Upendra Prasad vs The state of Bihar and Others

S.K. Homochaudhuri, J.—By this petition under Articles 226 and 227 of the Constitution of India, the Petitioner has approached this Court for insurance of an appropriate writ or direction commanding the Respondents to take into account the Petitioner''s services rendered as Extra-Clerk from the period April, 1957 to 23.1.1981 in the establishment of District Registrar, Samastipur before he was absorbed as temporary clerk in the said Department as qualifying service for pensionary benefit.

The undisputed facts in this case are that after being selected the Petitioner was appointed as extra clerk in the office of the District Sub-Registrar, Samastipur on and from in the month of April, 1957 and he continued to work as extra clerk till he was absorbed as temporary clerk by the order issued under Memo No. 172 dated 24.1.1981. While working as temporary clerk, the Petitioner was absorbed as permanent clerk in the said Department by the order dated 30.5.1980 and he continued to work as such till he retired from service on attaining the age of superannuation on 31.12.1992. After his retirement, the Petitioner was granted pension and pensionary benefit by taking into account the period from 24.1.1981 to the date of his retirement as qualifying service and the continuous period of service he rendered as extra clerk in the office of the District Registrar, Samastipur from April, 1957 was not taken in to account for the purpose of granting pensionary benefit.

The Petitioner made several representations with the prayer to take into account the continuous service rendered by him as extra clerk from April, 1957 to 23.1.1981 for the purpose of granting pensionary benefit but of no avail. The Petitioner has therefore approached this Court in this writ petition.

The Petitioner''s case, in short, is that in the Registration Office, Samastipur, there are (i) Permanent, (ii) Temporary and (iii) Extra Clerks. Where as the permanent and temporary, clerks have a regular scale of pay, the. extra clerks are being paid wages on the basis of piece rate originally @ Rs. 1.00 per page which was subsequently raised to Rs. 2.00 per page, subject to a maximum of 24 pages per day. There is a modality for appointment of extra clerks, provided in Rule 26(2) of the Bihar Registration Manual, 1946. As per the provisions, a select list of extra clerk should be prepared in advance in each Sub-registry office. The selection of the persons should be made after proper advertisement. In making selection, importance should be attached to neatness and quality of writing and those who are matriculates and can also write the vernacluar language should be given preference. Preference should also be given to persons who are not over 30 years of age and the appointment should be confined to persons who are residents of the district. [According to the Petitioner, appointments to the post of temporary or permanent clerks from the post of extra clerks were made by way of promotion which is evident from the Government letter/instructions dated 8th July, 1987 issued to all the District Registrars wherein it has been clarified that the appointment from the post of extra clerk to the post of temporary clerk and from the post of temporary clerk to the post of permanent clerk, would be treated as promotion and the District level roster should be applied therein. The Petitioner having been promoted from the post of extra clerk to temporary clerk and thereafter from the post of temporary clerk to the post of permanent clerk, he is entitled to the benefit of counting the continuous period of service he rendered as extra clerk, till his promotion as temporary clerk, for the purpose of pension or pensionary benefit and denial thereof is arbitrary, and unjust.]

The Respondents in their counter affidavit have contended that the period of service rendered by the Petitioner as extra clerk could not be counted for the purpose of pensionary benefit for the simple reason that the extra clerk is not a post in Government service. The extra clerks are engaged on the basis of remuneration @ Rs. 2/- per page for copying deeds and are not entitled to any benefit of Government service. Under the policy decisions of the Government, an extra clerk is appointed to the post of temporary clerk as and when vacancy arises.

I have heard Mr. Y.V. Giri, learned counsel for the Petitioner and Mr. J.P. Karn, S.C. VII, for the Respondents.

Mr. Giri has submitted that undisputedly in the Registration Office, Samastipur, there are three cadres namely, (i) Permanent (ii) Temporary, and (iii) Extra Clerk, Rule 26(2)(a) of the Bihar Registration Manual, 1946 provides modality for appointment of extra clerks. The appointments are made on the basis of selection. The extra clerks discharged the same duties and functions as is discharged by temporary and permanent clerks. Only because that the extra clerks are paid wages on the basis of piece-rate. i.e. Rs. 2.00 per page it can not be said that they do not hold Government post. Sub-Registrar or the District Registrar is not authorised under the Rule to appoint any one as extra clerk without following the procedure under the Bihar Registration Manual, 1946. There is also provision for reservation in the appointment of extra clerks. It is apparent that by the clarification made by the Government in the letter/instruction dated 8th July, 1987 that appointment of temporary clerks from the post of extra clerks is hot a fresh appointment and such appointment is to be treated as promotion. Mr. Giri has contended that extra clerks hold civil post under the Government. In support of the contention Mr. Giri has placed reliance on the decision of this Court in the case of Subodh Kumar Jha and Others Vs. The State of Bihar and Others, wherein this Court in exerise of jurisdiction under Article 226 of the Constitution of India interfered with the order of termination of services of extra clerks and quashed the orders of termination holding that the termination, of service was bad in law. Mr. Giri has also placed reliance on the decisions of the Hon''ble Supreme Court in the case of The Superintendent of Post Offices and Others Vs. P.K. Rajamma, wherein the Hon''ble Supreme Court held that extra departmental agents connected with postal department hold civil post.

Mr. Giri has also drawn my attention to Rules 59 and 63 of the Bihar Pension Rules and has submitted that under Rule 59 the Government is empowered to declare that any special kind of service rendered In a non-gazetted capacity shall qualify for pension and that as per note to Rule 63 of the Bihar Pension Rules the holder of a temporary post supplementing a permanent cadre of posts of the same kind and carrying parallel duties, though actually employed on work properly pertaining to a permanent post in this cadre, should still be considered to have rendered service in the temporary post. He also submitted that the continuous service as extra clerk till the Petitioner''s promotion as temporary clerk should be counted for the purpose of pension and pensionary benefit and denial thereof is unjust and inequitable.

Mr. Karn, S.C. VII, on the other hand, has submitted that the extra clerks are outside the regular civil services and consequently the service rendered by the incumbent as extra clerk cannot be counted for the purpose of pension and pensionary benefit. Mr. Karn further submitted that it is apparent from the provisions of Rules 45 and 58 of the Bihar Pension Rules that the Petitioner''s service as extra clerk cannot be counted for the purpose of pension and pensionary benefit. Mr. Karn has placed reliance on a decision of a Division Bench judgment of this Court in C.W.J.C. No. 7379 of 1992 and other analogous cases Janki Tanta and Ors. v. The State of Bihar Ors.) wherein this Court held that the services rendered by the Petitioners under the Management of the Institution prior to the nationalisation could not be treated as service under Government for the purpose of pension and pensionary benefit.

Mr. Karn has submitted that by the letter dated 8th July, 1987 the Government made some clarification but that does not mean that the Government made a policy decision that the appointment to the post of temporary clerk from the post of extra clerk was promotion and the Petitioner cannot take advantage of that clarification.

I have considered the submissions made on behalf of the Petitioner and the Respondents and perused the materials placed before me.

It is not disputed that the modality for appointment of extra clerks in the office of the District Registrar is provided under Rule 26(2)(a) of the Bihar Registration Manual, 1946 and as per the provisions of the said rule the extra clerks are selected and a selection list is prepared in each district. There are permanent, temporary and extra clerks in the Registration Office but while the permanent and temporary clerks are appointed in a regular scale of pay scale, the extra clerks are paid on the basis of piece-rate originally Rs. 1.00 per page which was subsequently increased to Rs. 2.00 per page subject to a maximum of 24 pages per day. The extra clerks are appointed because the temporary clerks and permanent clerks employed in the office can not cope with the work of making copies of registered documents. Evidently the extra clerks are employed to supplement the works of permanent and temporary clerks so that the copies of registered document can be supplied to the public in time within 21 to 30 days. The difference between the extra clerks and the permanent clerks is that while the permanent and temporary clerks have a regular scale of pay and the extra clerks are paid wages on the basis of piece-rate. Taking into consideration the aforesaid facts this Court in the case of Subodh Kumar Jha and Ors. (supra) interfered with the order of termination of service of extra clerks in the exercise of power under Articles 226 and 227 of the Constitution of India, treating the posts held by the extra clerks as civil posts under the Government. As such the extra clerk may fall outside the regular civil service but they hold civil post under the Government.

To appreciate the rival contentions, it is appropriate to have a look into the provisions of Rules 45, 58, 59, 61 and 63 of the Bihar Pension Rules.

In the following cases no claim to pension is admitted:

(a) When a Government servant is appointed for a limited time only or for a specified duty, on the completion of which he is to be discharged.

(b) When a person is employed temporarily on monthly wages without specified limit of time or duty.

(c) When a person''s whole time is not retained for public service but he is merely paid for work done, such as Government pleaders and law officers not debarred from private practice.

(d) When a public servant holds some other pensionable office, he earns no pension in respect of an office of the kind mentioned in Clause (c) or in respect of duties paid for by a compensatory allowance.

(e) When a Government servant serves under an agreement which contains no stipulation regarding pension, unless the Provincial Government specially authorise him to count such service towards pension.

The service of Government servant does not qualify for pension unless it conforms to the following three conditions:

First-The Service must be under Government.

Second-The employment must be substantive and permanent.

Third-The service must be paid by Government.

These three conditions are fully explained in the following Sub-sections.

The Provincial Government may, however in the case of service paid from general revenues, even though either or both of conditions (1) and (2) are not fulfilled.

(1) declare that any special kind of service rendered in a non-gazetted capacity shall qualify for pension;

(2) In individual cases, and subject to such condition as it may think fit to impose in each case, direct that service rendered by Government servant shall count for pension.

Service does not qualify unless the Government servant holds substantively a post on a permanent establishment.

A Government servant transferred from a temporary to a permanent appointment can count his service in the temporary post, if though at first created experimentally or temporarily, it eventually becomes permanent.

Note. This rule implies that when an isolated post unconnected with a cadre, sanctioned temporarily or experimentally in the first instance is subsequently made permanent, the whole temporary service of a Government servant or Government servants in that post should count for pension provided that such a Government servant or Government servants are subsequently appointed substantively to a permanent post. The concession is admissible only to Government servants who render temporary service, substantive or officiating while having no lien on a permanent post, and is admissible to a Government servant even though he no longer holds the temporary post when it is made permanent.

To obviate anomalies that may arise from a literal application of this rule in case of a particular class, the following principles should be observed in applying the rule in such cases:

(1) The holder of a temporary supplementing a permanent cadre posts of the same kind and carrying parallel deties, though actually employed on work properly pertaining to a permanent post in this cadre, should still be considered to have rendered service in the temporary post.

(2) When some of several temporary posts, supplementing a permanent cadre as in (1) above, are converted into permanent posts and permanent promotion to these posts is made according to seniority or by selection, the Government servants actually so promoted should be considered as the holders of the temporary posts which have been converted and should be allowed to count their temporary service rendered in the posts.

Mr. Giri is right in submitting the Rules 45, and 58 of the Bihar Pension Rules, on which the learned Standing Counsel has placed reliance should not be rest in isolation but has to be read with Rules 59, 61 and 63 of the Bihar Pension Rules with note thereunder. Reading the afrosaid provisions of the Bihar Pension Rules(sic) comes clear that intendment is not to (sic) but to extend the pensionary benefit to different classes of employees for a period of services rendered. In other word the approach in extending the benefit pension for the service rendered, is liberated Rule 59 of the Bihar Pension Rules also empowers the Government to declare that the special kind of service rendered in a non-gazetted capacity shall qualify for pension. The continuous period of service from April, 1957 to 23.1.1981 rendered by the Petitioner as extra clerk was apparently by way of supplementing that of cadre posts of the same kind carrying parallel duties.

Had the Petitioner not been appointed as temporary clerk while rendering continuous service as extra clerk he might not have at all been entitled to pension and pensionary benefit. In the instant case, while rendering continuous service as extra clerk for a long period, the Petitioner was appointed to the post of temporary clerk and thereafter as permanent clerk in the same establishment and the Government by the Order/Instruction dated 8th July, 1987 clarified that appointment from the post of extra clerk to the post of temporary clerk should be treated as promotion. This Court can also take judicial notice of the fact that both the Central Government and the State Government are making schemes for granting old age pension to the citizens. The Petitioner has rendered public service continuously from April, 1957 to 23.1.81 as extra clerk and denial of pensionary benefit in respect of the said period by taking supertechnical and pedantic approach is unjust and inequitable. The decisions of this Court in the case of Janki Tante and Ors. (C.W.J.C. No. 7379 of 1992) on which the learned Standing Counsel has placed reliance has no application on the facts of the present case. In that case this Court held that a lecturer or an employee of a College was not entitled to claim pensionary benefit for the period of service rendered by him under the Managing Committee of the Private College before nationalisation thereof by the Government. But the Petitioner after being appointed as extra clerk by the District Sub-Registrar under the provisions of the Bihar Registration Manual, 1946, had rendered continuous public service holding civil post under the Government during the period in question.

For the reasons stated above, I am inclined to hold that the continuous service rendered by the Petitioner as extra clerk from April, 1957 till his appointment as temporary clerk, should be counted as qualifying service for the purpose of pension and pensionary benefit only. The petition is, therefore, allowed and Respondents No. 1 and 2 are directed to pass appropriate order in exercise of power u/s 59 of the Bihar Pension Rules declaring that the service rendered by the Petitioner, as extra clerk from April, 1957 till the date of his appointment as temporary clerk should be treated as qualifying service for the purpose of pension and pensionary benefit only. The Respondent shall ensure that passing of the appropriate order under Rule 59 of the Bihar Pension Rules and payment of consequential revised pension to the Petitioner in pursuance of the order, is completed within six months from the date of receipt of a copy of this order.