1 IN THE HIGH COURT OF JHARKHAND AT RANCHI. W.P. (S) No. 6062 of 2011 … (a) Sandhya Devi, W/o Late Jyotish Prasad Roy, resident of Village- Murkitta, P.O.-Pathradda, P.S.-Sarath, District-Deoghar. (b) Leha Devi, W/o Dharmendra Roy, resident of village Mohanpur, P.O. Pachamba, District-Giridih. (c) Bashista Kumar Roy, son of Late Jyotish Prasad Roy, resident of Village-Murkitta, P.O.-Pathradda, P.S.-Sarath, District-Deoghar. (d) Mamta Devi, W/o Dhananjay Kumar Roy, Resident of Village-Sirsia, P.O.-Bhojpur, P.S.-Devipur, District-Deoghar. (e) Kalpana Devi, W/o Rajiv Kumar Choudhary, Resident of Village- Buja, P.O. & P.S.-Chakai, District-Jamui (Bihar) (f) Suman Sourav, son of Late Jyotish Prasad Roy, Resident of Village- Murkitta, P.O.-Pathradda, P.S.-Sarath, District-Deoghar .... Petitioners -V e r s u s- 1. The State of Jharkhand.
2. The Chief Secretary, State of Jharkhand, Ranchi, Project Building, PO & PS-Dhurwa, Distt. Ranchi.
3. The Joint Secretary, State of Jharkhand, Co-operative Department, Ranchi, Project Building, PO & PS-Dhurwa, Distt. Ranchi.
4. The Secretary, Co-operative Department, State of Jharkhand, Ranchi, Project Building, PO & PS-Dhurwa, Distt. Ranchi.
5. Registrar, Co-operative Society, State of Jharkhand,, Ranchi, Engineers Hostel, PO & PS-Dhurwa, Distt. Ranchi.
6. Deputy Commissioner (Estd.), Deoghar, PO & PS-Deoghar, Distt. Deoghar.
7. Sub-Divisional Officer, Deoghar, PO & PS-Deoghar, Distt. Deoghar.
8. District Cooperative Officer, Dumka, PO & PS-Dumka, Distt. Dumka.
9. The State of Bihar. … Respondents … CORAM: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … For the Petitioners : - Mr. Durga Charan Mishra, Advocate. For the Respondents: - Mr. Anoop Kumar Agarwal, J.C. to S.C. V. … 07/08.09.2016 In the instant writ application, the petitioners have inter alia, prayed for an appropriate writ for quashing the impugned order as contained in Memo No. 989 dated 28.04.2011 (Annexure-7) issued under the signature of the Joint Secretary, Cooperative Department, Govt. of Jharkhand addressed to the Registrar, Cooperative Society, Jharkhand and further for issuance of an appropriate writ for quashing the letter no. 347 dated 25.05.2011 (Annexure-8), issued under the signature of the Deputy Collector, Deoghar and further for issuance of an appropriate writ in nature of Mandamus commanding upon the respondents for making payment of 2 arrears of amount of pension, gratuity and other retiral benefits as also current pension to the petitioners after taking into consideration the past services of the petitioners under employment as Paid Manager of Cooperative Society in the District of Giridih in view of the direction and judgment of the Hon'ble Supreme Court of India.
2. Sans details, the facts in a nutshell is that the deceased petitioner was appointed as Paid Manager in the district cadre of Cooperative Society Limited, Dumka. Since the paid managers were facing some financial difficulties, they preferred writ petition by way of filing C.W.J.C No. 2312 of 1991 for the absorption in Government service, which was disposed of directing the respondents to absorb the paid managers in government service. Being aggrieved, the State preferred Civil Appeal No. 7357 of 1996, which was disposed of vide order dated 20.08.1998 upholding the order passed by Hon'ble Patna High Court directing the State of Bihar to conduct the examination for absorption of Paid Managers/petitioners, taking into account of their age, experiences and services rendered to the Cooperative Society. Pursuant thereto, the petitioner was absorbed in the government service, after following the procedure laid down by Hon'ble Apex Court. It has further been averred that after his absorption, the petitioner continued to discharge his duties in his government departments.
3. Learned counsel for the petitioners submitted that Hon'ble Apex Court in the case of State of Bihar & Ors. Vs. Bihar Rajya Sahkarita Prabandhak Seva Sangh, Patna & Ors as reported in (1998) 8 SCC218has directed the respondents State to count the earlier service of the petitioners for the purpose of seniority and pension, but when the said order was not complied with, the petitioner preferred Contempt Petition before the Hon'ble Supreme Court, being Cont. Civil No. 27 of 2003, which was disposed of in view of the affidavit filed by the State of Bihar on 24.03.2003, stating that the order passed by the Hon'ble Court has been complied with. Learned counsel for the petitioners submitted that since petitioner before this Court was also party before the Hon'ble Supreme Court, hence, the stand taken by the State of Bihar is also applicable to him. Learned counsel for the petitioner further submitted that in deference to the order passed by Hon'ble Apex Court in Civil Appeal No. 7357 of 1996, the Government of Bihar took a decision to 3 extend benefits of seniority for the purpose of computing pension and other consequential benefits vide letter dated 26.02.2004 to the employees of Cooperative Department but the State of Jharkhand vide letter dated 07.03.2014 decided to remain stable on its earlier stand stating that since the past services rendered by the petitioner as paid/Cooperative Managers are not under government, their services cannot be counted for the purpose of pensionery benefits and promotion etc. In this context, it has been submitted that since the petitioner has served in the unified State of Bihar, after bifurcation of the State, the petitioner deserve same benefit as have been extended to the employees serving in the State of Bihar. It has been submitted with vehemence that at the relevant point of time since the state of Jharkhand was not in existence, hence the decision taken by the State of Bihar is binding upon the respondents and the State of Jharkhand cannot resile from the stand taken by the State of Bihar before the Hon'ble apex Court. Therefore, the impugned order dated 28.04.2011 is hit by principles of promissory estoppal since the order of Hon'ble Apex Court has been passed on a consentaneous order.
4. Learned counsel for the petitioner further submitted with vehemence that the action of the respondents in not considering the past services rendered as paid manager for the purpose of pension as reflected in order dated 28.04.2011 impugned in the writ application appears to have been passed in the teeth of violation of order passed by Hon'ble Apex Court.
5. The learned counsel for the petitioners further submitted that the action of the respondents in debarring the petitioners from the benefit of past services, seniority and pensions cannot be upheld when tested on the touchstone of Articles 14 and 16 of the Constitution of India.
6. Learned counsel for the petitioners further submitted that legal fundamental rights of the petitioners flows from the order of Hon'ble Apex Court since in pursuance to the order of Hon'ble Apex Court, the petitioners having qualified the examination, they have been absorbed with the fond hope of getting post retiral benefits.
7. Learned counsel for the petitioners further submitted that assertion of the petitioners that similarly placed persons have been granted pensionary benefits but the petitioners have been subjected to hostile discrimination, 4 that assertion has not been controverted by the respondents.
8. Per contra, counter affidavit has been filed on behalf of respondents. It has been submitted on behalf of respondents that the Department of Cooperative, Government of Jharkhand has perused all the relevant facts regarding the terms and conditions of services applicable to the paid/cooperative Managers especially in respect of their past services rendered as Paid/Cooperative Managers to the Department of Personnel, Administrative Reforms and Rajbhasha for consideration and opinion. Thereafter the matter was referred to the Law & Justice Department, Government of Jharkhand for legal consideration of the issues involved. It has been submitted that both the Personnel, Administrative Reforms & Rajbhasa Department and the Department of Law & Justice have confirmed the earlier stand of the Cooperative Department in respect of past services rendered as Paid/Cooperative Managers that they cannot be considered to be in Government service. Thus, the Department of Cooperative, Government of Jharkhand has come out with a considered stand vide order dated 07.03.2014 with the consent of the concerned department that the past services of the paid/Cooperative Managers could not be counted for the purpose of pensionery benefits and promotion etc.
9. Learned counsel for the respondents while countering the submissions advanced by learned counsel for the petitioners submitted that the paid/Cooperative Managers is neither the employees of the State Government nor the employees of the District Central Cooperative Banks rather they are the employees of the District Cadre Cooperative Society. Section 58 of the Jharkhand Pension Rules clearly depicts that benefits of pension can only be extended to the Government Servants, so the departmental stand taken vide order dated 28.04.2011 has rightly and lawfully been enunciated in strict tune with the various judicial judgments/orders.
10. On the conspectus of facts, as emerged from the pleadings of the respective parties, the moot question that falls for consideration before this Court is as under: (i) Whether the petitioner, those who have been absorbed in government service, after fulfilling the criteria framed by 5 Hon'ble Apex Court, in pursuant to judgment rendered in the case C.W.J.C. No. 2312 of 1991 affirmed upto the Hon'ble Apex Court in Civil Appeal No. 7357 of 1996, can stake their claim for counting their past services rendered in different government departments and in view of the fact that similarly placed employees of the State of Bihar have been given the same benefit in pursuance to resolution dated 26.02.2004 passed by the State of Bihar? (ii) Whether the impugned order dated 28.04.2011 passed by the respondents is vulnerable and unsupportable due to lack of cogent reasons so as to be amenable to judicial review? (iii) Whether any welfare State, State being a ideal employer, can deny benefits of post retirement benefits on the ground of paucity of funds and statutory bars and statutory provisions under the relevant provisions of Pension Rules? 11. Before adverting to the aforesaid issues, it would be apposite to refer to the relevant provisions of the Jharkhand Pension Rules, which are reproduced herein below:
45. e). When a Government servant serves under an agreement which contains no stipulation regarding pension, unless the Provincial Government specially authorise him to count service towards pension. 58.The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:First – The service must be under Government. Second – The employment must be substantive and permanent. Third – The service must be paid by Government. These three conditions are fully explained in the following subsections. 60.The service of a Government servant does not qualify unless he is appointed and his duties and pay are regulated by the Government, or under conditions determined by the Government. The following are examples of Government servants excluded from pension by this rule; (1)Employees of a municipality (2)Employees of grant-in-aid schools and institutions. (3)Service on an establishment paid from the house hold allowance of the Governor or from his contract establishment allowance. 61.Service does not qualify unless the Government servant holds substantively a post on a permanent establishment. 6 203.(a)The Provincial Government reserve to themselves the powers of interpreting the rules and of granting any indulgence not provided for by the rules. If any interpretation of the rules is involved, or if any indulgence not provided for by the rule is proposed, the head of department or the head of the office shall submit the case with his opinion and recommendation, to the Provincial Government in the Administrative Department concerned. (b) Until the orders of the Government are received, a recommendation for any special indulgence shall never be communicated, directly or indirectly, to the Government servant concerned. (c) An application in Pension Form 4, together with the statement of service in the second page of that form or in forms prescribed in Chapter IX, as the case may be, shall accompany every special recommendation made under this rule.
12. On conjoint reading of the aforesaid provisions of Jharkhand Pension Rules, there is no doubt or debate that the petitioner's services rendered as paid manager in the district cadre of Cooperative Society Limited, Dumka before absorption does not qualify for pension since the conditions stated therein under Rule 58 of the Pension Rules are not fulfilled. But at the same time, the State is not denuded of its power to exercise its discretionary powers by invoking Rule 203 of the Pension Rules so as to subserve the ends of justice and equity.
13. Viewed from another angle and to understand the intent and purport of judgment passed in the case of State of Bihar & Others Vs. Bihar Rajya Sahkarita Prabandhak Seva Sangh Patna as reported in (1998) 8 SCC218in Civil Appeal No. 7357 of 1996, it would be beneficial to quote the relevant paragraph of that judgment, which is reproduced herein below: “8.A reasonable number of posts available including even those in the process of recruitment be set apart for being filled up by the respondents. A separate recruitment test/examination be held. They cannot be asked to take the same examination prescribed for fresh candidates for entering the government service. The question paper(s) for the eligible respondents must be so prepared bearing in mind the conditions of the respondents such as age past service etc. After taking such examination(s) the eligible respondents may be absorbed subject to reasonable conditions as to their past service seniority and pension.”
14. Admittedly, the petitioners, who are before this Court and other 7 employees/petitioners who were party in C.W.J.C No 2312 of 1991, in pursuance to the aforesaid judgment appeared in the recruitment test/examination and after coming out successful they were absorbed in government services.
15. According to Black Law Dictionary, absorption means “The act or process of including or incorporating a thing into something else” meaning thereby on absorption an employee becomes part and parcel of that department absorbing him and partakes the same colour and character of the existing employees of the department. Going by the strict interpretation of the Rules, the past services rendered by the petitioners would be wiped out for the purpose of computation of pension. The literal meaning of word absorption is continuation in services of employees without interruption and the consequence enabling from such absorption is continuity in service without any break.
16. Moreover, once decision for absorption in service under the scheme of absorption has been taken, the services rendered before absorption would be deemed to be legal and valid. And at such belated stage and with a passage of years, it would not be fair on the part of the welfare state to deny/wipe out or to obliterate past services so as to deny counting their past services for computation of pension.
17. In this context, the Hon'ble Apex Court in the case of Usha Rani Dutta, Smt. Aaya/Attendant & Ors Vs. State Industrial Court, Indore & Ors as reported in (1985) 3 SCC148has held that after the absorption of the employees in Bhilai Steel Plant their services shall be counted since the commencement of their employment and treated to be continuous.
18. In the impugned order dated 28.04.2011, while denying to count the earlier services rendered by the petitioners in the district cadre of Cooperative Society Limited, Giridih, stand of paucity of funds has been taken, which in my view, the State being a welfare State, could not have taken to reject the claim of the petitioners or to discard the claim of the petitioner.
19. Though, the resolution dated 26.02.2004 passed by the State of Bihar for computation of period of pension, is not binding on the State of Jharkhand but on the ground that the employees have a human right as also a 8 fundamental right under Article 21 which the States are bound to protect in furtherance of the human and fundamental rights of the employees concerned and not by way of an enforcement of their legal rights. Hence, the State of Jharkhand may emulate the decision taken by State of Bihar or draft a new policy in this regard in deference to the purport and intent of the judgment rendered by Hon’ble Apex Court and for considering the fact that similarly placed persons have been extended the benefit of pension and the petitioners are unfortunate one who have rendered their services in the territory of State of Jharkhand have been deprived to enjoy the fruits of pensionary benefits.
20. In view of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 28.04.2011 (Annexure-7) issued under the signature of the Joint Secretary, Cooperative Department, Govt. of Jharkhand addressed to the Registrar, Cooperative Society, Jharkhand as well as the letter no. 347 dated 25.05.2011, issued under the signature of the Deputy Collector, Deoghar, are hereby quashed and set aside. The respondents are directed to consider the matter afresh, taking into account the observations made by this Court in the forgoing paragraphs as expeditiously as possible preferably within a period of six months from the date of receipt/production of copy of this order.
21. With the aforesaid observations and directions, the writ petition stands disposed of. (Pramath Patnaik, J.) APK