UPENDRA KUMAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner has prayed for quashing the memo no. 361 dated 21.11.2006 issued by the Deputy Director, Water Investigation Division, Bhagalpur by which he reported to the Accountant General, Bihar, Patna that petitioner's service from 17.03.1979 to 12.08.1986 was not pensionable and as such a request was made to amend the earlier issued pension approval order of the petitioner. Petitioner has also prayed for quashing the letter no. 4217 dated 01.12.2006 issued from the office of Accountant General, Bihar, Patna by which and where under petitioner's pension was revised and fixed at the rate of Rs. 2726/- per month with effect from 01.12.2004. Furthermore, petitioner has prayed for directing the concerned authorities to refund the amount with interest to the petitioner which has been recovered from him on account of reduction of his pension from Rs. 3596/- per month to Rs. 2726/- per month. Petitioner has also prayed to issue a writ in the nature of mandamus commanding the respondents to treat and count the entire service period of petitioner in Bihar Water Development Corporation as pensionable and direct the respondents to pay all the consequential dues of the petitioner.

(2.) Petitioner was appointed on the post of Tubewell Operator in the State Tubewell under the State of Bihar in the year 1973. The State Government constituted Bihar Water Development Corporation in the year 1974 and the entire State Tubewell vested in the Bihar Water Development Corporation and the petitioner became employee of the Bihar Water Development Corporation. Petitioner was a diploma holder in engineering. The Bihar Water Development Corporation promoted the petitioner to the post of Junior Engineer in the year 1979. In 1986, Government decided to take over the assets, liabilities as well as existing employees of the said corporation as a result of which the petitioner became an employee of Minor Irrigation Department, State of Bihar with effect from 1986. Petitioner superannuated from the post of Junior Engineer on 30.11.2004 i.e. after 31 years of continuous service. On 10.12.2003, a show cause notice was issued to the petitioner stating therein that petitioner could not be appointed as Junior Engineer as he was appointed by the said corporation for which the above stated corporation did not obtain the sanction of the government for according such appointment. After retirement of the petitioner, the State Government reverted the petitioner to his initial post of Tubewell Operator vide order dated 08.08.2005 and ordered for recovery of dues in between the salary of a Tubewell Operator and a Junior Engineer for the period 1979 to 30.11.2004. The aforesaid order dated 08.08.2005 was challenged by the petitioner in CWJC No. 13877 of 2005 which was allowed by a Bench of this Court vide order dated 18.01.2006 quashing the order dated 08.08.2005 directing the concerned respondents to treat the petitioner as Junior Engineer with effect from his appointment thereto till his retirement and by the aforesaid order, it was also observed that petitioner was entitled to salaries and remuneration of Junior Engineer and it was also observed that the pensionary terminal and other dues of the petitioner be settled and paid treating him as Junior Engineer between the above stated period. The above stated order of this Court was not complied with by the concerned authorities and thereafter, petitioner filed MJC No. 762 of 2006 and after that his pension was fixed at the rate of Rs. 3596/- per month with effect from 01.12.2004 by the Accountant General's Pension Approval order dated 07.09.2006. The aforesaid fixation was made on the basis of 31 years of continuous service of the petitioner but subsequently, the State took a new stand informing the petitioner that the service rendered by the petitioner in corporation as Junior Engineer was not pensionable and, accordingly, service rendered by the petitioner in corporation from 17.03.1979 to 12.08.1986 was not reckoned by the State Government for the purpose of determination of pension and accordingly, the State Government issued letter to Accountant General for not reckoning the above stated period of service of the petitioner for the purpose of determination of his pension and accordingly, the Accountant General amended/modified his previous approval order reducing the amount of pension of the petitioner and also giving order of recovery from the pensionary benefit of the petitioner and subsequently, the recovery of Rs. 1,29,222/- was made from the petitioner. Since the aforesaid reduction was made during pendency of MJC No. 762 of 2006, the aforesaid matter was raised before a Bench of this Court and the said Bench of this court while disposing of MJC No. 762 of 2006 vide order dated 08.02.2007 gave liberty to the petitioner to agitate his grievance before the appropriate forum and accordingly, the petitioner filed the present writ petition.

(3.) Counter affidavit has been filed on behalf of the respondents in which it has been averred that initially petitioner was appointed as Tubewell operator in the State Tubewell in the year 1973 and after constitution of corporation, his service was taken over by the Bihar Water Development Corporation as Tubewell Operator in the year 1974 and he worked in the above stated corporation as Tubewell Operator from 01.04.1974 to 16.03.1979 but on 17.03.1979, he was appointed as Junior Engineer by the said corporation and, therefore, he became employee of the aforesaid corporation with effect from 17.03.1979. It has also been averred that the aforesaid corporation was taken over by the Minor Irrigation Department in the year 1986 and after that from the year 1986, the petitioner became the employee of the State Government and that was the reason the service of petitioner from 17.03.1979 to 12.08.1986 has not been treated as pensionable service because between the aforesaid period, he was an employee of the corporation and according to Rule 58 and 75 of Bihar Pension Rules, 1950, the aforesaid period of service of the petitioner was not pensionable.