Service rendered by a daily wage employee does not qualify for pension: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 819 Ram Ekbal Mahto S o Late Kedar Mahto Resident of Barwat Pasrain Ward No. 09 P.O. Barwat Pasrain P.S. Bettiah Muffassil District West ... Petitioner s The State of Bihar through its Secretary Water Resources Department The Engineer in Chief Cum Special Secretary Water Resources Department The Chief Engineer Water Resources Department Balmiki Nagar West Patna Bihar Bihar Patna Champaran Bihar The Superintending Engineer Water Resources Department Tirhut Canal Division Bettiah West Champaran Bihar The Executive Engineer Water Resources Department Tirhut Canal Division No.1 Bettiah West Champaran Bihar ... Respondent s For the Petitioner s Mr. Harendra Kumar Tiwary Adv. For the Respondent s Mr. Harish Kumar GP 8 CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH Date : 09 07 2021 The present writ petition has been filed for considering the case of the petitioner as a special case for grant of pensionary benefits taking into account his long tenure as a daily wage worker from 02.04.1981 to 30.09.1996 Patna High Court CWJC No.819 dt.09 07 2021 The learned counsel for the petitioner has submitted that the petitioner had worked as daily wage pump operator from 02.04.1981 to 30.09.1996 however in the year 1996 he was removed from his services as a daily wager whereafter he along with other similarly situated employees had filed a writ petition bearing CWJC No. 11717 of 1995 for regularization of their services which was disposed of by a coordinate Bench of this Court vide order dated 21.11.1996 with certain observations however subsequently the respondents had rejected the claim of the petitioner and others by an order dated 06.07.2005. Nonetheless subsequently the petitioner along with others was appointed in the Water Resources Department Balmiki Nagar by an office order dated 12.09.2009 issued by the Chief Engineer Water Resources Department Balmiki Nagar whereupon the petitioner had joined his services on 15.09.2009 and ultimately he superannuated from his services on 31.12.2017 The learned counsel for the petitioner has Patna High Court CWJC No.819 dt.09 07 2021 further submitted that since the petitioner had not completed 10 years service he has been denied pension hence it is prayed that a sympathetic view be taken for the purposes of grant of pensionary benefits in view of his long tenure as a daily wager from the year 1981 to the year 1996. 4. Per contra the learned counsel for the Respondent State Sri Harish Kumar has submitted that the petitioner had joined the regular establishment on 15.09.2009 and as per the letter of the Finance Department dated 31.08.2005 an employee who has joined the services of the Government of Bihar on or after 01.09.2005 shall be governed by the new pension scheme 2005 and would not be covered by the Bihar Pension Rules 1950. It is thus submitted that the entitlements under the new pension scheme 2005 qua the petitioner herein has already been processed and the due amount has already been paid to him. The learned counsel for the respondent State has also referred to the letter of appointment of the petitioner dated 12.09.2009 Patna High Court CWJC No.819 dt.09 07 2021 more particularly Clauses 2 and 10 thereof which stipulates that firstly the period pertaining to the petitioner having worked as a daily wager in the past shall not be considered as service rendered under the State Government for any purposes and secondly the petitioner would be amenable to the new pension scheme notified by the State Government on 01.09.2005. The learned counsel for the Respondent State has further referred to the resolution of the Finance Department dated which prescribes that those employees who have been appointed on or after 01.09.2005 shall neither be covered by the provisions of the Bihar Pension Rules 1950 nor by the previously existing General Provident Fund Scheme. Lastly the learned counsel for the Respondent State has relied on a judgment rendered by a full Bench of this Court in the case of The State of Bihar & Another vs. Bhagwan Singhreported in 2014PLJR 229 paragraph no. 14 whereof is reproduced herein below: Patna High Court CWJC No.819 dt.09 07 2021 “14. Keeping in view the above provisions we are of the opinion that the service rendered by the petitioner as daily wage Choukidar under the Executive Engineer Tubewell Division Gaya cannot be said to be a service for which the petitioner was paid from the general revenue of the State Government or the service rendered on a substantive post in a permanent establishment. Such service although was followed by absorption on regular establishment will not qualify for pension. Therefore the service rendered by the petitioner as daily wage employee from April 1973 to December 1978 was not a pensionable service or did not qualify for pension. On his retirement from service or his superannuation from service he would be entitled to pension for the service rendered on a substantive post from 1st January 1979 till the date he retired from service.” I have heard the learned counsel for the parties and gone through the materials on record Considering the fact that as per the appointment letter of the petitioner dated 12.09.2009 as also according to the resolution of the Finance Department dated 31.08.2005 the provisions of Patna High Court CWJC No.819 dt.09 07 2021 the Bihar Pension Rules 1950 are not applicable to the petitioner and the petitioner is amenable to the new pension scheme 2005 no relief can be granted to the petitioner inasmuch as firstly his services are not pensionable and secondly his past services rendered as a daily wage employee cannot be counted as a qualifying period for the purposes of grant of pension in view of the law laid down by the learned Full Bench of this Court in the case of Bhagwan Singh wherein it has been held that the service rendered by a daily wage employee is not a pensionable service and does not qualify for pension Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove I do not find any merit in the present writ petition hence the same stands dismissed Mohit Kumar Shah J 

Summary: A daily wage worker who works for the state government in any capacity rendering any service is not eligible for pension since such a service id deemed as a non-pensionable service. Moreover, the pension scheme,2005 governs all matters related to pension for appointments made after 1.09.2005. This was decreed by Honourable Mr. Justice Mohit Kumar Shah in the case of Ram Ekbal Mahto Vs. The state of Bihar through its secretary, Water resources department and Ors. [Civil Writ Jurisdiction Case No. 86 of 2019] on the 09th of July 2021 before the Hon’ble High Court at Patna. The brief facts of the case are, petitioner was a daily wage pump operator from 02.04.1981 to 30.09.1996. He was terminated from his services and was reinstated by an order dated 12.09.2009 issued by the Chief Engineer, Water Resources Department, whereupon the petitioner had joined his services on 15.09.2009 and ultimately, he superannuated from his services on 31.12.2017. On account of his non-completion of 10 years of service, the state had denied him his pension. The present writ petition has been filed for considering the case of the petitioner as a special case for grant of pensionary benefits taking into account his long tenure as a daily wage worker from 02.04.1981 to 30.09.1996. The counsel for the petitioner submits that the court must consider the time period from 1981 to 1996 where he worked for the same body as a daily wage worker and allot him his pension on sympathy grounds. However, the counsel for the respondent state argued that, that the petitioner had joined the regular establishment on 15.09.2009 and as per the letter of the Finance Department dated 31.08.2005, an employee, who has joined the services of the Government of Bihar on or after 01.09.2005, shall be governed by the new pension scheme, 2005 and would not be covered by the Bihar Pension Rules, 1950. It was also submitted that asper the new pension scheme, the petitioner has been paid of his benefits. The learned counsel for the respondent-State has also referred to the letter of appointment of the petitioner dated 12.09.2009, which stipulates that firstly, the period pertaining to the petitioner having worked as a daily wager in the past shall not be considered as service rendered under the State Government for any purposes and secondly, the petitioner would be amenable to the new pension scheme, notified by the State Government on 01.09.2005. The learned judge heard the contentions of both the parties and  observed that the service rendered by a daily wage employee is not a pensionable service and relied on the judgement decreed in The State of Bihar &amp; Another vs. Bhagwan Singh (since dead), reported in 2014 (4) PLJR 229, wherein, “Keeping in view the above provisions, we are of the opinion that the service rendered by the petitioner as daily wage Choukidar under the Executive Engineer, Tubewell Division, Gaya cannot be said to be a service for which the petitioner was paid from the general revenue of the State Government or the service rendered on a substantive post in a permanent establishment. Such service, although was followed by absorption on regular establishment, will not qualify for pension. Therefore, the service rendered by the petitioner, as daily wage employee from April 1973 to December 1978, was not a pensionable service or did not qualify for pension. On his retirement from service or his superannuation from service, he would be entitled to pension for the service rendered on a substantive post from 1st January 1979 till the date he retired from service.”