Case: PARMESHWAR NANDA Vs. THE STATE OF JHARKHAND CHIEF SECRETARY

2. Briefly, the facts are that the appellants were appointed under the Project, co-sponsored by the Central Government and the State Government, in the erstwhile undivided State of Bihar between the period 1978 to 1990. Some of the appellants were appointed as Adult Education Supervisors whereas other appellants were appointed in the ministerial cadre such as Stenographer, Clerk cum Accountant, Clerk cum Typist, Peon as well as Drivers. The appellants were working under the Project during the bifurcation of the State and their services fell in the successor State of Jharkhand which was formed on 15 th November, 2000. The Government of India vide policy decision dated 1 st April, 2001 closed the Project. The Government of Jharkhand, consequent to the bifurcation of State of Bihar, declared the employees to be surplus w.e.f. 16 th May, 2001.3. The Government of Jharkhand issued a notification dated 30 th May, 2007 for absorption of the employees engaged in the Project in the Departments of Food, Public Distribution and Consumer Affairs, Finance, Social Welfare, Women and Child Development, Urban Development etc. on different posts, in their respective prescribed scales of pay. A perusal of the said notification shows that there were 756 employees who were declared as surplus and were to be absorbed by the State. It appears that most of the surplus employees were absorbed in different scales of pay vide letter of appointments starting from 24 th July, 2007 except those who had attained the age of superannuation or had died prior to such absorption4. As per Clauses 11 and 12 of the notification dated 30 th May, 2007, the surplus employees absorbed were to be treated as new appointments and the services rendered by them prior to their declaration as surplus i.e. prior to 15 th May, 2001, would not be counted for the purpose of their seniority and pay protection. Clauses 11 and 12 of the notification read as under:11. The adjustment of surplus personnels will be considered new appointment and being surplus on the basis of prior service, they will not be benefitted of seniority12. These surplus personnels will not be benefitted by pay protection5. 59 writ petitions came to be filed claiming pensionary benefits and seniority before the High Court. The matter was placed before the Full Bench in view of the divergence of opinions of the two Division Benches of the Jharkhand High Court in State of Jharkhand & Ors. v. Bhubneshwar Mahto LPA No. 515 of 2004 and State of Jharkhand & Ors. v. Bimal Kumar Sinha LPA No. 188 of 20046. LPA No. 515 of 2004 was preferred by the State against the order of the learned Single Bench passed on 21 st November, 2003. The writ petitioner was directed to be paid salary for the period 16 th May, 2001 to 31 st July, 2001 i.e. the date of his retirement. The writ petitioner was ordered to be treated as a regular employee of the State, having been appointed on 10 th December, 1968, much before the Project started in the year 1978. LPA No. 188 of 2004 was preferred by the State against the order of the learned Single Bench. In the appeal, it was held that the writ petitioner therein was appointed under the Project which was abolished on the specific condition that past service rendered by him will not be taken into account. Such writ petitions were categorized into three groups by the Full Bench. The first group of petitions were from those employees who had retired after being declared surplus w.e.f. 16 th May, 2001 but before they were absorbed pursuant to the notification dated 30 th May, 2007. In this category, some of the writ petitioners were legal heirs of those employees who had died during this period before being absorbed. The second group of petitions were from those employees who were declared surplus but were absorbed by the Government of Jharkhand vide notification dated 30 th May, 2007 and had retired thereafter. The third group of petitions were from those employees who were working on the date of filing of the writ petitions, after being absorbed by the Government of Jharkhand vide the aforementioned notification. The employees in writ petitions comprising of Categories I and II claim pensionary benefits whereas the writ petitions filed in Category III claim seniority by taking into consideration their past services rendered under the Project resulting into payment of pension after attaining the age of superannuation7. The common challenge in all the writ petitions were to clauses 11 and 12, as reproduced above. It was the stand of the writ petitioners that they are being treated as fresh appointees and their past service has not been counted for the purposes of seniority or fixation of their initial salary8. The High Court in the impugned order referred to Jharkhand Pension Rules to hold that the following three conditions are required to be satisfied before the service can be treated to be pensionable service-(i) Service must be under Governmentii) Employment must be substantive and permanent(iii) Service must be paid by Government9. Rule 59 provides that the State Government can declare any specific kind of service rendered in a non-gazetted capacity to qualify for pension even though either or both of conditions (1) and (2) are not fulfilled. The High Court held that no declaration of the State Government in general terms has been made nor any direction in individual cases issued in favour of any such petitionersCivil Appeal No. 544 of 202027. The present appeal is directed against an order passed by Division Bench of the High Court of Patna on 20 th June, 2018 whereby LPA No.189 of 2018 filed by the State was dismissed relying upon an order passed by the Single Bench in CWJC No. 20780 of 2010 and CWJC No. 20801 of 2010 on 19 th April, 2011 wherein referring to Rule 103 of Bihar Pension Rules, 1950, it was held that an interruption in service on account of the abolition of a post shall not entail forfeiture of the past service of a Government servant, i.e. the intervening period can be counted for pensionary benefits. In view of the said fact, the State was directed to consider the writ petitioners as continuing in service between 1992 and 1998 solely for the purpose of granting personal monetary benefits. The petitioners were not to be entitled to payment of salary for the period in any manner and neither claim any seniority over other Government servants.

Reasoning:
18. In the present case, Clause 11 of the notification dated 30 th May, 2007 issued by Government of Jharkhand is to the effect that absorption of the surplus personnel will be considered as new appointments and they will not be granted benefit of seniority on the basis of their past service. Neither will such past service entitle them to such pay protection. One of the appointment letters appointing 65 candidates as Project Officers was issued on 20 th December, 2007. Such appointment letter had following clauses which read as under:4. Adjusted employees shall be covered under the old Pension Scheme. Their service period prior to retrenchment shall be counted for the purpose of pension. Period of retrenchment shall not be counted for the purpose of pension5. Adjustment of above surplus Project Officers shall be considered as fresh appointment and benefit of seniority on the basis their service rendered prior to becoming surplus shall not be admissible to themThe appointment letters to the other employees is on similar lines20. The entire case is based upon Rule 59 of the Rules and the Circular dated 12 th August, 1969 of the erstwhile State of Bihar. We do not find any merit in the arguments raised by the learned counsel for the appellants. Rule 59 of the Rules empowers the State Government to declare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from the general revenue. Rule 58 of the Rules contemplates the conditions that are required to be satisfied for services to be pensionable. Herein, as it has been reiterated before, first condition is that the service must be under the Government; second, that it must be substantive and permanent; and third, that it must be paid by the Government21. The appellants were appointed under a specific Scheme i.e. the Project. Such project was not a permanent establishment of the Government as it was meant for a specific purpose funded by the Central Government for a specified period. The appointment of the appellants under the Project is not a part of any cadre of the State Government. Therefore, the first condition of Rule 58 that the service rendered must be under the State Government is not satisfied by the appellants having been appointed under the Project. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants was under the Project. A permanent post in terms of Rule 31 of the Rules means a post carrying a definite rate of pay and that is sanctioned without a time limit. The appointment of the appellants under the project was not in a pay scale nor was it sanctioned without a time limit. Further, substantive pay is defined in Rule 38 of the Rules as a person who is appointed in a cadre. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government22. If the first and second conditions mentioned in Rule 58 of the Rules are not satisfied, the State Government can declare any specified kind of service rendered in a non-gazetted capacity to qualify for pension. The Circular dated 12 th August, 1969 deals with pensionary benefits to a temporary Government servant. The appellants were never appointed by the Government either on a temporary or on permanent basis. The appellants were engaged under the Project i.e. a scheme, therefore, the benefit of such a Circular cannot be claimed by the appellants. Still further, sub-rule (1) of Rule 59 of the Rules empowers the State to declare any specific kind of service to qualify for pension. The notification for absorption circulated on 30 th May, 2007 and the subsequent letter of appointments do not contain any condition that the services rendered by the appellants under the Project shall qualify for pension. The policy decision contemplates that it is a fresh appointment and no benefit either of seniority or pay protection shall be given. The appellants have not disputed such condition of appointment having been appointed under such policy decision vide the notification dated 30 th May, 2007. The Circular has not granted pensionary benefits. In the absence of any specific condition in the Circular to grant pensionary benefits, it is not possible to read that pensionary benefits are to be granted to the erstwhile employees of the Project. The appellants cannot turn around to say that the services rendered by them under the Project shall be counted for pension. The Circular dated 12 th August, 1969 is not even remotely applicable to the employees appointed under the Project as the very nature of the appointment was for a specific purpose and not for an unlimited period of time23. The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them25. The Single Bench of the Jharkhand High Court in a judgment reported as Asgar Ali dealt with a prayer for absorption and for payment of arrears of salary from 16 th May, 2001, i.e. when the employees were rendered as surplus, till January, 2008, i.e. the date of their absorption, in Writ Petition No.729 of 2004. The learned Single Bench vide order dated 4 th January, 2010, directed the state for the payment of salary for the reason that the services of the employees under the Project were not retrenched, therefore, the employees were entitled to their salary. In such petition the employees had made no claim for counting of past services for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 which was dismissed vide order dated 1 st October, 2013. Thereafter the State sought a Special Leave Petition which was also dismissed with a direction to make phased payments of salary to the writ petitioners/employees. Again, no claim for counting of past services for the purposes of pension was made or allowed by the Court. It was merely a monetary benefit which was granted on account of no formal order of retrenchment being passed against the employees employed under the Project26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension28. After the aforesaid judgments, Baliram Singh along with others filed CWJC No. 22208 of 2013 (2016 SCC OnLine Patna 9958 decided on 22nd August, 2016. ) to claim back wages for the period from 1 st October, 2001 to 3 rd July, 2007. The learned Single Bench allowed the writ petition on 22 nd August, 2016. Thereafter, LPA No. 2307 of 2016 was dismissed on 15 th January, 2018. The said orders were set aside by this Court in Baliram Singh. Therefore, the reliance of the High Court on an order passed at earlier stage on Baliram Singh no longer holds good. It may be noticed that in the State of Bihar, past services rendered by employees under the Project were taken into consideration for pensionary benefits.