Dina Kanta Das vs State of Assam and Others

M. Sharma, J.—This writ petition is preferred by the Petitioner for pensionary benefit for his 22 years of service in the Department of PWD (Roads), Barpeta Division, Barpeta.

Petitioner a Govt. servant retired on 31.10.85. He was appointed as driver by the Executive Engineer, PWD (R & B), Guwahati in the work charge establishment of the said department on 25.9.63. Petitioner''s post was duly sanctioned by the Chief Engineer vide his order No. CBT/134/80/2 (Annexure-B). His post was regularised on 31.5.81 (Annexure-B to the petition) and he retired from service on 31.10.85. As it appears he retired after completion of more than 22 years of service. But after his retirement Petitioner was given a gratuity instead of pensionary benefit. Being aggrieved Petitioner submitted representation before the Additional Chief Engineer (Annexure-E to the petition). On receipt of the said representation the Addl. Chief Engineer directed the Executive Engineer, PWD (Roads) to take necessary action. Petitioner submitted another representation to the Chief Engineer (Annexure-F) to the petition. The Chief Engineer also directed the Executive Engineer to inform the position of the pension case of the Petitioner. But the Executive Engineer in turn sought clarification from the Chief Engineer as to whether Petitioner, who had completed more than 22 years of service, would be allowed to have his pensionary benefits. In this way, it is alleged, the Petitioner since his retirement had to run from pillar to post without any relief and finding no alternative Petitioner had to prefer this writ petition.

Mr. Dasgupta, learned Counsel for the Petitioner submits that after more than 22 years of service Petitioner retired from his service on 13.10.85 and although considerable period has in the meanwhile elapsed the Petitioner has not been paid his pensionary benefits. It is contended that in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the rules in the Assam Pension Manual, 2nd edition 1939 made in pursuance to the declaration in notification No, 4632-F (d) dated 17.10.86, the Govt. of Assam framed the Pension Rule on 1.10.69. The said rule is called the Assam Service (Pension) Rules 1969, and was published vide notification No. EMP. 75/60/Pt This Rule has been amended from time to time and was amended on 10.8.83. It was published in Assam Gazette on 24.8.83 (para IIA at p 1211) vide their notification No. FMD/48/83/40. This notification was pursuant to their earlier resolution No. FPC. 49/82-93 dated 27.6.83 published in the extraordinary issue of the Assam Gazette dated 22nd July, 1983. The relevant rule is as follows :

Pension to temporary government servant - A temporary government servant who retires after rendering temporary service of not less than 20 years without being confirmed in any post, may be allowed the pensionary benefits as available to a confirmed government servant either on attaining the age of superannuation or on his being declared to be permanently incapacitated for further government service by the appropriate medical authority. This provision will come into force with effect from 1st September 1982.

Admittedly the Petitioner was working as work charged employee till his regularization of service in the year 1981 (31.5.81). From Annexure-B (dated 30.5.81) it appears that against eleven temporary posts of truck driver under Barpeta PWD(R) vide Chief Engineer�s letter No. CBT/134/80/2 dated 20.11. 80, Petitioner alongwith five other work charged drivers were regularised on completion of minimum 5 years continuous service in the PWD (R) and Petitioner was accordingly regularised. In response to the Petitioner''s representation it was communicated vide Annexure-G dated 29.6.87 that the service period of the driver as temporary govt. servant in in regular establishment was only 4 years 4 months since 1.6.81 and therefore he could not be made confirmed in his service and under Rule 153 of Assam Service (Pension) Rules 1569 he has been paid gratuity as an work charged staff. In that view of the matter the Petitioner''s service as temporary govt. servant in the regular establishment was only 4 years 4 months since 1.6.81

As per govt. circular No. FPC. 49/82/93 dated 27/6/83 vide item No. 5 a govt. servant who completed 20 years of continuous satisfactory service is entitled to get all pensionary benefits as availed by a permanent govt. servant. The point for consideration before this Court is whether Petitioner, with this back ground, can claim pensionary benefit.

The Petitioner was working for 17 years as work charged employee. ''Work charged'' employees are engaged in an establishment for a particular project or work. It is by its nature temporary but all that may be for a specific period. Therefore the work charged employees automatically come to an end on the completion of the work. The expenses of the work including the wages and salaries of the employees are charged separately. Annexure-A is the appointment letter of the Petitioner as work charged employee and since that long period of 17 years the Petitioner was never absorbed in the department on temporary basis. In service jurisprudence ad hoc or work charged appointment stands at the lowest rung. The next higher is the temporary appointment and the further higher is the permanent appointment.

Mr. Dasgupta, learned Counsel for the Petitioner urged that the long continuity of the Petitioner''s service ought to have been calculated and that he must be considered as a temporary appointee and that 17 years period should be merged with his entire period of service. A temporary appointment and temporary post means a post carrying a definite rate of pay sanctioned for limited time. There can be a temporary appointment for a temporary or for a permanent post Petitioners regularization was considered on the ground that he completed minimum 5 years continuous service in the post. Relying on a Full Bench decision of Punjab and Haryana High Court in AIR 1988 Punjab and Haryana 265 Kechar Chand v. State of Punjab Mr. Dasgupta submitted that once the service of a work charged employee have been regularised there is no logic to deprive him from the pensionary benefits as are available to other public servants and that equal protection of law must be given to the Petitioner under Article 14 of the Constitution and that Petitioners continuous 17 years service as work charged employee in the department has to be recounted for determining his qualifying service. In this case the Petitioner after his superannuation claimed pensionary benefit for the reasons that he had served the department continuously and the post against which he was appointed was a regular post and therefore he must be deemed to have been confirmed from his date of appointment, i.e. in 1956. The question before the Full Bench was that whether the benefit of pension and gratuity can be allowed to the work charged employees from the date they were regularised in service or after taking notice of the whole of the service, i.e. from the date of joining as work charged employee. In that case constitutional validity of Rule 3.17 (ii) of Punjab Civil Service Rules Vol. II was challenged. The Rule said that the period of service in a work charge establishment should not be taken into count in calculating the qualifying service. After the service of a work charged employee have been regularised he becomes a public servant and protected by the benefits an including pay etc. This view was taken by the court in view of an industrial award dated June 1, 1972 between the workmen and the Chief Engineer, PWD (B-R) establishment Branch Punjab where it was said that all those work charged employees who had put in 10 years service or more on a particular department their services should be deemed to have been regularised and in that light it was held that once the service of a work charged employee has been regularised, there was no logic to deprive him of the pensionary benefits as were available to other public servants under Rule 3.17 of we Rules. The Govt. of Punjab also agreed to apply Rule 3.17 of Punjab Civil Service Rules in case of the work charged services regarding gratuity in respect of 16 work charged employees of Nangal Workshop subject to the condition that no terminal benefit had been given, to those work charged employees at the time of regularization of their services. Sanction of the Governor of Punjab was also accorded to the counting of service of those work charged employees towards pension as a special case provided no benefit has already been drawn up them in lieu of pensionary benefits.

In the instant case from the facts and circumstances the reference is not applicable. The Petitioners 5 years service was continuous service as work charged employee for regularization at the time of regularization of the posts on temporary basis. Unlike the Punjab case the Petitioner here was paid a gratuity and he accepted it on protest. Mr. Das, learned Counsel for the Respondent submitted that the Petitioner was not appointed as work charged employee when there was no creation of any post against any permanent vacancy. He was appointed as such in some construction work. Therefore, even if his 5 years service is included to the year of regularization it would not help him for the pensionary benefit under Pension Rule. It is further submitted that the posts were created in 1980-81 and in one of those vacant posts only the petitions was regularised and therefore he cannot claim his regularization in a post which did not exist till his regularization.

In State of Haryana and others Vs. Piara Singh and others etc. etc., the Apex Court held that for regularization of work charged and casual employees efforts must be made to regularise them as early as possible subject to their being qualified and subject to availability of work. In the instant case till the regularization of the service the vacant post was not available. From the record it appears that the Petitioner never approached the authority for regularization of his post since his date of appointment as work charged employee. For the first time in his petition of Petitioner made a claim that for the purpose of his pensionary benefit it period of work charge employment could be considered as continuous service and he should be treated as temporary employee. In the light of the view taken in Piara Singh�s case (Supra), in my view, the Petitioner might have a case for consideration. Mr. Das, learned Counsel fairly submitted that in view of the Apex Court decision the government is the appropriate authority and could consider Petitioner''s case.

As it appears, from the facts of the case, Petitioner''s service was utilised by the authority continuously for 17 years and this aspect ought to have been Considered by the Respondents at the time of regularization of Petitioner�s in the year 1981.

I agree with Mr. Das, learned Counsel that the government is the only, authority to adopt its own criteria or principle for regularization of the service of an employee having regard to the relevant circumstances such as, long continuous service of a work charged employee and keeping in mind the law enunciated in numerous decisions of the Indian Courts. The government being the appropriate authority, as a special case it may evolve an appropriate Way to consider the case of the Petitioner in view of his stand taken in this writ petition.

In view of the above discussion the Petitioner cannot claim pensionary benefit as right as his work charge appointment cannot be considered as temporary service.

In the result the petition is dismissed.