PARMESHWAR NANDA ETC.versusTHE STATE OF JHARKHAND THROUGH CHIEF SECRETARY & ORS. ETC.

680                      [2020]REPORTS
               SUPREME COURT    3 S.C.R. 680                 [2020] 3 S.C.R.


A                       PARMESHWAR NANDA ETC.
                                        v.
                 THE STATE OF JHARKHAND THROUGH
                    CHIEF SECRETARY & ORS. ETC.
B                      (Civil Appeal Nos. 505-531 of 2020)
                             FEBRUARY 07, 2020
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
             Jharkhand Pension Rules – rr. 58, 59 & 31, 38 – Appellants
      were appointed under a Project, co-sponsored by Central
C
      Government and State Government, in the erstwhile undivided State
      of Bihar between 1978-1990 – Appellants’ services fell in the
      successor State of Jharkhand, formed in 2000 – Government of
      India by a policy decision closed the Project – Govt. of Jharkhand
      declared the employees to be surplus w.e.f. 16.05.2001 – It issued
D     notification for absorption of the employees engaged in the Project
      in various Departments – As per Clauses 11 & 12 of the said
      notification, surplus employees absorbed were to be treated as new
      appointments and services rendered by them prior to their
      declaration as surplus were not be counted for the purpose of their
      seniority and pay protection – 59 writ petitions were filed inter alia
E
      claiming pensionary benefits, commonly challenging Clauses 11 &
      12 – High Court declined the claim for pension – Held: Entire case
      is based upon r.59 and Circular dated 12.08.1969 of the erstwhile
      State of Bihar – r.59 empowers the State Government to declare any
      specified kind of service rendered in a non-gazetted service to
F     qualify for pension, provided that the salary is paid from general
      revenue – r.58 contemplates three conditions required to be satisfied
      for services to be pensionable – At best, the appellants satisfied
      only the third condition therein – Further, Circular dated12.08.1969
      deals with pensionary benefits to a temporary govt. servant –
      Appellants, engaged under the Project i.e. a scheme, were never
G
      appointed by the Government either on temporary or permanent
      basis – Benefit of such Circular cannot be claimed by them – Still
      further, notification for absorption dtd. 30.05.07 and subsequent
      letter of appointments do not contain any condition that the services
      rendered by appellants under the Project shall qualify for pension
H
                                       680
   PARMESHWAR NANDA v. THE STATE OF JHARKHAND                           681
         THROUGH CHIEF SECRETARY & ORS.

– Policy decision contemplates that it is a fresh appointment and no    A
benefit 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 the
employees appointed under the Project as the very nature of the
appointment was for a specific purpose and not for unlimited period
                                                                        B
of time – No error in the order passed by High Court – C.A.No. 544
of 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
      HELD: 1.1 The entire case is based upon Rule 59 of the            C
Jharkhand Pension Rules, 2000 and the Circular dated 12th
August, 1969 of the erstwhile State of Bihar. Rule 59 of the Rules
empowers the State Government to declare any specified kind of
service rendered by one in a non-gazetted service to qualify for
pension, provided, that the salary is paid from the general
revenue. Rule 58 of the Rules contemplates the conditions that          D
are required to be satisfied for services to be pensionable. The
appellants were appointed under a specific Scheme i.e. the Project.
Such project was not a permanent establishment of the
Government as it was meant for a specific purpose funded by the
Central Government for a specified period. The appointment of           E
the appellants under the Project is not a part of any cadre of the
State Government. Therefore, the first condition of Rule 58 that
the service rendered must be under the State Government is not
satisfied by the appellants having been appointed under the
Project. The second condition that employment must be
substantive and permanent is again not satisfied by the appellants      F
as the employment of the appellants was under the Project. A
permanent post in terms of Rule 31 of the Rules means a post
carrying a definite rate of pay and that is sanctioned without a
time limit. The appointment of the appellants under the project
was not in a pay scale nor was it sanctioned without a time limit.      G
Further, substantive pay is defined in Rule 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 paid by the Government.
If the first and second conditions mentioned in Rule 58 of the
Rules are not satisfied, the State Government can declare any
                                                                        H
682            SUPREME COURT REPORTS                       [2020] 3 S.C.R.


A     specified kind of service rendered in a non-gazetted capacity to
      qualify for pension. The Circular dated 12th August, 1969 deals
      with pensionary benefits to a temporary Government servant.
      The appellants were never appointed by the Government either
      on a temporary or on permanent basis. The appellants were
      engaged under the Project i.e. a scheme, therefore, the benefit
B
      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
      any specific kind of service to qualify for pension. The notification
      for absorption circulated on 30th May, 2007 and the subsequent
      letter of appointments do not contain any condition that the
C     services rendered by the appellants under the Project shall qualify
      for pension. The policy decision contemplates that it is a fresh
      appointment and no benefit either of seniority or pay protection
      shall be given. The appellants have not disputed such condition
      of appointment having been appointed under such policy decision
      vide the notification dated 30th May, 2007. The Circular has not
D
      granted pensionary benefits. In the absence of any specific
      condition in the Circular to grant pensionary benefits, it is not
      possible to read that pensionary benefits are to be granted to the
      erstwhile employees of the Project. The appellants cannot turn
      around to say that the services rendered by them under the Project
E     shall be counted for pension. The Circular dated 12th August,
      1969 is not even remotely applicable to the employees appointed
      under the Project as the very nature of the appointment was for a
      specific purpose and not for an unlimited period of time. [Paras
      20, 21 and 22][692-G-H; 693-A-H; 694-A-C]
F           1.2 The appellants have been appointed as fresh candidates
      and, therefore, their period of service for pension has to be
      calculated from the date of their regular appointment and
      therefore they cannot get any benefit of past service rendered by
      them. Since the appellants were absorbed as fresh appointees
      without pay protection and seniority, as a consequence thereof,
G     they will not be entitled to count their past service rendered under
      the Project for the purpose of pension. Thus, no error found in
      the order passed by the High Court which may warrant
      interference in the present appeals. [Paras 23, 26][694-D-E;
      695-B-D]
H
   PARMESHWAR NANDA v. THE STATE OF JHARKHAND                            683
         THROUGH CHIEF SECRETARY & ORS.

      Civil Appeal No. 544 of 2020                                       A
      1.3 The reliance of the High Court on an order passed at
earlier stage on Baliram Singh no longer holds good. In the State
of Bihar, past services rendered by employees under the Project
were taken into consideration for pensionary benefits. The present
appeal is disposed of in the same terms as in Baliram Singh. [Paras      B
27, 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 &               C
      Ors. (2016) SCC OnLine Pat 9958; State of Bihar &
      Ors. v. Baliram Singh & Ors. (2018) 18 SCC 46; Asgar
      Ali & Ors. v. State of Jharkhand & Ors. (2010) SCC
      OnLine Jhar 8 – referred to.
      State of Jharkhand & Ors. v. Bhubneshwar Mahto                     D
      Decision of Jharkhand High Court in LPA No. 515 of
      2004; State of Jharkhand & Ors. v. Bimal Kumar Sinha
      Decision of Jharkhand High Court in LPA No. 188 of
      2004 – referred to.
                       Case Law Reference                                E
(2018) 18 SCC 64                distinguished              Para 11
(2002) 10 SCC 656               referred to                Para 15
(2018) 18 SCC 46                referred to                Para 16
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 505-               F
531 of 2020.
      From the Judgment and Order dated 16.06.2017 of the High Court
of 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,    G
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.
                                                                         H
684                 SUPREME COURT REPORTS                       [2020] 3 S.C.R.


A            Ranjit Kumar, Dhruv Mehta, Manoj Swarup, S.B. Upadhyay, Ajit
      Kr. Sinha, Sr. Advs., Srikaanth S., Gopal Singh, Abhishek Puri, P.N.
      Puri, J.S. Marahatta, Ratan Kumar Choudhuri, Ajay Kumar, Kumar
      Shivam, Ashish Chaubey, Ranjith Kumar, Pawan Upadhyay, Nishant
      Kumar, Sarvjeet Pratap Singh, Ms. Anisha Upadhyay, Chandra Bhushan
      Prasad, Tapesh Kumar Singh, Atulesh Kumar, Devashish Bharuka,
B
      Krishnanand 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
C               HEMANT GUPTA, J.
                Civil Appeal Nos. 505-531 of 2020
                Civil Appeal Nos. 532-542 of 2020
                Civil Appeal Nos. 543 of 2020
D                                AND
                Civil Appeal Nos. 545-546 of 2020
             1. The present appeals are directed against an order passed by
      the Full Bench of High Court of Jharkhand on 16 th June, 2017 wherein it
      has been held that the services rendered by the appellants under the
E     Adult Education and Non-Formal Education Project 1 cannot be counted
      under a Government scheme for the purpose of pensionary benefits
      after the appellants were appointed by the State.
            2. Briefly, the facts are that the appellants were appointed under
      the Project, co-sponsored by the Central Government and the State
F     Government, in the erstwhile undivided State of Bihar between the period
      1978 to 1990. Some of the appellants were appointed as Adult Education
      Supervisors whereas other appellants were appointed in the ministerial
      cadre such as Stenographer, Clerk cum Accountant, Clerk cum Typist,
      Peon as well as Drivers. The appellants were working under the Project
G     during the bifurcation of the State and their services fell in the successor
      State of Jharkhand which was formed on 15th November, 2000. The
      Government of India vide policy decision dated 1st April, 2001 closed the
      Project. The Government of Jharkhand, consequent to the bifurcation of
      State of Bihar, declared the employees to be surplus w.e.f. 16th May,
      2001.
H     1
          for short, ‘Project’
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                   685
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

       3. The Government of Jharkhand issued a notification dated 30th         A
May, 2007 for absorption of the employees engaged in the Project in the
Departments of Food, Public Distribution and Consumer Affairs, Finance,
Social Welfare, Women and Child Development, Urban Development
etc. on different posts, in their respective prescribed scales of pay. A
perusal of the said notification shows that there were 756 employees
                                                                               B
who were declared as surplus and were to be absorbed by the State. It
appears that most of the surplus employees were absorbed in different
scales of pay vide letter of appointments starting from 24th July, 2007
except those who had attained the age of superannuation or had died
prior to such absorption.
       4. As per Clauses 11 and 12 of the notification dated 30th May,         C
2007, the surplus employees absorbed were to be treated as new
appointments and the services rendered by them prior to their declaration
as surplus i.e. prior to 15th May, 2001, would not be counted for the
purpose of their seniority and pay protection. Clauses 11 and 12 of the
notification read as under:                                                    D
         “11. The adjustment of surplus personnels will be considered new
         appointment and being surplus on the basis of prior service, they
         will not be benefitted of seniority.
         12. These surplus personnels will not be benefitted by pay
         protection.”                                                          E

      5. 59 writ petitions came to be filed claiming pensionary benefits
and seniority before the High Court. The matter was placed before the
Full Bench in view of the divergence of opinions of the two Division
Benches of the Jharkhand High Court in State of Jharkhand & Ors. v.
Bhubneshwar Mahto2 and State of Jharkhand & Ors. v. Bimal Kumar                F
Sinha3.
      6. LPA No. 515 of 2004 was preferred by the State against the
order of the learned Single Bench passed on 21st November, 2003. The
writ petitioner was directed to be paid salary for the period 16th May,
2001 to 31st July, 2001 i.e. the date of his retirement. The writ petitioner   G
was ordered to be treated as a regular employee of the State, having
been appointed on 10th December, 1968, much before the Project started
in 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                                                        H
686            SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     against the order of the learned Single Bench. In the appeal, it was held
      that the writ petitioner therein was appointed under the Project which
      was abolished on the specific condition that past service rendered by
      him will not be taken into account. Such writ petitions were categorized
      into three groups by the Full Bench. The first group of petitions were
      from those employees who had retired after being declared surplus w.e.f.
B
      16th May, 2001 but before they were absorbed pursuant to the notification
      dated 30th May, 2007. In this category, some of the writ petitioners were
      legal heirs of those employees who had died during this period before
      being absorbed. The second group of petitions were from those
      employees who were declared surplus but were absorbed by the
C     Government of Jharkhand vide notification dated 30th May, 2007 and
      had retired thereafter. The third group of petitions were from those
      employees who were working on the date of filing of the writ petitions,
      after being absorbed by the Government of Jharkhand vide the
      aforementioned notification. The employees in writ petitions comprising
      of Categories I and II claim pensionary benefits whereas the writ petitions
D
      filed in Category III claim seniority by taking into consideration their
      past services rendered under the Project resulting into payment of pension
      after attaining the age of superannuation.
             7. The common challenge in all the writ petitions were to clauses
      11 and 12, as reproduced above. It was the stand of the writ petitioners
E     that they are being treated as fresh appointees and their past service has
      not been counted for the purposes of seniority or fixation of their initial
      salary.
             8. The High Court in the impugned order referred to Jharkhand
      Pension Rules to hold that the following three conditions are required to
F     be 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.
G
              9. Rule 59 provides that the State Government can declare any
      specific kind of service rendered in a non-gazetted capacity to qualify
      for pension even though either or both of conditions (1) and (2) are not
      fulfilled. The High Court held that no declaration of the State Government
      in general terms has been made nor any direction in individual cases
H     issued in favour of any such petitioners.
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                         687
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

        10. Before this Court, learned counsel for the appellants referred           A
to Circular issued by the State Government under Rule 59 of Bihar Pension
Rules, 1950 which would be applicable in the State of Jharkhand after
its bifurcation in terms of State Reorganization Act. The Circular dated
12th August 1969 reads thus:
       “Regarding: - Declaration of a temporary service of a                         B
       Government Servant who is not confirmed as pensionable.
       Under the existing pension rules, a temporary Government servant
       if not confirmed in any point, is not entitled to pension unless his
       services are declared pensionable under Rule 59 of the Bihar
       Pension Rules.                                                                C
       2. There are a large number of temporary Government servants
       employed under different Schemes which are in existence for the
       last 15-20 years and it will cause hardship to them if they are not
       allowed pension after their retirement.
       3. The State Government after careful consideration have,                     D
       therefore, been pleased to decide that if the service of the temporary
       or officiating government servant who is not confirmed in any
       post is continuous and is more than 15 years, it will be considered
       as pensionable under rule 59 of the Bihar Pension Rules.
       4. These orders will be applicable to government servants retiring            E
       on or after 12 August, 1969.”
       11. The argument is that the issue relating to arrears of salary for
the period 16th May, 2001 till the date of the absorption of the employees
under notification dated 30th May, 2007 stands concluded by an order
passed by this Court in State of Jharkhand & Ors. v. Asgar Ali &                     F
Ors.4, therefore, the appellants are entitled to consequential benefits of
pension.
        12. On the other hand, the argument of learned counsel for the
respondents is that the said Circular was not referred to by the appellants
before the High Court and rightly so, as such Circular is not applicable to          G
the employees engaged under Central Government sponsored project.
Still further, it is the temporary or officiating service of a Government
servant 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.                                                                                H
688             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     Rules. Since the employees engaged under the Project were not
      discharging duties as temporary or officiating Government servants,
      therefore, such Circular will not be applicable to them. It is, thus, argued
      that the view of the Full Bench of the Jharkhand High Court does not
      warrant any interference in the present appeals.
B           13. Before we consider the respective arguments of the learned
      counsel for the parties, some of the statutory provisions of Jharkhand
      Pension Rules are required to be reproduced:
            “Rule 31:- Permanent post means a post carrying a definite rate
            of pay and sanctioned without limit of time.
C           Rule 38:- Substantive pay means the pay other than special pay,
            personal pay or emoluments classed as pay by the Provincial
            government under rule 26(a)(iii) to which a government servant
            is entitled on account of a post to which he has been appointed
            substantively or by reasons of his substantive position in a cadre.
D           Rule 40:- Temporary post means a post carrying a definite rate of
            pay and sanctioned for a limited time.
                                   CHAPTER III
      GENERAL PROVISIONS RELATING TO GRANT OF PENSION
E                             SECTION-1-GENERAL
            Rule 58:- The service of Government servant does not qualify for
            pension unless it conforms to the following three conditions:-
            First-The service must be under Government.

F           Second-The employment must be substantive and permanent.
            Third-The service must be paid by Government.
            Rule 59:- The Provincial Government may, however, in the case
            of service paid from general revenues, even though either or both
            of 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 may
            think fit to impose in each case, direct that service rendered by a
            Government servant shall count for pension.
H
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                 689
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

    Rule 60:- The service of a Government servant does not qualify           A
    unless he is appointed and his duties and pay are regulated by the
    Government, or under conditions determined by the Government.
    The following are examples of Government servants exclude from
    pension by this rule;
    (1) Employees of a municipality,                                         B
    (2) Employees of grant-in-aid schools and institutions.
    (3) Service on an establishment paid from the house hold allowance
    of the Governor or from his contract establishment allowance.
    Rule 61:- Service does not qualify unless the Government servant         C
    holds substantively a post on a permanent establishment.
    Rule 74:- Services which satisfied the conditions prescribed in
    sub-sections (2) and (3) qualifies, or does not qualify, according to
    the source from which it is paid; with reference to this rule, service
    is classified as follows:-                                               D
    (a) Paid from the general revenues.
    (b) Paid from local funds.
    (c) Paid from funds in respect to which the Government hold the
    position of trustee.
                                                                             E
    (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 a
    tenure in land, or of a source of income, or right to collect money.
    Rule 103:- An interruption in the service of a Government servant        F
    entails forfeiture of his past service, except in the following case:-
    (a) Authorised leave of absence.
    (b) Unauthorized absence in continuation of authorized leave of
    absence so long as the post of the absentee is not substantively
                                                                             G
    filled; if his post is substantively filled, the past service of the
    absentee is forfeited.
    (c) Suspension, where it is immediately followed by reinstatement
    whether to the same or to a different post, or where the
    Government servant dies or is permitted to retire or is retired
    while under suspension.                                                  H
690               SUPREME COURT REPORTS                         [2020] 3 S.C.R.


A              (d) Abolition of the post or loss of appointment owing to reduction
               of establishment.
               (e) Transfer or non-qualifying service in an establishment under
               Government Control. The transfer must be made by a competent
               authority; a Government servant who voluntarily resigns qualifying
B              service cannot claim the benefit of this exception. Transfer to a
               grant-in-aid school entails forfeiture.
               (f) Time occupied in transit from one appointment to another
               provided that the Government servant is transferred under the
               orders of competent authority, or, if he is a non-gazetted
C              Government servant with the consent of the head of his old office.”
            14. Before this Court, 3 writ petitioners are in appeal falling in
      category I, 18 falling in category II and 6 falling in category III.
            15. In the order under appeal, the claim of the employees for
      pension was declined for the reason that no declaration within the meaning
D     of Rule 59(1) in general terms has been made nor any direction in
      individual cases issued in their favour. The High Court relied upon
      judgment of this Court reported as Dhyan Singh & Ors. v. State of
      Haryana & Ors.5. The High Court also held that judgment of Single
      Bench of Patna High Court in Baliram Singh & Ors. v. State of Bihar
E     & Ors.6 is per incuriam. The High Court concluded as under:
               “The foregoing discussion therefore makes it clear that past
               services of these petitioners/employees were under the centrally
               sponsored scheme known as Adult Education/Non-formal
               Education/Mass Education Project which was abolished w.e.f.
F              1.4.2001 by the Central Government and consequently w.e.f.
               15.5.2001 by the Government of Jharkhand. Appointment of these
               petitioners/employees under such a scheme/project therefore,
               cannot be treated as under regular establishment of the
               Government on a permanent and substantive post. Moreover, their
               pay and allowances were borne by the grant-in-aid released by
G              the Central Government from time to time. That is the reason
               why their services were treated as surplus once the Central
               Government closed the scheme w.e.f. 1.4.2001. Petitioners have
               failed to controvert the aforesaid position on facts.”
      5
          (2002) 10 SCC 656
      6
H         2016 SCC OnLine Pat 9958
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                    691
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

       16. The judgment in Baliram Singh has attained finality with the         A
judgment of this Court reported as State of Bihar & Ors. v. Baliram
Singh & Ors.7. In the aforesaid case, the policy decision of absorbing
the writ petitioners appointed under the Project contained a clause that
the candidates will be treated as fresh appointments and that the earlier
services rendered by them shall be calculated for their pension. The
                                                                                B
writ petitioners before the Patna High Court claimed back wages from
the date of their termination till the date they were absorbed. This Court
declined the claim of back wages. The Court held as under:
         “18. In the present case, however, the respondents have neither
         challenged the termination order after closure of the Non-Formal
         Education Scheme with effect from 1-4-2001 nor the policy dated        C
         20-5-2005 under which they have been appointed or the
         appointment letter dated 16-3-2007. Even the appointment letter
         dated 16-3-2007 unambiguously predicates that the appointment
         was a fresh appointment and the past services would be reckoned
         only for the purpose of grant of pension and nothing more.             D
         Indisputably, the respondents acted upon such terms and conditions
         of appointment without any demurrer. They chose to file the
         subject writ petition only in the year 2013, when the cause of
         action 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 awarding       E
         back wages would not arise at all. The relief of back wages is
         and can be linked only to the order of reinstatement. It cannot be
         awarded in isolation or, for that matter, during the period when the
         respondents were not in employment at all.”
       17. The case of Dhyan Singh was in respect of appointments               F
under the Project in the State of Haryana. The services of the employees
were discharged upon abolishing of the aforementioned Project. The
employees invoked the writ jurisdiction of the court claiming fixation of
their salary by taking past service and for pension. This Court declined
such claim and held as under:                                                   G
         “…..The continuance/engagement of the appellants under the
         specific scheme cannot be held to be an employment under any
         establishment of the Government. Such schemes are taken up for
         certain contingencies when money for the same is provided either
7
    (2018) 18 SCC 46                                                            H
692            SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A           by the Central Government or at times by some foreign countries.
            But the employment under such scheme not being a part of the
            formal cadre of the State Government, it is difficult to hold that
            the period for which an employee rendered service under such
            scheme can be counted either for the purposes of deciding their
            pensionary benefits or even for fixing of their salary in the scale
B
            of pay once they are regularly absorbed.”
            18. In the present case, Clause 11 of the notification dated 30th
      May, 2007 issued by Government of Jharkhand is to the effect that
      absorption of the surplus personnel will be considered as new
      appointments and they will not be granted benefit of seniority on the
C     basis of their past service. Neither will such past service entitle them to
      such pay protection. One of the appointment letters appointing 65
      candidates as Project Officers was issued on 20 th December, 2007. Such
      appointment letter had following clauses which read as under:
            “4. Adjusted employees shall be covered under the old Pension
D           Scheme. Their service period prior to retrenchment shall be
            counted for the purpose of pension. Period of retrenchment shall
            not be counted for the purpose of pension.
            5. Adjustment of above surplus Project Officers shall be considered
            as fresh appointment and benefit of seniority on the basis their
E           service rendered prior to becoming surplus shall not be admissible
            to them.”
            The appointment letters to the other employees is on similar lines.
             19. The argument of the learned counsel for the appellants is that
F     the policy decision of the State, vide notification dated 30th May, 2007
      only denies them the benefit of seniority or pay protection but not of
      their past service being counted towards pensionary benefits. It is
      contended that in terms of Rule 59 of the Rules, the State Government
      has declared that the services rendered by a temporary Government
      servant employed under different schemes would be entitled to pension
G     after the completion of 15 years of service.
             20. The entire case is based upon Rule 59 of the Rules and the
      Circular dated 12th August, 1969 of the erstwhile State of Bihar. We do
      not find any merit in the arguments raised by the learned counsel for the
      appellants. Rule 59 of the Rules empowers the State Government to
H     declare any specified kind of service rendered by one in a non-gazetted
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                     693
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

service to qualify for pension, provided, that the salary is paid from the       A
general revenue. Rule 58 of the Rules contemplates the conditions that
are required to be satisfied for services to be pensionable. Herein, as it
has been reiterated before, first condition is that the service must be
under the Government; second, that it must be substantive and
permanent; and third, that it must be paid by the Government.
                                                                                 B
       21. The appellants were appointed under a specific Scheme i.e.
the Project. Such project was not a permanent establishment of the
Government as it was meant for a specific purpose funded by the Central
Government for a specified period. The appointment of the appellants
under the Project is not a part of any cadre of the State Government.
Therefore, the first condition of Rule 58 that the service rendered must         C
be under the State Government is not satisfied by the appellants having
been appointed under the Project. The second condition that employment
must be substantive and permanent is again not satisfied by the appellants
as the employment of the appellants was under the Project. A permanent
post in terms of Rule 31 of the Rules means a post carrying a definite           D
rate of pay and that is sanctioned without a time limit. The appointment
of the appellants under the project was 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 a person who is appointed in a cadre. At best,
the appellants satisfied only the third condition i.e. that they were paid
by the Government.                                                               E

       22. If the first and second conditions mentioned in Rule 58 of the
Rules are not satisfied, the State Government can declare any specified
kind of service rendered in a non-gazetted capacity to qualify for pension.
The Circular dated 12th August, 1969 deals with pensionary benefits to a
temporary Government servant. The appellants were never appointed                F
by the Government either on a temporary or on permanent basis. The
appellants were engaged under the Project i.e. a scheme, therefore, the
benefit 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 any
specific kind of service to qualify for pension. The notification for            G
absorption circulated on 30th May, 2007 and the subsequent letter of
appointments do not contain any condition that the services rendered by
the appellants under the Project shall qualify for pension. The policy
decision contemplates that it is a fresh appointment and no benefit either
of seniority or pay protection shall be given. The appellants have not
                                                                                 H
694               SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A     disputed such condition of appointment having been appointed under
      such policy decision vide the notification dated 30th May, 2007. The
      Circular has not granted pensionary benefits. In the absence of any
      specific condition in the Circular to grant pensionary benefits, it is not
      possible to read that pensionary benefits are to be granted to the erstwhile
      employees of the Project. The appellants cannot turn around to say that
B
      the services rendered by them under the Project shall be counted for
      pension. The Circular dated 12th August, 1969 is not even remotely
      applicable to the employees appointed under the Project as the very
      nature of the appointment was for a specific purpose and not for an
      unlimited period of time.
C            23. The case of Baliram Singh arises out of the policy of the
      State of Bihar wherein the past service has been specifically ordered to
      be considered for pension. Since in the State of Jharkhand, the policy
      decision is to treat them as fresh appointments without any benefit of
      seniority and pay protection, therefore, to count the period when the
D     appellants were working under a Project as pensionable service is beyond
      comprehension. The appellants have been appointed as fresh candidates
      and, therefore, their period of service for pension has to be calculated
      from the date of their regular appointment and therefore they cannot get
      any benefit of past service rendered by them.
E           24. Learned counsel for the appellants have referred to an order
      passed by this Court in Asgar Ali & Ors. v. State of Jharkhand &
      Ors.8 wherein the direction of the High Court for payment of arrears
      was not interfered with. It is contended that since the appellants have
      been paid salary for the period prior to their regular appointment, the
      appellants would be entitled to pension as well.
F
             25. The Single Bench of the Jharkhand High Court in a judgment
      reported as Asgar Ali dealt with aprayer for absorption and for payment
      of arrears of salary from 16th May, 2001, i.e. when the employees were
      rendered as surplus, till January, 2008, i.e. the date of their absorption, in
      Writ Petition No.729 of 2004. The learned Single Bench vide order dated
G     4th January, 2010, directed the state for the payment of salary for the
      reason that the services of the employees under the Project were not
      retrenched, therefore, the employees were entitled to their salary. In
      such petition the employees had made no claim for counting of past
      services for the purposes of pensionary benefits. As against such order
H     8
          2010 SCC OnLine Jhar 8
  PARMESHWAR NANDA v. THE STATE OF JHARKHAND                                   695
THROUGH CHIEF SECRETARY & ORS. [HEMANT GUPTA, J.]

of the learned Single Judge, the state sought LPA No.533 of 2012 which         A
was dismissed vide order dated 1st October, 2013. Thereafter the State
sought a Special Leave Petition which was also dismissed with a direction
to make phased payments of salary to the writ petitioners/employees.
Again, no claim for counting of past services for the purposes of pension
was made or allowed by the Court. It was merely a monetary benefit
                                                                               B
which was granted on account of no formal order of retrenchment being
passed against the employees employed under the Project.
       26. Since the appellants were absorbed as fresh appointees without
pay protection and seniority, as a consequence thereof, they will not be
entitled to count their past service rendered under the Project for the
purpose of pension. We, thus, do not find any error in the order passed        C
by 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 by           D
Division Bench of the High Court of Patna on 20th June, 2018 whereby
LPA No.189 of 2018 filed by the State was dismissed relying upon an
order passed by the Single Bench in CWJC No. 20780 of 2010 and
CWJC No. 20801 of 2010 on 19th April, 2011 wherein referring to Rule
103 of Bihar Pension Rules, 1950, it was held that an interruption in
service on account of the abolition of a post shall not entail forfeiture of   E
the past service of a Government servant, i.e. the intervening period can
be counted for pensionary benefits. In view of the said fact, the State
was directed to consider the writ petitioners as continuing in service
between 1992 and 1998 solely for the purpose of granting personal
monetary benefits. The petitioners were not to be entitled to payment of       F
salary for the period in any manner and neither claim any seniority over
other Government servants.
      28. After the aforesaid judgments, Baliram Singh along with
othersfiled CWJC No. 22208 of 20139 to claim back wages for the period
from 1st October, 2001 to 3rd July, 2007. The learned Single Bench allowed     G
the writ petition on 22nd August, 2016. Thereafter, LPA No. 2307 of
2016 was dismissed on 15th January, 2018. The said orders were set
aside by this Court in Baliram Singh. Therefore, the reliance of the
High Court on an order passed at earlier stage on Baliram Singh no
9
    2016 SCC OnLine Patna 9958 decided on 22 nd August, 2016.                  H
696             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


A     longer holds good. It may be noticed that in the State of Bihar, past
      services rendered by employees under the Project were taken into
      consideration for pensionary benefits. In view of the said fact, the present
      appeal is disposed of in the same terms as in Baliram Singh.

B     Divya Pandey                                              Appeals disposed of.




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