PARMESHWAR NANDA ETC. versus THE STATE OF JHARKHAND THROUGH CHIEF SECRETARY & ORS. ETC. on 7 February 2020

[2020] 3 S.C.R. 680

SUPREME COURT REPORTS

[2020] 3 S.C.R.

APARMESHWAR NANDA ETC.

v.

THE STATE OF JHARKHAND THROUGHCHIEF SECRETARY & ORS. ETC.

(Civil Appeal Nos. 505-531 of 2020)

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FEBRUARY 07, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Jharkhand Pension Rules – rr. 58, 59 & 31, 38 – Appellantswere appointed under a Project, co-sponsored by CentralCGovernment and State Government, in the erstwhile undivided Stateof Bihar between 1978-1990 – Appellants’ services fell in thesuccessor State of Jharkhand, formed in 2000 – Government ofIndia by a policy decision closed the Project – Govt. of Jharkhanddeclared the employees to be surplus w.e.f. 16.05.2001 – It issuedDnotification for absorption of the employees engaged in the Projectin various Departments – As per Clauses 11 & 12 of the saidnotification, surplus employees absorbed were to be treated as newappointments and services rendered by them prior to theirdeclaration as surplus were not be counted for the purpose of theirseniority and pay protection – 59 writ petitions were filed inter aliaEclaiming pensionary benefits, commonly challenging Clauses 11 &12 – High Court declined the claim for pension – Held: Entire caseis based upon r.59 and Circular dated 12.08.1969 of the erstwhileState of Bihar – r.59 empowers the State Government to declare anyspecified kind of service rendered in a non-gazetted service toFqualify for pension, provided that the salary is paid from generalrevenue – r.58 contemplates three conditions required to be satisfiedfor services to be pensionable – At best, the appellants satisfiedonly the third condition therein – Further, Circular dated12.08.1969deals with pensionary benefits to a temporary govt. servant –Appellants, engaged under the Project i.e. a scheme, were neverGappointed by the Government either on temporary or permanentbasis – Benefit of such Circular cannot be claimed by them – Stillfurther, notification for absorption dtd. 30.05.07 and subsequentletter of appointments do not contain any condition that the servicesrendered by appellants under the Project shall qualify for pensionH

PARMESHWAR NANDA v. THE STATE OF JHARKHANDTHROUGH CHIEF SECRETARY & ORS.

– Policy decision contemplates that it is a fresh appointment and nobenefit either of seniority or pay protection shall be given –Appellants have not disputed such condition of appointment –Circular dated 12.08.1969 is not even remotely applicable to theemployees appointed under the Project as the very nature of theappointment was for a specific purpose and not for unlimited periodof time – No error in the order passed by High Court – C.A.No. 544of 2020 is disposed of in the same terms as in Baliram Singh case –Bihar Pension Rules, 1950 – r.103.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1.1 The entire case is based upon Rule 59 of theJharkhand Pension Rules, 2000 and the Circular dated 12thAugust, 1969 of the erstwhile State of Bihar. Rule 59 of the Rulesempowers the State Government to declare any specified kind ofservice rendered by one in a non-gazetted service to qualify forpension, provided, that the salary is paid from the generalrevenue. Rule 58 of the Rules contemplates the conditions thatare required to be satisfied for services to be pensionable. Theappellants were appointed under a specific Scheme i.e. the Project.Such project was not a permanent establishment of theGovernment as it was meant for a specific purpose funded by theCentral Government for a specified period. The appointment ofthe appellants under the Project is not a part of any cadre of theState Government. Therefore, the first condition of Rule 58 thatthe service rendered must be under the State Government is notsatisfied by the appellants having been appointed under theProject. The second condition that employment must besubstantive and permanent is again not satisfied by the appellantsas the employment of the appellants was under the Project. Apermanent post in terms of Rule 31 of the Rules means a postcarrying a definite rate of pay and that is sanctioned without atime limit. The appointment of the appellants under the projectwas not in a pay scale nor was it sanctioned without a time limit.Further, substantive pay is defined in Rule 38 of the Rules as aperson who is appointed in a cadre. At best, the appellants satisfiedonly the third condition i.e. that they were paid by the Government.If the first and second conditions mentioned in Rule 58 of theRules are not satisfied, the State Government can declare any AB

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Aspecified kind of service rendered in a non-gazetted capacity toqualify for pension. The Circular dated 12th August, 1969 dealswith pensionary benefits to a temporary Government servant.The appellants were never appointed by the Government eitheron a temporary or on permanent basis. The appellants wereengaged under the Project i.e. a scheme, therefore, the benefitBof such a Circular cannot be claimed by the appellants. Still further,sub-rule (1) of Rule 59 of the Rules empowers the State to declareany specific kind of service to qualify for pension. The notificationfor absorption circulated on 30th May, 2007 and the subsequentletter of appointments do not contain any condition that theCservices rendered by the appellants under the Project shall qualifyfor pension. The policy decision contemplates that it is a freshappointment and no benefit either of seniority or pay protectionshall be given. The appellants have not disputed such conditionof appointment having been appointed under such policy decisionvide the notification dated 30th May, 2007. The Circular has notDgranted pensionary benefits. In the absence of any specificcondition in the Circular to grant pensionary benefits, it is notpossible to read that pensionary benefits are to be granted to theerstwhile employees of the Project. The appellants cannot turnaround to say that the services rendered by them under the ProjectEshall be counted for pension. The Circular dated 12th August,1969 is not even remotely applicable to the employees appointedunder the Project as the very nature of the appointment was for aspecific purpose and not for an unlimited period of time. [Paras20, 21 and 22][692-G-H; 693-A-H; 694-A-C]

F1.2 The appellants have been appointed as fresh candidatesand, therefore, their period of service for pension has to becalculated from the date of their regular appointment andtherefore they cannot get any benefit of past service rendered bythem. Since the appellants were absorbed as fresh appointees

without pay protection and seniority, as a consequence thereof,Gthey will not be entitled to count their past service rendered underthe Project for the purpose of pension. Thus, no error found inthe order passed by the High Court which may warrantinterference in the present appeals. [Paras 23, 26][694-D-E;695-B-D]H

Civil Appeal No. 544 of 2020

1.3 The reliance of the High Court on an order passed atearlier stage on Baliram Singh no longer holds good. In the Stateof Bihar, past services rendered by employees under the Projectwere taken into consideration for pensionary benefits. The presentappeal is disposed of in the same terms as in Baliram Singh. [Paras27, 28][695 G-H; 696-A]

State of Jharkhand & Ors. v. Asgar Ali & Ors. (2018)18 SCC 64 – distinguished.

Dhyan Singh & Ors. v. State of Haryana & Ors. (2002)10 SCC 656; Baliram Singh & Ors. v. State of Bihar &Ors. (2016) SCC OnLine Pat 9958; State of Bihar &Ors. v. Baliram Singh & Ors. (2018) 18 SCC 46; AsgarAli & Ors. v. State of Jharkhand & Ors. (2010) SCCOnLine Jhar 8 – referred to.

State of Jharkhand & Ors. v. Bhubneshwar MahtoDecision of Jharkhand High Court in LPA No. 515 of2004; State of Jharkhand & Ors. v. Bimal Kumar SinhaDecision of Jharkhand High Court in LPA No. 188 of2004 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 505-531 of 2020.

From the Judgment and Order dated 16.06.2017 of the High Courtof Jharkhand at Ranchi in Writ Petition (Service) Nos. 4278 of 2010,4110 of 2013, 3971 of 2009, 469, 2882, 4277, 4279, 4400, 6641 of 2010,3153 of 2011, 5618, 7232 of 2012, 292, 2113, 2804 , 5323, 4330, 5872,6107, 6969 of 2013, 141, 2381, 3277, 5771 of 2014, 676, 981 of 2015,1865 of 2016.

With

Civil Appeal Nos. 532-542, 543, 544, 545-546 of 2020.

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ARanjit Kumar, Dhruv Mehta, Manoj Swarup, S.B. Upadhyay, AjitKr. Sinha, Sr. Advs., Srikaanth S., Gopal Singh, Abhishek Puri, P.N.Puri, J.S. Marahatta, Ratan Kumar Choudhuri, Ajay Kumar, KumarShivam, Ashish Chaubey, Ranjith Kumar, Pawan Upadhyay, NishantKumar, Sarvjeet Pratap Singh, Ms. Anisha Upadhyay, Chandra BhushanPrasad, Tapesh Kumar Singh, Atulesh Kumar, Devashish Bharuka,BKrishnanand Pandeya, Jayesh Gaurav, Ms. Aakanksha Kaul, Venkatesh,Ms. Vaishali Verma, Mrs. Anil Katiyar, Saurabh Mishra, Onkar Singh,Arun Verma, Rahul Baid, Ronak Baid, Advs. for the appearing parties.

The Judgment of the Court was delivered by CHEMANT GUPTA, J.Civil Appeal Nos. 505-531 of 2020Civil Appeal Nos. 532-542 of 2020Civil Appeal Nos. 543 of 2020

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Civil Appeal Nos. 545-546 of 2020

1. The present appeals are directed against an order passed bythe Full Bench of High Court of Jharkhand on 16[th] June, 2017 wherein ithas been held that the services rendered by the appellants under theEAdult Education and Non-Formal Education Project[1] cannot be countedunder a Government scheme for the purpose of pensionary benefitsafter the appellants were appointed by the State.

2. Briefly, the facts are that the appellants were appointed underthe Project, co-sponsored by the Central Government and the StateFGovernment, in the erstwhile undivided State of Bihar between the period1978 to 1990. Some of the appellants were appointed as Adult EducationSupervisors whereas other appellants were appointed in the ministerialcadre such as Stenographer, Clerk cum Accountant, Clerk cum Typist,Peon as well as Drivers. The appellants were working under the ProjectGduring the bifurcation of the State and their services fell in the successorState of Jharkhand which was formed on 15[th] November, 2000. TheGovernment of India vide policy decision dated 1[st] April, 2001 closed theProject. The Government of Jharkhand, consequent to the bifurcation ofState of Bihar, declared the employees to be surplus w.e.f. 16[th] May,2001.H1 for short, ‘Project’

3. The Government of Jharkhand issued a notification dated 30[th]May, 2007 for absorption of the employees engaged in the Project in theDepartments of Food, Public Distribution and Consumer Affairs, Finance,Social Welfare, Women and Child Development, Urban Developmentetc. on different posts, in their respective prescribed scales of pay. Aperusal of the said notification shows that there were 756 employeeswho were declared as surplus and were to be absorbed by the State. Itappears that most of the surplus employees were absorbed in differentscales of pay vide letter of appointments starting from 24[th] July, 2007except those who had attained the age of superannuation or had diedprior to such absorption.

4. As per Clauses 11 and 12 of the notification dated 30[th] May,2007, the surplus employees absorbed were to be treated as newappointments and the services rendered by them prior to their declarationas surplus i.e. prior to 15[th] May, 2001, would not be counted for thepurpose of their seniority and pay protection. Clauses 11 and 12 of thenotification read as under:

“11. The adjustment of surplus personnels will be considered newappointment and being surplus on the basis of prior service, theywill not be benefitted of seniority.

12. These surplus personnels will not be benefitted by payprotection.”

5. 59 writ petitions came to be filed claiming pensionary benefitsand seniority before the High Court. The matter was placed before theFull Bench in view of the divergence of opinions of the two DivisionBenches of the Jharkhand High Court in State of Jharkhand & Ors. v.Bhubneshwar Mahto[2] and State of Jharkhand & Ors. v. Bimal KumarSinha[3].

6. LPA No. 515 of 2004 was preferred by the State against theorder of the learned Single Bench passed on 21[st] November, 2003. Thewrit petitioner was directed to be paid salary for the period 16[th] May,2001 to 31[st] July, 2001 i.e. the date of his retirement. The writ petitionerwas ordered to be treated as a regular employee of the State, havingbeen appointed on 10[th] December, 1968, much before the Project startedin the year 1978. LPA No. 188 of 2004 was preferred by the State 2 LPA No. 515 of 2004

3 LPA No. 188 of 2004

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2 LPA No. 515 of 2004

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Aagainst the order of the learned Single Bench. In the appeal, it was heldthat the writ petitioner therein was appointed under the Project whichwas abolished on the specific condition that past service rendered byhim will not be taken into account. Such writ petitions were categorizedinto three groups by the Full Bench. The first group of petitions werefrom those employees who had retired after being declared surplus w.e.f.B16[th] May, 2001 but before they were absorbed pursuant to the notificationdated 30[th] May, 2007. In this category, some of the writ petitioners werelegal heirs of those employees who had died during this period beforebeing absorbed. The second group of petitions were from thoseemployees who were declared surplus but were absorbed by theCGovernment of Jharkhand vide notification dated 30[th] May, 2007 andhad retired thereafter. The third group of petitions were from thoseemployees who were working on the date of filing of the writ petitions,after being absorbed by the Government of Jharkhand vide theaforementioned notification. The employees in writ petitions comprisingof Categories I and II claim pensionary benefits whereas the writ petitionsDfiled in Category III claim seniority by taking into consideration theirpast services rendered under the Project resulting into payment of pensionafter attaining the age of superannuation.

7. The common challenge in all the writ petitions were to clauses11 and 12, as reproduced above. It was the stand of the writ petitionersEthat they are being treated as fresh appointees and their past service hasnot been counted for the purposes of seniority or fixation of their initialsalary.8. The High Court in the impugned order referred to JharkhandPension Rules to hold that the following three conditions are required toFbe satisfied before the service can be treated to be pensionable service-

(i) Service must be under Government.

(ii) Employment must be substantive and permanent.

(iii) Service must be paid by Government.G9. Rule 59 provides that the State Government can declare anyspecific kind of service rendered in a non-gazetted capacity to qualifyfor pension even though either or both of conditions (1) and (2) are notfulfilled. The High Court held that no declaration of the State Governmentin general terms has been made nor any direction in individual casesHissued in favour of any such petitioners.

10. Before this Court, learned counsel for the appellants referredto Circular issued by the State Government under Rule 59 of Bihar PensionRules, 1950 which would be applicable in the State of Jharkhand afterits bifurcation in terms of State Reorganization Act. The Circular dated12[th] August 1969 reads thus:

“Regarding: - Declaration of a temporary service of aGovernment Servant who is not confirmed as pensionable.

Under the existing pension rules, a temporary Government servantif not confirmed in any point, is not entitled to pension unless hisservices are declared pensionable under Rule 59 of the BiharPension Rules.

2. There are a large number of temporary Government servantsemployed under different Schemes which are in existence for thelast 15-20 years and it will cause hardship to them if they are notallowed pension after their retirement.

3. The State Government after careful consideration have,therefore, been pleased to decide that if the service of the temporaryor officiating government servant who is not confirmed in anypost is continuous and is more than 15 years, it will be consideredas pensionable under rule 59 of the Bihar Pension Rules.

4. These orders will be applicable to government servants retiringon or after 12 August, 1969.”

11. The argument is that the issue relating to arrears of salary forthe period 16[th] May, 2001 till the date of the absorption of the employeesunder notification dated 30[th] May, 2007 stands concluded by an orderpassed by this Court in State of Jharkhand & Ors. v. Asgar Ali &Ors.[4], therefore, the appellants are entitled to consequential benefits ofpension.

12. On the other hand, the argument of learned counsel for therespondents is that the said Circular was not referred to by the appellantsbefore the High Court and rightly so, as such Circular is not applicable tothe employees engaged under Central Government sponsored project.Still further, it is the temporary or officiating service of a Governmentservant which is to be considered as pensionable under Rule 59 of the 4 Special Leave to Appeal (Civil) CC Nos. 10361-10364 of 2014 decided on 18th July,2014.

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ARules. Since the employees engaged under the Project were notdischarging duties as temporary or officiating Government servants,therefore, such Circular will not be applicable to them. It is, thus, arguedthat the view of the Full Bench of the Jharkhand High Court does notwarrant any interference in the present appeals.

B13. Before we consider the respective arguments of the learnedcounsel for the parties, some of the statutory provisions of JharkhandPension Rules are required to be reproduced:

“Rule 31:- Permanent post means a post carrying a definite rateof pay and sanctioned without limit of time.

CRule 38:- Substantive pay means the pay other than special pay,personal pay or emoluments classed as pay by the Provincialgovernment under rule 26(a)(iii) to which a government servantis entitled on account of a post to which he has been appointedsubstantively or by reasons of his substantive position in a cadre.

DRule 40:- Temporary post means a post carrying a definite rate ofpay and sanctioned for a limited time.

CHAPTER III

GENERAL PROVISIONS RELATING TO GRANT OF PENSION

ESECTION-1-GENERAL

Rule 58:- The service of Government servant does not qualify forpension unless it conforms to the following three conditions:- First-The service must be under Government.

FSecond-The employment must be substantive and permanent.

Third-The service must be paid by Government.

Rule 59:- The Provincial Government may, however, in the caseof service paid from general revenues, even though either or bothof conditions (1) and (2) are not fulfilled- G(1) declare that any specified kind of service rendered in a non-gazetted capacity shall qualify for pension.

(2) in individual cases, and subject to such conditions as it maythink fit to impose in each case, direct that service rendered by aGovernment servant shall count for pension.

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Rule 60:- The service of a Government servant does not qualifyunless he is appointed and his duties and pay are regulated by theGovernment, or under conditions determined by the Government.The following are examples of Government servants exclude frompension by this rule;

(1) Employees of a municipality,

(2) Employees of grant-in-aid schools and institutions.

(3) Service on an establishment paid from the house hold allowanceof the Governor or from his contract establishment allowance.

Rule 61:- Service does not qualify unless the Government servantholds substantively a post on a permanent establishment.

Rule 74:- Services which satisfied the conditions prescribed insub-sections (2) and (3) qualifies, or does not qualify, according tothe source from which it is paid; with reference to this rule, serviceis classified as follows:- (a) Paid from the general revenues.

(b) Paid from local funds.

(c) Paid from funds in respect to which the Government hold theposition of trustee.

(d) Paid by fees levied by law, or under the authority of the Govt.or by commission.

(e) Paid by the grant, in accordance with law and custom, of atenure in land, or of a source of income, or right to collect money.

Rule 103:- An interruption in the service of a Government servantentails forfeiture of his past service, except in the following case:- (a) Authorised leave of absence.

(b) Unauthorized absence in continuation of authorized leave ofabsence so long as the post of the absentee is not substantivelyfilled; if his post is substantively filled, the past service of theabsentee is forfeited.

(c) Suspension, where it is immediately followed by reinstatementwhether to the same or to a different post, or where theGovernment servant dies or is permitted to retire or is retiredwhile under suspension.

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A(d) Abolition of the post or loss of appointment owing to reductionof establishment.

(e) Transfer or non-qualifying service in an establishment underGovernment Control. The transfer must be made by a competentauthority; a Government servant who voluntarily resigns qualifyingBservice cannot claim the benefit of this exception. Transfer to agrant-in-aid school entails forfeiture.

(f) Time occupied in transit from one appointment to anotherprovided that the Government servant is transferred under theorders of competent authority, or, if he is a non-gazettedCGovernment servant with the consent of the head of his old office.”

14. Before this Court, 3 writ petitioners are in appeal falling incategory I, 18 falling in category II and 6 falling in category III.

15. In the order under appeal, the claim of the employees forpension was declined for the reason that no declaration within the meaningDof Rule 59(1) in general terms has been made nor any direction inindividual cases issued in their favour. The High Court relied uponjudgment of this Court reported as Dhyan Singh & Ors. v. State ofHaryana & Ors.[5]. The High Court also held that judgment of SingleBench of Patna High Court in Baliram Singh & Ors. v. State of BiharE& Ors.[6 ]is per incuriam. The High Court concluded as under:

“The foregoing discussion therefore makes it clear that pastservices of these petitioners/employees were under the centrallysponsored scheme known as Adult Education/Non-formalEducation/Mass Education Project which was abolished w.e.f.F1.4.2001 by the Central Government and consequently w.e.f.15.5.2001 by the Government of Jharkhand. Appointment of thesepetitioners/employees under such a scheme/project therefore,cannot be treated as under regular establishment of theGovernment on a permanent and substantive post. Moreover, theirpay and allowances were borne by the grant-in-aid released byGthe Central Government from time to time. That is the reasonwhy their services were treated as surplus once the CentralGovernment closed the scheme w.e.f. 1.4.2001. Petitioners havefailed to controvert the aforesaid position on facts.”

5 (2002) 10 SCC 656H6 2016 SCC OnLine Pat 9958

16. The judgment in Baliram Singh has attained finality with thejudgment of this Court reported as State of Bihar & Ors. v. BaliramSingh & Ors.[7]. In the aforesaid case, the policy decision of absorbingthe writ petitioners appointed under the Project contained a clause thatthe candidates will be treated as fresh appointments and that the earlierservices rendered by them shall be calculated for their pension. Thewrit petitioners before the Patna High Court claimed back wages fromthe date of their termination till the date they were absorbed. This Courtdeclined the claim of back wages. The Court held as under:

“18. In the present case, however, the respondents have neitherchallenged the termination order after closure of the Non-FormalEducation Scheme with effect from 1-4-2001 nor the policy dated20-5-2005 under which they have been appointed or theappointment letter dated 16-3-2007. Even the appointment letterdated 16-3-2007 unambiguously predicates that the appointmentwas a fresh appointment and the past services would be reckonedonly for the purpose of grant of pension and nothing more.Indisputably, the respondents acted upon such terms and conditionsof appointment without any demurrer. They chose to file thesubject writ petition only in the year 2013, when the cause ofaction first arose on 1-4-2001, then on 20-5-2005 and once again,on 16-3-2007. Unless the respondents are to be reinstated in their previous post (held prior to 1-4-2001), the question of awardingback wages would not arise at all. The relief of back wages isand can be linked only to the order of reinstatement. It cannot beawarded in isolation or, for that matter, during the period when therespondents were not in employment at all.”

17. The case of Dhyan Singh was in respect of appointmentsunder the Project in the State of Haryana. The services of the employeeswere discharged upon abolishing of the aforementioned Project. Theemployees invoked the writ jurisdiction of the court claiming fixation oftheir salary by taking past service and for pension. This Court declinedsuch claim and held as under:

“…..The continuance/engagement of the appellants under thespecific scheme cannot be held to be an employment under anyestablishment of the Government. Such schemes are taken up forcertain contingencies when money for the same is provided either 7 (2018) 18 SCC 46

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Aby the Central Government or at times by some foreign countries.But the employment under such scheme not being a part of theformal cadre of the State Government, it is difficult to hold thatthe period for which an employee rendered service under suchscheme can be counted either for the purposes of deciding theirpensionary benefits or even for fixing of their salary in the scaleBof pay once they are regularly absorbed.”

18. In the present case, Clause 11 of the notification dated 30[th]May, 2007 issued by Government of Jharkhand is to the effect thatabsorption of the surplus personnel will be considered as newappointments and they will not be granted benefit of seniority on theCbasis of their past service. Neither will such past service entitle them tosuch pay protection. One of the appointment letters appointing 65candidates as Project Officers was issued on 20[th] December, 2007. Suchappointment letter had following clauses which read as under:

“4. Adjusted employees shall be covered under the old PensionDScheme. Their service period prior to retrenchment shall becounted for the purpose of pension. Period of retrenchment shallnot be counted for the purpose of pension.

5. Adjustment of above surplus Project Officers shall be consideredas fresh appointment and benefit of seniority on the basis theirEservice rendered prior to becoming surplus shall not be admissibleto them.”

The appointment letters to the other employees is on similar lines.

19. The argument of the learned counsel for the appellants is thatFthe policy decision of the State, vide notification dated 30[th] May, 2007only denies them the benefit of seniority or pay protection but not oftheir past service being counted towards pensionary benefits. It iscontended that in terms of Rule 59 of the Rules, the State Governmenthas declared that the services rendered by a temporary Governmentservant employed under different schemes would be entitled to pensionGafter the completion of 15 years of service.

20. The entire case is based upon Rule 59 of the Rules and theCircular dated 12[th] August, 1969 of the erstwhile State of Bihar. We donot find any merit in the arguments raised by the learned counsel for theappellants. Rule 59 of the Rules empowers the State Government toHdeclare any specified kind of service rendered by one in a non-gazetted service to qualify for pension, provided, that the salary is paid from thegeneral revenue. Rule 58 of the Rules contemplates the conditions thatare required to be satisfied for services to be pensionable. Herein, as ithas been reiterated before, first condition is that the service must beunder the Government; second, that it must be substantive andpermanent; and third, that it must be paid by the Government.

21. The appellants were appointed under a specific Scheme i.e.the Project. Such project was not a permanent establishment of theGovernment as it was meant for a specific purpose funded by the CentralGovernment for a specified period. The appointment of the appellantsunder the Project is not a part of any cadre of the State Government.Therefore, the first condition of Rule 58 that the service rendered mustbe under the State Government is not satisfied by the appellants havingbeen appointed under the Project. The second condition that employmentmust be substantive and permanent is again not satisfied by the appellantsas the employment of the appellants was under the Project. A permanentpost in terms of Rule 31 of the Rules means a post carrying a definiterate of pay and that is sanctioned without a time limit. The appointmentof the appellants under the project was not in a pay scale nor was itsanctioned without a time limit. Further, substantive pay is defined inRule 38 of the Rules as a person who is appointed in a cadre. At best,the appellants satisfied only the third condition i.e. that they were paidby the Government.

22. If the first and second conditions mentioned in Rule 58 of theRules are not satisfied, the State Government can declare any specifiedkind of service rendered in a non-gazetted capacity to qualify for pension.The Circular dated 12[th] August, 1969 deals with pensionary benefits to atemporary Government servant. The appellants were never appointedby the Government either on a temporary or on permanent basis. Theappellants were engaged under the Project i.e. a scheme, therefore, thebenefit of such a Circular cannot be claimed by the appellants. Still further,sub-rule (1) of Rule 59 of the Rules empowers the State to declare anyspecific kind of service to qualify for pension. The notification forabsorption circulated on 30[th] May, 2007 and the subsequent letter ofappointments do not contain any condition that the services rendered bythe appellants under the Project shall qualify for pension. The policydecision contemplates that it is a fresh appointment and no benefit eitherof seniority or pay protection shall be given. The appellants have not A

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Adisputed such condition of appointment having been appointed undersuch policy decision vide the notification dated 30[th] May, 2007. TheCircular has not granted pensionary benefits. In the absence of anyspecific condition in the Circular to grant pensionary benefits, it is notpossible to read that pensionary benefits are to be granted to the erstwhileemployees of the Project. The appellants cannot turn around to say thatBthe services rendered by them under the Project shall be counted forpension. The Circular dated 12[th] August, 1969 is not even remotelyapplicable to the employees appointed under the Project as the verynature of the appointment was for a specific purpose and not for anunlimited period of time.C23. The case of Baliram Singh arises out of the policy of theState of Bihar wherein the past service has been specifically ordered tobe considered for pension. Since in the State of Jharkhand, the policydecision is to treat them as fresh appointments without any benefit ofseniority and pay protection, therefore, to count the period when theDappellants were working under a Project as pensionable service is beyondcomprehension. The appellants have been appointed as fresh candidatesand, therefore, their period of service for pension has to be calculatedfrom the date of their regular appointment and therefore they cannot getany benefit of past service rendered by them.

E24. Learned counsel for the appellants have referred to an orderpassed by this Court in Asgar Ali & Ors. v. State of Jharkhand &Ors.[8] wherein the direction of the High Court for payment of arrearswas not interfered with. It is contended that since the appellants havebeen paid salary for the period prior to their regular appointment, theappellants would be entitled to pension as well.F

25. The Single Bench of the Jharkhand High Court in a judgmentreported as Asgar Ali dealt with aprayer for absorption and for paymentof arrears of salary from 16[th] May, 2001, i.e. when the employees wererendered as surplus, till January, 2008, i.e. the date of their absorption, inWrit Petition No.729 of 2004. The learned Single Bench vide order datedG4[th] January, 2010, directed the state for the payment of salary for thereason that the services of the employees under the Project were notretrenched, therefore, the employees were entitled to their salary. Insuch petition the employees had made no claim for counting of pastservices for the purposes of pensionary benefits. As against such order of the learned Single Judge, the state sought LPA No.533 of 2012 whichwas dismissed vide order dated 1[st] October, 2013. Thereafter the Statesought a Special Leave Petition which was also dismissed with a directionto make phased payments of salary to the writ petitioners/employees.Again, no claim for counting of past services for the purposes of pensionwas made or allowed by the Court. It was merely a monetary benefitwhich was granted on account of no formal order of retrenchment beingpassed against the employees employed under the Project.

26. Since the appellants were absorbed as fresh appointees withoutpay protection and seniority, as a consequence thereof, they will not beentitled to count their past service rendered under the Project for thepurpose of pension. We, thus, do not find any error in the order passedby the High Court which may warrant interference in the present appeals.Accordingly, the appeals are dismissed.

Civil Appeal No. 544 of 2020

27. The present appeal is directed against an order passed byDivision Bench of the High Court of Patna on 20[th] June, 2018 wherebyLPA No.189 of 2018 filed by the State was dismissed relying upon anorder passed by the Single Bench in CWJC No. 20780 of 2010 andCWJC No. 20801 of 2010 on 19[th] April, 2011 wherein referring to Rule103 of Bihar Pension Rules, 1950, it was held that an interruption inservice on account of the abolition of a post shall not entail forfeiture ofthe past service of a Government servant, i.e. the intervening period canbe counted for pensionary benefits. In view of the said fact, the Statewas directed to consider the writ petitioners as continuing in servicebetween 1992 and 1998 solely for the purpose of granting personalmonetary benefits. The petitioners were not to be entitled to payment ofsalary for the period in any manner and neither claim any seniority overother Government servants.

28. After the aforesaid judgments, Baliram Singh along withothersfiled CWJC No. 22208 of 2013[9] to claim back wages for the periodfrom 1[st] October, 2001 to 3[rd] July, 2007. The learned Single Bench allowedthe writ petition on 22[nd] August, 2016. Thereafter, LPA No. 2307 of2016 was dismissed on 15[th] January, 2018. The said orders were setaside by this Court in Baliram Singh. Therefore, the reliance of theHigh Court on an order passed at earlier stage on Baliram Singh no A

BC

DEF

G

H

Alonger holds good. It may be noticed that in the State of Bihar, pastservices rendered by employees under the Project were taken intoconsideration for pensionary benefits. In view of the said fact, the presentappeal is disposed of in the same terms as in Baliram Singh.

B

Divya Pandey

Appeals disposed of.

C

D

E

F

G

H