Dismissed

Ramesh Prasad Singh and Ors. v. The State Of Bihar and Ors.

Patna HC24 Mar 2014CWJC/21105/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by five junior engineers of Gandak Command Area Development Agency. The petitioners sought pensionary benefits under Bihar Pension Rules, arguing parity with state government employees based on a 1974 Sone Command Authority decision. The court rejected the claim, noting the agency operates under the 1978 Act and the 2010 Service Rules, where Rule 49 d

What did the court decide?

The writ application seeking a direction to grant pensionary benefits is dismissed.

Ramesh Prasad Singh and Ors. Vs The State Of… — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21105 of 2013

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Ramesh Prasad Singh S/O Late Ram Saran Singh R/O- Vill.- Bishunpur Basudeo, P.S.- Runnisaidpur, Distt.- Sitamarhi, At Present Residing At Sheikhpur, Akharaghat, P.S.- Ahiyapur, Town And Distt.- Muzaffarpur

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Krishna Nandan Singh S/O Late Ramashish Singh R/O- Vill.- Sonebarsa, P.S.- Tariyani, Distt.- Sheohar, At Present Residing At Chanakyapuri, P.S.Ahiyapur, Town And Distt.- Muzaffarpur

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Sudhir Kumar Madhukar S/O Late Kolhari Mahto R/O- Vill.- Konipar, Manikpur, P.S.- Suryagarha, Distt.- Lakhisarai

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Uday Shankar Mishra S/O Late Brajmaya Mishra R/O- Sheikhpur, Akharaghat, P.S.- Ahiyapur, Town And Distt.- Muzaffarpur

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Vijay Kumar Sinha Late Parasnath Prasad R/O- Saketpuri, Bibiganj, P.S.Muzaffarpur (Sadar), Distt.- Muzaffarpur

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.... .... Petitioners

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Versus

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The State Of Bihar through Its Chief Secretary, Govt. Of Bihar, Old Secretariat, Patna

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Principal Secretary, Finance Department, Govt. Of Bihar, Patna

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Finance Commissioner, Govt. Of Bihar, Patna

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Principal Secretary, Water Resources Development Department, Govt. Of Bihar, Patna

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Deputy Secretary, Command Area Development Directorate, Water Resources Department, Govt. Of Bihar, Patna

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Gandak Command Area Development Agency, Muzaffarpur, through Its Secretary

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Area Development Commissioner-Cum-Chairman-Gandak Command Area Development Agency, Muzaffarpur

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Secretary, Gandak Command Area Development Agency, Muzaffarpur

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.... .... Respondents ====================================================== Appearance : For the Petitioners : Mr. Umesh Prasad Singh, Sr. advocate Mr. Ishwari Singh, advocate For the State : Mr. Manoj Kr. Ambastha, GP 14 For the Respondents 6 to 8: Mr. Satish Chandra Jha, No.3 advocate

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH CAV ORDER

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8 24-03-2014 There are five petitioners in the present writ application. Petitioners Nos. 1, 2, 4 and 5 are working as Incharge Junior Engineer under Gandak Command Area Development

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Agency whereas petitioner No.3 retired while holding the post of Incharge junior Engineer. They have approached this court seeking a direction to the respondents to grant them and other employees of Gandak Command Area Development Agency, appointed prior to 01.09.2005, the pensionery benefits in the light of decision of Sone Command Area Development Authority taken on 07.02.1974 and that of the Executive Committee of Gandak Command Area Development Agency in its meeting held on 29.06.1999 vide office order dated 10.08.1999.

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For better appreciation of the dispute, it would be apt to mention that the said decision of Sone Command Area Development Authority dated 07.02.1974 has been brought on record as annexure-1 to the writ application whereas the office order dated 10.08.1999 has been brought on record by way of annexure-4. Relevance of the date, i.e., 01.09.2005 is that with effect from this date the State Government of Bihar has done away with its old pension scheme and introduced a new pension scheme known as Contributory Pension Scheme. The employees of the State Government of Bihar appointed on or after 01.09.2005 are not entitled for pension under the Bihar Pension Rules and they are instead covered by New Pension Scheme, as noted above.

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The petitioners claim parity with the employees of

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the State Government of Bihar primarily on the strength of the decision dated 07.02.1974 taken by the Sone Command Area Development Authority vide office order dated 10.08.1999. Needless to say that these petitioners were appointed in Gandak Command Area Development Agency much prior to 01.09.2005 between 1975 to 1981.

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Before coming to the real controversy, the brief history of the case is required to be noted.

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For the purpose of improvement and enhancement of agricultural production, the State Government found it necessary to modernize and develop the irrigation system to provide optimum irrigation facilities for the lands falling within the Command area of the three major rivers, namely, Koshi, Gandak and Sone by constituting three Command Area Development Authorities by resolution dated 20.10.1973 and, accordingly, Koshi Command Area Development Authority, Sone Command Area Development Authority and Gandak Command Area Development Authority were established in the year 1973. The Sone Command Area Development Authority had in its headquarters at Patna in a meeting held on 07.02.1974 decided to apply various rules governing service conditions of the employees of the State Government to the employees of Sone Command Area

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Development Authority. The rules included pension rules. Thereafter, Bihar Agricultural and Rural Area Development Agency Ordinance, 1974 was promulgated and was subsequently replaced by Bihar Agricultural and Rural Area Development Agency Act, 1978. Under section 3 of the said Act the three agencies, in place of authorities for each of the rivers, i.e., Koshi, Gandak and Sone were created. Koshi Command Area Development Agency (KADA) was established for the districts of Purnea, Katihar and Saharsa; Gandak Command Area Development Agency (GADA) was created for the districts of East and West Champaran, Siwan, Saran, Gopalganj, Vaishali, Samastipur and Muzaffarpur and Sone Command Area Development Agency (SADA) for the districts of Rohtas, Bhojpur, Patna, Aurangabad and Gaya.

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The case of the petitioners is that on 10.08.1999 GADA came out with an office order, based on the decision of the Board of Directors of GADA, taken on 29.06.1999 that till service conditions of the employees of the GADA were not approved by the State Government the employees of GADA shall be governed by the Government Rules/ Regulations and Bihar Service Code. This is also the petitioners’ case that Sone Command Area Development Authority had on 07.02.1974 had taken a conscious

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decision to adopt service conditions applicable to the employees of the State Government including the Pension Rules for the purpose of service conditions of the employees of Sone Command Area Development Authority. The said resolution is applicable to the employees of GADA also. This plea is based on the reasoning that though the said decision was taken by Sone Command Area Development Authority, the decision would apply to the employees of GADA as members of GADA were also present in the said meeting of the Executive Committee. The other ground taken for claiming parity of their service conditions with the State Government employees is that in the matter of determining age of superannuation, by judicial pronouncements of this court, the employees of GADA have been treated at par with the employees of the State Government.

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Mr. Umesh Prasad Singh, learned senior counsel appearing on behalf of the petitioners, has placed much emphasis upon the said decision of Sone Command Area Development Authority dated 07.02.1974 and office order dated 10.08.1999. He has placed reliance upon Supreme Court judgement reported in (1981) 1 SCC 449 (Som Prakash Rekhi vs. Union of India & Ors.) to contend that there could be no reason why the service conditions of the employees of GADA should not be kept at par

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with the employees of the State Government, GADA being a statutory corporation set up under the Statute.

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Separate counter affidavits have been filed on behalf

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of the State of Bihar as well as GADA, Muzaffarpur and its functionaries. While countering claim of the petitioners, it has been stated that decision of the Sone Command Area Development Authority taken on 07.02.1974 cannot be said to be binding upon the GADA which is not an Authority rather an independent Agency constituted under the Bihar Agricultural and Rural Area Development Agency Act, 1978. It has been stated that, as a matter of fact, in exercise of power under section 39 of the Act, the State Government has approved Bihar Agricultural and Rural Development Agency service condition, Conduct, Discipline, Control and Appeal Rules, 2010. Rule 132 of the said Rules provides for applicability of Contributory Provident Fund Scheme to the employees of the Agency. Referring to Rule 49 of the 2010 Rules, it has been stated that all appointments done in the agency even prior to coming into force of the Rules would be deemed to have been done under the said Rules. It has also been stated that Contributory Provident Fund Scheme was adopted in GADA and made applicable since 01.04.1979 itself. It is the case of the respondent- State of Bihar that the petitioners were knowing

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that Contributory Provident Fund Scheme was applicable in their case also since 01.04.1979 and being employees of the Agency, they contributed to such scheme and allowed the Agency to deduct contributions from their salaries and the Agency too deposited equal amount in their respective Contributory Provident Fund accounts. Now after several years, it has been stated in the counter affidavit, that petitioners cannot claim applicability of Bihar Pension Rules.

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In the counter affidavit filed on behalf of the GADA, Muzaffarpur, more or less similar plea, as taken by the State of Bihar in its counter affidavit, has been taken. It has been stated that the judgements/ orders of this court determining the question of age of superannuation of the employees of the GADA will not come in aid to the petitioners for grant of pensionery benefits under the Bihar Pension Rules.

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Mr. Manoj Kumar Ambastha, learned GP 14, appearing on behalf of the State, has contended that Rule 49 of the said Rules specifically provides that any appointment made prior to the date from which the rules came into force (11.02.2010) shall be deemed to have been made in accordance with the present rules and, therefore, these rules would govern service conditions of the employees of the GADA including these petitioners, though

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appointed prior to 11.02.2010. He contends that since the petitioners have not questioned the validity of the said rules, it will be deemed that they have accepted the rules and service conditions as provided under the Rules. He has submitted that ever since their appointment, particularly from 01.04.1979, the petitioners and GADA have been contributing to the respective Contributory Provident Fund accounts without any demur and at this stage the petitioners cannot claim applicability of Bihar Pension Rules when they are going to retire. He contends that the petitioners cannot both approbate and reprobate at the same time and has placed reliance upon a judgement of the Supreme Court reported in AIR 1993 SC 352 ( R.N. Gosain vs. Yashpal Dhir) . According to him, the relief sought for by the petitioners is hit by doctrine of acquiescence and estoppel.

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Mr. Satish Chandra Jha, learned counsel appearing for the GADA, has also advanced his submission to contend that the service conditions of the petitioners will be governed by the Rules framed by the Water Resources Department, Government of Bihar which came into force on 11.02.2010. According to him the office order dated 10.08.1999 contemplated that Government Rules/ Regulations and Bihar Service Code would apply to the employees of the GADA till rules in this regard were not approved

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by the State Government, governing the service conditions etc. of the employees of the GADA. He has contended that even the said office order dated 10.08.1999 does not mention applicability of Bihar Pension Rules.

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In reply, Mr. Umesh Prasad Singh, learned senior counsel appearing on behalf of the petitioners, has relied upon a Supreme Court judgement reported in (2010) 2 SCC 44 (Allahabad Bank & anr. Vs. All India Allahabad Bank Retired Employees Association) contending that the petitioners have a right of gratuity under the Payment of Gratuity Act as there is no exemption notification with regard to the employees of GADA under the provisions of the Payment of Gratuity Act. He has made specific reference to paragraphs 17, 18 and 19 of the judgement in support of his plea.

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A very short question is involved in the present case, i.e., whether the petitioners have a right to claim pensionary benefits under Bihar Pension Rules, which is applicable to the State Government employees appointed prior to 01.09.2005.

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Dealing with the grounds taken in the writ application first, I am of the considered opinion that the petitioners cannot claim applicability of Bihar Pension Rules on the basis of decision taken by the Sone Command Area Development

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Authority dated 07.02.1974. There is no reason why a decision taken by the Sone Command Area Development Authority is required to be applied in cases of the employees of GADA. Submission of learned senior counsel in this regard, on the ground that members of GADA were also present in the meeting is not acceptable. There is additional reason for not accepting such submission made on behalf of the petitioners. It is evident from the proceedings of the said meeting dated 07.02.1974; which has been brought on record by way of annexure-10 to the second supplementary counter affidavit filed on behalf of the petitioners; that below the decision of the Authority, it has been mentioned as to who required to take further action against decisions taken on different agenda. It appears that none of the functionaries of any Development Agency other than Sone Command Area Development Authority were required to take any action.

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The plea that in view of office order dated 10.08.1999, Bihar Pension Rules should be made applicable also cannot be sustained. This is for the two reasons. Firstly, this is an admitted fact that petitioners are covered by Contributory Provident Fund Scheme w.e.f. 01.04.1979. Therefore, on the date of issuance of office order dated 10.08.1999, the petitioners had already remained under the scheme for quite some time. The said

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office order dated 10.08.1999 does not specifically refer to applicability of Bihar Pension Rules to the employees of GADA. The said office order has just referred to grant of facilities in terms of Government Rules/ Regulations and Bihar Service Code till approval by the State Government of service conditions of the employees of GADA. Admittedly, service conditions of employees of GADA came to be approved w.e.f. 11.02.2010 and all the petitioners, by virtue of the provision under Rule 49 of the said Rules, would be treated to have been appointed under those rules and their service conditions would be governed by those rules.

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I do not find any reason to apply the ratio of the Supreme Court judgement in case of Allahabad Bank & anr. Vs. All India Allahabad Bank Retired Employees Association (supra) as relied upon by Mr. Umesh Prasad Singh, learned senior counsel appearing on behalf of the petitioners for the purpose of grant of pensionery benefits to the employees of GADA, as claimed in the present writ application. This is trite law that the service conditions of the employees are governed by Rules. With respect to employees of GADA, rules have been applicable in all respects to the employees appointed even prior to the date with effect from which such rules came into force. I find force in the submission

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made on behalf of the respondents that after having availed the benefits of Contributory Provident Fund Scheme for several years, at the fag end of service the petitioners cannot seek a direction for applicability of Bihar Pension Rules in their case. I do not find that they have any legal or contractual right to claim such relief.

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I find no merit in this writ application. It is, accordingly, dismissed.

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(Chakradhari Sharan Singh, J)

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BKS/-

Ramesh Prasad Singh and Ors. v. The State Of Bihar and Ors.

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Ramesh Prasad Singh and Ors. v. The State Of Bihar and Ors.

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