1 Letters Patent Appeal No.1653 OF 2000 - - - - SACHINDRA PRASAD SINHA son of late Kamla Prasad, resident of village Saodah, P.S.Birju Mulki,P.S. Harnaut,District Nalanda … … Appellant Versus 1. THE STATE OF BIHAR through the Secretary, Department of Industries, Government of Bihar, Patna 2. The Secretary-cum-Finance Commissioner, Govt. of Bihar, Patna 3. The Director of Industries, Vikash Bhawan, Patna-800001 4. The Managing Director, Bihar State Small Industries Corporation Ltd., Indira Bhawan, Boring Canal Road, Patna-800001 5. The Managing Director, Patna Industrial Area Development Authority, Udyog Bhawan, East Gandhi Maidan, Patna-800004 6. The Accountant General,Bihar, Patna … … Respondents For the appellant: Mr. Bishnu Kant Dubey Mr.Rameshwar Pandey For the PIADA : Mr. Sharad Kumar Sinha For the State: Mr. Rajesh Kr. Choudhary, A.C. To G.P.3 P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - - Shiva Kirti Singh & Dharnidhar Jha, JJ.- Heard learned counsel for the appellant, learned counsel for the State and learned counsel for the Patna Industrial Area Development Authority( PIADA). 2. Learned counsel for the appellant has submitted that initially the petitioner was appointed on temporary basis on a temporary post in 2 a scheme of the Industries Department as a fitter instructor on 27.9.1957. Subsequently, he was again given a fresh appointment on 9.1.1962 on a temporary post of Fireman and soon thereafter by an order dated 1.2.1962 the State Government conveyed its decision to the Managing Director, Bihar State Small Industries Corporation Ltd.. Patna, that certain schemes of the Government of Bihar were being transferred to the said corporation along with their assets and liabilities along with the services of the Government servants employed in those schemes. With regard to the transfer of services, the said decision makes a distinction between the case of temporary staff and permanent staff. In respect of temporary staff the decision was that their services will be placed at the disposal of the Corporation with effect from 1.2.1962 for appointment against posts similar to the ones held by them under Government and they shall be entitled under the Corporation to count towards their increment and leave, the services rendered by them under Government up to 31.1.1962. They shall be servant of the Corporation with effect from 1.2.1962. As their earlier services under the Government were to count towards increment or leave, such transfer of services was 3 not to be treated as a break in their service. With respect to the permanent Staff the direction was for placing their services at the disposal of the Corporation on foreign service with effect from 1.2.1962 3. On the basis of the aforesaid facts, the obvious inference, which has also been drawn by the writ Court, is that the petitioner soon after temporary appointment on a temporary post on 9.1.1962 became a servant of Bihar State Small Industries Corporation Ltd. from the next month. However, learned counsel for the appellant has submitted that there was no complete compliance with the decision of the State Government as contained in Annexure 3 to the writ petition as the said Corporation did not bestow the petitioner with status of an employee of the Corporation although the petitioner continued to work there till 1976. It was further submitted that the letter from the Managing Director of the said Corporation to the Managing Director of Industrial Area Development Authority, Patna, dated 30.1.1976 contained in annexure-5 to the writ petition would show that it was in pursuance of decision of the State Government that the said Corporation decided to transfer the services of the petitioner and others who were 4 employed in the Industrial Estate, Patna to the Industrial Area Development Authority with effect from 31.1.1976. 4. Undisputedly, petitioner continued thereafter in the service under Industrial Area Development Authority till his superannuation in 1995 when he received retrial benefits including contributory provident fund as per entitlement of the employees of that authority. The writ petition was filed in the year 2000 with a prayer that the petitioner should be treated to be in the service of the State Government in spite of order contained in Annexure-3 to the writ petition. 5. The first reason for such submission has already been noticed earlier. That is, according to the petitioner there was no ultimate absorption of the petitioner in the services of the Bihar State Small Industries Corporation Ltd. The second reason advanced is on the basis of Annexure-5 which mentions that it was in pursuance of the decision of the State Government that the Small Industries Corporation Ltd. transferred the services of the petitioner to the Industrial Area Development Authority. 6. As an issue of fact, we are in agreement with the finding of the writ Court that 5 the petitioner ceased to be an employee of the State Government long back when he accepted the decision contained in Annexure 3 dated 22.1.1962. However, learned counsel for the appellant has advanced submissions on the basis of some judgments, particularly, a judgment of a Division Bench of this Court in the case of Sri Nanhku Prasad Singh @ Nakhu Prasad Sinha Vs. The State of Bihar and ors.: reported in 2004(3) P.L.J.R. 769 and another Division Bench judgment dated 12.2.2004 in L.P.A. No. 154 of 2004(Kamal Bansh Narayan Singh Vs. The State of Bihar & ors.). It has been highlighted that the S.L.P. preferred against those judgments stand dismissed by the Supreme Court. 7. On going through the judgment in the case of Nanhku Prasad Singh(Supra) we find that the petitioner of that case was treated to be in continuous Government service but transferred for some period to work in a Government Company and the issue framed in that case indicates that denial of pensionary benefits to that petitioner was on the ground that he had rendered fifteen or more years of services under the Government only as a temporary employee and not as a permanent employee. This issue was decided in favour of the employee by holding that if required number of years of service for 6 earning pension have been rendered even in temporary capacity, the employee cannot be denied right to pension. 8. In the case of Kamal Bansh Narayan Singh the Division Bench judgment has not discussed the facts at all but it clearly proceeds on the assumption that a Government servant who has worked in a Government department and also in some statutory corporation of the Government, then for earning pension the aggregate of total public service is permissible. 9. The issue in the present case is not that the petitioner- appellant cannot be given pension because he was a temporary Government servant or that as Government Servant he cannot claim benefit of services rendered in a statutory corporation on transfer. In the present case, the issue between the parties is different. According to the respondents the petitioner ceased to be a Government servant long back in January, 1962 and till then he had to his credit very few days of service as a temporary employee which clearly was not sufficient to earn pension and thereafter he was an employee of a corporation where he continued in service voluntarily and ultimately accepted the retrial benefits admissible to such employees of the 7 corporation. In such circumstances, learned counsel for the respondent Corporation has rightly placed reliance upon a Division Bench judgment of this Court in the Case of The Secretary, Finance (National Savings) Department Vs. Vinod Kumar: reported in 2006(1) PLJR, 269. In that case the Division Bench of this Court has placed reliance upon several authorities of the Supreme Court to highlight the well established law that there is difference between Government servant and servant of a corporation/company belonging to the Government. Some judgments creating an otherwise impression have also been noticed and distinguished as those related to Article 12 of the Constitution of India which permits a Government corporation/company to be covered by the extended meaning given to the word ‘State’ which is to include also its instrumentality or agencies but only for the purposes of part III of the Constitution. The State was also clearly aware of the aforesaid difference and, therefore, in the decision contained in annexure-3 which dealt differently with the temporary staff and permanent staff, even after transfer of services the status of the permanent staff was retained as that of a Government servant on foreign service. 8 10. According to learned counsel for the appellant, the ratio of aforesaid judgments is that since employees of Government Corporation/Companies also render public service hence they will be entitled to pensionary benefits of Government employees provides at any point of time they had worked as government employees, temporary or permanent. We find this submission totally unacceptable. 11. 10. In the facts of the case and in view of the law discussed above, we find no good reason to take a different view in the matter, hence the appeal is dismissed. ( Shiva Kirti Singh J.) ( Dharnidhar Jha, J.) Patna High Court The 23rd March, 2009 Kanth/N.A.F.R.