Dismissed

Most. Rajpati Devi v. The State Of Bihar and Ors.

Patna HC27 Mar 2014CWJC/13525/2013

Case brief

AI extract

What is this about?

This Writ Petition challenged the Accountant General's refusal to reckon the petitioner's husband's pre-regularization service while appointed on a stipend scheme. The High Court dismissed the writ, noting the initial temporary nature of the appointment and distinguishing cited precedents involving daily wage workers.

What did the court decide?

The writ petition for quashing the Memo refusing to reckon pre-regularization service is dismissed; service counted only from date of regularization.

Most. Rajpati Devi Vs The State Of Bihar and… — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13525 of 2013

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====================================================== 1. Most. Rajpati Devi W/O Late Sahdeo Rajak Resident Of Village Madaupur, Tola- Madhopur, P.O & P.S- Kajra, DistrictLakhisarai.

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.... .... Petitioner/s Versus

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The State Of Bihar.

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The Director, Primary Education, Govt. of Bihar, Patna.

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The District Superintendent of Education cum- Sub Divisional Education Officer, Lakhisarai.

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The District Accounts Officer, Munger.

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The Accountant General, Bihar, Patna.

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.... .... Respondent/s

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====================================================== Appearance :

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For the Petitioner/s : Mr. Vinod Shanker Modi For the Respondent/s : Mr. Manoj Kr. Ambastha

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====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

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C.A.V. ORDER

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8 27-03-2014 1. Petitioner has prayed for quashing the Memo Pen12-1009 dated 21.10.2009 issued from the office of Accountant General, Bihar, Patna by which and where under the Accountant General, Bihar, Patna refused to reckon the period of service of petitioner’s husband from 16.10.1973 to 31.03.1975 on the ground of letter no. 1419 dated 24.08.2007 issued by the Director, Primary Education, Bihar, Patna and accordingly, refused to grant

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retiral and other benefit to the petitioner’s husband with effect from 16.10.1973.

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Petitioner’s husband was appointed as Untrained Assistant Teacher on 03.10.1973 under the scheme of special employment on the basis of stipend by the District Superintendent of Education, Munger. The petitioner’s husband joined on his post on 16.10.1973 in Primary School, Sayarbigha, Kajra under Munger District (now the aforesaid school falls under the jurisdiction of District-Lakhisarai). The service of petitioner’s husband was regularized from 01.04.1975. The petitioner’s husband superannuated on 31.01.2001 but after his superannuation, the concerned department counted the service of petitioner’s husband for pensionary benefits from the date of his regularization and, accordingly, provisional pension and other retiral benefits were sanctioned to him. The petitioner’s husband made several representation for counting his service with effect from 16.10.1973 but no heed was paid by the concerned department and, thereafter, the petitioner’s husband filed CWJC No. 10309 of 2005 before this Court for redressal of his grievances. The aforesaid CWJC No. 10309 of 2005 was disposed of by a Bench of this Court directing the District Superintendent of Education, Lakhisarai to consider and dispose of representation of

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petitioner’s husband dated 23.09.2004 and if petitioner’s husband is held entitled to include the service rendered from of his initial date of appointment for the purposes of pension, then the financial benefit there under should also be paid to him. In the meantime, unfortunately, the petitioner’s husband died and thereafter petitioner produced the copy of order dated 14.02.2007 passed in CWJC No. 10309 of 2005 before the District Superintendent of Education, Lakhisarai for consideration of representation dated 23.09.2004 in the light of direction given by this court in CWJC No. 10309 of 2005 but no action was taken by the District Superintendent of Education, Lakhisarai. However, after long time, the District Superintendent of Education, Lakhisarai sent a letter to the office of Accountant General, Bihar, Patna for revision of pension and other retiral benefits of petitioner’s husband but the Accountant General, Bihar, Patna in response of above stated letter of District Superintendent of Education, Lakhisarai issued the Memo Pen-12-1009 dated 21.10.2009 which has been challenged in this writ petition.

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Counter affidavit has been filed on behalf of respondent no. 3 and it has been averred in the aforesaid counter affidavit that after retirement of petitioner’s husband, his service book along with relevant pension papers were sent to the

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Accountant General, Bihar, Patna sanctioning the pension of petitioner’s husband with effect from 16.10.1973 but the Accountant General, Bihar, Patna by his impugned Memo No. 121009 dated 21.10.2009 raised objection to this effect that the pension of petitioner’s husband was admissible with effect from 01.04.1975 in the light of letter no. 1419 dated 24.07.2007 of Director, Primary Education, Bihar, Patna. It has also been averred in the counter affidavit that the Director, Primary Education, Bihar, Patna has given certain guidelines in the above stated letter and it has been directed by the Director, Primary Education, Bihar, Patna that the service rendered by the teachers on stipend basis shall not be taken into consideration for the purpose of fixation of pension and, therefore, the Accountant General, Bihar, Patna rightly refused to count the service of petitioner’s husband with effect from 16.10.1973.

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Learned counsel appearing for the petitioner submits that admittedly, petitioner’s husband joined his service on 16.10.1973 and the petitioner’s husband was appointed on stipend basis but later on, the service of petitioner’s husband was regularized and, therefore, the respondents committed error in not counting the service of petitioner’s husband for pensionary benefit from the date of his first joining.

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Learned counsel for the petitioner cited the case of

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Rajendra Kamti and Anr. reported in 2006(3) PLJR 83 in which Single Bench of this Court held that all services rendered in the University on a full time basis on a temporary or officiating capacity followed without interruption by substantive appointment in the same or any other post shall count as qualifying service except in respect of periods of service in “Work Charged” establishment and periods of service paid from

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“Contingencies”.

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Learned counsel for the petitioner also relied upon the judgment of Lal Bahadur Singh and Anr. vs. State of Bihar and others reported in 1995(2) PLJR 474 in which it has been held that once regular appointment is made, a purely temporary arrangement for carrying on teaching work must come to an end .

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Learned counsel for the petitioner further submits that admittedly, in the present case, petitioner’s husband was appointed on stipend basis but later on, his service was regularized and, therefore, after regularization, the service rendered by the petitioner’s husband on stipend basis should be reckoned for the purposes of fixation of his pensionary benefits.

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On the other hand, learned counsel appearing for

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the State refuted the above stated submissions arguing that petitioner’s husband was appointed on stipend basis under a scheme with condition that after expiry of the said scheme, he shall be considered to absorb in regular service and furthermore, there was also a condition in the appointment of petitioner’s husband that the service of petitioner’s husband can be terminated at any time without prior notice. It is contended on behalf of the State that after expiry of the aforesaid scheme, service of petitioner’s husband was regularized and, therefore, service of petitioner’s husband for the purpose of pension was rightly considered by the concerned authorities from the date of his regularization.

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It is an admitted position that initially, petitioner’s husband was appointed temporarily on stipend basis under a scheme with condition that after expiry of the said scheme, the petitioner’s husband can be absorbed in regular service. It is also an admitted position that later on, the service of petitioner’s husband was regularized. The “Stipend” means fixed or regular pay or scholarship or fellowship allowance granted to a student. In the present context, the word “stipend” has been used as fixed pay and, therefore, it is apparent that petitioner’s husband joined on 16.10.1973 temporarily under a scheme on a fixed pay with

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condition that he can be terminated from his service at any time without giving any prior notice to him. Admittedly, the petitioner’s husband worked on above stated fixed pay till his regularization and, therefore, it is apparent that petitioner’s husband was regularly appointed on his post after his regularization.

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In the backdrop of aforesaid fact, I do agree with the submission of learned counsel appearing for the State that the concerned respondents rightly counted the service of petitioner’s husband for pensionary benefits from the date of his regularization in service and, therefore, in the aforesaid circumstance, I do not find any substance and force in this writ petition.

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So far as decisions cited on behalf of the petitioner are concerned, the same are not applicable in the present case because in both the above stated decisions, the questions in issue were quite different. In Rajendra Kamti and Anr. case (Supra), the petitioners of the aforesaid case were working on the basis of daily wages since long and put near about 15-20 years service as daily wages worker but by stroke of one order, they were discharged from the service. Subsequently, the University took a decision to regularize some of the employees whereas service of some petitioners of that case was not regularized. The

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Bench of this Court came to the conclusion that the petitioners of aforesaid case cannot be deprived or denied of their rights to join or add the past period in peculiar facts and special circumstances obtainable in the present case for earning pension including family pension and no scrupulous Master who is indulged in unfair labour practice and who has obtained same kind and type of work as that of Class III and IV be allowed to say that the same cannot be considered as qualifying period for the purpose of earning pension and moreso, in view of clear definition of expression “qualifying service” in clause 14 in Section II of the Statutes Part II under the Bihar State Universities Act, 1976 and moreso, when there is no any even remotest allegation of payment having been made to such persons or employees as” work charged” or out of contingencies.

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In the aforesaid case, the petitioners of that case worked on daily wages for long time and subsequently, they were regularized and taking note of Bihar State Universities Act, 1976, the Bench of this Court held as stated above but in the present case, admittedly, petitioner’s husband was appointed on stipend basis and, therefore, the case of the petitioner’s husband is quite different to case of petitioners of Rajendra Kamti’s case (Supra). Similarly, the other decision cited on behalf of the

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petitioner is also not applicable in the present case.

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On the basis of aforesaid discussions, this writ

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petition stands dismissed.

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(Hemant Kumar Srivastava, J)

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SHAHZAD/A.F.R.

Most. Rajpati Devi v. The State Of Bihar and Ors.

Case brief

What is this about?

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Most. Rajpati Devi v. The State Of Bihar and Ors.

Case brief

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