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Judgment
1) In W.P. (S) No.277 of 2018 the petitioners have prayed for the following reliefs:-
(i) For quashing paragraphs IV, VI and VII of Gazette Notification No.603 dated 19.07.2016 of Government of Jharkhand;
(ii) Further to quash Memo No.570 dated 29.03.2017 issued by Deputy Secretary, Transport Department, Government of Jharkhand
(iii) Further to hold the decision of the State of Jharkhand to absorb the petitioners and other similarly situated persons from 24.08.2011 illegal and
unlawful and to declare that the petitioners be treated to be absorbed in the service of the State of Jharkhand notionally from their initial date of
appointment and that they shall be given continuity in service.
(iv) To allow all benefits to the petitioners including Earned Leave Encashment, Gratuity, Arrears of Salary, Pension revised in terms of 5th and 6th
Pay Commissions and other benefits admissible in law.
(v) To declare that the National Pension Scheme is not applicable to the petitioners, as the petitioners are being absorbed in the State of Jharkhand and
National Pension Scheme came into force, accordingly, further declare that the petitioners are entitled to eh benefit as are applicable to the employees
appointed prior to 01.01.2005.
Since common prayers have been made in the other two writ petitions and the issues involved are almost similar, all these three writ petitions have
been heard together and are being disposed of by this common order.
By filing I.A. No.5211 of 2018 in W.P. (S) No.277 of 2018, the petitioners have further prayed for quashing paragraph 6(i) of Gazette Notification
No.603 dated 19.07.2016 issued under the signature of Deputy Secretary, Transport Department, Government of Jharkhand as also for quashing letter
No.129 Ranchi, dated 06.02.2018 issued by the same authority.
In I.A. No.10403 of 2018 filed in W.P. (S) No.3961 of 2018, prayer has been made by the petitioner for a direction upon the respondents-authorities to
re-fix his salary since March, 2017 while calculating and counting his past service from the date of appointment and not from the date of absorption as
has been effected in Gazette Notification dated 19.07.2016 and 29.03.2017.
2) After bifurcation of the State, two separate States i.e. the State of Bihar and the State of Jharkhand came into existence from 15.11.2000. By an
order of the Government of India dated 14.01.2004, the assets and liabilities of the BSRTC was apportioned between the State of Bihar and the State
of Jharkhand in the ratio of 65:35. The BSRTC stood dissolved with effect from 30.06.2004. The employees of BSRTC being allocated the cadre of
Jharkhand became the employees of the State of Jharkhand with effect from 01.07.2004. The Ministry of Transport recommended that the employees
may be given the benefit of 5th and 6th Pay Commission if they have been absorbed. The Government of Jharkhand had earlier come with a
notification regarding ‘appointment’ of the petitioners instead of ‘absorption’. However, later on, the Department of Transport,
Government of Jharkhand, issued a resolution No.273 dated 09.03.2015 stating therein that in view of the direction of the Hon’ble Supreme Court,
the word “appointment†is hereby deleted and the employees are being considered for “absorption†with all benefits in the light of the
resolution No.273 dated 09.03.2015. The Department of Transport, Government of Jharkhand thereafter issued Resolution No.480 dated 04.04.2016
regarding absorbing the services with effect from 24.08.2011. Further, vide resolution No.603 dated 19.07.2016, the Department of Transport resolved
to give salary of the employees as per the 6th Pay Revision and in case the salary is less than the employees used to receive as an employee of the
BSRTC, then the benefit of pay protection would be given. It was further resolved that since the date of absorption i.e. 24.08.2011, the new pension
scheme shall be applied in the case of the absorbed employees. Since the employees/petitioners have been considered to be working in the services of
the Government of Jharkhand with effect from 24.08.2011 due to application of new pension scheme, they have been denied the benefit of gratuity as
well as pension.
It is further case of the petitioner that in some of the districts of State of Jharkhand like Chaibasa, Simdega, Seraikella and Ramgarh, the employees of
the Transport Corporation were getting the benefits of pay revision and past service in light of resolution No.273 dated 09.03.2015 issued by the
Department of Transport, Government of Jharkhand, but when the employees of other districts raised issue of parity, the same was withdrawn and a
direction was issued to make payment of salary in accordance with resolution No.603 dated 19.07.2016. The employees of BSRTC as well as
similarly situated persons writ petitions being C.W.J.C. No.7985 of 2005, C.W.J.C. No. 18489 of 2011, C.W.J.C. No. 16460 of 2012 and C.W.J.C.
No. 24999 of 2013 before the Hon’ble Patna High Court for a direction to the respondents for implementation of the recommendations of 5th and
6th Pay Commission with effect from 01.04.1997 and 01.04.2007 respectively. All the writ petitions were heard together and the Hon’ble Patna
High Court held that the petitioners are entitled to 5th and 6th Pay Revision Commissions’ recommendations.
3) The employees who were absorbed in the State of Jharkhand in view of the bifurcation of the State were denied the legal rights with respect to pay
revisions as per the 5th and 6th Pay Commission and the benefits of pay differences, continuity of services and past service, whereas the
counterpart’s similarly situated employees are enjoying the fruits of 5th and 6th Pay Commissions’ benefits. The petitioners herein are
aggrieved by the non-consideration of their cases regarding benefits of 5th and 6th Pay Commissions and also consideration of their cases regarding
benefits of pay difference from the date of bifurcation i.e. 01.07.2004 regarding gratuity, unauthorized leave, pension and other benefits, all continuity
of services and bonus and hence they have been constrained to knock the door of this Court.
4) Heard the counsel for the parties.
5) The issues to be decided in this case are as under: -
(i) Whether the employees of the erstwhile Bihar State Road Transport Corporation who were absorbed by the State of Jharkhand in pursuant to the
order and direction of the Hon’ble Supreme Court are entitled for the benefits of past service for their retiral benefits i.e pension, gratuity, etc?
(ii) Whether the respondents-State of Jharkhand is justified in withdrawing the benefits of 5th and 6t Pay Commission and the difference of pay scale
and the past service when the issue has been set at rest by different judgments of Hon’ble Apex Court as well as by Hon’ble Patna High
Court being C.W.J.C. No. 7185 of 2005 and other analogous cases decided on 04.06.2015?
(iii) Whether the petitioners were given benefits of 5th and 6th Pay Revision with effect from 01.12.2015?
ARGUMENT ADVANCED BY THE COUNSEL FOR THE PETITIONERS
6) The main argument advanced by the learned counsel appearing for the petitioners is that the decision of the State of Jharkhand to absorb the
petitioners and other similarly situated persons from 24.08.2011 is illegal, arbitrary and unlawful. The respondents ought to have absorbed the services
of the petitioners from the date of their initial appointment giving them continuity in service as the petitioners are being deprived of their past service. It
has been further argued that action of the respondents is wholly contrary to the provisions of Section 73 of the Bihar Reorganization Act, 2000, as the
Government of Jharkhand has varied the service conditions to the disadvantage to the petitioners without any approval of the Central Government. It
has further been argued that the benefits were rightly given to the employees in light of resolution No.273 dated 09.03.2015 issued by the Department
of Transport, but the same was illegally and arbitrarily withdrawn and ordered for payment of salary in accordance with resolution No.603 dated
11.07.2016. It was also argued that the action of the respondents is contemptuous and amounts to circumventing the Court’s orders. To buttress
his argument, learned counsel for the petitioners places heavy reliance on the judgment of this Court in Elecius Lakra & Ors Vs State of Jharkhand
and another [W.P. (S) No. 1693 of 2012] and Bir Kuar Paswan Vs State of Jharkhand [W.P. (S) No. 939 of
ARGUMENT ADVANCED BY THE COUNSEL FOR THE RESPONDENTS
7) Per contra, counter affidavit has been filed.
8) Learned counsel for the State by way of opposing the contention of the learned counsel for the petitioners argues that already the direction of this
Court has been complied with and the petitioners are getting the salary as other employees of the State of Jharkhand i.e. 6th Pay Revision
Commission. The resolutions of the respondents are totally based on Arbitration Committee’s report of Justice Sagir Ahmed which has been
upheld by the Hon’ble Apex Court. The employees of the State Road Transport Corporation, whose services were allocated to the State of
Jharkhand, have been duly absorbed and as a sequitur to the absorption, they became at par with the employees of the State Government with effect
from 24.08.2011 and no injustice has been done. It was further argued that the respondents-State is bound by the directions of the Hon’ble Apex
Court in which the cut-off date for absorption has been decided as 24.08.2011 and salary is being paid as per the 6th Pay Revision Commission. The
absorption of the petitioners in the State of Jharkhand does not give them an automatic right to claim for the benefit of their past service. It was
further argued that the claim of the petitioners regarding absorption were considered in their earlier writ petition being W.P. (S) No. 2115 of 2015 and
the same stood dismissed observing therein that the adjustment has been made on the basis of the report of Arbitration Committee and the agreement
entered into between the State of Bihar and the State of Jharkhand with respect to assets and liabilities of BSRTC. The petitioners cannot expect any
windfall merely because of such adjustment in the Transport Department. Attention has been drawn to the several paragraphs of the counter affidavit
and it has been argued by the learned counsel for the State that several committees were constituted comprising high ranking officials to consider the
directions of the Hon’ble Apex Court as well as the High Court as also the Sagir Ahmed’s Committee’s report, which has been
implemented in true letter and spirit. It was further argued that the employees have been absorbed as per their qualifications and they are getting the
salary as per 6th Pay Revision Commission which is more than the employees of the BSRTC and hence the writ petitions are devoid of any merit and
fit to be dismissed.
FINDINGS
9) Having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in these writ
petitions save and except that the past service of the petitioners can be considered for pension for the following facts and reasons: -
(i) The petitioners had earlier approached this Court in W.P. (S) No.2115 of 2015 with the same prayer for granting the benefit of pay revision as per
5th Pay Revision Commission’s report with effect from 01.01.1997 and 6th Pay Revision Commission’s report with effect from 01.01.2006
with all consequential benefits and also for payment of arrears of salary and difference of retiral benefits arising out of revision of pay scale, such as,
gratuity, leave encashment, etc.
(ii) This Court after considering the evidence dismissed the writ application observing therein, “........ The petitioners have tended to rely on
certain absorptions to further their claim but being employees of Bihar State Road Transport Corporation prior to absorption/adjustment in
the Transport Department, their rights do not change overnight. The adjustment has been made on the basis of the report of Arbitration
Committee and the agreement entered into between the State of Bihar and the State of Jharkhand with respect to bifurcation of assets and
liabilities of the Bihar State Road Transport Corporation. The petitioners cannot expect any wind fall merely because of such adjustment in
the Transport Department.â€
10) In view of the judgment of Hon’ble Supreme Court in the case of State of Jharkhand Vs Bir Kuar Paswan & Ors [Civil Appeal No.13372 of
2015 and the judgment of Hon’ble Patna High Court in L.P.A. No. 716 of 2017 and other analogous cases, the petitioners cannot be deprived of
their pensionary rights and admittedly the past service rendered by the petitioners has to be counted for the purpose of pension and other consequential
benefits.
11) The Hon’ble Apex Court in the case of Pepsu Road Transport Corporation, Patiala v Mangal Singh and others reported in (2011) 11 SCC 702
has held as under: -
“34. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of the past services
rendered by him. We hasten to add that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or
unconditional. .....â€
12) The Hon’ble the Apex Court in the case of Deokinandan Prasad v State of Bihar reported in (1971) 2 SCC 330 has held as under:-
“31. ... ... pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to
pension is a value right vesting in a government servant.â€
13) In the case of Poonamal v Union of India reported in (1985) 3 SCC 345 the Hon’ble Supreme Court has held as under: -
“7. ... ... pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the
Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right.â€
14) In U.P. Raghavendra Acharya v. State of Karnataka reported in (2006) 9 SCC 630 the Hon’ble Apex Court has held;
“25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and
has a nexus with the salary payable to the employees as on the date of retirement.â€
15) This Court in the case Elisa Lakra v State of Jharkhand [W.P. (S) No. 1693 of 2012] vide order 31.07.2013 held as under: -
“21. Since few of the petitioners have already retired, the respondents shall compute the pensionable service from the date of initial
appointment of such petitioners and not from the date of their absorption and shall pay the retiral dues and other arrears accordingly.
The respondents shall also compute their past services for the purpose of giving ACP benefits / promotion, as the case may be and for
their service dues and arrears and pay the same to the petitioners within two months from the date of receipt/production of a copy of this
order.â€
16) In the case of Bir Kuar Paswan & Ors v. State of Jharkhand & Ors [W.P. (S) No.939 of 2012] this Court has held;
“... ... Accordingly, it is held that the condition of denial of past services in calculating pensionary benefits and implementation of new
pension scheme as well as denial of their legitimate dues are wholly arbitrary, unjust and illegal ... ...
Accordingly, the petitioners shall be entitled for computation of the period of their past service for the purpose of ACP benefits/promotion
and all other purposes, relevant to the context.â€
17) The Division Bench of this Court in the case of The State of Jharkhand v. Dadan Prasad Singh and others [L.P.A. No.340 of 2013 & analogous
cases] the order of learned Single Judge passed in Elecius Lakra (supra) was upheld and the respondents were directed to consider the case of the
petitioners for grant of pensionary benefits taking into consideration the past service of the petitioners.
18) The Hon’ble the Apex Court in case of State of Jharkhand v Bir Kuar Paswan & Ors in Civil Appeal No.13372 of 2015 while dismissing the
appeal of the State of Jharkhand has clearly observed, “Pension and retiral benefits as also the arrears shall be calculated giving the benefit
of High Court judgment, within a period of six months.â€
19) Hon’ble Patna High Court in L.P.A. No. 716 of 2017 and other analogous cases decided on 12.12.2017 taking into consideration the order
passed by Hon’ble the Apex Court in case of State of Jharkhand Vs Bir Kuar Paswan & Ors has heldâ, €œIn view of the aforesaid, we allow
all these appeals, quash the order dated 29.03.2017 passed by the Writ Court in C.W.J.C. No. 7702 of 201 and other analogous cases and
direct the State of Bihar to grant benefit to each of the appellants herein by counting services as rendered by them in the Boards,
Corporations and Public Sector Undertakings prior to their absorption and to grant them the pensionary benefit after counting such service
in the Boards or Corporations.â€
20) In the case of Pepsu Road Transport Corporation (supra) the Hon’ble Apex Court has also held;
“46. The term “pension†has been defined in American Jurisprudence 2d, Vol. 60 at p. 879 as thus:
“However, by modern usage, the ‘pension’ is not restricted to pure gratuities. Thus, it has been held that a pension paid to a
governmental employee for long and efficient service is not an emolument the payment of which is barred by a State constitutional
provision, but is a deferred portion of the compensation earned for services render. ... A pension is closely akin to wages in that it consists
of payments provided by an employer, is paid in consideration of past services, and serves the purpose of helping the recipient meet the
expense of living.â€
The concept of “pension†has been discussed in Halsbury’s Laws of England, 4th Edn. (Reissue), Vol. 16, Parra 400 as thus:
“Meaning of ‘pension’: ‘Pension’ means a periodical payment or lump sum by way of pension, gratuity or superannuation
allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having its
object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement
benefits.... ‘Pension’ does not include:
(i) a payment to an employee which consists solely of a return of his own contributions, with or without interest;
(ii) that part of a payment to an employee which is attributable solely to additional voluntary contributions by that employee made in
accordance with the scheme or arrangement;
(iii) a periodical payment or lump sum, insofar as that payment or lump sum represents compensation under the statutory compensation
schemes and is payable under a statutory provision, whether made or passed before, on or after 31-7-1978.â€
The concept of “pension†has also been considered in Corpus Juris Secundu, Vol. 70, at p. 423 as thus:
“A pension is a periodical allowance of money granted by the Government in consideration or recognition of meritorious past services,
or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and
it presupposes the continued life of the recipient.â€
To sum up, we state that the concept of pension has been considered by this Court time and again and in a catena of cases it has been
observed that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is
earned for rendering a long and satisfactory service. It is in the nature of deferred payment for the past services. It is a social security plan
consistent with the socio-economic requirements of the Constitution when the employer is State within the meaning of Article 12 of the
Constitution rendering social justice to a superannuated government servant. It is a right attached to the office and cannot be arbitrarily
denied.â€
21) As a sequitur of the aforesaid rules, guidelines and judicial pronouncements, I am of the considered opinion that the petitioners are entitled for
pension taking into consideration the past service rendered by them. Benefits accruing to the petitioners by virtue of their earlier services be also given
to them within a period of three months from the date of receipt of a copy of this order.
22) The writ petitions are allowed to the extent above.
23) In view of the final order passed in the writ petitions, the Interlocutory Applications stand disposed of.