counsel submits that if the past service - 5 - rendered by the petitioner has been considered by the authorities for the purpose of grant of pay protection, promotion etc. the same should also have been counted for the purpose of calculation of his post retiral benefits. Learned counsel refers to Rules 58 to 61 of the Bihar Pension Rules and submits that the parameters set out therein stands fully satisfied in the case of the petitioner inasmuch as he was under the employment of the Government and was being paid by the Government and even while serving under the project, he got absorbed in the State Government service and thus in terms of the decision of the State Government, provided under Rule-61 , he is entitled for calculation of his past services. Learned counsel refers to a Division Bench Judgment of this Court, reported in 2007(2) PLJR 239 ( Shyam Kishore Singh Vs. State), which was a case of private School being taken over by the State Government and the Division Bench, while considering the issue, was pleased to hold that the service rendered by the employees under the private management was fully entitled for being considered for calculation of the pensionary benefits. Learned counsel submits that in so far - 6 - as his service under the project is concerned, the same is manifest from the Service Book, the relevant extract of which has been enclosed at Annexure-7 of rejoinder filed on his behalf and which in no uncertain terms shows that the petitioner was in service of the project w.e.f. 1.9.1969 till 30.4.1978 and thereafter he joined the State Government Service with effect from 1.5.1978. Learned counsel thus submits that the action of the State and its authorities in not counting the service rendered by him under the project w.e.f. 1.9.1969 to 30.4.1978 in the matter of calculation of post retiral benefits is patently arbitrary and unreasonable. Mr. Girjesh Kumar, learned counsel appearing for the State Government raised objection as regards the maintainability of the writ petition and submits that the petitioner having approached this Court after a lapse of 15 years is not entitled for the relief sought for in the writ petition and the writ petition suffering from vice of gross laches and delay should be dismissed on that count alone. On merits, it is submitted that neither any policy decision has been brought on record by the petitioner under which he - 7 - is seeking relief nor the petitioner has been able to establish whether he was appointed w.e.f. 1.9.1969. With reference to the statement made in paragraph 11 of the counter affidavit, it was submitted that the claim of the petitioner is neither based on facts nor on any government policy decision and that he is trying to derive undue advantage by referring to a concocted government policy decision. Learned counsel submits that Annexure-2 relied upon by the petitioner claiming to be a policy decision is certainly not a policy decision and cannot create any right on the petitioner to claim benefit by reasons of noting made therein. Learned counsel submits that as disputed issues are being raised and not being a case of admitted retiral benefits, this Court need not exercise its jurisdiction under Article 226 of the Constitution of India and especially , at such belated stage. The objection with regard to belated filing of the writ petition is well explained by the petitioner, who had once earlier approached this Court by filing a writ petition but by reason of the death of the counsel the same could not be pursued and was dismissed as not pressed. A copy of the order has been placed at Annexure-6. The petitioner states - 8 - that it is after gathering knowledge of the said eventuality that the present writ petition came to be filed. Although the writ petition has admittedly been filed after some delay but considering the explanation aforesaid and the nature of the grievance being raised in the present proceeding, this Court is inclined to condone the same. Learned counsel appearing on behalf of Accountant General submits that they have acted on the basis of the authorization sought by the State Government and have issued orders as per the documents furnished by the State Government. I have heard learned counsels appearing on behalf of the parties and considered the materials on record. The point in issue is whether or not the services rendered by the petitioner under the Rural Industry Project from 1.9.1969 to 30.4.1978 i.e. more than 8 ½ years, should be counted as qualifying service for the purpose of calculation of his post retiral benefits . Although the learned State counsel has doubted the initial date of appointment of the petitioner on the ground that no such document has been brought on the record but - 9 - on perusal of the Service Book, placed at Annexure-7 of the rejoinder, shows that the petitioner was appointed initially as Planning-cum-Survey Officer in the then Scale of Rs.325/- to 985/- on 1.9.1969. The Service Book of the petitioner has been verified and found to be correct as it appears from the initials of the Project Officer (Industries), Rural Industry Project, Darbhanga-cum- Secretary. The said Officer has certified about the verification of the service of the petitioner from 1.4.1974 to 29.4. 1978 and found the same to be correct. Thus , I shall proceed in the light of the entries made in the Service Book, the veracity of which has not been doubted by the contesting parties and which mentions the date of appointment of the petitioner as 1.9.1969. It is an admitted position that the petitioner has continued to serve the project till his absorption in the Government Service with effect from 1.5.1978. The absorption of the petitioner in government service is indisputed, as is manifest from Annexures 3, 4, 8 and 9 of the proceedings. It is also indisputed that even while working in the project, the petitioner was being paid by the State and for which the funds were being sponsored by the - 10 - Central Government. It is also indisputed that the entire service from 1.9.1969 upto the date of his retirement was continuous without any break. The very fact that the petitioner was granted pay protection, as is apparent from the resolution dated 25.11.1989( Annexure-9) and was indisputably granted promotion(s) during his service under the State Government finally retiring from the post of Dy. Director, Industry, shows that the services rendered by this petitioner under his previous employment had been taken into consideration by the authorities .In fact learned counsel for the State while opposing the contentions raised in the writ petition have referred to a document, placed at Annexure-A of his counter affidavit, and which again in no uncertain shows that the petitioner was appointed by way of absorption in the State Government Service. Thus considering the accompanying circumstances leading to the absorption of the petitioner in the State Government Service followed by grant of pay protection and promotion(s) it is clear that the concerned authorities of the State Government having themselves considered the services rendered by the petitioner from 1.9.1969 to - 11 - 30.4.1978 for the purpose of absorption and grant of in service benefits, have unjustly chosen to ignore the same in the matter of calculation of post retiral benefits. The decision if any certainly lacks justification rationality and reasonableness and cannot be sustained. The petitioner is entitled for counting of his services rendered prior to his absorption. Having regard to facts and circumstances set forth, this writ petition is allowed and the Respondents are directed to re-fix and recalculate the pensionary benefits of the petitioner after the counting the services rendered by the petitioner in the project, from 1.9.1969 to 30.4.1978 and thereafter pay the same together with arrears arising by reason of such re-fixation, within a period of three months from the date receipt/production of a copy of this order. This writ petition is allowed. NKS/- ( Jyoti Saran, J )