Rabindra Nath Mandai v. State of Bihar — 1997 DIGILAW 863 (PAT)

Order The petitioner has filed the present writ application for a direction to quash the communication dated 18.9.1995, as contained in Annexure 6 to the writ petition, issued by the Senior Accounts Officer. Bihar Ranchi informing the petitioner that his pension and other retiral benefits have been correctly fixed and he is not entitled to fixation of his pension and other retiral benefits on the basis of presumptive pay fixation and the subsequent communication dated 14.6.1996 of the Accounts Officer, Bihar as contained in Annexure 9, reiterating the earlier decision that his pensionary benefits have been correctly fixed. The petitioner has also prayed to fix his pension and other post retirement benefits on the basis of the presumptive pay of the substantive post of Senior Accounts Clerk (Selection Grade) in Irrigation Department Government of Bihar, Patna to which post he held a lien till the date of his superannuation. 2. The facts necessary for disposal of the present writ application are that the petitioner was appointed as Junior Accounts Clerk in the Irrigation Department in 1955. He was promoted as Senior Accounts Clerk in the year 1960. On 19.4.1979, he was put on deputation and posted as Emergency Divisional Accountant and was transferred to Minor Irrigation Division, Sahebganj, where he joined the post on 28.5.1997. He continued on the post of Emergency Divisional Accountant but he was not confirmed on the said post as he did not pass the necessary examination and his lien on substantive post of Senior Accounts Clerk in Irrigation Department, Government of Bihar, continued. On 31.1.1994 he superannuated from the post of Emergency Divisional Accountant. Thereafter, his pension and other retiral benefits have been fixed on the basis of the salary drawn by the petitioner as Emergency Divisional Accountant or officiating basis. 3. The grievance of the petitioner is that as he was not confirmed on the post of Emergency Divisional Accountant, he will be treated on deputation on the post of Emergency Divisional Accountant and he continued to be governed by the Pension Rules of the State Government, where he holds a lien and as such his pension would have been fixed on the basis of the salary, which he would have drawn had he not been deputed to the post of Emergency Divisional Accountant. If he would have remained in the State service, he would have drawn more salary than what he was drawing at the time of has retirement on the post of Emergency Divisional Accountant and as such his pension and other retiral benefits should be fixed on the presumptive pay and not the actual salary drawn by the petitioner at the time of his retirement. 4. In support of his claim, the petitioner has relied upon a letter dated 5.10.1992, issued by the Government of India. Ministry of Finance, which was circulated to the Accountant General by the office of the Comptroller & Auditor General of India and the letter issued from the office of the Principal Accountant General-1, Bihar, Ranchi. dated 29.7.1993 addressed to the Executive Engineer, R.E.O. (W) Division, Araria. A copy of the said letter of the Government of India has been annexed as Annexure 3 and that of the letter of the Accounts Officer, Bihar, Ranchi, to the Executive Engineer, R.E.O., Works Division, has been annexed as Annexure 4 to the writ petition. Despite that the pension and pensionary benefits of the petitioner were fixed on the basis of salary drawn by him as Emergency Divisional Accountant. He represented the matter before the Accountant General and the Accountant General, by order dated 18.9.1995, informed the petitioner that his pension and other retiral benefits have been correctly fixed after taking into consideration the letter of the Finance Department and the State Government dated 10.11.1975, wherein it has been clarified by the State Government that the employee when appointed to the Central Government on deputation and retires unconfirmed, his pension/retirement gratuity will be fixed on the basis of deputation (duty) pay drawn by him as per Rule 26 of Bihar Pension Rules. A copy of the said order has been annexed as Annexure 6 to the writ petition. The petitioner again represented the matter and the said decision has been reiterated by order dated 14.6.1996, a copy of which has been annexed as Annexure 9 to the writ petition. 5. The stand of the State Government in its counter-affidavit is that the petitioner was working on the post of Senior Accounts Clerk in Water Resources Department and on his own request, he joined the post of Emergency Divisional Accountant on 28.5.1997 under the Accountant General, Bihar and as such his lien was suspended from the date of joining. 5. The stand of the State Government in its counter-affidavit is that the petitioner was working on the post of Senior Accounts Clerk in Water Resources Department and on his own request, he joined the post of Emergency Divisional Accountant on 28.5.1997 under the Accountant General, Bihar and as such his lien was suspended from the date of joining. His claim of pension and gratuity has already been decided by the Accounts Officer. Accountant General Office, Bihar. As he was deputed to other department on his own request, his case is not governed by rule 56 (A) and rule 90 of the Bihar Service Code. 6. The stand of the Accountant General in the counter affidavit is that in terms of Rule-26 of the Bihar Pension Rules and as per the decision of the State Government communicated under memo no. 13871 dated 10.11.1975, the pension and retirement gratuity of Emergency Divisional Accountants drawn from the State was required to be calculated on the pay drawn by them immediately before retirement. The relevant paragraph of the circular of the Finance Department dated 5.10.1992 provided that the State Government employee, appointed as Divisional Accountant and is not confirmed, will be treated as on deputation to the post of Divisional Accountant and, therefore, he continues to be governed by the Pension Rules of the respective State Government. The Government of Bihar vide its memo no. 13871 dated 10.11.1975 has decided that the State Government employee when appointed to Central Government on deputation and retires unconfirmed, his pension/retirement gratuity will be fixed on the basis of deputation (duty) pay drawn by him as per Rule26 of the Bihar Pension Rules. As the petitioner was not confirmed in the cadre of Divisional Accountant due to non-passing of D.T./D.A.G. examination, his pension was required to be regulated on the basis of Rule-26 of the Bihar Pension Rules and according to that his pension has been fixed and his claim for fixation of pension and other retiral benefits on the basis of presumptive pay cannot be allowed. 7. The Divisional Accountants are appointed by the respective Accountant General Offices, their pay scales follow the Central Government pattern of pay scales and they are governed by the relevant rules of the Central Government. However, the incidence of their pay borne by the respective State Governments and met out of the consolidated fund of the respective State Governments. 7. The Divisional Accountants are appointed by the respective Accountant General Offices, their pay scales follow the Central Government pattern of pay scales and they are governed by the relevant rules of the Central Government. However, the incidence of their pay borne by the respective State Governments and met out of the consolidated fund of the respective State Governments. The question regarding regulation of pensionary benefits to officiating Divisional Accountants on their superannuation was considered by the Finance Department and a circular was issued on 5.10.1992 (Annexure 3). The relevant paragraphs no. 3 and 6 of the said Circular run as follows – Cases of employees who have been appointed as Divisional Accountant but not confirmed fall in four categories namely – (a) Those directly recruited as Divisional Accountant from open market; (b) Those who have served in a State Govt. in a temporary capacity and later appointed as regular Divisional Accountant; (c) Those who had previously served in the State Govt. and held a permanent post before being appointed as Divisional Accountant: (d) Those who served in a Central Govt. establishment in a temporary or permanent capacity before being appointed as Divisional Accountant. 6. As far as category (c) cases are concerned, if a State Government employee is appointed as a Divisional Accountant technically he is treated as on deputation to the post of Divisional Accountant until he is confirmed in that post. Strictly speaking, therefore, he continues to be governed by the Pension Rules of the respective State Govt. under whom he holds a lien until he is confirmed as Divisional Accountant. The same position holds in the case of other State Government employees coming on deputation to other Central Civil posts. Any departure made in the case of Divisional Accountants of this category will be fraught with serious repercussions in other cases. 8. From the perusal of the same, it appears that if a Divisional Accountant is not confirmed, then he is treated to be on deputation to the post of Divisional Accountant and. therefore, he continues to be governed by the Pension Rules of the respective State Governments, where he holds a lien. 9. Admittedly, in this case, the petitioner was working as a Senior Accounts Clerk in the Minor Irrigation Department and. thereafter. therefore, he continues to be governed by the Pension Rules of the respective State Governments, where he holds a lien. 9. Admittedly, in this case, the petitioner was working as a Senior Accounts Clerk in the Minor Irrigation Department and. thereafter. as stated in the counter-affidavit of the State Government, on his own request, he was deputed and posted to the post of Emergency Divisional Accountant and as he did not pass the necessary examination, he was not confirmed on the said post till he superannuated and as such his case is governed by the Pension Rules of the respective State Government. 10. It appears that vide Annexure 4, the Accounts Officer, Bihar, Ranchi informed the Executive Engineer, R.E.O. Works Division. Araria, under whom the petitioner was working prior to his deputation to the post of Emergency Divisional Accountant. that the Pension etc. of the petitioner is also required to be regulated on his presumptive State pay and he requested the Executive. Engineer to fix the up-to-date pay of Shri Rabindra Nath Mandai (the petitioner) and record it in the Service Book and get it approved by the Finance Department. It was clarified that the presumptive pay might not be allowed to draw with monthly pay as it was for the purpose of calculating pension etc. only. He asked him to send the pension papers and Service Book of the petitioner. Thereafter, the pension and other retiral benefits of the petitioner were not fixed according to the presumptive pay but on the basis of the pay drawn by him as officiating Emergency Divisional Accountant. The petitioner represented the matter and thereupon the decisions, as contained in Annexures 6 and 9 to the writ petition, have been communicated to him by the Accountant General. 11. Annexure 3 clearly postulates that the unconfirmed Divisional Accountant is to be governed by the Pension Rules of the respective State Government and as such the petitioner is to be governed by the Pension Rules of the State Government. Memo no. 13871 dated 10.11.1975 postulates that the State Government employees when appointed on deputation to the Central Government and retire unconfirmed, then their pension and retirement gratuity will be fixed on the basis of the pay drawn on deputation by them as per Rule-26 of the Bihar Pension Rules. 12. Memo no. 13871 dated 10.11.1975 postulates that the State Government employees when appointed on deputation to the Central Government and retire unconfirmed, then their pension and retirement gratuity will be fixed on the basis of the pay drawn on deputation by them as per Rule-26 of the Bihar Pension Rules. 12. The petitioner was a permanent employee of the State Government and at the relevant time, he was a Senior Accounts Clerk. He had a lien to the said post as he was not confirmed as Emergency Divisional Accountant. The pensionary benefit on the said post is governed by the Central Rules. However in case a person is not confirmed on the said post then the pensionary benefit is governed by the rule of the concerned State. Rule 26 of the Bihar Pension Rules defines the pay, which means the amount drawn monthly by a Government servant as the pay which has been sanctioned for a post held by him substantively or in officiating capacity or to which he is entitled by reason of his position in a cadre. The substantive post held by the petitioner is the Senior Accounts Clerk and it is not disputed that the salary of the Senior Accounts Clerk, which the petitioner would have got had he remained in the service of the State Government is more than the salary of an Emergency Divisional Accountant. If the petitioner's pension is fixed on the basis of his officiating salary as drawn by him on the post of Emergency Divisional Accountant, then he would suffer. Materials on the record show that even the Accountant General is of the view that the pension has to be fixed on the basis of the presumptive pay which the petitioner would have got as a Senior Accounts Clerk. 13. The claim of the petitioner has been rejected only on the basis of a Circular of 1975. The said circular does not say as to what would happen if the salary drawn by the employee on officiating basis is less than the salary which he would have got by holding a substantive post. In that view of the matter, the said circular of the State Government of 1975 cannot be a settler on the point in controversy. The fixation of the pension of the petitioner on the basis of his officiating pay as Emergency Divisional Accountant is unjust and arbitrary. In that view of the matter, the said circular of the State Government of 1975 cannot be a settler on the point in controversy. The fixation of the pension of the petitioner on the basis of his officiating pay as Emergency Divisional Accountant is unjust and arbitrary. The petitioner's pension cannot be fixed at a scale lower than what he would have got on a substantive post. Thus, in my view, the stand taken by the respondents that the petitioner is not entitled to fixation of his pension on the basis of presumptive pay is not tenable. It has to be held that the pension of the petitioner has to be fixed on the basis of presumptive pay as mentioned by the Account Officer in his letter contained in Annexure 4. 14. In the result, this application is allowed and the impugned Annexures 6 and 9 are quashed and a direction is issued to the Accountant General to fix the pension of the petitioner on the basis of the presumptive pay, which he would have been given on the post of Senior Accounts Clerk had he not been deputed and posted as Emergency Divisional Accountant.