48. Divergent views created in successive judgments of this Court with regard to the work- charged employee have once again brought us together to resolve and cull out the true spirit and import of the circulars which were issued by the State of Bihar with respect to the counting of the period of work-charge service rendered by them for the purposes of computing pensionary benefits and the length of pensionable service.

49. Having carefully scanned the opinion of Brother Justice Ashutosh Kumar who has given a meticulous exposition of the Circulars and the Rules which have led to certain dichotomies in judicial pronouncement rendered by two Division Benches of this Court, I find myself in full agreement with his opinion and would also like to pen down my views in this regard.

50. What was observed by a learned single Judge while referring the matter to a Larger Bench for an authoritative opinion was the recent judgment dated 04.01.2018 rendered in the case of Binod Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 52/62 Kumar and others Vrs. The State of Bihar and others in L.P.A. No.12674 of 2017. The Division Bench while interpreting and taking into consideration the Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013, had given a considered opinion that the period spent under the Work-Charged Establishment would be counted to the extent of the shortfall in the qualifying period of service for grant of pension which shall be made by adding of that period spent under the Work-Charged Establishment. This opinion ran contrary to the earlier decision of this Court rendered in another Division Bench judgment in the case of State of Bihar and others Vs. Sheela Devi and other analogous cases (Civil Review No.210 of 2014, arising out of LPA No.416 of 2013, vide judgment dated 21.09.2015). In this case, the Court, while considering the issue with regard to the counting of the period of Work-Charge service for the purpose of computing pensionary benefits and the length of pensionable service, had held that the entire period spent under the Work- Charged Establishment be taken into account for Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 53/62 calculating the pensionary benefits. Thus, the latter decision in the case of Binod Kumar (supra), wherein it has been held that the entire period spent under the Work-Charged Establishment would not be taken into account, upsets the pronouncement in the case of Sheela Devi (supra) and created a totally new picture with a divergent view and necessitated an authoritative pronouncement in this matter, as in view of the earlier judgment, those who were under Work- Charged Establishment had to await the decision, whereas those whose cases were under consideration, were stuck with the latter decision rendered in the light of Circular No.10710 dated 17.10.2013.

51. As pointed out by learned Brother Justice Ashutosh Kumar, the Government by means of successive circulars endowed the Work-Charged employees such benefits right from the year 1949 to the year 1980. It appears from Order No.505 dated 06.03.1980 that those Work-Charged employee who came into the regular establishment after 01.04.1971 and thereafter, who did not have the qualifying years i.e., ten years of regular service and 15 years of Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 54/62 temporary service would be given the benefit of work-charge tenure, to make it pensionable along with gratuity. This relaxation was made and was in tune with Rule 203 of the Bihar Pension Rules.

52. The Government Resolution No.3058 dated 22.10.1984 further liberalized and widened the ambit by providing for regularising the work-charged employees, who had continuously worked against one post for five years in different Work-Charged Establishments but at this point, it was also decided by Circular No.8954 dated 23rd July, 1975 that no post in Work-Charged Establishment shall be filled up or created. 1987 Circular issued by the Finance Department, in its Resolution No.1503 dated 27.03.1987, declared that whole period rendered in Work-Charged Establishment be computed for the purpose of computation of qualifying period for grant of pension.

53. At this point of time, I would like to endorse the opinion as expressed by my learned Brother that the Circular of 1987 never intended that the entire service period rendered in the Work- Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 55/62 Charged Establishment is to be counted for pension also. This, in my opinion, is evident from the circular itself which clearly states that the qualifying period should be calculated in such a manner and added only to that extent and to the extent of the shortfall for which it is accepted, the concerned recipient of pension would have to refund the proportion of provident fund, if at all tendered to be deposited back into the Treasury. Clause 3(a) is clear on this issue. The Circular of 2004 issued by the Finance Department is nothing but a reiteration of the Circular of 1987, in which similar benefit has been extended to the work-charged employee.

54. I have also carefully perused the case of Sheela Devi, widow of one such work-charged employee, whose services were earlier engaged in 1988 but reverted to muster roll in 2002, came to be regularised by virtue of the decision of a 3-Member Committee in terms of the direction of Uma Devi (3) and others [(2006) 4 SCC 1]. His regularization in 2006 made him eligible to the benefit of CPF Scheme of 01.09.2005. It was held by the learned single Judge Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 56/62 that the husband of Sheela Devi being an earlier appointee than 2006, was not amenable to the CPF Scheme and was eligible for family pension and other death-cum-retirement benefits, including gratuity, leave encashment etc. The judgment of the single Judge was put to test in LPA No.416 of 2013, but the challenge placed by the State Government was rejected and finally the Division Bench while rejecting the challenge placed by the State Government and taking into note the various stages of liberalisation extended to Work-Charged Establishment in granting pension to them and the methodology of counting their service so as to bring the employee in the framework of qualifying service so as to entitle him to pension rejected LPA No.416 of 2013. The SLP also met with a similar fate, but with the oblique method of evading the contempt proceedings, the State filed a review which, however, was also rejected as judgment in LPA No.416 of 2013 having been affirmed by the Apex Court, had attained finality and a co-ordinate Bench could not sit in appeal over the same.

Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 57/62

55. It is important to remember that another rule had already surfaced being Work-Charged Establishment Revised Service Condition (Repeal) Rules, 2013 which was followed by the Finance Department notification dated 17.10.2013 contained in Circular No.10710. This Circular of 2013, by extending the cut-off date of induction of Work- Charged employees in regular establishment, sought to grant them pension by adding up the deficit period from their work charge tenure but with a rider in Rule 5 which method came to be resisted as the State Government in Clause 5, had now provided that five years service rendered under the Work-Charged Establishment would be only treated to be one year for counting and adding up in regular service so as to bring it within the purview of "qualifying period" for pension and gratuity.

56. The case of Binod Kumar (supra) sou6ght to deal with this issue and the circular wherein rules were sought to be tested for its reasonableness, but the Court held that the Circular No.10710 dated 17.10.2013 is wholly legal and valid Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 58/62 as the Rules have repealed 1949 provisions and the cut-off date, which has been fixed as 11.12.1990, made the Circular applicable only to those employees of Work-Charged Establishment who have been appointed on 11.12.1990 who were still in service. The Circular of 2013 only extended the benefit of such employee to 17.10.2013 but clause (5) fixed the parameters for fixation in the ratio 5:1, which was fully endorsed by the Division Bench in the case of Binod Kumar (supra).

57. Brother Justice Ashutosh Kumar has rightly noted that each of the judgments while dealing with the question of pension in the case of the Work- Charged employee, the term "qualifying service" has been made the key-word. However, I would supplement my said opinion by stating that the Circular/Resolution which have been coming down the times in favour of such work-charged employees, were but a beneficial provision/benevolence offered under Rule 203 of the Bihar Pension Rules, which was but an exercise of discretion of the State Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 59/62 Government and not by virtue of any right which had accrued to them.

58. It would be necessary to revert back to the decision in the similar Full Bench judgment in the case of Mobina Khatoon Vs. State of Bihar , reported in 2019(2) BLJ 9 (FB), wherein this Court while answering a reference to Rule 203 of the Bihar Pension Rules had permitted those who had been working in the Work-Charged Establishment to be granted pensionary benefits till the time fresh rules were framed in this regard.

59. It appears that the State Government has come up with rules wherein it has come up with a scheme of 3rd July, 2019 giving pension to such work- charged employee who was appointed on or before 11.12.1990 and had served for ten years against one post and had been made available the benefits of regular establishment to be entitled to the Old Pension Scheme with certain pre-conditions in terms of Circular No.10710 dated 17.10.2013.

60. I also find myself in full agreement with the view expressed my Brother who has clarified that Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 60/62 the ratio of the judgment in Sheela Devi and Binod Kumar both aimed at achieving the same object and granting only "qualifying period" and it was purely in ignorance of the Rules and Circulars that the Review Court could not appreciate the true import of the key- words in the Circular.

61. The reference as answered by our Brother Justice Ashutosh Kumar clearly is in line with my thinking and I am fully supportive of his finding that the entire service could not be counted for the purpose of qualifying service, but it would only be counted to the extent of service for the purpose of making it "pensionable." Thus, the five to one ratio as stated in the Circular for those employees for whom the cut-off date had been extended is but a measure to make this category also avail the pensionary benefit.

62. Having observed thus, I would proceed to state that any power to an authority is also coupled with a corresponding duty to comply with the requirement of law. However, we must also note that any department on that score cannot be whittled down Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 61/62 on the argument that no vested right has been curtailed.

63. I am also reminded of an observation in the case of State of Punjab Vs. Ram Lubbaiya Bagga , reported in (1998) 4 SCC 117, wherein their Lordships held as follows :

64. Furthermore, it is the settled principle of law as enunciated in Union of India Vs. Harjeet Singh Sandhu (AIR 2001 SC 1772), which is as follows:

"The truth or correctness or adequacy of the material available before the authority exercising administrative power cannot be revalued or weighed by court. Even if some of the materials on which administrative action is taken is found to be irrelevant, court will Patna High Court CWJC No.10063 of 2012 dt. 02-09-2019 62/62 still not interfere so long as there is some relevant material available on which the action can be sustained.

The court will presume the validity of the exercise of power but shall not hesitate to interfere if invalidity or unconstitutionality is clearly demonstrated. If two views are possible, the court shall not interfere by substituting its own satisfaction or opinion of the authority exercising the power."

Having considered the rationale of the afore- mentioned judgements and in agreement with the narrations as made by my Brother Justice Ashutosh Kumar, my opinion stands thus recorded.