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Employees Absorbed As Fresh Appointees For Projects Without Pay Protection And Seniority Will Not Be

Parmeshwar Nanda Etc. Versus The State Of Jharkhand Through Chief Secretary & Ors. Etc. Civil Appeal Nos. 505-531 Of 2020 (Arising Out Of Slp (Civil) Nos. 27922-27948 Of 2017) – FEBRUARY 07, 2020.

The bench comprised of Justice Nageswara Rao and Justice Hemant Gupta. The present appeals are directed against an order passed by HC of Jharkhand where it was held that the services rendered by the appellants under the Adult Education and Non-formal Education Project cannot be counted under a Government scheme for the purpose of pension benefits after the appellants being appointed by the State. The appellants were appointed by co-sponsored by the Central Government and State Government. Some appellants were appointed as Adult Education Supervisors whereas other appellants were appointed in the ministerial cadre such as Stenographer, Clerk cum Accountant, Clerk cum Typist, Peon as well as Drivers.

The Consequent bifurcation of State of Bihar, Government of Jharkhand declared employees to be in surplus w.e.f.2001. A notification issued for absorption notified that 756 employees who were declared surplus would be absorbed by the State in 2007.Except those who had attained the age of superannuation or had died prior, other employees were absorbed in various pay scales.  Clauses 11 and 12 read as, that surplus personnel absorbed will be considered as new appointees,they will not be benefited of seniority and will not be protected by pay protection. The same was challenged in writ petitions filed. The High Court referred to the Jharkhand Pension Rules stating that three be satisfied before service to be treated as a pensionable service.

Conditions to be satisfied before service to be treated as a pensionable service under Jharkhand Pension rules: (i) Service must be under Government. (ii) Employment must be substantive and permanent (iii) Service must be paid by Government.Rule 59 provides that the State Government can declare any specific kind of service rendered in a non-gazetted capacity to qualify for pension even though either or both of conditions (1) and (2) are not fulfilled. The High Court held that no declaration of the State Government in general terms has been made nor any direction in individual cases issued in favour of any such petitioners.

Concluded by an order passed by the Court in State of Jharkhand & Ors. v. Asgar Ali & Ors., the appellants were held entitled to pension benefits. In the order under appeal, the claim of the employees for pension was declined for the reason that no declaration within the meaning of Rule 59(1) in general terms has been made nor any direction in individual cases issued in their favour.

The High Court relied upon judgment of this Court reported as Dhyan Singh & Ors. v. State of Haryana & Ors. The High Court also held that judgment of Single Bench of Patna High Court in Baliram Singh & Ors. v.State of Bihar & Ors. is per incuriam.

The Court noted that the entire issue was based upon Rule59. The specific scheme under which employees were appointed was held not to be a permanent establishment as it was established for a specific purpose. Therefore the appointment was not part of any cadre of the State, and the first condition was not satisfied. The second condition that employment must be substantive and permanent is again not satisfied by the appellants as the employment of the appellants. At best, the appellants satisfied only the third condition i.e. that they were paid by the Government.

The case of Baliram Singh arises out of the policy of the State of Bihar wherein the past service has been specifically ordered to be considered for pension. Since in the State of Jharkhand, the policy decision is to treat them as fresh appointments without any benefit of seniority and pay protection, therefore, to count the period when the appellants were working under a Project as pensionable service is beyond comprehension. The appellants have been appointed as fresh candidates and, therefore, their period of service for pension has to be calculated from the date of their regular appointment and therefore they cannot get any benefit of past service rendered by them.

Baliram singh case being dismissed , said orders were set aside. Therefore, the Court held that reliance of High Court on an order passed at earlier stage on Baliram Singh no longer holds good. Also noticed that in the State of Bihar, past services rendered by employees under the Project were taken into consideration for pensionary benefits. Present appeal was disposed in the same terms as Baliram Singh.

– Saral M



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