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Case Number

Civil Writ Jurisdiction Case No. 3982 of 2015

Advocates

For the Petitioner/s: Mr. Raj Kumar
Mr. Ashok Kumar Choudhary-AAG13

Judges

Ajay Kumar Tripathi, J.

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Smart Summary

Judgment Summary — Ajay Kumar Tripathi, J.

Factual and Procedural Background

The petitioner is a widow seeking post-retiral benefits (pension, gratuity and appointment on compassionate grounds) arising from the service of her deceased husband, Alok Kumar. Alok Kumar was initially engaged as a work-charge employee on 12.01.1982, was assigned a pay-scale and continued to work uninterruptedly until his death on 02.01.2013. The respondent authorities rejected the petitioner's claims by two orders: Annexure-9 dated 29.07.2013 and Annexure-12 dated 13.02.2014, on the ground that Alok Kumar was a work-charge employee and not a regular (permanent) State employee.

The petitioner filed a writ application challenging those orders. The State pointed to relevant government resolutions and cut-off dates (including resolutions dated 23.10.1987 and 20.9.1990 and a notification dated 17.10.2013) to deny regularization where service did not meet specified criteria. The High Court heard counsel, considered prior decisions on similar fact-situations, and allowed the writ application. The Court quashed Annexure-9 and Annexure-12 and directed the respondents to decide the petitioner's claim within three months, treating the husband as a regular employee until his death but only for purposes of pension and related benefits (and expressly not for previous pay and other similar benefits).

Legal Issues Presented

Whether the petitioner is entitled to pension, gratuity and other post-retiral benefits despite her husband having been engaged as a work-charge employee rather than a permanent State employee.
Whether the long uninterrupted service of the husband (26 years) and earlier judicial decisions require treating him as a regular employee for the limited purpose of granting pension/family pension and related benefits.
Whether government resolutions and cut-off dates (including resolutions dated 23.10.1987 and 20.9.1990 and the notification dated 17.10.2013) bar the petitioner's claim where the husband did not meet specified cut-off eligibility on paper.

Arguments of the Parties

Petitioner's Arguments

Petitioner relied on the factual claim that Alok Kumar had continuous service from 12.01.1982 until his death on 02.01.2013 (a period of 26 years), had been given a pay-scale, and had passed a departmental Hindi noting and drafting examination in 1986.
Counsel for the petitioner urged reliance on prior decisions with identical or closely similar facts (including Bimli Devi; Subhash Paswan; Koshi Project Worker's Association; Most. Baby Devi) that had directed regularization or extension of benefits to widows of work-charge employees, and argued that omission or delay by the State to regularize service could not be allowed to prejudice the widow.
It was argued that the notification dated 17.10.2013 and other administrative instruments should not defeat a claim where earlier judicial decisions supported relief for similarly placed persons and where the husband's long service indicated de facto permanency.

State's Arguments

The State's counter-affidavit maintained that the husband's 1982 engagement was limited to a six-month engagement and thus not a permanent appointment.
The State relied on statutory/administrative cut-off criteria: only work-charge employees who completed five years of continuous service before the cut-off date of 21.10.1984 (as per the Resolution dated 23.10.1987 and Resolution No.5074 dated 20.9.1990) were entitled to regularization; the husband did not meet these requirements.
The State also sought to rely on a Division Bench decision (referred to in the record as Annexure-D) to oppose the petitioner's claims.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bimli Devi v. The State of Bihar, 2014 (4) PLJR 238	Decision involved identical facts where relief was granted to a widow; used as supporting authority that work-charge employees may be treated as regular employees in similar circumstances.	The Court reproduced and relied on the reasoning in Bimli Devi as demonstrating that identical facts had been decided in favour of petitioners; it formed part of the chain of authority supporting grant of relief here.
Subhash Paswan v. The State of Bihar (Division Bench decision dated 3.5.2007 in CWJC No.16060 of 2004)	Used as authority that, in that case, the husband had to be treated as a regular employee and benefits extended; the Division Bench decision was relied upon in subsequent cases.	Cited within the reproduced passages from Bimli Devi as background authority relied upon by earlier courts; used to show consistency of judicial approach in similar cases.
Koshi Project Worker's Association v. State of Bihar, 2007 (1) PLJR 358	Held that work-charge employees are supposed to be treated as permanent employees after a year (as relied upon in earlier judgments).	The Court noted that Koshi Project had been relied upon by petitioners in earlier cases; the State questioned its correctness in view of later Full Bench authority, but the Court nonetheless treated long service as indicative of de facto permanency for present purposes.
Most. Baby Devi v. State of Bihar, 2012 (3) PLJR 910	Grant of regularization and family pension to widows where deceased had adequate continuous service; paragraphs 14 and 15 were specifically relied upon to justify relief to widows even where procedural regularization had been omitted by the State.	The Court expressly grounded its decision on the ratio in Most. Baby Devi, stating the writ application is allowed on that basis and directing respondents to act accordingly within three months.
Shambhu Sharan Singh v. The State of Bihar & Ors., 1998 (3) PLJR 908	Illustrated that a work-charge employee serving continuously for more than five years was entitled to be regularized and that retiral benefits of a deceased work-charge employee could be paid to heirs.	Cited within the reasoning reproduced from Most. Baby Devi and used as supporting precedent for the proposition that beneficiaries may be entitled to retiral benefits where continuous satisfactory service existed.
Durganand Jha v. State of Bihar, 2007 (4) PLJR 259	Full Bench decision referenced as potentially calling into question the correctness of Koshi Project's proposition.	The Court acknowledged Durganand Jha as a Full Bench authority that may affect the correctness of Koshi Project, but held that the husband's 26 years of uninterrupted service could not be ignored and justified relief under the circumstances.
Sangam Lal Yadav (referenced)	Mentioned in the context of disputes about reliance on Division Bench authority in other cases.	The Court noted that reliance on Sangam Lal Yadav by the State was contested in prior decisions, but the present judgment proceeded on the basis of the Most. Baby Devi ratio and the facts of long service.

Court's Reasoning and Analysis

The Court proceeded by first recording the undisputed facts: the husband's initial appointment as a work-charge employee on 12.01.1982, his continuous service until 02.01.2013, that he had been given a pay-scale and had passed the Hindi noting and drafting examination, and that the respondents had declined post-retiral benefits on the ground that he was not a regular employee.

The Court then considered the State's reliance on administrative resolutions and cut-off dates (notably the resolution dated 23.10.1987, Resolution No.5074 dated 20.9.1990 and the notification dated 17.10.2013) which, according to the State, limited regularization to those who had completed five years' service prior to the cut-off date of 21.10.1984. The State also referred to a Division Bench decision in Annexure-D to support its stance.

In its analysis the Court reviewed earlier judicial decisions on the subject (including Bimli Devi and Most. Baby Devi) which had dealt with parallel fact-situations and had provided relief to widows of work-charge employees by treating the deceased employees as regular for the purpose of pension. The Court reproduced reasoning from those cases to demonstrate that a consistent judicial approach had been to protect beneficiaries where State omission or delay had occurred.

The Court addressed the State's contention that Koshi Project (and similar pronouncements) may not state the correct law in light of the Full Bench decision in Durganand Jha, but observed that even if Koshi Project's correctness were debatable, it could not ignore the fact of 26 years' continuous service by the deceased. The Court reasoned that such prolonged uninterrupted service indicated that the engagement had, in reality, acquired the character of permanency.

Relying particularly on the ratio in Most. Baby Devi (as reproduced and relied upon in the opinion), the Court concluded that the petitioner's claim fell within the ambit of existing favorable precedents and that a direction was warranted for the respondent authorities to consider grant of family pension and other benefits treating the husband as a regular employee up to the date of his death.

Accordingly, the Court quashed the impugned administrative orders and directed the respondents to settle the petitioner's claim within a fixed period of three months from production/communication of the order, but limited the relief to pension and related benefits (excluding any entitlement to previous pay and analogous benefits).

Holding and Implications

Holding: The writ application is ALLOWED. The two impugned orders (Annexure-9 dated 29.07.2013 and Annexure-12 dated 13.02.2014) are quashed. The respondents are directed to take a decision within three months from production/communication of the order to grant pension and other related benefits to the petitioner by treating the petitioner's husband as a regular employee up to the date of his death (02.01.2013) for the purpose of pension and similar benefits only. The direction expressly excludes entitlement to previous pay and other similar benefits.

Implications:

The direct effect is that the petitioner must be considered for pension and related post-retiral benefits within three months, on the limited basis described above.
The decision follows and applies the ratio in Most. Baby Devi and related authorities dealing with similar fact-situations; it operates within the line of existing judicial decisions rather than announcing a novel principle beyond those precedents.
The Court limited the relief temporally and territorially: the husband is to be treated as regular only for the limited purpose of pension/related benefits and only up to his date of death; the order does not grant back-pay or other monetary benefits of the kind excluded by the judgment.

Note: This summary is confined to, and faithfully reflects, the material contained in the provided opinion text.

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Anju Kumari v. State Of Bihar

Ajay Kumar Tripathi, J.:— Heard learned counsel for the parties.

2. The two annexures under challenge are Annexure-9, dated 29.07.2013 and Annexure-12, dated 13.02.2014 By virtue of the two orders, claim of the petitioner for payment of pension, gratuity as well as appointment on compassionate basis, have been rejected by the respondent-authorities on the ground that the husband of the petitioner was working in the work-charge-establishment and not on the permanent roles of the State.

3. Facts are not disputed that husband of the petitioner, namely, Alok Kumar was initially appointed as a work-charge-employee on 12.01.1982 He was given a pay-scale while working as a work-charge-employee. He had also passed the Hindi noting and drafting examination in the year 1986. He worked uninterruptedly since his initial engagement till his life was cut-short by divine intervention on 02.01.2013 When the petitioner moved the authorities, looking for benefits like post-retiral dues, etc., the respondents have passed the order, contained in Annexure-9 and 12, virtually reiterating the position that the petitioner is not entitled to any benefit, because the husband was not a regular employee and remained as a work-charge-employee.

4. The predicament of the present petitioner is not different from thousands of such employees, who have been agitating and fighting for foothold and some dignity in their life. There have been many rounds of litigations as well as directions by the Court, which culminated, no doubt, into a notification issued by the Department of Finance, Government of Bihar and is dated 17.10.2013 The said resolution is Annexure-10 to the writ application. If Annexure-10 is taken into consideration, may be the State can hide behind the said resolution and deny the claim of the petitioner and absolve itself of any obligation or commitment to the petitioner.

5. But since such issues have also traveled to this Court earlier and the Court had applied its mind to the similar or identical facts and after taking into consideration other decisions on the issue held in favour of such petitioners, directed the State to extend the benefit to the widows, treating the husband of such widows to be permanent employees at least till the date of death.

6. Learned counsel for the petitioner has drawn the attention of the Court to a reported decision of Bimli Devi v. The State of Bihar, reported in 2014 (4) P.L.J.R 238. The facts are identical and so was the spirited defence put up by the State counsel, but the Court had this to say in paragraph 3 to 8 of the said decision:

“3. Stand of the petitioner is that by virtue of a Division Bench decision dated 3.5.2007 rendered in CWJC No. 16060 of 2004, which was the case of Subhash Paswan v. the State of Bihar, the husband of the petitioner had to be treated as a regular employee and extended benefit especially when the above position was affirmed even by dismissal of SLP by the Hon'ble Apex Court. Her plea is that by virtue of the decision rendered in the case of Koshi Project Worker's Association v. State of Bihar, reported in 2007 (1) PLJR 358 work-charge employees are supposed to be treated as permanent employee after a year. Besides, from time to time the State Government had also issued notifications for regularization of service of work-charge employee and even cut off dates have been extended by virtue of which benefits should have accrued by regularization of service of the husband of the petitioner. If there was omission on the part of the State, the failure is of the State. Even as recent as 17.10.2013, a notification has been issued by the State of Bihar extending the benefit of regularization to such employees. Merely because there is death of the husband of the petitioner prior to issuance of the said notification, the petitioner cannot be left to fend for herself.

4. Counsel for the petitioner also relies on a decision rendered in the case of Most. Baby Devi v. State of Bihar, reported in 2012 (3) PLJR 910. Reliance is on paragraphs 14 and 15 of the said decision, which are reproduced herein below:

“14. Learned counsel for the petitioners in rejoinder submitted that original writ petitioner in CWJC no. 4517 of 2007 moved this Court in C.W.J.C No. 6217 of 2003 for compliance of the Government circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 issued for regularization of the Work Charge Employees and this Court under orders dated 15.3.2004, Annexure-8 (in CWJC no. 4517 of 2007) directed the State-respondents to consider his case for regularization as per the cut-off date for entry in the Work Charge Establishment fixed under Resolution No. 6394 dated 23.10.1987 but the Commissioner-cum-Secretary of the Department ignoring the mandate of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 passed erroneous order dated 29.3.2006, which was assailed by the original writ petitioner of C.W.J.C No. 4517 of 2007. During the pendency of C.W.J.C No. 4517 of 2007, on account of ill-luck the original writ petitioner left for heavenly abode on 2.8.2008, as such, even though the right of the original writ petitioner to seek regularization may not be surviving but the widow petitioner no. 1 is entitled to enforce her right for grant of family pension. In this connection, learned counsel also relied on the judgment of the another Single Judge in the case of Shambhu Sharan Singh… v. The State Of Bihar & Ors.…, reported in 1998 (3) PLJR 908. In the case relied upon the deceased employee was appointed by the competent authority as Choukidar in the Work Charge Establishment. While serving in the Work Charge Establishment for about six years he died on 6.1.80 Relying on the circular of the Government dated 22.10.1984 that Work Charge Employees completing five years of continuous satisfactory service is entitled to be regularized retiral benefits of the deceased Work Charge Employee was directed to be paid to the heirs of the deceased employee who died while serving in the Work Charge Establishment for more than six years.

15. In view of submission of the counsel for the State noted in paragraph 13 reliance placed by the counsel for the petitioners over the judgment of Division Bench in the case of Sangam Lal Yadav (supra) is misplaced, however, considering the submission noted in paragraphs 9, 11, 12, 14 and the contents of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990, I set aside the order dated 29.3.2006, Annexure-9 in C.W.J.C No. 4517 of 2007 and direct that the husband of the substituted petitioner no. 1 of C.W.J.C No. 4517 of 2007 and petitioner of C.W.J.C No. 4600 of 2007 be regularized on the post of Watchman-cum-Peon and Roller Khalasi respectively with effect from the date they completed five years in Work Charge Establishment and petitioner no. 1 of CWJC no. 4517 of 2007 be paid family pension with effect from the date of death of her husband i.e 2.8.2008, as early as possible, in any case within two months of the date of receipt of a copy of this order before the Secretary of the department. Within the same time respondent State should also extend the cut-off date fixed for regularization of the Work Charge Employee from 21.10.1984 to 11.1.1990 as was done in the case of Muster Roll Workers from 1.8.1985 to 11.1.1990 under resolution no. 489, dated 10.5.2005 of the Government in appreciation of the fact that Work Charge Employees are superior in status to the Muster Roll Workers who are paid wages for the days on which they are actually engaged whereas the Work Charge Employees are paid salary as per the scale admissible for the post on which they are serving and are also allowed the benefit of pay revision and other service conditions admissible for regular employees.”

5. Stand of the State in the counter affidavit is that the engagement of the petitioner's husband in the year 1982 was for a limited period of six months. Only such persons, who had completed five years of continuous service before cut off date on 21.10.1984, were required to be regularized as per the resolution dated 23.10.1987 There is yet another resolution no. 5074 dated 20.9.1990, which indicates that only such work-charge employees would be entitled for regularization, who were appointed on or before 21.10.1984 Since petitioner's husband did not fulfill the requirements, the respondent authorities have refused to take any decision in favour of the petitioner. They also tried to draw advantage of a Division Bench decision rendered in Annexure-D.

6. Even though the State could be correct to some extent in taking a plea that the decision rendered in Koshi Project (Supra) may not state the correct law in view of the Full Bench decision rendered in Durganand Jha v. State of Bihar, reported in 2007 (4) PLJR 259. But the Court cannot ignore the fact that the petitioner's husband continued to work uninterruptedly for 26 years before he died. If there was omission on the part of the State authorities to regularize his service and confer him benefit then the said omission cannot be detrimental to claim and interest of the present petitioner.

7. 26 years of long service is an indicator of the fact that the engagement of the petitioner's husband did not remain a casual engagement or appointment and had acquired nature of permanency by sheer length of service rendered. In addition to above, if what has been seen and opined by the learned single Judge in paragraphs 14 and 15 of Most. Baby Devi's case (supra) then obviously the claim of the petitioner comes within the ambit of the said decision and a case is made out for a direction upon the respondent authorities to consider grant of family pension and other benefits to which she may be entitled to by treating her husband to be a regular employee under them.

8. The writ application is allowed on the basis of the ratio rendered in the case of Most. Baby Devi (supra). The respondent authorities must settle the claim of the petitioner within a period of three months from the date of production/communication of a copy of this order.”

7. Keeping in view the ratio reproduced in earlier part of the Order, the writ application of the petitioner has to succeed. The two impugned orders, contained in Annexure-9 and 12, dated 29.07.2013 and 13.02.2014 respectively are quashed. Respondents are directed to take a decision for grant of pension and other benefits to the petitioner within a period of three months from the date of production/communication of a copy of this Order treating the husband of the petitioner to be a regular employee till the time of his death, i.e, 02.01.2013 only for the purpose of pension etc. and not for previous pay and benefits of such kind.

8. Writ application is allowed.

Anju Kumari v. State Of Bihar

Judgment Summary — Ajay Kumar Tripathi, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anju Kumari v. State Of Bihar

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