IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12426 of 2003 ANIL KUMAR SRIVASTAVA Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 20/ 24.08.2010 The issue raised in the writ petition is whether the services rendered by the petitioner while posted in the State Government w.e.f. 12.08.1970 to 04.06.1976 would count as qualifying service for the purpose of calculation of pension and pensionary entitlements since after his appointment in the respondent Bihar State Electricity Board (hereinafter referred to as the „Board‟), in view of the stipulation present in the memorandum of the Central Govt. dated 29.8.1984 (Annexure-10) adopted and followed by the Board in the Circular dated 14.2.1992 (Annexure-14). With the consent of the parties the matter has been taken up for disposal at the stage of admission itself. Heard Mr. Anand Kumar Ojha for the petitioner, Mr. Subhash Kishore Verma for the respondent Electricity Board and its authorities and Mr. Girijesh Kumar, learned Assisting counsel to Mr. Lalit Kishore, learned Additional Advocate General No. 3 for the State. Mr. Subhash Kishore Verma, learned counsel representing the respondent Electricity Board and its authorities at the very outset raised a preliminary objection as regarding the maintainability of the writ petition on 2 grounds that the matter stood concluded under an order dated 20.4.1994 passed in C.W.J.C. No. 11072 of 1980 (R.K. Shukla Vs. Bihar State Electricity Board and Ors), whereby a Division Bench of this Court was pleased to dismiss the writ petition finding no merit in the same. He thus submits that the issue having been raised before this Court and deliberated upon by a Division Bench, stands answered under the order passed in the said writ petition and the writ petition thus should be dismissed in the light of the order passed by the Division Bench (supra). Mr. Ojha, learned counsel for the petitioner responding to the preliminary issue raised by Mr. Verma submitted that only if an issue is taken up by a Court and adjudicated upon, that it becomes a binding precedent on the issue. He further submits that it is the ratio decidendi in any case which becomes a binding precedent for subsequent considerations on the issue. He submits that the consideration of an issue exists only if the same is put on test in the light of rival contentions raised by the respective parties upon a contest. He submits that simply holding a writ petition being devoid of merit, would not suffice the legal principles of a binding precedent. Mr. Ojha in support of his contentions relied upon the following decisions: (i) A.I.R. 1989 S.C. 38 (Municipal Corporation of Delhi Vs. Gurnam Kaur) paragraph-10 to 12) 3 for the proposition that mere casual expression would not carry weight; (ii) A.I.R. 2004 S.C.W. 944 (Union of India Vs. Amrit Lal Manchanda & Anr.), paragraph 17 and 18; (iii) A.I.R. 1961 S.C. 1457, (Daryao & Ors. Vs. State of U.P. & Ors.) paragraph 19; (iv) A.I.R. 1986 S.C. 1780 (Indian Oil Corporation Ltd. Vs. State of Bihar & Ors.) (v) A.I.R. 1968 S.C. 647 (State of Orissa Vs. Sudhanshu Shekhar Mishra & Ors.), paragraph-13. Mr. Ojha submitted that even on facts, the case of R.K. Shukla and that of the present petitioner was distinguishable. He submits that R.K. Shukla was an employee of the Union of India in its Ministry of Railways and belonged to the North Eastern Railway Cadre. It was submitted that the employees of the Union of India are governed by a separate set of classification rules as well as pension rules and that the Bihar Pension Rules are not applicable on them. It was submitted that R.K. Shukla joined the Railways in 1954 and continued in the services of the Railways before choosing to resign from the same on 1.8.1964 for joining the Electricity Board and where he continued until 30.6.1988 being the date of his superannuation. He thus submits that even assuming that the Bihar Pension Rules were applicable in such cases, the said R.K. Shukla having resigned from the Railways to join 4 the Electricity Board faced forfeiture of his past services in terms of Rule 101(a) of the Bihar Pension Rules. He thus submits neither on the principles of binding precedent, the order passed by the Division Bench in the case of R.K. Shukla is attracted in the case of the petitioner nor on facts the order passed in the case of R.K. Shukla is applicable to the case of the present petitioner, whose case may be considered and disposed of on its own merits. Adverting to the facts in issue raised in the writ petition, Mr. Ojha submitted that the petitioner was appointed in the Co-Operative Department of the Government of Bihar and joined on 12.08.1970 where he continued until 4.6.1976. In between an advertisement was published on 9.7.1975 (Annexure-3) by the respondent Board inviting applications for appointment against the post of Labour Assistant which was subsequently christened as a Labour Welfare Officer. It is stated that the petitioner applied against the said advertisement and his application was forwarded by the Joint Registrar, Co-operative Societies (Audit), Bihar, Patna to the Director of Personnel, Bihar State Electricity Board vide Memo No. 8979 dated 7.7.1975 (Annexure-4). Pursuant to the selection conducted by the Board, the petitioner was selected for appointment to the post of Labour Welfare Officer and directed to be present for verification of documents vide 5 letter no. 53 dated 8.5.1976 (Annexure-5). Vide notification bearing no. 894 dated 14.7.1976 a formal order of appointment was issued appointing the petitioner to the post of Labour Welfare Officer with effect from 5.6.1976 and by the same order he was posted in the Electricity Supply Division, Barh (Annexure-6). Consequent upon the selection of the petitioner against the post of Labour Welfare Officer, the Additional Registrar (Audit), Co- operative Societies, Bihar, Patna vide memo no. 9974 dated 3.6.1976 directed that the date on which the petitioner is relieved by District Audit Officer, Patna enabling him to assume charge of the Labour Welfare Officer under the Electrical Executive Engineer, Electric Supply Circle, Barh, would be his date of relieving and from which date his lien against the post of Junior Audit Officer would be terminated (Annexure-7). In the light of the order as contained in Annexure-7 a formal order of relieving was issued by the District Audit Officer contained in Memo No. 573 dated 4.6.1976. The petitioner soon after his relieving on 4.6.1976 (Annexure-8) joined under the Electrical Executive Engineer, Barh on 5.6.1976 and which fact is manifest from the order of appointment-cum-posting present at Annexure-6, and superannuated with effect from 31.07.2003 while holding the post of Personnel Officer. In between the petitioner had represented before 6 the authorities of the Electricity Board on 12.05.2003 (Annexure-9) for counting his past services rendered in the State Government in its Co-operative Department. The petitioner upon his retirement submitted his pension paper for payment of his pension and other pensionary entitlements counting his services with effect from 12.08.1970 up till 31.7.2003 being the date of his superannuation. It is contended that the respondents in stead of treating the entire service rendered by the petitioner of 33 years as qualifying service, treated only 27 years rendered in the Electricity Board as qualifying service and on which basis the pension was fixed at a lower rate. In this background even the gratuity was calculated at a lesser rate. The claim put forth by the petitioner for counting his past service rendered in the State Government prior to his appointment in the services of the Electricity Board though was not rejected by a positive order but was impliedly rejected as the respondents while calculating the pension and pensionary entitlement of the petitioner did not choose to count his past services rendered under the State Government. Learned counsel in support of his contentions relied upon a Circular dated 29.8.1984 (Annexure-10) which is a Circular issued by the Government of India in its Department of Personnel and Administrative Reforms in 7 respect of the issue of mobility of personnel between the Central Government Department and the autonomous body. With reference to the Note appended under paragraph-3 of the said Circular it was contended that a policy decision was taken for counting the past services in cases of mobility of personnel from Central Government departments to Autonomous Bodies provided the Government servant concerned took up the assignment with prior and proper permission of the parent department The term proper permission has been explained as to mean where a government servant applies for the post in an autonomous body through proper channel and he resigns with due intimation that he is doing so to take up the assignment in the autonomous body or the government servant is relieved of his duties by the government/office to take up the assignment in an autonomous body. It was further mentioned that pension liability may also be accepted in past cases provided the government servant takes up the assignment in an autonomous body with prior permission. Learned counsel thus submits that the documents as appended at Annexures- 4, 7 and 8 of the writ petition, in no uncertain terms demonstrates that the petitioner had applied for appointment in the respondent Board after obtaining proper permission from his erstwhile employer, the State of Bihar. In this background, learned 8 counsel with reference to the Circular of the Board dated 14.02.1992 (Annexure-14) submits that though the resolution was passed by the Electricity Board in the light of the relevant Circulars on the issue including the Circular dated 29.8.1984 placed at Anneuxure-10 but an unwarranted rider had been put at paragraph 3(ii) of the said resolution whereunder the benefit of counting the past services were not extended to cases where the personnel had been inducted in the Board services by way of a fresh appointment against any advertisement either on lower/equal/higher post. Learned counsel for the petitioner submits that the stipulation provided under paragraph 3(ii) is arbitrary without any rational basis and manifest with discrimination. He submits that the Board by invoking such rider/stipulations, was creating a class amongst a class of personnel who had joined the services of the Electricity Board after rendering service in the Department of the Government of Bihar. He further submits that a beneficial legislation cannot put fetters on an entitlement of an employee by creating artificial restrictions. He submitted that the classification obliterated the object of the resolution. Learned counsel relies upon a decision of the Supreme Court rendered in the case of R.L. Marwaha Vs. Union of India & Ors. reported in (1987) 4 SCC 31 and (1997) 6 SCC 623 (Chairman, Railway Board & Ors. Vs. 9 C.R. Rangadhamaiah & Ors.). Mr. Ojha contends that the petitioner had not resigned to join the Board rather had applied to join the Board through proper channel as envisaged in the Government of India Circular dated 29.08.1984 (Annexure- 10), taken note of also in the Circular of the Board dated 14.02.1992 (Annexure-14). It was submitted that it is only in cases of resignation that past service can be forfeited in terms of Rule 101(a) of the Bihar Pension Rules and which Rules are also applicable in the Board. He thus submits that the Board cannot by a resolution override the provisions underlying forfeiture of past service as present in Rule 101(a) of the Bihar Pension Rules. He submitted that the case of the petitioner was in the nature of transfer of service without resignation and that it is only in cases where a person resigned from his post in the State Government in order to join the Board by way of fresh appointment that he came within the purview of paragraph-3(ii). Mr. Ojha concluded his arguments by submitting that the stipulations present at paragraph-3(ii) of the Circular dated 14.02.1992 (Annexure-14) has to be read down to exclude such class of persons who have resigned from the services of the State Government to join the Board services on fresh appointment and not the case like 10 the present petitioner. Mr. Subhash Kishore Verma, responding to the arguments advanced on behalf of the petitioner, submitted that the petitioner having not questioned the validity of the Circular as contained in Annexure-14, he cannot assail its clauses. Learned counsel for the Board submitted that the Board was bound by the stipulations made in the resolution and being a case of fresh appointment, the petitioner was not entitled to the relief. It was contended that the case of the petitioner neither was a case of deputation nor absorption or transfer of lien rather was an indisputed case of direct appointment. Mr. Verma contended that the term „proper permission‟ as found in the note under paragraph-3 of the Circular of the Government of India, present at Annexure- 10 entailed a permission of resignation followed by relieving and appointment. It was stated that all these relevant aspects are absent in the case of the petitioner. It was further contended that the Circular of the Board was only in context with mobility of personnel, inter alia, between the State Government and the Board and as the Government of India Circular present at Annexure-10 was silent on the cases of fresh appointment, hence the Board thought it proper to provide a specific clause dealing with the cases of fresh appointment. It was stated that the 11 petitioner‟s case being that of fresh appointment and not of transfer of services, he cannot seek the benefit of the Circulars under consideration. Relying upon the Division Bench order of this Court passed in the case of R.K. Shukla (supra), it was contended that the issue stands resolved under the orders of this Court and that two such cases had already been rejected by the Board and which have been appended at Annexures- A & B to the supplementary counter affidavit filed on 20.11.2009. It was thus contended that the petitioner did not have any claim for counting the past services and the benefit flowing from the Circular of the Electricity Board appended at Annexure-14 was not extendable in the case of the petitioner. Mr. Girijesh Kumar, learned assisting counsel to Additional Advocate General relied upon a Circular of the State Government contained in Memo No. 10- 1044/70/1950F dated 18.02.1974 present below Rule 134 of the Bihar Pension Rules and submits that the Government had decided not to accept any liability in cases where the Government servant concerned seeks appointment in an autonomous body on his own volition. He further submits that the petitioner having completed less than 10 years services under the State Government was not entitled for any pension from the State 12 Government. I have heard learned counsel appearing on behalf of the parties and perused the materials on record. Taking up the preliminary objection raised by the respondents at the first instance, I, upon consideration of the rival submission of the contesting parties, am of the opinion that the case in hand is distinctly different from the issue in consideration in the case of R.K. Shukla (supra) both on facts and the contention advanced. I thus reject the objection raised by the respondent Board and proceed to consider the issue on merits. The issue raised by the petitioner undoubtedly requires consideration against the backdrop of the relevant Clauses of the Circular dated 29.8.1984 (Annexure-10), 14.2.1992 (Annexure-14) and Rule 101(a) of the Bihar Pension Rules. Indisputably the Circular of the Central Government dated 29.8.1984 (Annexure-10) is the genus of which the Circular of the Board dated 14.2.1992 is the species and which fact is also manifest from bare perusal of Clause-3 of Annexure-14. The stipulations relevant for the issue under consideration would be to note present under Clause-3 of Annexure-10 which reads as under:- “NOTE- various Ministries/Departments of the Government of India may accept pension liability in all the cases where Central Govt. 13 employees move to Central autonomous bodies with proper permission and discharge the same in the prescribed manner. For this purpose proper permission means that Government servant applies for the post in autonomous body through „proper channel‟ and he resigns with due intimation that he is doing so to take up assignment in autonomous body or the Government servant is relieved of his duties by the Government Department/Office to take up assignment in an autonomous body. Pension liability may also be accepted in past cases provided the Government servant took up the assignment in autonomous body with proper permission. The Ministry of Defence, etc., may please issue specific directions to their Financial Advisers to advise the autonomous/statutory bodies under their administrative control to make the above provisions in their rules and regulations. In cases where any practice other than that mentioned above is presently being followed, the same may be revised in accordance with these decisions and they may also provide for acceptance of pension liability for the past service.” (Emphasis supplied by me) Clause-3 of the Circular dated 14.2.1992 (Annexure- 14) of the respondent-Board reads as follows:- “3. After a careful consideration, the Board vide its resolution No. 6491 dated 29.11.91, has now been pleased to decide to extend the benefit of counting the services rendered 14 by employees of Central Government/Central Government undertakings/State Govt./State Govt. undertakings who came to Board on deputation and were eventually absorbed in Board‟s service, for the purpose of pension in the Board as per provisions laid down in the Central Govt., Circulars viz Office Memorandum No. 28(10)-84 pension unit dated 29.8.84 and Office Memorandum No. 28(10)-Pt. P & W Vol. 11 dated 7.2.86, 17.6.86, 30.10.86 and 20.10.86 and 20.3.87, provided, the following two Conditions fulfilled:- (i) Either the Govt./organization lending the services of personnel on deputation pays for terminal benefits with interest (at a rate explicitly mentioned in Central Govt. Memorandum No. 28(10) dated 29.8.84) for the period so spent with the Govt., or the organization. In case the Govt./organization do not do so, the concerned individually will have to pay; (ii) This benefit will not be extended in cases where personnel have been inducted in the Board‟s services on fresh appointment against any advertisement either on lower/equal/higher post.” (Emphasis supplied by me) Rule 101(a) of the Bihar Pension Rules read with Rule 135 thereof provides that resignation from public service before completion of 25 years, would entail forfeiture of past service. 15 Admittedly the petitioner never submitted his resignation from state service, hence he is not covered under Clause-101(a) of the Bihar Pension Rules and the services rendered by him under the State Government would have to be counted as qualifying service for pension. The Circulars of the Central Government as well as the Electricity Board do provide for counting of the services rendered under the State Government or for that matter the previous employer mentioned in the Circular subject to the stipulations. The only issue that is being raised by the Electricity Board is that there is an exclusionary Clause present at paragraph-3(ii) of Annexure-14 which, inter alia, provides that the benefit would not be extended to cases of fresh appointment. Paragraph-3 of the Circular even while providing as such does refer to the Circular of the Government of India dated 29.8.1984. The note present at paragraph-3 of the Circular dated 29.8.1984 of the Government of India extends the benefit of the Circular on carrying the past services in cases of fresh appointment but with a rider that the Government servant applies to the post through proper channel and resigns with due intimation to his previous employer. The case of the petitioners squarely falls into this category with an additional circumstance drawn in his favour that he never submitted his resignation to the State Government and 16 continued as a State Government employee until he was relieved by the State Government by termination of lien vide Annexure 7 and 8. As already taken note in this order, the petitioner did apply for appointment through proper channel after seeking due permission from the State Government and joined his new post only after being relieved by his employer to join the new post. Thus neither the petitioner resigned from the State Government nor there was a severance of the relationship with the State Government by reason of any resignation rather he joined his new post with due permission of the State Government. The stipulations provided under Paragraph-3(ii) of the Circular dated 14.2.1992 of the respondent-Board as contained in Annexure-14 creates a class of such appointees which is distinguishable from the class of appointees as envisaged under the note appended to the Circular of the Government of India. A harmonious reading of the circulars under consideration makes it eloquent that the circular of the Board in its paragraph 3(ii) seeks to cover such of the cases of employees who seek appointment in the Board without obtaining any prior permission of the State Government and resign their services to join their post in the respondent-Board leading to severance of the master servant relationship and fully 17 covered under the provisions of Rule 101(a) of the Bihar Pension Rules. As rightly contended by learned counsel for the petitioner a beneficial legislation is to be liberally construed to cover all such cases which fall within the object of the legislation unless the extension of benefits infracts the very object of the legislation. The petitioner having served the State Government for a period of almost six years, his services cannot be rendered waste. He has to be appropriately compensated especially since it is not a case resignation from State Government. The State of Bihar seeking refuge under the provisions of the Bihar Pension Rules to deny him the benefit, on grounds of his services have been less than 10 years, the petitioner indeed would have to be provided with the same in the light of the stipulations present in the Circulars under consideration. Clause-3(i) of the Circular dated 14.2.1992 of the respondent-Board manifestly states two situations and requires either the Government/Organization lending the services to recompense and pay for the terminal benefits with interest in the manner provided in the Circular dated 29.8.1984 (Annexure-10) for the period spent with the Government or the body concerned and on their failure to do so, the concerned individual would have to pay. Learned counsel for the petitioner in the course of 18 arguments has shown his willingness to deposit the sum worked out by the respondent-Board in terms of the stipulations present at Paragraph-3(i) of the Circular dated 14.2.1992 together with interest and the same also finds mention in the written argument filed on his behalf. Thus having given anxious consideration to the entire aspect of the matter in the backdrop of the relevant Circulars under consideration and the provision of the Bihar Pension Rules, I come to an irresistible conclusion that the petitioner has indeed made out a case for indulgence and for grant of appropriate relief. In the result, the writ petition is allowed. The issue framed at the onset is decided in favour of the petitioner. I, accordingly, direct the respondent-Board and its concerned authorities to extend the benefit of the circulars under consideration to the petitioner by treating the service rendered by him under the State Government for the period 12.8.1970 up to 4.6.1976 as qualifying service for the purpose of recalculation of his pension and other pensionary entitlements and payment of its arrears. The Board shall calculate the amount payable by the petitioner for deriving such benefits in terms of the stipulation present at Paragraph-3(i) of the Circular dated 14.2.1992 inclusive of interest and which shall have to be deposited by the petitioner for deriving the benefits within a reasonable time 19 to be provided by the Board after having worked out the calculations. The entire exercise be completed within a period of three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J.)