Patna High Court
Satyabhama DeviversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- AJIT KUMAR
Holding
The Court held that the deceased employee’s service is deemed regularised and he is entitled to pension and family pension under Rule 59 of the Bihar Pension Rules, setting aside the impugned order.
Summary
The petitioner, Satyabhama Devi, sought to quash a 2022 order rejecting her claim for post‑retirement benefits and family pension for her late husband, a daily‑wage employee who served 31 years in the Water Resources Department and superannuated in 2013. The Court examined whether a daily‑wage employee who completed ten years of continuous service is entitled to pension under Rule 59 of the Bihar Pension Rules and whether retrospective regularisation after superannuation is permissible. It considered the applicability of the Full Bench judgment in Mobina Khatoon, which extended pension rights to work‑charged employees, to the petitioner’s case of a daily‑wage employee. The Court found that the deceased’s service should be deemed regularised, that the Full Bench ratio applies, and that the impugned order was contrary to law and equity. Consequently, the Court set aside the order, directed calculation and payment of pension from February 2013 to the date of death and continuation of family pension thereafter, and awarded costs to the petitioner.
Issues considered
- Whether a daily‑wage employee who served more than ten years is entitled to pension and family pension under Rule 59 of the Bihar Pension Rules.
- Whether retrospective regularisation of service is permissible after superannuation.
- Whether the Full Bench decision in Mobina Khatoon (2019) applies to daily‑wage employees.
- Whether the order dated 17‑May‑2022 rejecting the claim is legally valid.
- Whether the petitioner is entitled to post‑retirement benefits and compensation.
Legislation cited
- Bihar Pension Rules — s. Rule 58, Rule 59, Rule 60, Rule 61
Subjects
- regularisation
- daily wage employee
- pension
- family pension
- Bihar Pension Rules
- post‑retirement benefits
- retroactive regularisation
- civil writ jurisdiction
- larger bench
- equity
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9735 of 2022
======================================================
Satyabhama Devi wife of Late Narendra Prasad Singh, resident of Village-
Pacharah, P.O.- Pacharah, P.S.- Hisua, District- Nawada. ... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Department of Water Resources,
Government of Bihar, Sinchai Bhawan, Patna.
2. The Under Secretary, Department of Water Resources, Government of Bihar,
Sinchai Bhawan, Patna.
3. The Engineer-in- Chief, Department of Water Resources, Government of
Bihar, Sinchai Bhawan, Patna.
4. The Chief Engineer, Department of Water Resources, Katari Hill Road
Gaya, Bihar.
5. The Superintending Engineer, Water Ways Circle, Gaya.
6. The Executive Engineer, Tilaiya Canal Division, Wazirganj, Gaya.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Mukul Sinha, Adv.
For the Respondent/s : Mr.Anjani Kumar (AAG4)
Mr. Sanjay Kumar, AC to AAG-4
======================================================
CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
CAV ORDER/JUDGMENT
30-04-2026 Heard Mr. Mukul Sinha, learned counsel for the
petitioner and Mr. Sanjay Kumar, learned AC to AAG-4.
2. The present writ petition has been filed for the
following relief(s):-
“ (a) For quashing the
order dt. 17.05.2022 passed by
secretary, Water Resources
Department, (Respondent No. 1) and
Communicated by Under Secretary
(Respondent No. 2), Water Resources
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Department, vide memo no. 786 dt.
24.05.2022, by which the claim of
husband employee of petitioner for
post retrial benefits and also the
family pension to the petitioner, after
the death of her husband has also
been rejected, on wholly wrong and
illegal perception of law and facts.
(b) For issuance of an
appropriate writ/order/direction to the
respondents, to grant all the post
retiral benefits to the husband
-employee with effect from
31.01.2013, on which date, the
husband -employee superannuated
from service after attaining the age of
60 years, and after putting in 31 years
of uninterrupted service and also for
grant of the family pension to the
petitioner with effect from 30.04.2021,
ie. after the death of her husband with
all consequential benefits of revision
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from time to time.
The relief is being sought
for on the ground that the husband
-employee of petitioner is entitled for
pension under Rule 59 of the Bihar
Pension Rule reiterated by a division
Bench decision of this Hon'ble Court
in the case of Savarwati Devi
(reported in 2017 (3) PLJR 645 (H.C).
So for as the decision of Full Bench in
the case of Mobina Khatoon [reported
in 2019 (1) PLJR 1015 (H.C)] is
concerned, the same has extended the
claim of pensionary benefits to work
-charged employees also, without
negating or interfering the right
pension to daily wagers/temporary/
ad-hoc employees, in any manner, who
has worked for more than 10 years
and are entitled for pension, as
provided in Rule 59 of the Bihar
Pension Rules.
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(c) For a direction to
respondents for grant of adequate
compensation, in view of litigating
and harassing attitude of the
Respondents for having pushed the
husband -employee of petitioner for
such a long drawn litigation (since
2013), when the petitioner retired on
31.01.2013, though the petitioner was
entitled for same under Rule 59 of the
Bihar Pension Rules, simplicitor and
also the issue relating to entitlement of
pension of ad-hoc/temporary
employees/dally wagers, having been
settled by successive decisions of this
Hon'ble Court, (as mentioned
aforesaid), and also the direction for
the same, was given by this Hon'ble
Court vide under dated 06.03.2019 in
LPA. No.- 177/2017, filed by husband
-employee. Still the same has not been
granted, till date, thrusting the present
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litigation upon the petitioner which
otherwise, could have been avoided.
(d) Any other relief//relief/s
for which the petitioner is entitled in
the facts and circumstances of the
case.
3. This case has a chequred history and before
delving into the core issues for adjudication, it would be apt to
give the details of the previous litigation history which are as
follows:-
“1. First Round: Seeking
Regularization and Pay Scale.
Case No: C.W.J.C. No. 6469 of 1998
Issues for adjudication: The
husband of the petitioner sought absorption
and appointment to a regular post under the
Water Resources Department.
Disposed of vide order dated
12.10.1999: The Court directed the
respondents to consider the claim for
regularization. As an interim measure, it was
ordered that until regular appointment was
provided, the employee should be paid
wages at the lowest stage of the time scale of
pay for Class-IV posts with effect from
October 1999.
2. Second Round: The "One-
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Time Measure" Direction
Case No: C.W.J.C. No. 43 of 2005
Matter referred to Division Bench.
Issues for adjudication: Pertaining
to the right to be regularized as a one-time
measure following the Uma Devi’s judgment
reported in [(2006) 4 SCC 1].
Disposed of vide Order dated
30.11.2006, The Court directed the State to
constitute a committee to consider
regularization as a one-time measure for
those who had completed 10 years of
service.
3. Third Round: Challenging
the Rejection of Regularization.
Case No: C.W.J.C. No. 7144 of 2009
Issues for adjudication:
Challenging the order dated 29.04.2009 by
which the 3-member committee rejected his
claim for regularization and directed his
disengagement.
Vide order dated 30.06.2009: The
High Court stayed the operation of the
disengagement order. allowing the husband
of the petitioner to continue in service and
finally disposed of the matter on 04.03.2010
by constituting Hon’ble Justice Uday Sinha
Committee to address the issues and
adjudicate the same.
Authority: Justice Uday Sinha
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Committee Proceedings initiated vide Misc.
Case No. 229/2010
Issues for adjudication: Scrutiny
of daily wage employees for regular
absorption pursuant to Court directions was
done.
Vide Order dated 20.07.2011: the
committee allowed continuation in service
pending final decision (with the rider that
"no equity will accrue") and disposed of the
Misc. Case No. 229/2010 and directed the
Chief Engineer to fill vacant regular posts
within six months, giving preference to daily
wagers.
4. Fourth Round: Seeking
Retrospective Regularization Post-
Retirement
Case No: C.W.J.C. No. 23218 of 2013
Order Date: 01.12.2016
Issues for adjudication: After
being disengaged on 31.01.2013 (Annexure-
9) upon superannuation, the husband of the
petitioner sought regularization with
retrospective effect and post-retiral benefits.
Order: The writ petition was
dismissed. The Court held that regularization
cannot be granted retrospectively after an
employee has already superannuated.
5. Fifth Round: The Letters
Patent Appeal (LPA)
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Case No: L.P.A. No. 177 of 2017
Issues for adjudication: Appeal
against the dismissal of the claim for
regularization and pension.
Vide Order dated 06.03.2019: The
Division Bench disposed of the appeal while
setting aside the order passed in CWJC No.
23218 of 2013, and directed the State to
examine the claim specifically in light of the
law settled by the Full Bench in the case of
Mobina Khatoon vs. State of Bihar reported
in 2019(1) PLJR 1015.
Further contempt petition being
MJC No. 2575 of 2019 was disposed of vide
order dated 25.02.2020 with liberty to the
petitioner for filing writ petition or
6. Sixth Round: Challenging the
Departmental Rejection
Case No: C.W.J.C. No. 5015 of 2021
Issues for adjudication:
Challenging the departmental rejection dated
03.10.2019 (Annexure-B), which claimed
Mobina Khatoon (Supra) did not apply to
daily wagers. (The husband of the petitioner
died on 03.04.2021 during pendency; the
petitioner was substituted).
Vide Order dated 23.03.2022: The
Court permitted withdrawal of the writ with
liberty to file a fresh representation before
the Principal Secretary, who shall decide the
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claim by passing a reasoned order.
7. Current Round: Challenging
the Final Rejection
Case No: C.W.J.C. No. 9735 of
2022 (Present Case)
Issues for adjudication:
Challenging the final rejection order dated
17.05.2022 (communicated via Memo No.
786 dated 24.05.2022).
Relief Sought: Quashing of the
rejection and a direction to grant all post-
retiral benefits of the deceased husband and
family pension to the petitioner.”
ORAL/WRITTEN SUBMISSIONS OF THE PETITIONER
4. Learned counsel on behalf of the petitioner
submits that the husband of the petitioner was initially engaged
as a daily wager on a Class IV post on 18.10.1982, under the
Irrigation Department, now known as (Water Resources
Department), under the orders of the Superintending Engineer,
being the competent authority to make such engagement.
Subsequently, the deceased employee was granted a regular pay
scale of Class IV employee w.e.f. October 1999 under the orders
of this Hon'ble Court, keeping the issues pending related to
regularization. The deceased employee, thereafter, continued to
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serve the department for almost 31 years of uninterrupted
service until his superannuation on 31.01.2013. Thus, the status
of the deceased employee was shifted to that of a temporary one
and pursuant to the Government order issued at the level of the
State Government, a direction was issued for initiation of
regularization process of daily wagers, and the name of the
deceased employee along with others were included in the list of
workers serving since the date of entry/engagement, which was
prepared by the Executive Engineer, Tilaiya Canal Division,
Gaya, where the petitioner was initially engaged.
5. It is the case of the petitioner that the husband of
the petitioner was initially engaged as a daily wager on a Class
IV post on 18.10.1982 in the then Irrigation Department (now
Water Resources Department) by the competent authority, the
Superintending Engineer. Subsequently, the deceased employee
was granted a regular pay scale of a Class IV employee w.e.f.
October 1999 under the orders of this Hon'ble Court dated
12.10.1999 passed in C.W.J.C. No. 6469/1998 (Annexure-2)
pending regularization, followed by a government order. The
deceased employee thereafter served for 31 years of
uninterrupted service until his superannuation on 31.01.2013.
The State Government vide Memo No. 914 dated 17.07.1990,
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directed for initiation of the regularization process of daily
wagers, and the deceased employee's name along with other
similarly situated was included in the list of workers serving
since 1982 sent by the Executive Engineer, Tilaiya Canal
Division, Gaya. It is submitted that some of the daily-wagers
were regularized but no such action was taken in respect of
deceased-employee. When no action was taken for his
regularization, the deceased-employee moved this Hon'ble
Court in C.W.J.C. No. 6469/1998, which was disposed of on
12.10.1999 (Annexure-2) with a direction to consider his case
along with others for regularization “within six months” and to
provide them with the minimum of the regular time scale of pay,
attached to the post, which the deceased employee and others
were holding. Hence, vide order no. 2639 dated July 12, 2020,
the husband of the petitioner and others started getting regular
pay scale. The Respondents withdrew the regular scale granted
to all such employees including the petitioner’s husband, whose
regularization was pending and consequently, the husband of the
petitioner and as also the similarly situated persons being
aggrieved with such action again moved before this Court by
filing Writ Petition being CWJC No. 43 of 2005 and several
other writ petitions were also filed by similarly situated affected
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employees with an additional prayer to regularize the services of
petitioner’s husband and others as directed earlier vide order
dated 12.10.1999 in CWJC No. 6469 of 1998. The general order
dated 31.08.2004, which was also challenged in a separate writ
petition being CWJC No. 11820 of 2004 filed by one Rajendra
Chaudhary & Ors being similarly situated, were separately
heard and vide order dated 21.02.2005, the Hon’ble Court was
pleased to quash the order dated 31.08.2004 and accordingly the
payment of minimum pay-scale got continued to be given w.e.f.
October, 1999 till the date of the superannuation of the husband
of the petitioner, namely, Narendra Prasad Singh.
6. It is further submitted that the writ petition filed
by the husband of this petitioner being CWJC No. 43 of 2005
along with other writ petitions were referred to Division Bench
and all those matters were heard analogously and the State
Government was directed to constitute a Committee of three
Secretaries of different works Department in order to see,
whether the benefits of paragraph-53 as stipulated in Uma
Devi’s case to provide one time measure for regularization, can
be explored in the case of these persons and the Hon’ble
Division Bench had also directed to maintain status-quo and
accordingly, the petitioner’s husband and as also similarly
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situated persons continued to receive the minimum pay-scale.
7. It has further been submitted that in compliance of
the directions issued by the Hon’ble Division Bench, a
Committee of three Secretaries were constituted and the cases of
these persons were considered and a checklist was prepared but
ignoring the factual material and on the basis of erroneous fact,
the Committee recommended for removal from service to all the
employees including the deceased husband of the petitioner.
Accordingly, the decision of the three members Committee was
executed by the Executive Engineer, Wazirganj, Gaya vide
Memo No. 675 dated 29.04.2009, and the petitioner’s husband
and as also other similarly situated persons were removed from
their services.
8. The recommendation of the Committee and as also
the consequential order passed became the subject matter of
challenge before this Hon’ble Court in various other writ
petitions being CWJC No. 7144 of 2009 and its analogous case
and all these writ petitions were referred to the Hon’ble
Division Bench. The Hon’ble Division Bench comprising the
Hon’ble Chief Justice and Hon’ble Mr. Justice Ramesh Kumar
Datta heard the writ petition being CWJC No. 7144 of 2009 and
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its analogous case and with a view to regularization, appointed a
Commission of Hon’ble Mr. Justice Uday Sinha, to scrutinize
the appointment of all such employees and to see whether they
can avail the benefits of regularization in terms of the decision
rendered by the Hon’ble Apex Court in the case of Uma Devi
reported in (2006) 4 SCC 1.
9. It is next submitted by the learned counsel for the
petitioner that a one man Committee so constituted under the
orders of Hon’ble Division Bench who was directed to verify
the facts with reference to the records available with the
department and for verifying the facts, the one man Committee
instituted a Misc. Case no. 229 of 2010 and after verifying the
records, summoned the Principal Secretary, Water Resources
Department in person, who gave an undertaking that the steps
will be taken to fill up the vacant post within a period of six
months from 20.07.2011 and this petitioner on the date of
passing of this order was very much in service and accordingly,
the Miscellaneous case was disposed of, insofar the case of the
petitioner’s husband and other similarly situated persons are
concerned, with a direction to fill up the vacant posts in a
regular manner within six months giving preference to all the
existing employees, which would be evident from the order
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dated 20.07.2011 passed by the one man Committee in Misc.
Case No. 229/2010.
10. Learned counsel for the petitioner submits that the
husband of the petitioner waited for regularization in service
along with others in accordance with the undertaking given by
the Respondents before the one man Committee but the
Respondents did not take any steps for regularization despite
representation having been made in this regard by the late
husband of the petitioner and ultimately, the petitioner’s
husband was made to superannuate on 31.01.2013.
11. The petitioner filed representation after his
superannuation for grant of pension but the same was rejected
on 06.04.2014, which became the subject matter of challenge in
CWJC No. 23218 of 2013 and the same was dismissed by
referring to the Rule 58 of Bihar Pension Rules and as also by
holding that the retrospective regularization of daily wager
cannot be directed and if the petitioner’s husband has remained
as a daily wager, the consequence is that he will not be governed
under the Bihar Pension Rules. The judgment rendered by the
learned Single Judge became the subject matter of challenge in
LPA No. 177 of 2017 and the Hon’ble Division Bench after
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clubbing all such case along with other appeals of work-charge
employees fixed the same for consideration and during course
of the adjudication on specific objections being taken by them
with regard to the full Bench Judgment rendered in the case of
Durga Nand Jha [reported in 2007 (4) PLJR 259] and
Bhagwan Singh [reported in 2014(4) PLJR 229], which
having not considered the import and implication of Rule 59 of
Bihar Pension Rules and even the earlier Division Benches,
which also rejected the similar claim have not considered the
import of Rule 59 of Bihar Pension Rules and subsequent
declaration made by the State Government vide various Memos
like Memo dated 12.08.1969 holding that the Full Bench
judgment does not lay down the correct principles and upon
being faced with such situation, the Hon’ble Division Bench
referred the matter to the Hon’ble Full Bench for reconciling the
issues in question and as also for laying down the correct legal
proposition in reference to Rule 58 and as also Rule 59 of Bihar
Pension Rules. On reference having been made by the Hon’ble
Division Bench, the matter was placed before the Hon’ble Full
Bench and the Hon’ble Full Bench, so constituted heard the
reference on 20.09.2018 and the following observations were
made:-
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“4. At this stage, learned counsel
appearing on behalf of the State has
submitted that the decision of the Division
Bench in the case of Saraswati Devi (supra)
is in conflict with the subsequent decision of
the Division Bench in the case of State of
Bihar and Ors. Vs. Bimli Devi, dated
24.11.2015 in Letters Patent Appeal No.
1566 of 2015.
5. As and when these Appeals are
taken up for further hearing before the
Division Bench, it will be open for the State
to make submissions on the above and if the
Division Bench is of the opinion that there is
conflict in Division Bench decisions, namely,
in the case of Saraswati Devi (supra) and in
the case of Bimli Devi (supra), in that case,
the Division Bench may refer the matter to
the Full Bench after having noted that there
is conflict in two Division Bench decisions.
6. In view of the above and for the
reasons stated above, as observed above, as
there is no conflict between the decision of
the Division Bench in the case of Saraswati
Devi (supra) and the decisions of the Full
Bench the case of Durganand Jha and Ors.
(supra) and in the case of Bhagwan Singh
(since dead) (supra), for which the matters
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are referred to the Full Bench, we are of the
opinion that the reference itself is bad and
the matters are required to be returned to the
Division Bench and, accordingly, are
returned to the Division Bench/sent back to
the Division Bench to consider the Appeals
in accordance with law on merits and the
Division Bench before whom the matters are
listed may also consider whether there is a
conflict between the two decisions of the
Division Bench, one in the case of Saraswati
Devi (supra); and another in the case of
Bimli Devi (supra) and if the Division Bench
is of the opinion that there is conflict
between the same, the Division Bench
can/may refer the matter to the Full Bench.
7. Now, all these present Appeals,
in view of the above, to be placed before the
Division Bench taking up such matters.”
12. After the reference in question was adjudicated
by the Hon’ble Full Bench, the matters were remitted back to
the Hon’ble Division Bench for considering the respective
appeals including the one filed by this petitioner being LPA No.
177 of 2017 on merit and upon consideration, the following
orders were passed on 06.03.2019 in LPA No. 969 of 2015 and
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its analogous cases:-
“Each of these intra-Court
appeals filed under Clause-X of the Letters
Patent of the High Court of Judicature at
Patna arise from the judgment and order of
a learned Single Judge, whereby in
consideration of the claim made by the work
charge employee and/or his dependent either
the claim has been upheld or has been
rejected.
To be specific, while L.P.A. No.
435/2017 is an Appeal filed by the
Respondent State feeling aggrieved by the
acceptance of the claim by a learned Single
Judge of this Court for pensionary benefit to
a work charge employee/dependent, in so far
as other appeals are concerned, since the
claim towards the pensionary benefit has
been rejected that they are before this Court.
The matter was heard and kept
pending because the issue, whether or not, a
work charge employee and/or his dependent
is entitled to pensionary benefit was pending
consideration before a Full Bench of this
Court in LPA No. 166/2018 (Mobina
Khatoon versus the State of Bihar & Ors.)
and LPA No. 289/2018 (State of Bihar &
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Ors. Versus Soniya Devi & Anr.).
The judgment of the Full Bench
has since been delivered and is reported in
2019 (2) BLJ 9 and since these matters were
directed to be posted on disposal of the Full
Bench matter, that these matters were listed
yesterday and when Mr. Siyaram Pandey.
learned Counsel appearing for the appellant
in LPA No. 1406/2016 produced a copy of
the Finance Department, Government of
Bihar to submit that steps have been taken
towards the compliance of opinion of the
Full Bench.
Since Mr. Dhirendra Kumar,
learned AC to AAG 6 expressed reservation
on the action taken as well to examine the
judgment of the Full Bench that the matter is
posted today and when Mr. Dhirendra
Kumar, learned AC to AAG 6 admits to the
steps taken by the Government of Bihar in
the light of the opinion expressed by the Full
Bench on the issue raised and contested. For
the sake of convenience we are persuaded to
reproduce the relief prayed by the appellants
in their respective writ petitions and which
reads under:
………...”Re: L.P.A.No. 177/2017
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arising from C.W.JC. No. 23218/2013. The
appellant-petitioner has prayed for the
following relief:
(1) For an appropriate direction
to the Respondents to fill up the sanctioned
vacant posts in accordance with the
undertaking given by Principal Secretary,
Water Resources Department on 20.07.2011
before Hon'ble Mr. Justice Uday Sinha
Commission within six months which will
have natural effect of regularization of
petitioners services as unskilled labour in
the Water Resources Department with effect
from 1982, against which petitioner,
alongwith others had been working since
1982 till his normal date of superannuation
from service, on 31.01.2013, on attaining the
age of 60 years.
(ii) An appropriate direction for
payment of post retiral benefits to the
petitioner, in as much as the order dt.
30.01.2013 relieving the petitioner from
engagement also states that he is being
relieved in pursuance of attaining his age of
superannuation of 60 years, which is akin in
treating him as a regular employee.”
…….. “The Full Bench on
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examination of the judgments passed on the
issue by this Court from time to time, has
finally concluded at Paragraph-70 in the
following terms:
"70. For the aforesaid reasons, we
deem it necessary and lawful to hold and
declare the following that till the time,
appropriate rules in this regard is framed by
the Government-
(i) That a work-charged employee
who has completed ten (10) or more years of
continuous service against one post in the
work-charged establishment will be paid
pension and his family, in case of death of
such workcharged employee, would be paid
the family pension.
(ii) The work-charged employees
who have received regular scale of pay for
ten (10) or more years on their retirement
and after their death, their heirs and
dependants would be entitled to claim death
cum retiral benefits.
(iii) However, the dependants of a
work-charged employee would not be
entitled to claim appointment on
compassionate ground in the absence of any
scheme framed by the Government for such
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work-charged establishment."
Since the State respondents had
rejected the claim of the writ petitioners in
view of the legal position that was prevailing
at the relevant time and which decision of
the State also has been affirmed by the
learned Single Judge in the opinion
expressed except for the writ petitioner who
are respondents in L.P.A.No. 435/2017, we
are of the view that the issue raised by the
work charge employees and/or their
dependents requires to be addressed upon by
the concerned respondents afresh in the light
of the opinion of the Full Bench expressed in
the case of Mobina Khatoon (supra) and for
passing appropriate orders towards
admissibility/ inadmissibility of the
pensionary benefits to these appellants-
petitioners.
We would thus direct the
concerned authorities in the respondent
Department in each of the appeals/ writ
petitions, to examine the claim of the
appellants- petitioners except the writ
petitioner in L.P.A.No. 435/2017 and pass
appropriate orders bearing in mind the Full
Bench expression found at Paragraph-70 of
the judgment and which decision be taken
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within a period of six weeks from the receipt/
production of a copy of this order.
In so far as L.P.A.No. 435/2017 is
concerned, it has to yield to the opinion of
the Full Bench and is accordingly dismissed.
In result, the judgment and order
passed by the learned Single Judge in
C.W.J.C.No. 130/2014, C.W.J.C.No.
17988/2015, C.W.J.C.No. 6174/2015,
C.W.J.C.No. 23218/2013 and C.W.J.C.No.
12986/2015, which are subject matter of
L.P.A.No. 969/2015, L.P.A.No. 30/2018,
L.P.A.No. 1406/2016. L.P.A.No. 177/2017
and L.P.A.No. 1736/2017, are set aside.
Consequently, the writ petitions are disposed
of in terms of the directions stipulated above.
While L.P.A.No. 435/2017 is dismissed, the
rest of the appeals are allowed in terms of
the judgment of the Full Bench rendered in
the case of Mobina Khatoon (supra) and
with the direction present therein.
No order as to costs.”
13. From the judgment rendered by the Hon’ble
Division Bench, in the aforesaid LPA No. 177 of 2017 filed by
this petitioner, vide order dated 06.03.2019, it is quite evident
that the judgment of the learned Single Judge passed in the case
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of petitioner’s husband in CWJC No. 23218 of 2013 was set
aside and consequently, the case of the petitioner was referred to
have been considered in terms of the judgment of the Hon’ble
Full Bench expression found at Paragraph-70 of the Judgment
rendered in the case of (Mobina Khatoon) (supra) but the
Respondents sat tight over the matter and, accordingly, for
enforcement of the order passed in LPA No. 177 of 2017 being
MJC No. 2575 of 2019 which was withdrawn in view of stand
taken by the State with a plea to file review seeking adjudication
of his rights in accordance with law and accordingly, the
contempt petition was disposed of.
14. It is next submitted that the petitioner filed a writ
petition being CWJC No. 5015 of 2021 for enforcement of his
right and the said writ application was disposed of with a
direction to file representation before the Principal Secretary,
Water Resource Department, who shall pass a reasoned order in
the said case.
15. It is next submitted that without considering the
case of this petitioner in its true perspective and as also the
concern shown by the Full Bench, which emanates from the
observation made in the Full Bench judgment rendered in
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(Mobina Khatoon) (supra) the claim of this petitioner has been
rejected, which is a subject matter of challenge in the present
writ petition.
16. Learned counsel for the petitioner for assailing
the impugned order forming part of the present writ petition,
submits that the Hon’ble Full Bench judgment rendered in the
case of (Mobina Khatoon) (supra) considered the entire gamut
of grant of pension of temporary/ ad hoc/daily wager and other
category of employees including the employees of work-charge
establishment nonetheless relying upon the decision in the case
of Sarswati Devi (supra), the Full Bench placed the case of
work-charge employees at par with temporary/adhoc employees
who have worked for 10 continuous years or more. The full
Bench Judgment dated 04.02.2019 held that all categories of
employees who have worked for more than 10 years are entitled
to grant of pension and in view of the judgment rendered by the
Hon’ble Division Bench in the case of petitioner’s husband in
LPA No. 177/2017 along with other analogous appeals, the
Respondents were to examine the claim on individual facts, but
the reason assigned in the impugned order was that the decision
of the Full Bench rendered in the case of Mobina Khatoon
relates to work-charge establishment and, this petitioner is not
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entitled to grant of pension, which is fallacious.
17. The learned counsel further mentions that the
case of the deceased-employee stands solely on the basis of
Rule 59 of the Bihar Pension Rules fortifies with the Division
Bench judgment of this Hon’ble Court in the case of Sarswati
Devi and even without the aid of any other materials, the
contempt application being MJC No. 2575 of 2019 filed at their
end was disposed of on 25.02.2020 and subsequent writ
petition, which came to be filed, during the pendency of the
same, the husband of this petitioner, unfortunately, passed away
on 03.04.2021 and this petitioner being the widow-wife was
substituted in his place and vide order dated 23.03.2022, the writ
petition was disposed of with a liberty to file a detailed
representation to Secretary, Water Resource Department and
specific direction was given to dispose of the representation of
this petitioner strictly in terms of the direction issued in LPA
No. 177 of 2017. The petitioner submitted a comprehensive
representation on 12.04.2022 (Annexure-17) detailing the facts
and the applicable laws laid down in Rule 59 of the Bihar
Pension Rules as well as the direction of the Hon’ble Court.
18. However, by the impugned order dated
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17.05.2022 communicated vide Memo No. 786 dated
24.05.2022 (Annexure-1), the Respondent-Secretary rejected the
claim of the petitioner for post-retiral benefits holding that the
Full Bench decision in Mobina Khantoon (supra) applies only
to work-charged employees and hence, such benefits cannot be
given in this case. However, the impugned order (Annexure-1)
did not consider that this Hon’ble Court has already held in the
case of Bhagwan Singh (supra) is not in conflict with the
decision of the case of Sarswati Devi (Supra), the impugned
order also did not consider that the husband of Sarswati Devi
was also a daily wager and further, the deceased employee had
already earned 31 years of uninterrupted service, and therefore,
the petitioner who is widow of the deceased employee is entitled
to the benefits of family pension under the provisions of Bihar
Pension Rules.
19. Learned counsel for the petitioner has also relied
upon a judgment of the Hon’ble Apex Court as rendered in the
case of Yashwant Hari Katakkar v. Union of India And Others
(1996) 7 SCC 113 which is reproduced as under:-
“………….3. Dr Anand Prakash,
learned Senior Advocate appearing for the
Union of India, has contended that on 7-3-
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1980 when the appellant was prematurely
retired he had put in 18 1/2 years of quasi-
permanent service. According to him, to
earn pension it was necessary to have a
minimum of 10 years of permanent service.
It is contended that since the total service of
the appellant was in quasi-permanent
capacity he was not entitled to the
pensionary benefit. There is nothing on the
record to show as to why the appellant was
not made permanent even when he had
served the Government for 18 1/2 years. It
would be travesty of justice if the appellant
is denied the pensionary benefits simply on
the ground that he was not a permanent
employee of the Government. The appellant
having served the Government for almost
two decades it would be unfair to treat him
as temporary/quasi-permanent. Keeping in
view the facts and circumstances of thiscase
we hold that the appellant shall be deemed
to have become permanent after he served
the Government for such a long period. The
services of the appellant shall be treated to
be in permanent capacity and he shall be
entitled to the pensionary benefits. We allow
the appeal, set aside the judgment of the
Tribunal and direct the respondents to treat
the appellant as having been retired from
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service on 7-3-1980 after serving the
Government for 18 1/2 years (more than 10
years of permanent service) and as such his
case for grant of pension be finalised within
six months from the receipt of this order. The
appellant shall be entitled to all the arrears
of pension from the date of retirement. No
costs.
ORAL/WRITTEN SUBMISSIONS ON BEHALF OF THE
RESPONDENT -STATE
20. Learned Counsel on behalf of the Respondents
No. 2 to 6 submits that the deceased husband of the petitioner,
namely Narendra Prasad Singh, was initially engaged as a
Chowkidar in the year 1982 purely on a daily wage basis.
Following a writ application filed by several daily wages
employees in 1998 seeking absorption / appointment/
regularization, the Hon'ble Court passed an order dated
12.10.1999 in C.W.J.C. No. 6469 of 1998 (Annexure-2),
directing the authorities to consider their claims and, as an
interim measure, to pay them the lowest stage of the regular
time scale of pay from October 1999 until a regular appointment
was made. In compliance, the Chief Engineer, Water Resources
Department, Patna, issued Memo No. 2639 dated 12.07.2000,
granting the deceased the minimum scale of pay. The claim for
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regularization of service of the husband of the petitioner and
others was eventually rejected on 29.04.2009, and although the
disengagement was stayed by the Hon’ble Court on 30.06.2009
in C.W.J.C. No. 7144 of 2009 (Annexure-6), a subsequent one-
man committee headed by Hon’ble Mr. Justice Uday Sinha
(Retd.) and order for continuation in service was directed vide
order dated 04.03.2010 (Annexure-7) with the explicit rider that
no equity will accrue to such persons.
21. It is further submitted by the Learned Counsel that
while the committee on 20.07.2011 (Annexure-8) directed the
filling of vacant sanctioned posts in regular manner within six
months by giving preference to employees working on daily
wages. In pursuance of the said direction, the process for
absorption was started and on the basis of the recommendation
of the Selection Committee, chaired by the District Magistrate,
Gaya, vide Letter No. 1884 dated 16.09.2013 (Annexure-10).
Based on these recommendations, the Chief Engineer, Water
Resources Department, Gaya recommended for appointment of
daily wages employees in regular and permanent establishment
by way of absorption vide office order contained in Memo No.
2059 dated 17.12.2013. However, since, the petitioner’s
husband had already been disengaged on 31.01.2013
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(Annexure-9) upon attaining the age of superannuation, he was
not recommended by the selection committee for appointment.
22. The Learned Counsel on behalf of the Respondent
submits that the husband of the petitioner approached this
Hon'ble Court after his disengagement in the year 2013 and filed
a writ application in C.W.J.C. No. 23218 of 2013 seeking
direction to the respondents to regularize his daily wages service
with retrospective effect and to make payment of post-
retirement benefits as admissible to the regular and permanent
employees of the State Government. The respondents filed
counter affidavit in the aforesaid case denying the claim of the
husband of the petitioner on the ground that he worked as a
daily wages’ employee all along his service against non-
sanctioned and non-vacant post since only one post of
Chowkidar was sanctioned and vacant against which one Umesh
Prasad Single had already been appointed on 01.12.1979. It was
submitted that there is no provision for regularization of service
of a daily wages’ employee with retrospective effect. The
respondents further relied on the legal principles established in
Shreeniwas Poddar vs. State of Bihar [2016 (2) PLJR 344]
which hold that no order of retrospective regularization can be
passed and similar view was taken in Mahesh Kumar vs. Union
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of India [2016 (2) PLJR 334] holding that on attaining the age
of superannuation, there cannot be a direction for regularization
in service. Crucially, it was also submitted that there is no
provision under the Bihar Pension Rules to reckon the daily
wages service as pensionable service. As per Rule 58, service
does not qualify unless the employment is substantive and
permanent; Rule 60 of Bihar Pension Rules provides that the
service of a government servant does not qualify for pension
unless he is appointed and his duties and pay are regulated by
the Government; and Rule 61 provides that service does not
qualify unless government servant holds a post substantively on
a permanent establishment. As such the daily wages service of
the husband of the petitioner cannot be treated as a pensionable
service. It was further submitted that the daily wages service
cannot be termed as temporary service like the service rendered
in the work charged establishment. This position is supported by
the Full Bench judgment in State of Bihar vs. Bhagwan Singh
[2014 (4) PLJR 229], wherein after considering the provisions
prescribed under Rules 45, 56, 58 and 61 of Bihar Pension
Rules, it was held that service as a daily wage Chowkidar, even
if followed by absorption, does not qualify for pension as it is
not service on a substantive post in a permanent establishment.
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After due consideration of the aforesaid submissions, the
Hon'ble Court was pleased to dismiss the writ application of the
husband of the petitioner vide judgment dated 01.12.2016
passed in CWJC No. 23218 of 2013 (Annexure-11 to the writ
application) holding that in the light of the aforesaid view taken
by this Court, it is not possible for the Court to pass an order in
favour of the petitioner to grant him regularization from the date
of his entry in service in the year 1982. Since, he has remained a
daily wager throughout his service, the consequence is that he
will not be governed under the Bihar Pension Rules. The
husband of the petitioner further preferred letters patent appeal
against the aforesaid judgment vide L.P.A. No. 177 of 2017
which was heard along with L.P.A. No. 969 of 2015 and
analogous cases and allowed by a common Judgment dated
06.03.2019 (Annexure-14 to the writ application) with direction
to the authorities of the concerned respondent department to
examine the claim of the appellants-petitioners and pass
appropriate orders bearing in mind the Full Bench expression
found at Paragraph 70 of the judgment passed, in L.P.A. No. 166
of 2018 (Mobina Khatoon v. The State of Bihar and others).
23. Learned Counsel on behalf of the Respondents
further submits that the petitioner’s reliance on the cases of
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Mobina Khatoon [L.P.A. No. 166 of 2018] and Saraswati Devi
[2017 (3) PLJR 645] is misplaced. Upon examination of the
husband of the petitioner’s representation submitted before the
Executive Engineer, Tilaiya Canal Division, Wazirganj on
22.06.2020, it was determined that the directions in Mobina
Khatoon(supra) apply exclusively to work-charged employees,
who completed 10 years of service, whereas the petitioner's
husband was all along a daily wager. As such the Executive
Engineer forwarded the representation of the husband of the
petitioner to the higher authorities vide Letter No. 368 dated
24.06.2019 (Annexure-A) and subsequently legal opinion was
sought from the Law Department, Bihar on the representation of
the husband of the petitioner, the Law Department examined the
claim of the husband of the petitioner in the light Full Bench
judgment passed in L.P.A. No. 166 of 2018 (Mobina Khatoon
vs. The State of Bihar and others). Thereafter, upon careful
perusal of the aforesaid Judgment, the Department found that
the husband of the petitioner was never in the work charge
establishment rather was all along a daily wager and thus opined
that if representation is to be considered in terms of the Full
bench judgment that lays down law with respect to work charge
establishment employee having worked for 10 years or more, this
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case is not covered by the Full Bench decision of the Hon'ble
High Court. In the light of the aforesaid opinion, the
representation of the husband of the petitioner was rejected by
the Department and communicated vide letter no. 1944 dated
03.10.2019 (Annexure-B). The Learned Counsel further submits
that judgment passed in Saraswati Devi's case as reported in
2017 (3) PLJR 645 also pertains to payment of post-retirement
benefits to the work-charge employees and not to the daily
wagers and was also under consideration by the aforesaid Full
Bench judgment passed in Mobina Khatoon's case. As such the
said case is also of no help to the petitioner.
24. Learned Counsel on behalf of the Respondents
lastly submits that the husband of the petitioner assailed the
aforesaid order dated 03.10.2019 by filing a writ application in
this Hon'ble Court vide C.W.J.C No. 5015 of 2021.
Unfortunately, he died during pendency of the writ application
and the present petitioner was substituted in his place. The said
writ application was disposed of as withdrawn vide order dated
23.03.2022 (Annexure-16 to the writ application) with direction
to the Principal Secretary, Water Resources Department to
dispose of the representation of the petitioner by a reasoned
order. In compliance of the aforesaid order, the Principal
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Secretary, Water Resources Department, Patna, Bihar,
personally heard the petitioner on 17.05.2022, after due
consideration in the light of the aforesaid judgments as well as
the opinion of the Law Department, the claim of the petitioner
was not found admissible and thus rejected the claim for
pension and family pension vide the reasoned order in Memo
No. 786 dated 24.05.2022 (Annexure-1). Lastly, the respondents
maintains that this order is in accordance with law and does not
suffer from any infirmity, hence, the said order does not warrant
any interference.
25. Learned Counsel for the State in the written
submission submits that the deceased husband of the petitioner
was a daily wage employee, who superannuated from service on
31.01.2013 in that capacity, without his services ever being
regularized. The State emphasizes that the deceased had
previously approached this Hon’ble Court for regularization in
C.W.J.C. No. 23218 of 2013, which was dismissed via an
exhaustive order dated 01.12.2016 (Annexure-11). In that
proceeding, the Court relied on Supreme Court precedents to
hold that regularization cannot be granted with retrospective
effect; consequently, the current writ is strictly limited to the
widow’s claim for family pension. The State categorically
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contends that the landmark Full Bench decision in Mobina
Khatoon vs. State of Bihar [2019 (1) PLJR 1015] and the case
of Saraswati Devi are inapplicable to the present matter. These
judgments specifically pertain to "work-charged" employees,
and the State maintains that the legal benefits and pensionary
rights extended to the work-charged establishment cannot be
extended to daily wagers. Since the deceased remained a daily
wager until his retirement, his service does not meet the criteria for
pensionable service under the Bihar Pension Rules.
26. Furthermore, the State submits that the legal
issue regarding daily wagers and pensionary benefits is
currently a subject of conflict and should be referred to a Larger
Bench. The State relies on the order dated 25.07.2025 passed in
L.P.A. No. 657 of 2021 (Yugal Kishore Upadhyay vs. State of
Bihar), where a similar matter was referred to a Larger Bench
due to conflicting views between Registrar General, High
Court vs. Ram Beyas Dubey (L.P.A. No. 198 of 2016) and State
of Bihar vs. Bhagwan Singh [2014 (4) PLJR 229]. In the
Bhagwan Singh case, it was explicitly held that periods spent on
daily wages cannot be counted for pensionary benefits. In the
alternative, the State argues that if the Court settles a new law in
favour of the petitioner, the relief must be granted prospectively
Patna High Court CWJC No.9735 of 2022 dt. 30-04-2026
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rather than retrospectively. This alternative plea is based on the
decision in Saraswati Devi vs. State of Bihar (C.W.J.C. No.
21724 of 2012), where the Court held at paragraph 14 that since
the liability to pay is being fixed upon the State for the first time
and the law was previously unclear, the payment of family
pension and gratuity should be prospective in nature. Therefore,
the State maintains that the impugned order in Memo No. 786
dated 24.05.2022 (Annexure-1) is legally sound and the
petitioner is not entitled to the sought reliefs.
CONSIDERATION
27. This Court has considered the submissions of the
petitioner and as also that of learned counsel for the
Respondents-State and finds that this case has a chequred
history and the petitioner and as also her husband since the date
of engagement of the deceased employee have continuously
been coerced to knock the doors of the Hon’ble Court and the
relief for which, he has has been fighting since the year 1999
could not be achieved by the husband of the petitioner even
while he was alive and his unadjudicated grievances of
regularization is now being battled by his widow-wife, who is
before this Court fighting litigation to find some ways to fetch
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the source of livelihood and to lead a peaceful life after the
death of her husband. It is a very sorry state of affairs where
during the life-time of the deceased employee, the Hon’ble
Division bench had interfered in the matter and constituted a
Committee to get the issues resolved and one man Committee of
Hon’ble Justice Uday Sinha (Retd.) was constituted, who heard
this matter and after having examined the entire records, the
Principal Secretary of Water Resource Department was also
summoned and on the undertaking having been given by the
head of the Department, all the matters related to Misc. Case no.
229 of 2010, in which, the petitioner’s husband case was also
considered, the Respondents were under a legal obligation to
carry out the undertakings, which, in fact was carried out by
them but such exercise could only be undertaken after this
petitioner had superannuated and the direction which was issued
uniformly in respect of the petitioner’s husband and as also in
respect of the other similarly situated persons to regularize their
services giving weightage of their past services, could not be
carried out in respect of husband of this petitioner as per the
State, on account of the fact that on the date of consideration,
the deceased employee had superannuated.
28. When there was non-consideration of petitioner’s
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husband case leading to non-grant of pensionary benefits
became the subject matter of challenge, the authorities very
intelligently took a plea before the learned Single Judge that
retrospective regularization cannot be made in respect of the
petitioner’s husband because he was a daily-wager and has
already superannuated and in view of the judicial
pronouncement, the regularization after attaining the age of
superannuation, cannot be made and consequently, the claim of
the petitioner’s husband got rejected, which became the subject
matter of challenge before the Hon’ble Division Bench and the
Hon’ble Division Bench having interfered with the nature of
order passed in the case of the petitioner’s husband, the
authorities were required to have considered the case of the
petitioner’s husband, keeping in row the fact that at some point,
it becomes necessary to interpret the legal provisions for
adjusting the equity, so as to mitigate the harshness of the law,
by blending it with fairness and equity and while doing so, one
has to remain very cognizant and conscious of the motive and
philosophy of the provisions of pension by keeping the object in
mind and the goal which is required to be achieved in deciding
about the service being pensionable. These deep concerns find
place in the judgment of the Hon’ble Full Bench rendered in the
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case of (Mobina Khantoon) (supra) but for the reasons best
known to the authorities, no such exercises are said to have been
carried out in the case of this petitioner.
29. It is in this background, the Hon’ble Full Bench
(Mobina Khantoon) (supra) had decided the issues of the
employees, who were either dead on the date of such
consideration or had already expired even without completing
their service tenure or had superannuated, so that, the employees
in question or his family members, may not face financial
distress, after the death of the sole bread-earner in the family
and there is nobody to look after them in the evening of their
lives. The authorities should have been very cognizant while
rejecting the claim of this petitioner that in the State of Bihar not
very large percentage of population has the source of livelihood,
while the remaining population do not have any permanent
means to fetch a source of livelihood. It is in this background,
the petitioner’s husband had found a source of livelihood for his
family and still for the reasons best known to the authorities the
deceased employee had to consistently remained before this
Court to secure the financial resource to feed his family all
through his life.
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30. The desire of every head of the family to
protect its members with full financial support is a general
phenomenon, which every citizen can legally hold such feel but
in a situation where the petitioner’s husband and as also the
widow-petitioner had to remain on the judicial platform for
almost 28 years for finding a permanent financial stability, is a
very worrying state of affair, for which the State authorities are
required to bend for adjusting equity in terms of the judgment of
Hon’ble Full Bench rendered in Mobina Khatoon (supra)
wherein it has been observed as follows:-
“Ab identitate rationis, it would
perforce be necessary for us to bend for
adjusting equity so as to mitigate the
harshness of the law by blending it with
fairness and equity. While doing so, we are
only remaining cognizant and conscious of
the motive and philosophy of the provision of
pension and are continuously keeping in
mind, the goal to be achieved in deciding
about a service being pensionable. The goal
is nothing, but a fortiori recognition of the
services rendered by an employee, so that in
the evening of his life, he does not have the
fall prey to scarcities and in case of his
death, his family may not be reduced to
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impecunious vagrancy.”
31. From the close scrutiny of the factual aspect, it
is quite evident that the directions issued by the Hon’ble
Division Bench constituting one-man Committee to adjudicate
the claim of the petitioner’s husband and other similarly situated
persons, till date, has not been adjudicated despite undertaking
having been given, while other similarly situated persons, who
have already been regularized as against the post, on which they
had been working since their initial date of engagement and was
allowed minimum time pay-scale vide Annexure-2, and the
order passed by the Hon’ble Division Bench, in the case of the
petitioner’s husband having not been complied till today,
obligates the authorities of the State to do complete justice at
par with other similarly situated persons.
32. During course of consideration this court came
across with a judgment rendered by the Hon’ble Division Bench
in the case of Ashok Kumar Sharma v. State of Bihar & ors
LPA No. 1690 of 2013 wherein similar issues had come up for
consideration before the Hon’ble Division Bench in which the
facts of the said case is similar to the facts of the present case
and since the case of the petitioner has been rejected ignoring
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the dictum of Hon’ble Division Bench rendered in the
aforementioned case; it was imperative upon the state
authorities to have acted in consonance with the judgment
rendered on the subject in issues but having found failure on the
part of the state authorities in adjudicating the issue at hand in
terms of the aforementioned judgment, the matter was again
placed under the heading “for orders” and the state authority
were directed to take instructions with regard to aforementioned
Division Bench Judgment and its application in deciding the
case of this widow petitioner; but no assistance was provided by
them in this regard, while it has not been disputed that the issues
dealt in the aforesaid Division Bench Judgment is not similar to
the present one.
33. The stand of the State, that there is no judgment
which deals with the issues in respect of daily wagers, is wholly
misplaced and while making such statements, the State
authorities have miserably failed to justify their inaction in not
considering the judgment rendered in Ashok Kumar Sharma
(supra) and therefore, this Court is constrained to pass an order
in respect of this petitioner as per the ratio laid down in the
aforementioned case, whose case is also squarely covered by the
said proposition of law, and the petitioner, who has been
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struggling for all these thirty years along with her husband while
he was in service and alive and since the claim of the petitioner
has already been rejected as is apparent from the impugned
order that Mobina Khatoon’s Judgment rendered by the Hon’ble
Full Bench is not applicable in the case of this petitioner, while
recording such findings in respect of this petitioner to reject the
claim of the absorption and grant of pension, it seems that the
authorities for reasons unexplained did not take note of the
Hon’ble Division Bench Judgment, which in the opinion of this
Court, is required to be addressed strictly in consonance with
the parameters prescribed in the said judgment.
34. The relevant extract of the consideration and
observation made in the said judgment rendered in the case of
Ashok Kumar Sharma (supra) are quoted hereinbelow:-
“Having considered the matter, in our view,
learned counsel for the appellants is correct.
Considering the history of events up to 1990,
as noted above, what was considered for
regularization was a daily wager having
worked for more than 240 days simplicitor,
was the earlier State Government decision
and which had been extended pursuant to
trade union agreement. This was also in
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consonance with the resolution of the State
Government in the Personnel Department
dated 10.05.2005. which is a part of the
proceedings itself. This clearly shows that
right till the year 2005, State was only
contemplating regularization with restriction
that the said daily wager must have worked
for 240 days. There was a clear distinction
maintained when the 2006 resolution was
taken. There were two classes. First, where
the State Government was bound by the
trade union agreement in respect of daily
wagers up to 11.12.1990 and second those
who came thereafter. Therefore, there were
two different categorizations in this
resolution dated 16.03.2006. It is wrong to
say that there was conflict between the
Clause-1 of the said resolution and Clause-
3. The two contemplated two different
periods. The writ petitioners/appellants,
falling within the first period i.e. till
11.12.1990, were rightly treated and
regularized as per Annexure-6 to the writ
petition with effect from 22.12.2006. This
distinction was not brought out clearly
before the learned Single Judge because of
which the learned Single Judge applied
Clause-3 of this resolution, which applied to
only those people who had joined as daily
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wagers after 11.12.1990.
Having considered the matter, in our view,
the impugned order, being Annexure-7 to the
writ petition, recalling the regularization
order dated 22.12.2006 (Annexure-6 to the
writ petition), is set aside. The effect would
be that the three writ petitioners/appellants
would be deemed to be working duly
regularized vide Annexure-6 to the writ
petition. As their services are terminated by
Annexure-7 dated 02.01.2013 and have not
worked since then, upon their reinstatement,
they would be deemed as regularized
employees but they would not get any back
wages. They would be reinstated within two
months from today. They would also be
entitled to continuity in service.”
35. From the aforesaid judgment rendered by the
Hon’ble Division Bench in the case of Ashok Kumar Sharma
& Ors (supra), it is quite evident that the State Authorities had
been engaging the persons on daily wage basis to carry out the
works of the State in different departments. It is admitted
position that petitioner’s husband was engaged in the year 1982
and as per the Government’s resolution which is contained in
Memo No. 5940 dated 18th June, 1993, the State Government
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had taken a conscious decision to regularize the services of
daily-wager employees, who were appointed prior to the cut-off
date as 01.08.1985 and in the said resolution, it was clearly
mentioned that after the cut-off date, non recruitment on daily
wage was directed. Petitioner’s husband case is covered by the
resolution dated 18th June, 1993, which subsequently was
extended by considering the demand of Employees Trade
Union, and two groups were classified. Since the case of this
petitioner falls within the first classified group, wherein all such
employees were directed to be considered who had worked for
simplicitor 240 days prior to 01.08.1985.
36. From the reasoned order as contained in Memo No. 786 dated
24.05.2020, it is quite evident that the proposal for absorption of
this petitioner along with others were sent by the authorities,
where the husband of the petitioner was initially engaged, which
evidently shows that the deceased employee had been working
regularly against the sanctioned post and even proposal for
absorption was made but for the reasons stated in the impugned
order, it could not be carried out owing to his superannuation on
the date of consideration and, therefore, this Court finds that since
the petitioner’s husband had continuously been in service from the
date of initial engagement, which fact has not been denied by
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the authorities and accordingly, in the considered opinion of this
Court, the case of this petitioner is squarely covered by the
Government’s resolution dated 16th June, 1993 which was
subsequently, modified by classifying a second group through
resolution as contained in Resolution No. 639 dated 16.03.2006
and since the case of the petitioner falls within the first category
wherein the daily wagers were employed for only 240 days prior
to 01.01.1985, their cases were required to have been considered
for regularization. While the petitioner’s husband has
continuously been in service, since the date of his initial
engagement, was on a better footing and even his case could
have been considered in the second category as well, still for
unexplained reasons, the petitioner’s husband case was not
considered in consonance with the decision taken by the State
Government dated 16.03.2006, for effecting the regularization
in respect of the daily-wagers and, as such, the stand of the State
that regularization cannot be made after superannuation, is a
misplaced argument, which does not deserve any consideration
and is fit to be rejected out-rightly.
Issues raised for ‘Reference to the Larger Bench’
37. Insofar as the issues raised before this Court to
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refer the matter to a Larger Bench in view of the order dated
25.07.2025 passed in LPA No. 657 of 2021 is concerned, since
this Court has not relied upon any of the judgments forming part
of the conflicted issues, therefore, the issues that have been
raised before this Court would be decided in appropriate
proceeding and the case of this petitioner as per dictum is
squarely concerned by the judgment of Ashok Kumar Sharma
(supra), the adjudication of the claim is accordingly, being made
to do justice as per the commitment of the State Government
notified through Resolution dated 16.03.2006.
38. The State’s rejection of the petitioner’s claim based
on the ground of superannuation is legally untenable, as it
ignores the critical distinction drawn by the Hon’ble Division
Bench between the two categories of daily-wagers which is
established in the case of Ashok Kumar Sharma & ors (supra)
and since the deceased employee, Narendra Prasad Singh, was
appointed on 18.10.1982, who belonged to the protected
Category 1 (per-11.12.1990), whose right to regularization
under Resolution No. 639 dated 16.03.2006 vested upon the
completion of 240 days of service, which was passed decades
before his retirement on 31.01.2013. The status was, his service
was also directed for regularization by the directions of Hon'ble
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Justice Mukhopadhaya in CWJC No. 6469 of 1998, which
mandated the grant of a pay of minimum time scale of pay,
effectively transitioning him from a "pure" daily wager to a
temporary employee with a recognized pay scale. Consequently,
the State’s delay in issuing the formal regularization order until
16.09.2013 constitutes administrative laches and the State
cannot benefit from its own inaction, to deny pensionary
benefits to an employee, who was fully eligible and "fit to be
regularized" in Category-1 long before his superannuation as per
the Resolution of the State Government, which has been
implemented in the case of similarly situated persons.
39. The judgment rendered by the Hon’ble Division
Bench is of the year 2015, which is said to have been passed in
LPA No. 1690/2013, and squarely covers the case of the
petitioner and the impugned order rejecting the claim of the
petitioner has been passed after the said judgment, which has
attained the finality and because of ignorance of the Govt.
Resolutions issued in this behalf showing their non-application
of mind and the authorities being unmindful of the Division
Bench Judgment rendered on the subject in issue, the impugned
order having been passed coercing the petitioner again to knock
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the door of this Court, deserves to be dealt appropriately.
40. In view of the above, this Court is left with no
option but to set aside the order impugned dated 17.05.2022 as
contained in Memo No. 786 dated 24.05.2022 and considering
the longstanding litigation having been fought by the deceased
employee and as also this widow-petitioner, in the considered
opinion of this Court, finding the case to be similar to that of
Ashok Kumar Sharma (supra), it is held that the widow-
petitioner is entitled to all pension and pensionary benefits
including the family pension after the death of the deceased
employee and as such, the petitioner’ husband who has served
the concerned department of the State Government for more
than three decades, the services of the deceased-employee is
required to be treated as deemed regularized and the benefits of
pension and all other pensionary benefits, which is applicable to
the Government employee is required to be paid by calculating
the same on the basis of last pay drawn, which deceased-
employee continued to draw in the light of the order passed by
the Co-ordinate Bench, till the date of his retirement.
Accordingly, the authorities are directed to calculate pension
from 01.02.2013 till the death of the deceased-employee on
30.04.2021 and thereafter, the family pensions are appropriately,
required to be calculated till the date of actual payment and
further continuance of family pension would be granted as per
the applicable law with appropriate revision of pension, within a
period of six weeks from the date of receipt/production of a
copy of this order.
41. Besides the above, this Court in order to get the
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issues resolved at the level of the authorities in the light of the
Resolutions dated 16.03.2006, issued by the State Government
for regularizing the services of the Daily-wagers, which issues
have already been considered by the Hon’ble Division Bench in
the case of Ashok Kumar Sharma (supra) and further taking
cue from the said judgment, a Co-ordinate Bench has also been
pleased to direct for regularization in the case of Anil Kumar
Sharma & Ors v. State of Bihar & Ors (CWJC No. 1989 of
2023), sought their indulgence but the State authorities did not
show any inclination to resolve the issues as per the dictum of
the Hon’ble Division Bench rendered in the case of Ashok
Kumar Sharma (supra) and did not submit any response,
instead they insisted for deciding the issues on the basis of
submissions/pleadings made on their behalf, while the
similarity, which appeared on record, having well been noticed
by them, no effort was taken at their end to reconsider the issues
rather their insistence for continuance of litigation, surely has
persuaded the mind of this Court that the litigation policy, which
the authorities have framed to resolve the identical issues in
consonance with the settled law, are deliberately being ignored
for the reasons best known to them.
42. Accordingly, this Court taking into account the
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callous approach of the authority in dealing with the issues at
hand and further noticing their non-application of mind towards
the purpose of framing the litigation policy by the State and
deliberately having chosen to continue with the litigation
outside its scope, has objectively persuaded this Court to award
cost of litigation to the tune of Rs. 50,000/- (Fifty thousand) in
favour of this widow petitioner, which shall be paid by the State
for not adhering to the policy having been put in place at their
end to minimize the litigation. The amount so directed towards
litigation cost shall be paid within the time framed above.
43. The writ petition stands allowed.
(Ajit Kumar, J)
Md. Perwez Alam
AFR/NAFR AFR
CAV DATE 13.02.2026
Uploading Date 04.05.2026
Transmission Date
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