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1998 DIGILAW 491 (PAT)

Shlwesh Chandra Singh v. State of Bihar

1998-07-17

ASOK KUMAR GANGULY

body1998
JUDGMENT A.K. GANGULY, J. 1. This writ petition has been filed with a prayer for quashing Annexure-4 to the writ petition by which the Registrar of Patna University has decided the claim of the petitioner for payment of pension in terms of the direction of this Court passed in CWJC No. 7157 of 1992 and CWJC No. 5399 of 1995. 2. The short facts of the case are that the petitioner joined the post of Sub-Inspector of Excise in the Government of Bihar on 1.10.1954 and he worked on the said post till 20.12.1965. While working on the said post he responded to an advertisement issued by Patna University for appointment on the post of Lecturer in the faculty of Law and he submitted an application for appointment to the said post through proper channel. In paragraph 13 of the writ petition it has been stated that such advertisement was issued by the Bihar Public Service Commission and the petitioner applied against one of the two posts so advertised in the Department of Law in the Patna University. It was also stated in the said paragraph that there was an interview and the petitioner was selected by the Bihar Public Service Commission and they recommended for appointment of the petitioner, pursuant to that the University appointed the petitioner as full time Lecturer in the Department of Law Vide Memo No. G/22066 dated 26.11.1966. The petitioner continued on the said post and ultimately he was confirmed by the Respondent University in the department of law by order dated 19.3.1979 and as a result of that the petitioner was made permanent in the said University and his lien on the post of Sub-Inspector of Excise was terminated. The petitioner was ultimately made Reader and thereafter was promoted to the post of University Professor of Law and the petitioner retired from the post of University Professor of Law of Patna University on 1.7.1991. 3. Thereafter the petitioner wanted his services rendered with the Government of Bihar from 1954 to 1965 to be counted while getting his pension from the University. The petitioner felt aggrieved by the order passed by the University authorities where his pension was fixed only for the period spent by him in the University and the period spent by him in the Government service was not taken into consideration. The petitioner felt aggrieved by the order passed by the University authorities where his pension was fixed only for the period spent by him in the University and the period spent by him in the Government service was not taken into consideration. He filed a writ petition before this Court which was numbered as CWJC No. 7147 of 1992. The said writ petition was disposed of by a learned Division Bench of this Court with an observation that the respondent authorities may consider the petitioner's prayer and pass order in respect of his claim. The petitioner while filing the said writ petition wanted the same treatment as was given to one Mr. N.P. Rai, who according to the petitioner was given the benefit of past service in the government being counted for the purpose of pension. As no step was taken by the respondent authorities despite the said judgment, the petitioner filed yet another writ petition which was numbered as CWJC No. 5399 of 1995. The said writ petition was also disposed of by a learned Judge of this Court by an order dated 16.12.1996. In the said judgment also the same observation/direction which was given by the Division Bench was reiterated. Pursuant thereto the impugned order dated 1.3.1997 has been passed which is at Annexure-4. 4. Learned counsel for the petitioner has relied on the provisions of Statutes for the grant of Retirement Benefits to the employees of the Bihar/Ranchi/Bhagalpur/Magadh/L.N. Mithila/ K.S.D. Sanskrit University. Learned counsel for the petitioner has relied on sub-paragraph (ii) of paragraph 5 of the said Statute. The relevant statute is quoted below:– "(ii) Transfer of an employee from service of Government of Bihar to the service of the University. Employees joining the University after continuous service In the Government on a permanent post or temporary post subsequently made permanent for a minimum period of five years shall in the event of permanent absorption in the University, be allowed if the employee so wishes, retirement benefit in respect of the past continuous service rendered in the Government provided that the transfer is in the public interest and provided that he has not availed of retirement benefits in the Government. All transferred Government servants, who have resigned' or retired from Government service and have been absorbed in the service of the University without any break, shall be entitled to pension and gratuity from the University on the basis of their total qualifying service rendered under the Government and the University, provided they refund to the University, the pension and gratuity received by them, for service rendered under the Government. In case they do not chose to count their former State Government service for withdrawal of pension I gratuity from the University, they will be entitled to the benefits of C.P. Fund only for the period of the University Service. 5. Learned counsel relying on the said Statute submitted that the Statute relating to retirement benefit is a social welfare statute and the said Statute must be liberally construed. He further submitted that if two constructions are possible under the same Statute, the one which favours the claim of the petitioner must be upheld inasmuch as the said Statute was framed to achieve social wefare purpose, namely, the retirement benefit scheme. 6. Learned counsel for the respondent University has also relied on the same Statute and the same provision on which reliance has been placed by the learned counsel for the petitioner. In the impugned order also the said statute has been considered and the order has been passed. Therefore, there is no doubt that Statute No. 5 (ii) is the governing Statute in the instant case. 7. This Court on consideration of the said Statute, extracted above, comes to the conclusion that under the said Statute provisions have been made that in the case of the employees who have been transferred from service of Government of Bihar to the service of one of the Universities. One thing has' been made very clear in the said Statute that no employee, so transferred, can get the benefit from both the employers. If such an employee gets the benefit of pension scheme of the Government, he cannot have the benefit of pension scheme of the University. On the other hand if on the basis of service of the employee working in the Government is considered and some pensionary benefits have been given to such employees in that case the employee receiving the same benefit has to return the same after getting the pensionary benefit from the University. On the other hand if on the basis of service of the employee working in the Government is considered and some pensionary benefits have been given to such employees in that case the employee receiving the same benefit has to return the same after getting the pensionary benefit from the University. In any event the provisions of the said Statute are not applicable to this case. It cannot be said that the petitioner is a transferred employee. The petitioner was appointed in the Excise Department and was continuing there and thereafter finding an advertisement• he applied on his own. He was interviewed by a different body, namely, the Bihar Public Service Commission and he was selected and then appointed in a different organisation and as a result of such appointment and absorption, his lien was cancelled. The word 'transfer' has a definite meaning in service law. By transfer it is normally meant that an employee is sent by the employer from one post to an equivalent post or from one post to the same post in a new station. There is an element of compulsion behind such transfer. An employee cannot, except on his peril, disobey such transfer order. It may also be that in some cases the employee is sent on transfer from one organisation to another organisation and such transfer is made in public interest. It is this last kind of transfer which is contemplated under the said Statute. But here the petitioner has come on: his own in the University. There was no compulsion behind it. It cannot be said here that his services were requisitioned by the University or that he was sent on deputation to the University by the State Government. The petitioner on his own came and joined the University and retired from there. Therefore, the petitioner is not entitled to have the benefit of his service with the Government counted for the purpose of pension in the University. By no interpretative process the word 'transfer' can be stretched to include the petitioner's direct recruitment in the University. So, the interpretation given to clause 5 (ii) of the Statute by the learned counsel for the University is valid and accepted by this Court. 8. In that view of the matter, this Court does not find any merit in the claim of the petitioner. So, the interpretation given to clause 5 (ii) of the Statute by the learned counsel for the University is valid and accepted by this Court. 8. In that view of the matter, this Court does not find any merit in the claim of the petitioner. This Court, on the other hand finds that the case of the petitioner has been rightly considered in its proper perspective by the order passed on 1.3.1997 (Annexure-4). This writ petition is, thus, dismissed. There will be no order as to cost. This will, however, not prejudice the petitioner's right, if any, to claim pension from the State Government for the period during which he worked in the State Government.