1. The writ petition has been filed by the petitioner mainly seeking computation of retiral benefits including pension after taking into consideration the total length of his service i.e. from April, 1983.

2. Briefly stated, the petitioner having qualification of B.A. (Hons.) was appointed on temporary basis on daily wage as a Clerk against the vacant sanctioned post with effect from 01.04.1983. Since then, he was regularly working. From time-to-time instructions were issued for regularization of the employees engaged on temporary and daily wage basis. Initially, in 1983 when the State Government was considering for regularization of the employees engaged in daily- wage basis, the petitioner could not be considered as his name was below the merit list. It will be apparent from perusal of the letter dated 02.02.1984 (Annexure 1/B) that the petitioner, whose name is at serial no.7 to the list appended to the said letter, is continuously working since 01.04.1983. This fact will be apparent from perusal of Annexure- 1/C dated 30.01.1988, whereby by stating these facts, the Superintending Engineer requested the Engineer-in-Chief-cum- Additional Secretary, Building Construction and Housing Department, Government of Bihar for regularization of the services of the petitioner. The Superintending Engineer made further recommendation vide Memo No. 782 dated 09.07.1990 (Part of Annexure 1/D). Since then, several recommendations have been made from time to time for regularization of services of the petitioner but the matter was kept pending due to laches and lackadaisical approach of the respondents-authorities. Ultimately, the service of the petitioner was regularized vide Annexure-2 vide Office Order No.224/2010 dated 31.08.2010. The perusal of the said order would show that the petitioner has been regularized/appointed solely on the consideration that he was found to be engaged prior to 01.08.1985. The petitioner thereafter superannuated from service.

3. The grievance of the petitioner is that though he has been regularized vide order dated 31.08.2010 but the respondents have considered case of petitioner for pensionary benefits from the date of regularization though he has been working since 1983 directly under the respondent-Department on daily wages basis against the sanctioned post and he was being paid wages by the respondents directly. Further, during the period between 1985-88, more than 150 employees working with the petitioners were regularized but only the petitioner along with 15 others was left out which would be evident from the list prepared in the year 1988.

4. From record it appears that though the petitioner was continuously working since 01.04.1983 and from time to time, guidelines/schemes of the State Government were framed for regularization of the employees like the present petitioner, but the matter relating to regularization of the service of the petitioner was kept pending.

5. In the case of State of Karnataka Vs. Umadevi (3)1, the Hon'ble Supreme Court has specifically mandated the regularization of all such employees who had been working for the more than last 10 years against vacant sanctioned post without any interim order of any Court.

6. The stand of the State Government is that as the petitioner has been regularized in the year 2010, he can at best claim pension under the new contributory pension scheme which was introduced with effect from 01.01.2004. The respondents-authorities have tried to rely on the resolution of the State Government dated 29.04.2015, wherein the State Government has framed a scheme for regularization and mentioned therein that such regularization would have a prospective impact and the benefit would be payable with effect from the date of regularization.

7. However, the said scheme actually is not applicable in the case of the petitioner as his service was regularized in the year 2010 i.e. much prior to the introduction of the said scheme. Secondly, the petitioner has specifically pleaded that during the period 1985-88, more than 150 employees working along with the petitioner were regularized, but only the petitioner along with 15 others were left out which would be apparent from the list prepared in the year 1988.

8. So far as the stand of respondents that under Rule 58 of the Bihar Pension rules, 1950, in order to qualify for pension, following three conditions are required to be fulfilled:-

                  (i) Service must be under the Government.

                  (ii) Employment must be substantive and permanent.

                  (iii) Service must be paid by Government.

                  Apparently, the petitioner even otherwise fulfils the three conditions, inasmuch as, petitioner was working directly under the Government and his nature of employment was substantive and permanent as he was working against a vacant sanctioned post though on daily wage and his work being paid by the Government. The respondents are wrongly interpreting that the services of such employees should be permanent. The employment was substantive and permanent as per the requirement of Rule 58 of the Bihar Pension Rules and the same continued till his superannuation.

9. The Hon'ble Supreme Court in the case of Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharastra((1990) 2 SCC 715) have already held that if the initial appointment is not made by following the procedures laid down by the Rules but the appointee continues on the post uninterruptedly till the regularization of his services in accordance with the Rules, the period of officiating service has to be counted. This issue was again reconsidered by the Hon'ble Supreme Court in the case of Irrigation Department Vs Narendra Kumar Tripathi((2015) 11 SCC 80), wherein after considering the previous judgments of the Hon'ble Supreme Court in paragraph 13 of the said judgment, the Hon'ble Supreme Court have ultimately held in paragraph 15 that the writ petitioners are entitled to count their services with effect from 12.06.1985 i.e. the date since when they were initially engaged and further clarified that re-determination of seniority at this stage would not disturb holding of post of any incumbent and except for the benefit in pension, other benefits which the petitioner would be found to be entitled will be given only on notional basis.

10. The Hon'ble Supreme Court thereafter in the case of Prem Singh Vs. State of Uttar Pradesh((2019) 10 SCC 516) has held as under:-

                  “33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis. considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.

                  34. As it would be unjust illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non-discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularization in the capacity of work charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.

                  35. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

                  36. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.”

11. Thus, in view of the law laid down by the Hon'ble Supreme Court in catena of decisions, the petitioner cannot be deprived of his past continuous service for the purpose of computation of his pension and gratuity.

12. Accordingly, the instant application stands allowed. The Respondents are directed to re-compute the retiral benefits including pension after taking into consideration the total length of his service i.e. from April, 1983 and pay/revise the monetary benefits.

13. The entire exercise shall be completed within a period of 12 weeks from the date of receipt/production of copy of this order.