IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5085 of 2005 NAND KISHORE PRASAD, son of Late Khaderan Ram, resident of village-Koeilwar, P.O. and P.S.-Koeilwar, District-Bhojpur. Versus 1. THE STATE OF BIHAR through the Secretary, Health Department, Government of Bihar, Patna. 2. The Commissioner cum Secretary, Health Deptt. Government of Bihar, New Secretariat, Patna. 3. The Director, Health Service, New Secretariat, Patna. 4. Civil Surgeon cum Incharge T.B. Hospital, Koeilwar, District-Bhojpur. 5. The Superintendent, T.B. Hospital, Koeilwar, Bhojpur. 6. The Accountant General, Bihar, R. Block, Patna. with CWJC No.5164 of 2005 YADU NANDAN SINGH, son of Late Ram Jatan Singh resident of village-Naiya Haripur, P.O. and P.S. Koeilwar, District-Bhojpur. Versus 1. THE STATE OF BIHAR through the Secretary, Health Department, Government of Bihar, Patna. 2. The Commissioner cum-Secretary, Health Department Government of Bihar, New Secretariat, Patna. 3. The Director, Health Service, New Secretariat, Patna. 4. Civil Surgeon cum Incharge T.B. Hospital, Koeilwar, District-Bhojpur. 5. The Superintendent, T.B. Hospital, Koeilwar, Bhojpur. 6. The Accountant General, Bihar, R. Block, Patna. ----------- C.W.J.C. No. 5085 of 2005 For the Petitioner :-Mr. Ashok Kumar Singh, Adv. For the State :-Mr. Rakesh Kumar Ambastha, Adv. For the Accountant General:- Mr. L.P.K. Rajgrihar, Adv. C.W.J.C. No. 5164 of 2005 For the Petitioner :- Mr. Ashok Kumar Singh, Adv. For the State :-Mr. Rakesh Kumar Ambastha, Adv. 2 3 22.01.2010 Heard learned counsel for the parties in both the cases. The petitioners of these two writ petitions seek a direction from this Court for counting the services rendered by them under the respondents on daily wage basis post until their respective regularization as qualifying service to be counted for the purpose of fixation and calculation of their pensionary entitlements. Indisputable the petitioners were working on class IV posts on daily wage basis in the T.B. Hospital Koelwar, Bhojpur until their respective regularization. A counter affidavit has been filed on behalf of the State in the writ petition(s) and while enclosing a letter dated 27.7.2005 it is stated that as the petitioners until their respective regularization had served the T.B. Hospital, Koelwar, Bhojpur in the capacity of contingent menial, the services rendered by them as a contingent menial until their respective regularization could not be counted in terms of Rule 61 of the Bihar Pension Rules. It is submitted that Rule 61 of the Bihar Pension Rules entitles a person to pension only 3 upon completion of qualifying service rendered in a permanent establishment. Learned counsel for the State thus submits that since admittedly the service rendered as a daily wage employee by these petitioners was in the capacity of contingent menial it cannot be treated as qualifying service. The chart appended to the letter dated 27.7.1975 (Annexure-A to the counter affidavit filed in C.W.J.C. No. 5085 of 2005) contains a list of such employees and the name of petitioner Nand Kishore Prasad appears at serial No. 27 and the name of Yadu Nandan Singh appears at serial No. 17 of the said list. Learned counsel for the petitioners has enclosed an order passed by a learned Single Judge of this Court in a writ petition preferred by the person whose name appears at serial No. 23 of the list namely Mohammad Pheku giving rise to C.W.J.C. No. 7317 of 2003. By order dated 11.8.2004 this Court relying upon some earlier decision(s) passed in the case of some other similarly situated persons which were approved by the Division Bench and by the Supreme Court, held that the service rendered prior to regularization was fully entitled to 4 be counted as qualifying service for the purpose of fixation and calculation of the pensionary entitlements. Following the Bench decision of this Court passed in C.W.J.C. No. 7317 of 2003 dated 11.8.2004 (Annexure-2 to C.W.J.C. No. 5085 of 2005), these writ petitions are allowed and the parties are directed to fix the pension of the petitioners, herein, after taking into consideration the service rendered by the petitioner Nand Kishore Prasad with effect from 11.6.1962 and the service rendered by Yadu Nandan Singh petitioner in C.W.J.C. No. 5164 of 2005 with effect from 22.7.1960 until their respective regularization, the retiral dues of the petitioner should be refixed and recalculated and the arrears thereof be paid to them within a period of three months from the date of receipt/production of a copy of this order. This writ petition stands disposed with the direction aforesaid. Bibhash (Jyoti Saran, J. )