Patna High Court
Rajni Kant Arun vs The State Of Bihar on 20 January, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13646 of 2023
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Rajni Kant Arun Son of Late Krishna Kant Prasad Resident of House No.
337, Road No. 31, New Patliputra Colony, P.S.- Patliputra, Patna- 800013.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Information and Public
Relation Department, Government of Bihar, Patna.
2. The Director, Information and Public Relation Department, Government of
Bihar, Patna.
3. The Dy. Director (Accounts) cum Drawing and Disbursing Officer,
Information and Public Relation Department, Government of Bihar, Patna.
4. The Under Secretary, Information and Public Relation Department,
Government of Bihar, Patna.
5. The Accountant General, A and E, Bihar, Mahalekhakar Bhawan, Birchand
Patel Bhawan, Patna- 800001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Ms. Manisha Singh, Advocate
Ms. Supragya, Advocate
For the Respondent/s : Mr. Abhishek Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 20-01-2025
This Court has heard Ms. Supragya, learned Advocate
for the petitioner and Mr. Abhishek Singh, learned Advocate for
the State.
2. The petitioner, who superannuated on 31.12.2022,
as a Member of Mode Mandali from the Department of
Information and Public Relation, Government of Bihar has
approached this Court seeking a direction upon the respondents
concerned to count his services from the date of his joining, i.e.,
26.05.1992
, till the date of his superannuation on 31.12.2022,
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for the purposes of payment of pension and other terminal
benefits, such as gratuity, leave encashment, provident fund etc.
The petitioner is also aggrieved with the letter dated 18.07.2023,
the copy of which is marked as Annexure-4 to the writ petition,
whereby the concerned respondent has held the petitioner not
entitle for pension, in view of Rule 58 and 61 of the Bihar
Pension Rules, 1950 (hereinafter referred to as, “Rules, 1950”).
3. The necessary facts as culled out from the materials
available on record, in brief, are as follows:
(i) The petitioner was duly appointed as a member of
Mode Mandali Yatra Party (Entertainment Group) on ad hoc
basis for six months vide office order issued by the Director,
Information and Public Relation Department under Memo No.
919 dated 23.05.1992 in the pay scale of Rs. 1200-1800/-.
(ii) In pursuant to the order aforenoted, the petitioner
submitted his joining. The services of the petitioner was
extended till further order vide office order contained in Memo
No. 196 dated 27.01.1993.
(iii) The petitioner was accorded all the service
benefits, including the benefit of Provident Fund and group
insurance scheme from the date of joining. The petitioner was
also allowed the replaced revised pay scale of Rs. 4500-7000/-
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with effect from 01.04.1997 and further the benefit of 6th Pay
Revision in the pay band of PB-1 (5200-20200) with grade pay
of Rs. 2800/- with effect from 01.04.2007. Subsequently, the
benefit of 7th Pay Revision in the pay scale of Level-5 with the
basic pay of Rs. 57500/- was also extended, until his
superannuation.
(iv) The services of the petitioner along with other
similarly situated persons were duly regularized and taken in the
cadre of Bihar Information and Public Relation Department vide
office order no. 77 dated 10.03.2017, with effect from the date
on which the Bihar Information and Public Relation Department
Artists Cadre (Recruitment and Service Conditions) Rules, 2017
was notified.
(v) The petitioner having attained his age of
superannuation, retired from the aforesaid post on 31.12.2022.
The petitioner on being superannuated submitted his application
in prescribed format, requesting for payment of pension, which
has turned down by the concerned respondents with a clear
stipulation that the petitioner does not fulfill the conditions laid
down in Rule 58 and 61 of the Rules, 1950 vide order contained
in Letter dated 18.07.2023, which is put to challenge before this
Court.
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4. Ms. Supragya, learned Advocate for the petitioner
assailing the impugned order and the action of the respondents,
primarily has taken this Court through the Rule 58 of the Rules,
1950. It is contended that the petitioner’s request for pension
could have only been considered on fulfillment of three
conditions that the service must be under the Government, on
substantive and permanent post, and paid by the Government.
The impugned order admitted the position that the petitioner
was working in Bihar Information and Public Relation
Department and thus, inevitably working under the
Government; and secondly, he was being paid his salary in the
prescribed scale by the State Government. The very basis of
negating the claim of the petitioner for pension is said to be non-
fulfillment of the condition that he was holding substantive and
permanent post.
5. To controvert, reasoning and the basis assigned by
the concerned respondent, it is contended that the service of the
petitioner was continuous for 30 years without any break or
interruption. Once the service was extended, after the lapse of
first six months in January, 1993, which was done for an
indefinite period, until further order. No further order with
respect to the petitioners services were passed and the petitioner
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was allowed to superannuate with all the perk and privileges at
par with the regular employees.
6. Based upon the past services of the petitioner and
considering that he had diligently spent many years with
department, and now there is no other source of income left for
him, he has taken into regular cadre upon regularizing his
services vide order dated 14.07.2017 (Annexure-2 to the writ
petition). The payment of salary on scale as regular Government
employee along with dearness allowance, provident fund as well
as GIC contribution clearly suggest that he has always been
treated as a regular employee under the State Government.
Allowing the benefit of 5th Pay Revision, 6th Pay Revision as
well as 7th Pay Revision leaves no stretch of imagination that
his services was temporary and ad hoc, once finally taken into
regular cadre upon regularization of his services.
7. It is further urged before this Court that the
contribution to the GPF from June, 1992 strengthen the case of
the petitioner, in view of Rule 4 of Bihar General Provident
Fund Rules, 1948 which clearly stipulates that only permanent
employees are required to make contributions from the first
month of service. The case of the petitioner is said to be entirely
covered by a Bench decision of this Court in the case of Daroga
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Yadav Vs. State of Bihar and Ors., CWJC No. 3872 of 2006,
wherein the learned Court has duly explained the definition of
substantive and permanent post qua the Rule 58 of the Rules,
1950.
8. To support the contentions raised before this Court,
Ms. Supragya learned Advocate for the petitioner placed further
reliance on decision of the Hon’ble Supreme Court in the case
of Vinod Kumar & Ors. Vs. Union of India & Ors., (2024)
INSC 332, and further Rajkaran Singh & Ors. Vs. Union of
India & Ors., (2024) INSC 621, especially para 27 to 34.
Learned Advocate for the petitioner urged that Hon’ble Supreme
Court in the case of Jaggo Vs. Union of India, (2024) INSC
1034 has carved out a distinction from the case of Secretary,
State of Karnataka Vs. Umadevi, (2006) 4 SCC 1, while
distinguishing the irregular/temporary employments from illegal
appointments. In no imagination, the services of the petitioner
can be said to be an illegal appointment.
9. While concluding the submission, learned Advocate
has placed before this Court a decision of the learned Division
Bench of this Court in the case of The Registrar General,
Patna High Court Vs. Ram Vyas Dubey & Ors., in LPA No.
198 of 2019, wherein, the learned Court while affirming the
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order of the learned Single Judge has ruled that even if a person
has worked in a temporary capacity and has not been confirmed,
if his service on any post is continuous and is for more than 15
years, then it may be considered as pensionable under Rule 59
of the Rules, 1950.
10. Mr. Abhishek Singh, per contra, to substantiate the
impugned order and action of the respondent has vehemently
contended that there is no provision under Rules, 1950 to reckon
the ad hoc service of employee as pensionable service, unless
the government servant qualify the conditions, as provided
under Rule 58, thereof. Admittedly, the petitioner was not
holding the substantive and permanent post. Moreover, the
service of the petitioner was regularized vide office Order No.
77 dated 10.03.2017 with effect from 21.02.2017, the date on
which the aforenoted Rules, 2017 came to be notified. The
petitioner has served the department as regular and permanent
employee, only for about five years and ten months. Referring
to Rule 145 of the Rules, 1950, he further contended that since
the petitioner could not complete the minimum qualifying
service of ten years, in any view of the matter, he is not entitle to
get pension and gratuity. So far the GPF and group insurance are
concerned, the petitioner has already been paid the same.
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11. To support the aforesaid contention, learned
Advocate for the State also refer to Rule 61 of the Rules, 1950,
which provides that the service does not qualify, unless the
government servant holds substantively post on a permanent
establishment. Reliance has also been placed on a Full Bench
decision of this Court in the case of State of Bihar & Anr. Vs.
Bhagwan Singh (since dead), (2014) 4 PLJR 229, wherein, the
learned Full Bench of this Court taking note of the relevant rules
of Bihar Pension Rules, 1950 has held that the services rendered
by an employee as daily wager cannot be said to be a service for
which the said employee was paid from general revenue from
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. It is lastly contended that the identical claim of the
daily wagers employee, Girja Nandan Sharma has also been
turned down by this Court in CWJC No. 528 of 2015, in the
light of the ruling of the Full Bench judgment in the case of
Bhagwan Singh (supra).
12. This Court has given anxious consideration to the
submissions advanced on behalf of the respective parties and
also perused the materials available on record as well as the
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relevant rules.
13. Facts are not in dispute that the petitioner was
appointed on ad hoc basis on the fixed pay scale along with
applicable DA and other allowances and was paid regular salary
by the Government of Bihar on such scales, as and when revised
without any interruption for almost 30 years, till the petitioner
superannuated. The petitioner all along has been allowed the
benefit of GPF and GIC.
14. The claim for regularization of the petitioner along
with others were duly considered by the concerned department
and one of the basis for such regularization and bringing them in
regular cadre was the past continuous service of the petitioner
and others, leading to issuance of the order of regularization
vide order dated 14.07.2017.
15. This Court has gone through the impugned order;
while rejecting the claim for pension of the petitioner, the
concerned respondent has admitted that the petitioner fulfills the
condition of Rule 58 of the Rules, 2005, except the condition (2)
thereof, which mandates that the employment of the government
servant must be substantive and permanent. Thus, the claim of
the petitioner has been turned down, in view of Rule 58 and 61
of the Rules, 2005. The continuous service for a pretty long time
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under the government, subscribing all the admissible
remuneration paid by the government and consideration of the
past service for regularization is essential and more than
sufficient for establishment of substantive and permanent
employment.
16. The learned co-ordinate Bench of this Court in the
case of Daroga Yadav (supra) in an identical situation, where
the claim of the petitioner of the said case for pension has been
refused, despite his continuous 34 years of service, leading to
regularization, has held that continuous service of the petitioner
for such a long period, which was also made the basis for his
regularization clearly demonstrates that it had all the parameters
of a substantive post and thus, held the petitioner would be
entitled for counting his services right from inception till his
superannuation, as qualifying service for the purpose of fixation
of pension and other pensionary entitlements.
17. It would be significant to note that the Hon’ble
Supreme Court in the case of Vinod Kumar (supra) has
categorically observed that the essence of employment and the
rights thereof, cannot be merely determined by the initial terms
of appointment when the actual course of employment has
evolved significantly over time. The continuous service of the
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appellants in the capacities of regular employees, performing
duties indistinguishable from those in permanent posts, and their
selection through a process that mirrors that of regular
recruitment, constitute a substantive departure from the
temporary and scheme-specific nature of their initial
engagement. The Hon’ble Court while adjudicating the issue
with regard to the non consideration of regularization and
absorption in the post of Accounts Clerk, against which they
were temporarily appointed and continued for a period of 25
years, while allowing the appeal held that the failure to
recognize the substantive nature of their roles and their
continuous service akin to permanent employees runs counter to
the principles of equity, fairness, and the intent behind
employment regulations.
18. The issue regarding non-payment of pension on
account of the incumbent being not a government employee and
had not been appointed by following any recruitment rules,
despite rendering the services for more than two decades, came
up for consideration before the Hon’ble Supreme Court in the
case of Rajkaran Singh & Ors. (supra) wherein, the Hon’ble
Court taking note of the fact that the appellants were appointed
on a regular pay scale and were allowed the other benefits,
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including grant of Assured Career Progression held such long-
term service, suggesting a level of permanence and integration
into the governmental structure, belying their classification as
temporary employees. The Hon’ble Supreme Court referring to
the earlier decision in the case of Vinod Kumar & Ors. (supra)
held that; the essence of employment and the rights thereof
cannot be merely determined by the initial terms of appointment
when the actual course of employment has evolved significantly
over time, has opined that the denial of pensionary benefits to
the appellants is not tenable or justifiable in the eyes of law, on
being found the same is arbitrary and violates the fundamental
rights as guaranteed by Articles 14 and 16 of the Constitution of
India.
19. It would be also worth noticing the decision of the
Hon’ble Supreme Court in the case of Jaggo Vs. Union of
India (supra), wherein, the claim of the appellants for their
regularization in Central Water Commission were refuted on
account of their appointments not being made against sanction
post and without fulfilling the requisite condition and, as such,
contrary to the dictum of the Constitution Bench judgment in
the case of Secretary, State of Karnataka Vs. Umadevi (supra)
has held in paragraph nos. 20, 26 and 27, as follows:-
“20. It is well established that the decision in Uma
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Devi (supra) does not intend to penalize employees
who have rendered long years of service fulfilling
ongoing and necessary functions of the State or its
instrumentalities. The said judgment sought to
prevent backdoor entries and illegal appointments
that circumvent constitutional requirements.
However, where appointments were not illegal but
possibly “irregular,” and where employees had
served continuously against the backdrop of
sanctioned functions for a considerable period, the
need for a fair and humane resolution becomes
paramount. Prolonged, continuous, and unblemished
service performing tasks inherently required on a
regular basis can, over the time, transform what was
initially ad-hoc or temporary into a scenario
demanding fair regularization. In a recent judgment
of this Court in Vinod Kumar and Ors. Etc. Vs.
Union of India & Ors., it was held that held that
procedural formalities cannot be used to deny
regularization of service to an employee whose
appointment was termed “temporary” but has
performed the same duties as performed by the
regular employee over a considerable period in the
capacity of the regular employee. The relevant paras
of this judgment have been reproduced below:
“6. The application of the judgment in
Uma Devi (supra) by the High Court does not
fit squarely with the facts at hand, given the
specific circumstances under which the
appellants were employed and have continued
their service. The reliance on procedural
formalities at the outset cannot be used to
perpetually deny substantive rights that have
accrued over a considerable period through
continuous service. Their promotion was
based on a specific notification for vacancies
and a subsequent circular, followed by a
selection process involving written tests and
interviews, which distinguishes their case
from the appointments through back door
entry as discussed in the case of Uma Devi
(supra).
7. The judgment in the case Uma Devi
(supra) also distinguished between
“irregular” and “illegal” appointments
underscoring the importance of considering
Patna High Court CWJC No.13646 of 2023 dt.20-01-2025
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strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have
been made illegally if they had followed the
procedures of regular appointments such as
conduct of written examinations or interviews
as in the present case…”
26. While the judgment in Uma Devi (supra) sought
to curtail the practice of backdoor entries and ensure
appointments adhered to constitutional principles, it
is regrettable that its principles are often
misinterpreted or misapplied to deny legitimate
claims of long-serving employees. This judgment
aimed to distinguish between “illegal” and
“irregular” appointments. It categorically held that
employees in irregular appointments, who were
engaged in duly sanctioned posts and had served
continuously for more than ten years, should be
considered for regularization as a one-time measure.
However, the laudable intent of the judgment is being
subverted when institutions rely on its dicta to
indiscriminately reject the claims of employees, even
in cases where their appointments are not illegal, but
merely lack adherence to procedural formalities.
Government departments often cite the judgment in
Uma Devi (supra) to argue that no vested right to
regularization exists for temporary employees,
overlooking the judgment’s explicit acknowledgment
of cases where regularization is appropriate. This
selective application distorts the judgment’s spirit
and purpose, effectively weaponizing it against
employees who have rendered indispensable services
over decades.
27. In light of these considerations, in our opinion, it
is imperative for government departments to lead by
example in providing fair and stable employment.
Engaging workers on a temporary basis for extended
periods, especially when their roles are integral to
the organization’s functioning, not only contravenes
international labour standards but also exposes the
organization to legal challenges and undermines
employee morale. By ensuring fair employment
practices, government institutions can reduce the
burden of unnecessary litigation, promote job
security, and uphold the principles of justice and
Patna High Court CWJC No.13646 of 2023 dt.20-01-2025
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fairness that they are meant to embody. This
approach aligns with international standards and
sets a positive precedent for the private sector to
follow, thereby contributing to the overall betterment
of labour practices in the country.”
20. Coming to the case in hand, admittedly, the
petitioner has served the department for about 30 years, which
led to the regularization of his services. Rule 59 of the Bihar
Pension Rules, 1950 empowers the State Government that in
certain cases, even though the conditions, as enumerated under
Rule 58, especially condition (i) and (ii) thereof, are not
fulfilled, the Government may provide that the services
rendered by a Government servant shall count for pension. The
learned Division Bench of this Court in the case of Ram Vyas
Dubey (supra) considering the conditions, as stipulated in Rule
58 of the Rules, 1950 viz-a-viz, the power as provided under
Rule 59 has held that even if a person has worked in a
temporary capacity and has not been confirmed, if his service on
any post is continuous and is for more than 15 years, then it may
be considered as pensionable under Rule 59 of the Bihar
Pension Rules, 1950.
21. The petitioner has all along been provided regular
salary in the prescribed pay scale with the pay revision, time to
time, applicable at par with the regular employees of the State
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Government. The deduction from the salary of the petitioner,
under General Provident Fund, from inception, till his
superannuation, in terms of the prescription of the Bihar General
Provident Fund Rule, 1948 also strengthened the case of the
petitioner. Rule 4 of the Rules, 1948 explicitly provides that
only permanent government employees are eligible to make
contributions towards Provident Fund from the beginning of
service.
22. So far the reliance placed by the learned Advocate
for the State on a decision rendered by the Full Bench of this
Court in the case of Bhagwan Singh (supra) as well as the
decision in the case of Girja Nandan Sharma (supra) are
concerned, these are not applicable in the facts of the case,
herein, as the petitioners therein were daily wage employees and
they had been working on a fixed wages and, as such, they
were, thus rightly held not qualified for pension, on account of
non adherence to any conditions stipulated under the Bihar
Pension Rules, 1950; whereas, the case of the present petitioner
is entirely different as discussed, hereinabove. The materials
enumerated clearly elucidate the petitioner fulfills all the
conditions, sine qua non, for making him entitled for pension
under Rule 58 of the Rule, 1950.
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23. In view of the discussions made hereinabove, this
Court finds substance in the present writ petition. Accordingly,
the impugned order, as contained in letter dated 18.07.2023
(Annexure-4) is hereby set-aside. The concerned respondent is
directed to grant pension and other terminal benefits, after
counting the services of the petitioner, from the date of his
joining, till the date of his superannuation. The entire exercise
must be completed, preferably within a period of twelve weeks,
from the date of receipt/production of a copy of this order.
24. The writ petition stands allowed. Pending
applications, if any, also stands disposed off.
25. There shall be no order as to cost.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR CAV DATE 09.01.2025 Uploading Date 21.01.2025 Transmission Date NA
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