Allowed

Parmeshwar Paswan v. the State of Bihar and Ors.

Patna HC14 Jul 2014L.P.A/544/2012

Case brief

AI extract

What is this about?

The Patna High Court allowed an appeal, setting aside the single Judge's dismissal. The court directed the State Government to condone the Chaudidars's 7-month deficit in reckonable pensionable service under Rule 106(b) of the Bihar Pension Rules, 1950, acknowledging his long continuous service, and ordered the payment of future and arrears pension.

What did the court decide?

Directed the State Government to condone the 7-month deficit in pensionable service under Rule 106(b) of the Bihar Pension Rules, 1950, and allow pension from April 1, 2014.

Parmeshwar Paswan Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Letters Patent Appeal No.544 of 2012

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Civil Writ Jurisdiction Case No.1817 of 2012

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====================================================== Parmeshwar Paswan, aged about 73 years, S/O Late Tunai Paswan, R/O Perjuar Din, Tol, P.S. Arer, Block Benipatti, District – Madhubani. .... .... Petitioner-Appellant Versus 1. The State of Bihar through Home Secretary-Cum-Commissioner (Police). 2. D.M., Madhubani.

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Circle Officer, Benipatti, Madhubani.

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Accountant General, Sultan Palace, Bihar, Patna.

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.... .... Respondents-Respondents ====================================================== Appearance : For the Appellant : Dr. R. Usha, Advocate Mrs. Sabita Kumari, Advocate For the Respondent-State: Mr. Prasoon Sinha G.A.-2 For the Respondent no.4 : Mr. Sudhir Singh, Advocate ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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And

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HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

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ORAL ORDER

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(Per: HONOURABLE THE CHIEF JUSTICE)

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14-07-2014 This Appeal under Clause 10 of the Letters Patent preferred by the writ petitioner arises from the order dated 7^th March 2012 made by the learned single Judge in CWJC No.1817 of 2012.

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The appellant claims that he was a Chaukidar governed by the Bihar Chaukidari Manual under the Circle

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Patna High Court LPA No.544 of 2012 (3) dt.14-07-2014

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Officer, Benipatti, District Madhubani since 1955.

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Bihar Chaukidari Manual is the compilation of the instructions issued relating to the village police under the Village Chaukidari Act, 1870 (Bengal Act VI of 1870). Chaukidars are appointed locally for watch and ward of villages. Under the provision contained under Section IV of the Manual, Chaukidars are appointed by the District Magistrate or the Sub-divisional Officer. Ordinarily, one Chaukidar is appointed per 60 houses. One Chaukidar for 100 to 120 should be considered to be normal if densely situated. The monthly pay of Chaukidars be Rs.2/- to Rs.6/-, but not less than Rs.4/- and more than Rs.5/- in districts of Patna, Bhagalpur and Orissa Divisions. The Chaukidar must be of good character; good physique and a permanent resident of his beat. The Manual also provides that salary of Chaukidar should be paid in cash on the date fixed under the supervision of some officer.

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Thus the Chaukidars were casual workers for consolidated pay and not the civil servant of the State. They were allowed to pursue their own occupation or vocation. The change appears to have been brought under the Government Circular dated 29^th August 1977. Under the said Circular, the Chaukidars were allowed remuneration in the pay scale of Rs.75-95. They were also allowed death cum retirement gratuity not more than Rs.1500/-. A further change came about in 1990. Under the Government Circular dated 17^th January 1990 effective from 1^st January 1990 the Chaukidars were treated as Class IV Government servants. They were placed in the pay scale of Rs.750-940 and they were allowed the other service benefits such as dearness allowance.

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Patna High Court LPA No.544 of 2012 (3) dt.14-07-2014

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Thus all Chaukidars governed by the Bihar Chaukidari Manual were with effect from 1^st January 1990 treated as Class IV servants under the State Government; were paid salary and other benefits as Class IV servants. Their service since 1^st January 1990 has been considered pensionable. On reaching the age of superannuation, the appellant retired from service on 31^st May 1999. The claim of the appellant for pensionary benefits has been repeatedly rejected. Therefore the writ petition.

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The learned single Judge has dismissed the writ petition on the ground that till the date of his retirement from service, the appellant had not completed 10 years’ pensionable service. The appellant was, therefore, not entitled to the pensionary benefits. Therefore, this Appeal.

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Learned advocate Dr. R. Usha has appeared for the appellant. She has taken us through the record. She has vehemently argued that appellant was paid from the consolidated fund of the Bihar Government. The appellant is, therefore, entitled to the benefits of pension. She has relied upon the judgments of the Supreme Court in the matter of D. S. Nakara & Ors. Vs. Union of India [AIR 1983 SC 130]; and of T he Direct Recruit Class-II Engineering Officers’ Association and others V. State of Maharashtra & Ors. [AIR 1990 SC 1607, particularly paragraph 44 thereof] , and of this Court in the matters of Karoo Paswan Vs. The State of Bihar & Ors. [1999 (2) PLJR 336]; and of Babban Prasad Singh & Ors. Vs. State of Bihar & Ors . [2001 (4) PLJR 638].

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Learned advocate Mr. Prasoon Sinha has appeared for the State Government. He has contested the Appeal.

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Patna High Court LPA No.544 of 2012 (3) dt.14-07-2014

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We are not at all impressed by the philosophical submissions made by Dr. R. Usha on Magna Carta of United Kingdom and how good was the British rule in India. She has submitted that the learned single Judge ought to have followed the judgment in the matter of Karoo Paswan (supra). That is the judgment the learned single Judge has followed.

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In the matter of Karoo Paswan , a similar claim for the pension made by a Chaukidar came up before this Court. In that case, the writ petitioner had, after serving as Chaukidar since 1954 retired from service in 1994. The learned single Judge has held that the service since 1^st January 1990 was the pensionable service, but the petitioner, having not completed 10 years’ pensionable service, was not entitled to pensionary benefits.

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Chapter IV Section II of the Bihar Pension Rules, 1950 deals with conditions of qualifications. It is not at all doubtful that the services rendered by the appellant as Chaukidar prior to the 1^st January 1990 was not a pensionable service. However, having regard to the long service, though not pensionable, rendered by the appellant and the fact that the appellant fell short by mere 7 months of required 10 years’ pensionable service, the appellant can be given relief by condoning the deficit in the pensionable service. There is no dearth of power in the State Government to condone such deficit. Rule 106 of the Bihar Pension Rules, 1950 provides for condonation of deficiency of not more than three months. However, deficiency for more than three months also can be condoned, but not without the permission of the State Government. Note below the said Rule 106 provides for

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Patna High Court LPA No.544 of 2012 (3) dt.14-07-2014

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principles to be observed for condonation of deficiency in service. In our opinion, the said Rule 106 encourages condonation of deficiency in service. Note (b) reads, “Condonation of short periods should also ordinarily be allowed where there has been a fairly long period of continuous temporary or other service (such as service in a district board, etc., which does not qualify for pension).”

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In our opinion, this is a fit case for invoking the power to condone deficiency in service conferred by Rule 106 of the Pension Rules. Ordinarily, this Court exercising power of judicial review would not condone the deficit itself or direct the State Government to condone deficiency, but would direct the State Government to consider the case for condonation of deficiency in service.

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In the present case, we do not consider it expedient to leave the matter for consideration by the State Government. That would delay the matter further. Ever since his retirement, the appellant has been pursuing his claim diligently and zealously. Although he has been before this Court in CWJC No.13634 of 2006; MJC No.3475 of 2008; and CWJC No.14717 of 2009; though each time the Court had the sympathetic view of his claim, till date no relief has been granted to the appellant.

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Considering the fact that the appellant has served as Chaukidar since 1955; since 1^st January 1990 his service was pensionable; the persons who have retired as Chaukidars after completing 10 years’ service since 1^st January 1990 must be in receipt of pension, the justice demands that the aforesaid deficiency of seven months in pensionable service be condoned.

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We, therefore, direct that the State Government will

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Patna High Court LPA No.544 of 2012 (3) dt.14-07-2014

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exercise its power under Rule 106 (ii) Note (b) of the Bihar Pension Rules, 1950 to condone the deficit in pensionable service of the appellant and will allow the appellant to draw pension on the basis of 10 completed years of service. The appellant will be entitled to pension from the current financial year commencing from 1^st April 2014.

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The aforesaid exercise shall be completed within three months from today. Commencing from 1^st November 2014, the appellant will be paid the monthly pension regularly. The amount of arrears of pension from 1^st April 2014 till 31^st October 2014 will be paid to the appellant on or before 31^st October 2014. In the event, the State Government fails to carry out the above directions within the specified time, the State Government will pay a cost of Rs.5,000/- to the appellant.

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Appeal is allowed. The order dated 7^th March 2012 made by the learned single Judge in CWJC No.1817 of 2012 is set aside. CWJC No.1817 of 2012 stands allowed in the above terms.

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Registry will send copy of this order to the respondents forthwith.

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(R.M. Doshit, CJ)

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(Ashwani Kumar Singh, J)

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Sunil/-

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Parmeshwar Paswan v. the State of Bihar and Ors.

Case brief

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Parmeshwar Paswan v. the State of Bihar and Ors.

Case brief

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