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2000 DIGILAW 203 (PAT)

State Of Bihar v. Kamta Prasad

2000-02-04

B.N.SINGH, S.N.JHA

body2000
Judgment 1. This Letters Patent Appeal arises from the judgment of the learned single Judge in CWJC No. 1117 of 1998. 2. The writ petitioner, Kamta Prasad, filed the above noted case seeking necessary direction for payment of salary of the post of Inspector from 19.11.82 to 30.11.85 and retiral dues with interest. He had earlier filed CWJC No. 9989 of 1995 seeking direction for his promotion to the rank of Inspector of Police. The said writ petition was disposed of with favourable directions. In view of the direction, the Director Generals Board considered the case of the writ petitioner on 6.3.97, and on 3.5.97 he was promoted with effect from 19.11.82. Earlier on 1.4.97 his seniority as Sub-Inspector of Police was revised. He was later confirmed in the post of Inspector with effect from 30.4.88. In the meantime he had superannuated from service on 30.11.95. From the records it appears that although the writ petitioner was granted promotion in the rank of Inspector of Police, he could not be paid the arrear of salary as post was not available during the relevant period from 19.11.92. In the circumstances, though on 19.11.96 provisional pension @ 90% was fixed vide Special Branch order No. 241/96, the final determination of the retiral dues remained stagnant. Besides non-availability of the post in the rank of Inspector, problem also had arisen relating to conversion of the post of Sub- Inspector of Police held by the writ petitioner to a Selection Grade post on account of revision of seniority. The appellants in their counter affidavit filed before the learned Single Judge gave details of the steps taken to give full effect to the promotion granted to the writ petitioner in the rank of Inspector of Police, fix his pension and pay the retiral dues accodingly. 3. The learned single Judge by the order under appeal directed the appellant to re-fix the pension taking into consideration the promotion given to him with effect from November, 1982 and issue necessary sanction order with respect to his admitted dues within a time frame. The learned Judge also passed order for payment of interest @ 10% per annum from the date of retirement till the date of payment, besides cost of Rs. 1000/-. The present appeal has been filed by the State of Bihar with respect to the latter part of the order awarding interest. 4. The learned Judge also passed order for payment of interest @ 10% per annum from the date of retirement till the date of payment, besides cost of Rs. 1000/-. The present appeal has been filed by the State of Bihar with respect to the latter part of the order awarding interest. 4. In support of the order of the learned Single Judge, counsel for the writ petitioner placed reliance on State of Kerala vs. M.Padmnabham Nayar (1985)1 SCC 429 and two unreported orders of this Court in LPA No. 306 of 1998 (Chandra Mohan Prasad Ambastha vs. State of Bihar &Ors.) and LPA No. 287 of 1998 (Jagdish Kumar vs. State of Bihar & ors.). 5. It is to be kept in mind that there is no statutory provision for payment of interest on retiral dues including pension and gratuity except the provident fund dues which is governed by a statute on the subject. Interest however, is awarded on delayed payment of pension, gratuity and the like, to compensate the retired Government servant for the delay. There cannot be any doubt that the date of retirement of an employee being known to the employer, steps ought to be taken for payment of his retiral dues well in advance so that no sooner he retires, the dues are paid without any break. That however, is an ideal situation. Unfortunately, this does not happen in some cases, on accout of lethargy or laches and inaction on the part of the concerned officials and in other cases, on account of bona fide dispute. The dispute may be due to pendency of a proceeding/charge or claim by the concerned person. In the present case itself the writ petitioner filed the writ petition (CWJC No.9989 of 1995) seeking direction for his promotion to the rank of Inspector when he was on the verge of retirement, towards latter part of 1995. He succeeded in getting favourable order and the order was also given effect to. However, as indicated above, giving full effect to the order necessitated creation of post of Inspector from the year 1982 conversion of the post of Sub-Inspector held by the writ petitioner into a Selection Grade Post as a result of revision of his seniority, and so on. However, as indicated above, giving full effect to the order necessitated creation of post of Inspector from the year 1982 conversion of the post of Sub-Inspector held by the writ petitioner into a Selection Grade Post as a result of revision of his seniority, and so on. I do not think, if in these circumstances the retiral dues could not be finalised and paid, the appellants should be held guilty of laches or inaction to the extent of being saddled with interest. 6. The State Government, it appears, has taken a policy decision to obviate the difficulties of the retired government servant vide Finance Department memo no. PC-2-1-16/79/3155 dated 7.11.81 and it would be useful to quote the relevant part of the memo as under: "Interest shall be allowed on delayed payment of all kinds of pensions (including family pension) and D.C.R. Gratuity @ 5% per annum for the period beyond three months after the pension/D.C.R. Gratuity becomes due and shall be payable till the end of the month preceding the month in which the payment of final pension actually begins and/or the payment of D.C.R. Gratuity is actually made. The interest shall be allowed only where it is clearly established that the payment of pension/D.C.R. Gratuity was delayed on account of administrative lapse or for reasons beyond the control of the retired Government servants or families of deceased Government servants." It would appear that in cases coming within the ambit of the above memorandum, the concerned retired Government servant is entitled to interest @ 5%. An exception however, has been made in the cases of persons who become entitled to enhancement of emoluments, after reirement/death or liberalisation of the pension Rules from any day prior to the retirement/death of the Government servants. The benefit of the decision regarding interest is not to be given to such persons. Para 3 of the memorandum may also be quoted as follows: "The payment of interest however, cannot apply in cases of payment of arrear of pension/gratuity which may become due as a result of enhancement of the emoluments after retirement/death or liberalisation of Bihar Pension Rules from a date prior to the date of retirement of the Government servant." 7. Para 3 of the memorandum may also be quoted as follows: "The payment of interest however, cannot apply in cases of payment of arrear of pension/gratuity which may become due as a result of enhancement of the emoluments after retirement/death or liberalisation of Bihar Pension Rules from a date prior to the date of retirement of the Government servant." 7. As the writ petitioner was allowed the benefit of promotion etc., after his superannuation but from a prior date, it would appear that his case is not covered by the general provisions of the memorandum regarding payment of interest. In the circumstances, we are of the view that no case was made out by the writ petitioner for awarding interest and that part of the order of the learned single Judge therefore, does not appear to be correct. 8. This appeal is accordingly allowed in part. The direction of learned single Judge to pay interest @ 10% is set aside.