CIVIL WRIT JURISDICTION CASE No.15570 OF 2009 In the matter of an application under Article 226 of the Constitution of India KAUSHAL KUMAR VERMA S/O LATE TULSI NARAYAN LABH R/O VILL- DHURLAKH, P.S-WARISH NAGAR, DISTT- SAMASTIPUR Versus 1- THE STATE OF BIHAR THROUGH THE COMMISSSIONER AND SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, HAVING HIS OFFICE IN VIKAS BHAWAN, POLICE STATION- SACHIVALAYA, DISTT- PATNA 2- THE JOINT SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT HAVING HIS OFFICE IN VIKAS BHAWAN, POLICE STATION SACHIVALAYA, DISTT- PATNA 3- THE FINANCE COMMISSIONER, FINANCE DEPARTMENT, OLD SECRETARIAT, POLICE STATION SACHIVALAYA, DISTT- PATNA 4- THE CHAIRMAN-CUM-MANAGING DIRECTOR, BIHAR STATE HOUSING BOARD HAVING HIS OFFICE IN 6 MANGLES ROAD, POLICE STATION- SACHIVALAYA, DISTT- PATNA 5- THE SECRETARY, BIHAR STATE HOUSING BOARD, HAVING HIS OFICE IN 6 MANGLES ROAD, POLICE STATION SACHIVALAYA, DISTT- PATNA 6- THE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARD, DIVISION NO.3, HAVING HIS OFFIE IN BHOOT NATH ASHRAM, BAHADURPUR, POLICE STATION AGAMKUAN, DISTT- PATNA 7- THE ACCOUNTANT GENERAL (ACCOUNTS AND ENTITLEMENT), BIHAR, PATNA, VIRCHAND FPATEL PATH, DISTRICT PATNA ----------- For The Petitioner : Rupak Kumar, Advocate For The Respondent : Govt. Pleader No. XIII P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.Sinha,J. The present writ application is for issuance of a writ in the nature of mandamus commanding the respondent-State to sanction and pay the full pension and gratuity admissible to the petitioner upon his superannuation while in deputation with the respondent- Bihar State Housing Board (hereinafter referred to as the „Board‟). It is an admitted position between the parties that the respondent-State has paid the provident fund dues 2 (G.P.F.) and the maturity value of the group insurance. The respondent-Board has paid the admissible amount on account of the leave encashment. The relevant facts are as follows : The petitioner was initially appointed as temporary employee on the post of Work Sarkar by the Department of Housing, Government of Bihar on 06.03.1968 (Annexure-1). Subsequently, the services of the petitioner along with others were sent on deputation to the Board on 7th September, 1972 vide Annexure-2 with stipulation that the Government order would be issued separately with regard to the terms and conditions, the salary and allowances would be paid by the Board w.e.f. 01.09.1972 the date when their services were sent on deputation. The State Government regularized the services of such employees who had completed five years of satisfactory services in the Board as per its memo no. 2329 dated 18th November, 1989 vide Annexure-3 in which the name of the petitioner, who was working as a Care Taker, stands at serial number 8. Petitioner on his superannuation submitted the necessary requisite application in the prescribed format for receiving the pension and gratuity as per Annexure-4. The State Government having not sanctioned the payment of pension and gratuity, petitioner approached this Court by filing the 3 present writ application. Counter affidavits has been filed on behalf of the respondent-Board as also the respondent-Accountant General. The State Government has filed its counter affidavit followed by two supplementary counter affidavits. In the counter affidavit the State Government initially took the stand that since the service book of the petitioner has been sent by the respondent-Board to the State Government as per letter no. 1899 dated 08.03.2010 and hence pension papers could not be sent to the Accountant General for issuance of the authority slip for payment of pension and gratuity vide paragraph 5 which is quoted below : “That the deponent most humbly stated that the service book of the petitioner has been sent by Bihar State Housing Board vide letter no. 1899 dated 08.03.2010 and hence the pension papers could not be sent to the Accountant General, Bihar to issue authority slip of pension and gratuity in favour of the petitioner.” It has further been stated in the counter affidavit that the service book of the petitioner is required to be verified by the Department of Finance, Government of Bihar after 1971 till the superannuation of the petitioner, and as 4 such, the file has been sent to the Finance Department for verification on 18.03.2010. The State taking U turn during the pendency of the writ application issued an order as per memo no. 621 dated 20th August, 2010 vide Annexure-A to the supplementary counter affidavit of Respondent nos. 1 & 2 holding that the petitioner is an employee of the Housing Board and not of State Government as he retired from the services of the Board during deputation and did not work with the State Government before his superannuation, therefore, not entitled to the payment of pension and gratuity. Petitioner has assailed the said order by filing an interlocutory application vide I.A. No. 7820 of 2010. In reply to the aforesaid stand of the State Government, it has been stated by the petitioner through its rejoinder to the counter affidavit that the State without proper consideration and verification of the record has taken the stand that the petitioner no longer remained an employee of the State Government. It has been categorically stated that the employees, who were similarly sent on deputation in the Housing Board and their services were regularized as per Annexure-3 namely, Sri Mundrika Singh and Sri Ashok Mukhiya whose names figured at serial numbers 2 & 3 respectively in the order regularizing their services along with the petitioner and other employees as per Annexure-3 and also superannuated while on 5 deputation with the respondent-Board, they have been sanctioned payment of pension and gratuity as stated in paragraph 5 of the supplementary affidavit filed on behalf of the petitioner and not controverted by the State. The petitioner has annexed the copy of the sanction order issued by the office of the Accountant General for payment of pension and gratuity in favour of the aforesaid two persons vide Annexure-9 (series). Petitioner has also brought a similar order in respect of one Niranjan Kumar, who was also sent on deputation with the respondent- Board although through a different order as also an order of this Court in somewhat similar circumstances as contained in Annexure-R/11. Learned counsel for the petitioner submits that the petitioner admittedly being an employee of the State Government was sent on deputation under the orders of the State Government and continued on deputation till his superannuation without being absorbed in the services of the Board, and as such, petitioner continued to remain a Government employee. Besides, it is submitted that on perusal of the terms and conditions with regard to their service while on deputation vide government order dated 20th September, 1972 (Annexure-8), it would appear that until the Board finalizes the service conditions of its employees whose services have been placed at the disposal 6 of the respondent-Board would continue to enjoy under the Board with the same service conditions in respect of paying increments, leave, promotions etc. as admissible under the State Government, but no deputation allowance shall be admissible, however, they will continue with their pensionary rights and pensionary benefits admissible which are applicable under the pension rules of the employees of the State Government. The relevant paragraphs 2(i) and 2(ii) of Annexure-8 being relevant for consideration are quoted below : “2(i) The officers and staffs whose services have been placed at the disposal shall continue to enjoy under the Board the same service conditions in respect of pay, increments, leave, promotions, discipline and other fringe benefits as admissible under the State Government. They will not, however, be allowed any deputation allowance, In addition, they will continue their pensionary rights, and the pensionary benefit admissible shall be subject to the same conditions and restrictions as may be applicable under the pension Rules of the State Government as amended from time to time, on the date of retirement of the staff. 2(ii) The pension contribution will be paid by the State Housing Board in respect of the Government 7 servants transferred to the Board, in accordance with rates mentioned in appendix 16 of the Bihar Service Code as modified in Finance Department Memo No. 11790/F, dated 06.12.1968, till such time as the Transferred Government servants are finally absorbed in the service of the Board after its service rules have been finalized.” Learned counsel further submits that the State has acted absolutely arbitrarily and adopting the mode of pick and choose. It has been reiterated that the employees who were similarly placed specifically as stated in paragraph 5 of the supplementary affidavit namely, Sri Mundrika Singh and Sri Ashok Mukhiya, who were also regularized in the services of the State Government along with the petitioner while on deputation have been allowed the pension and gratuity whereas the sanction for payment of the same to the petitioner has been denied acting illegally and also absolutely factually contrary to the terms of deputation. Considering the respective pleadings of the parties and their submissions, the following facts emerges as an admitted position : The petitioner was initially engaged with the State Government and sent on deputation to the respondent- Board and while on deputation the employees whose names 8 mentioned in Annexure-3 including the petitioner were regularized. Petitioner continued in deputation and superannuated as such. It is also an admitted position that the respondent-Board did not finalize and issue any terms and conditions of service with respect to the employees who were sent on deputation at the disposal of the Board. On perusal of the Government order vide paragraphs 2(i) & 2(ii) as contained in Annexure-8 as mentioned above, it would appear that the petitioner was sent on deputation w.e.f. 01.09.1972 with condition that he will continue on deputation with the same terms and conditions of service as available to the State Government‟s employees until the Board finalizes the rules governing the service of the employees sent on deputation at its disposal. Having not finalized the terms and conditions of service the decision of the State Government as contained in Annexure-8 whereby it directs that the terms and conditions of the service including the payment of pensionary benefits shall be the same as available to the State Government employees. The only reason assigned by the State Government for declining the pension and gratuity to the petitioner that on the basis of the opinion of Law Department as also of the Advocate General, as quoted in the Government‟s order (Annexure-8), that since after sending the petitioner on deputation he continued and superannuated from the service of the 9 respondent-Board did not come back even for a short while to the State Government, as such, he did not remain to be an employee of the State Government, does not stand to any reason. Unless the petitioner who was sent on deputation is not absorbed in the service of the Board the petitioner continued to be an employee of the State Government with the pensionary benefits as per the Government order as contained in Annexure-8. Besides the above, it is also not in dispute that in the case of similarly situated employees, namely, Sri Mundrika Singh and Sri Ashok Mukhiya who were also sent on deputation along with the petitioner and superannuated in the service of the Board, the State Government sanctioned the payment of pension and gratuity and accordingly the necessary pension payment order and gratuity payment order has been issued by the Accountant General vide Annexure-9 (series). Similarly, in the case of an employee namely, Awadhesh Prasad Singh, this Court vide Annexure-R/11 directed for payment of pension and gratuity and similarly in the case of Niranjan Kumar this Court vide Annexure-14 directed for calculating the pensionable service taking into consideration the total period of service including the period spent in the State Government and the respondent- Housing Board. The State Government accordingly issued the order as contained in Annexure-15. The full Bench 10 decision of this Court in the case of State of Bihar Vs. Ram Tawakya Singh, as reported in 2006 (1) P.L.J.R. 476 (F.B.) whereby this Court affirmed the decision that pension and gratuity is payable by the State in respect of the employees sent on deputation with the Board taking into the entire period spent in the State Government and the Board on the last salary drawn on the date of superannuation from the Board. The State Government although issued said order in respect of the writ petitioner of the said case during the pendency of the case and directed for payment of interest at the rate of ten per cent for the delay. In view of the consideration and discussions, as referred to the above, the respondent nos. 1, 2, 3 & 7 are, hereby, directed to consider the case of the petitioner for sanction for payment of pension and gratuity with interest at the rate of 10 % for the delayed payment taking into consideration the period spent by the petitioner while on deputation with the respondent-Board expeditiously preferably within a period of three months on receipt/production of the certified copy of the present order. The writ application stands allowed to the extent indicated above. Patna High Court The 21st of December, 2010 Manish/ A.F.R (Shailesh Kumar Sinha,J.) 11