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2000 DIGILAW 110 (PAT)

Ram Bashishth Choudhary v. State Of Bihar

2000-01-20

R.M.PRASAD

body2000
Judgment Radha Mohan Prasad, J. 1. In this writ petition the petitioner had sought for issuance of a writ of mandamus calling upon the respondents to pay pension/ proportionate pension and gratuity/proportionate gratuity taking into account the entire service rendered by him from 10.10.1957 under the State of Bihar till he was absorbed in the services of the National Council for Co- operative Training, New Delhi (hereinafter to be called as "the council") on or from 27.5.1976 with 18% per annum interest along with cost of the proceeding. 2. In short, the relevant facts are that the petitioner was appointed as Junior Audit Officer and joined the said post in the Co-operative Department under the State Government on 10.10.1957. On 27.5.1976 he was sent on deputation to the council. Later he was offered with the appointment post of Lecturer in the Council on 28.10.1976 vide Annexure-1 with clear stipulation that he would have to resign from the service of the State Government to take up his appointment for his absorption as directly recruited Lecturer in the Council. Thereafter the petitioner tendered his resignation which was accepted by the said authority vide order dated 6.4.1977 contained in Annexure-2, whereafter his appointment made by Annexure-1, was accepted by respondent nos. 1 to 3 and the petitioner continued in the service of the Council till his superannuation on 28.2.1993. 3. According to the case of the petitioner, he remained in service under the State Government from 10.10.57 to 26.5.1976 and his appointment in the Council was accepted with effect from 27.5.1976, as is evident from Annexure-4 and 10 to the writ petition. 4. Counter affidavits have been filed on behalf of the State and its officials as well as on behalf of the Council and its officials. According to the stand taken by the State in the counter affidavit, the petitioner is not entitled to get any retiral benefit from the State Government nor he is entitled for proportionate pension etc. or any proportionate amount sanctioned by the Council, which can be borne by the State Government. This is based on the policy guideline laid down in the Finance Departments Memo No. PC-11- 40- 55/75-5190-F. dated 30.4.1976, photostat copy whereof has been annexed as Annexure B to the said counter affidavit. 5. or any proportionate amount sanctioned by the Council, which can be borne by the State Government. This is based on the policy guideline laid down in the Finance Departments Memo No. PC-11- 40- 55/75-5190-F. dated 30.4.1976, photostat copy whereof has been annexed as Annexure B to the said counter affidavit. 5. The stand taken by the Council in their counter affidavit is that the Council is a constituent of the National Co-operative Union of India, Ministry of Agriculture, Department of Cooperation and for meeting expenditure on its activities the Council gets grant from the Ministry of Agriculture. The Institute in which the petitioner was appointed as Lecturer is an Unit of the Council. Further case of the Council is that prior to introduction of the pension scheme on 16.12.1988 the gratuity rules were being followed which had the approval of the Government of India and that the past service of the petitioner was, accordingly, reckoned only for the purpose of gratuity which was in operation prior to introduction of pension scheme. Soon after the operation of the pension scheme and the petitioners opting for acceptance of the pension scheme introduced by N.C.C.T., the gratuity scheme which was in vogue stands invalidated. 6. The contention of the petitioner for giving the benefit of pension to the petitioner for the service rendered in the State Government ipso facto of admitting past service for the purpose of gratuity prior to the introduction of the pension scheme will not hold good. According to the respondent-council under the Pension Rules the past service rendered by the petitioner under the State Government or in the autonomous body can be counted for the purpose of pension and pensionary benefits under the following conditions :- (i) The employees should have applied for appointment under the Council with prior and full knowledge of his previous employer. (ii) He was also relieved to take up the appointment in the Council with the permission of the previous employer. (ii) He was also relieved to take up the appointment in the Council with the permission of the previous employer. (iii) The State Government or the autonomous body should discharge the proportionate pension liability in respect of the employee for such previous service." It is further stated in the said counter affidavit that the Government of Bihar vide its letter dated 11.2.1994 informed the Council that the State Government has decided that the petitioner is not entitled to the proportionate pension liability from the department and hence it will not bear any liability towards pension. 7 Mr. A.B. Ojha, learned counsel for the petitioner submitted that the petitioner joined the Council on the permission granted by the State Government vide Annexure 2, whereby the resignation of the petitioner was accepted with clear understanding that he had to join the Council pursuant to the offer of appointment contained in Annexure 1. As such the benefit of past service cannot be denied to the petitioner and the State is liable to make proportionate contribution for the said period. It was also submitted by Mr. Ojha that in view of the matter the petitioner had completed the service of 18 years 7 months and 16 days in the State and as such he fulfilled the qualifying service to get pension from the State under the provisions contained in Rules 56 read with 101(b) of the Bihar Pension Rules, 1950 (hereinafter to be called as "the Rules"). Alternatively it was submitted by Mr. Ojha that in view of Annexures 4 and 9 the Council cannot escape from the liability of counting the past service of the petitioner also for the purpose of granting pensionary benefits to the petitioner. 8. Learned counsel appearing for the respondent-State as well as the learned counsel for the Council submitted that in view of clear terms and conditions mentioned in the offer of appointment contained in Annexure, the petitioners appointment in the Council was a fresh appointment by way of direct recruitment as Lecturer and thus his past service in the State cannot be counted for pensionary benefits either on proportionate basis or creating any liability on the Council in terms of Annexures 4 and 9. This Court finds substance in the submission of the learned counsel for the respondents. 9. This Court finds substance in the submission of the learned counsel for the respondents. 9. In the offer of appointment contained in Annexure-1 itself it was clearly mentioned that the appointment of the petitioner will be with effect from the date of his joining as directly recruited Lecturer to the Council and that he will be on probation for a period of two years since thereafter. It was also mentioned therein that the petitioner will be eligible to get contributory provident fund from the Council after completion of one year of service and that he will be eligible for gratuity benefit as per the Council Rules. It was further stipulated therein that in case the said terms and conditions are accepted by the petitioner he will have to resign from his parent department for his permanent absorption as directly recruited Lecturer in the College of the Council. The petitioner thereafter resigned and his resignation was accepted vide Annexure- 2 with effect from 26.5.1976 as per his request without there being any stipulation that the said resignation was accepted to take up another appointment/ service in the Council. As per Finance Departments Circular contained in Annexure-8 transfer from the Government service was permissible only in case of transfer to public sector undertaking and in all other cases the Government shall not accept any liability to pay retiral benefit for the period of service rendered by the officer under the Government before his transfer except in case of absorption in public sector undertaking. 10. Learned counsel for the petitioner has failed to show that the Council can be said to be a Public Sector Undertaking. From the stand taken by the Council in their counter affidavit it is clear that the Council simply gets grant from the Ministry of Agriculture and cannot be said to be a Public Sector Undertaking. 11. Under such circumstances even if the argument advanced on behalf of the petitioner is accepted that the petitioner was absorbed in the service of the Council, he cannot claim any retiral benefit from the State Government for the period of service rendered by him before his transfer. Rule 10(b) of the Rules, on which reliance has been placed by the learned counsel for the petitioner, also has got no application to the facts of the present case. 12. Rule 10(b) of the Rules, on which reliance has been placed by the learned counsel for the petitioner, also has got no application to the facts of the present case. 12. Bare, perusal of the acceptance of resignation of the petitioner contained in Annexure-2 shows that it was simply accepted and not that to take up another appointment, the service in which count. It may be true that the petitioner tendered his resignation in view of the offer of appointment contained in Annexure-1 to join regular service under the Council but that is not sufficient to accept that the resignation was accepted with the approval of the appointing authority to take up another appointment. As per clause (b) of Rule 101 of the Rules resignation of appointment with approval of the appointing authority to take up another appointment, the service in which count, is not to be treated as resignation of the public service and thus one can claim pension for the service rendered in the Government. 13. It has been noticed above that there is nothing in the order accepting the resignation of the petitioner as contained in Annexure-2 that the same was accepted to take up another appointment, service in which count. As such, in my opinion, the petitioner cannot claim any benefit of his past service for computation of his retiral benefits. 14. Learned counsel for the petitioner has, however, relied upon the two decisions of this Court; one in the case of Tapan Kumar Chatterjee vs. State of Bihar & others reported in 1993(1) P.L.J.R.707 dealing with the Rules/Service Statutes of the Patna University; and the other in the case of Mohammad Ziaul Hasan vs. The Bihar State Electricity Board & others reported in 1993(1) P.LJ.R.804, dealing with Service Regulation of the Board. In the case of Mohammad Ziaul Hasan (supra) the learned single Judge dealt with Regulation 75 of the Boards Regulation which provides that when a permanent employee or a temporary employee resigns or leaves the service of the Boards voluntarily after due notice, where required, or his services are terminated by the Board or any competent authority, except in the circumstances mentioned in sub- regulation 73(1) (a) (vii) and (viii), he shall be eligible for payment of proportionate pension, full amount of G.P.Fund standing to his credit if he is under the Contributory Provident Fund Scheme, proportionate amount of gratuity and proportionate amount of any other terminal benefits (sicare ?) admissible. There is no such rule in the Bihar Pension Rules, 1950. As I have already indicated above, the Bihar Pension Rules clearly stipulates that the resignation of the public service entails forfeiture of past service unless covered by clause (b) of Rule 101 of the Rules. As such the aforesaid decisions referred to by the learned counsel for the petitioner is of no avail in the present case. 15. With respect to the decision in the case of Tapan Kumar Chatterjee (supra) it appears that the application of the provisions contained in Rule 101 of the Rules was not directly involved. However, even in the aforesaid case the learned single Judge has not considered the scope of clause (b) of Rule 101 of the Rules. As such the said decision is of no avail to the petitioner in the present case. 16. Learned counsel for the petitioner lastly submitted if the petitioner remits the contribution of the proportionate pension as per the enclosed calculation sheet, the Council vide letter contained in Annexure 11 decided to count the past service for the purpose of pension and pensionary benefits. As such, the respondent-Council may be directed to comply with the same after fulfilment of the terms and conditions mentioned therein by the petitioner. It was submitted by Mr. Ojha that as per calculation contained in Annexure 11, the total contribution as claimed comes to Rs. 23,945/-. As such, the respondent-Council may be directed to comply with the same after fulfilment of the terms and conditions mentioned therein by the petitioner. It was submitted by Mr. Ojha that as per calculation contained in Annexure 11, the total contribution as claimed comes to Rs. 23,945/-. The scheme of pension in the Council was introduced in the year 1990 and the petitioner superannuated on 28.2.1993, as such according to the learned counsel, the Council can claim interest only from the said date of introduction of the scheme till the date of retirement of the petitioner and not from the retrospective date i.e. 27.5.1976 till 30.9.1998 as has been done by them. It was further submitted that if the petitioner has to pay interest till 1998 then in that case he will also be entitled for interest on delayed payment of the remaining proportionate amount. Prima facie, this Court finds substance in the submission of the learned counsel for the petitioner. 17. It appears that earlier the matter remained pending on account of the dispute between the Council and the State Government. It was not on account of fault on the part of the petitioner that the said amount of contribution was not paid by him. The petitioner received the said offer of appointment only vide Annexure 11 dated 13.10.1993. Under such circumstances the Council should consider the desirability of waiving the interest except for the period 27.8.1990, the date on which the scheme for pension was introduced vide Annexure 5, to 28.7.1993, the date of the petitioners retirement. 18. The writ application is, accordingly, disposed of with the observations and direction aforementioned. With respect to his claim pursuant to Annexure 11, the petitioner shall raise his grievance before the authority in the Council which, if filed within two months, shall be considered and disposed of within two months of its receipt. There shall, however, be no order as to cost.