Meena Kuer vs State Of Bihar And Ors

Ajay Kumar Tripathi, J

Even though we are not convinced with the reason assigned for delay of 316 days, however, in the interest of justice and the litigant, I. A. No.3649 of

2016, which is a petition for condonation, is allowed and the delay is condoned.

The matter is thereafter taken up on merits.

Appeal has been preferred against the order dated 05.02.2015 passed by the learned Single Judge wherein the learned Single Judge refused to give a

categorical direction to treat the husband of the present petitioner to be on regular employment and, therefore, grant benefit of post retiral dues of the

late employee as well as pension etc. to the present appellant.

No doubt, a window of opportunity was given to the present appellant on a limited issue for filing representation for payment of gratuity and leave

encashment but instead of availing that opportunity, the appellant has preferred the present appeal.

This Court has difficulty in interfering with the order of the learned Single Judge dated 05.02.2015 for the simple reason that a Division Bench of this

Court has clearly laid down the law with regard to entitlement of work charge employees being extended benefit of pension under the Bihar Pension

Rules. After considering various facets and decisions rendered earlier, the Division Bench in the case of State of Bihar and others v. Bimli Devi,

reported in 2016 (1) PLJR 452, has clearly held that work charge employees are not entitled to pension or family pension unless they acquire the

status of permanency by regularization. The law is unambiguous and since the decision of the learned Single Judge is within the parameters of the said

decision of Division Bench, as a principle the Court has difficulty in interfering with the decision.

Counsel for the appellant draws the attention of this Court to yet another decision of the Division Bench, which is case of Saraswati Devi v. the State

of Bihar and others, reported in 2017 (3) PLJR 645. This is another decision of the Division Bench where the Division Bench seems to have got

carried away by the factum that an employee has worked in the capacity of work charge for more than 20 years and, therefore, keeping in mind the

long period of work and a PWD Department’s Memo No.1344, dated 04.02.1949, a direction was given in favour of the said employee. The

submission of the counsel for the appellant is that since there are two Division Bench seems to be in conflict, the matter does require a deeper look.

We are not persuaded by such a submission for the reason that the case of Saraswati Devi (supra) prima facie seems to be per incurium for the

reason that while dealing with the issue of grant of pension or family pension to a work charge employee, the status of a work charge employee laid

down by the Full Bench of this Court reported in 2007 (4) PLJR 259 (Durganand Jha and others v. the State of Bihar and others )and even a decision

of the Hon’ble Apex Court reported in (2008) 2 SCC 310 (Uttar Haryana Bijli Vitran Nigam Ltd. and others v. Surji Dev i)were not taken into

consideration. Since the Full Bench decision of the High Court still occupies the field and the same has not been interfered or modified or explained in

any other decision, with due respect, the decision in the case of Saraswati Devi does not lay down the correct law.

In view of the above legal position and facts, the appeal has no merit. It is dismissed.