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2003 DIGILAW 308 (PAT)

Ram Naresh Singh v. State Of Bihar

2003-03-13

RADHA MOHAN PRASAD

body2003
Judgment 1. In this writ petition, petitioner is aggrieved with the order of Rajendra Agriculture University, hereinafter called as University issued vide office order no. 434 RAU dated 11.1.2000 (Annexure-13) by which the proportionate pension payment order dated 8.1.1997 (Annexure-1 to the writ application) has been withdrawn. 2. In short, the relevant facts are that initially the petitioner joined the service of the State Government on 11.6.1955. However, on transfer he was absorbed in the University service vide notification dated 23.3.1993 (Annexure-10) with effect from 17.3.1993. The petitioner superannuated from the service of the University on 31.3.1995 on attaining the age of 60 years. Admittedly the petitioner remained in the service of the State Government from 11.6.1955 to 16.3.1993 i.e. for a period of more than 37 years and he was in the service of the University from 17.3.1993 to 31.3.1995. It is stated that the pay of the petitioner on 17.3.1993 was Rs. 6,300/-and after getting increment his pay was Rs. 6,500/- on 31.3.1995 when he superannuated from the service of the University. It has been further stated that the Respondent-State sanctioned proportionate pension of Rs. 2,266/- per month with effect from 18.3.1993 and thereafter the University vide letter dated 22.11.1996 (Annexure-18) asked the petitioner to send papers for proportionate pension payable by University. It is further stated that although petitioner submitted papers for proportionate pension payable by the University but the University rejected the aforesaid claim of the petitioner vide Annexure 13. 3. In the counter affidavit fied on behalf of the University and its officials (Respondent nos. 3, 5 & 6), it is stated that the pension of the State Government employee is determined with reference to actual period of qualifying service subject to the ceiling of 33 years, that is to say, after completion of 33 years of qualifying service, the incumbent is entitled to full pension and no benefit of enhanced pension would accrue to him on account of longer period of service. It has been further stated that the petitioner has already been allowed full pension and gratuity by the State Government and the Accountant General, Bihar has also issued authority for the same. As the petitioner is drawing full pension from the State Government, the University vide Annexure-A=Annexure-13 found that the petitioner is not entitled for any proportionate pension from the University, hence, the proportionate pension payment order dated 8.1.1997 (Annexure-1) was withdrawn. As the petitioner is drawing full pension from the State Government, the University vide Annexure-A=Annexure-13 found that the petitioner is not entitled for any proportionate pension from the University, hence, the proportionate pension payment order dated 8.1.1997 (Annexure-1) was withdrawn. 4. Mr. Ojha, learned counsel appearing for the petitioner with reference to clause 16.1(b)(iii) of Rajendra Agricultural University Statutes, 1976 submitted that permanent Government servants as are eligible for proportionate pension from Government will be allowed on absorption under the University the benefit of pension on the basis of total period of service rendered under the Government and the University. The pension to which such employees will be entitled would be the pension that would accrue to them on the basis of the total period of service under the Government and the University minus the pension payable by Government. Thus, according to him, the petitioner is entitled for pension on the basis of total period of service rendered under the Government and the University and the University is liable to pay the amount of pension minus the pension payable by the Goverment On the other hand, Mr. Singh, learned counsel appearing for the University and its officials submitted that the State Government has already allowed full pension to the petitioner after completion of 33 years of service and no benefit of enhanced pension would accrue to him on account of longer period of service, hence, question of payment of proportionate pension by the University does not arise. He referred to clause 18.17 of the Statutes which mentions that a transferred employee shall retire from Government service on such day as applies to other Government servants i.e. 58 years and if the University decides to re-employ such retired officers such re-employment will be like any other fresh employment in the University service and will not effect the pension and leave account of the employees with the Government. 5. I failed to appreciate the submissions made by the learned counsel for the University. Admittedly, the petitioner had not retired from the service of the State Government when he was absorbed in the University service with effect from 17.3.1993 as is also evident from the fact that admittedly he would have retired from the State Government on 31.3.1993 on attaining the age of 58 years. Admittedly, the petitioner had not retired from the service of the State Government when he was absorbed in the University service with effect from 17.3.1993 as is also evident from the fact that admittedly he would have retired from the State Government on 31.3.1993 on attaining the age of 58 years. It is not the case of the University that the petitioner was re-employed in University service after his retirement from the State Government. Clause 18.1(b)(ii) of the Statutes, provides that the services rendered by transferred employees in regular establishment under the State Government should be taken into account in calculating their pension and gratuity in case they are appointed to the pensionable establishment of the University. 6. It may be true that according to the qualifying service for computation of pension is subject to the ceiling of 33 years i.e. after completion of 33 years of qualifying service incumbent is entitled to full pension and no benefit of enhanced pension would accrue to him on account of longer period of service. But, it is not disputed that pension is to be calculated on the basis of last pay drawn. As I have already noticed above, the petitioner had not retired from the service of the State Goverment when he was absorbed in the University service and, as such, as per provision contained in clause 16.1(b)(iii) of Chapter XVI of the Statutes pension to which such employees will be entitled would be the pension that would accrue to them on the basis of total period of service under the Government and the University minus the pension payable by Government. Learned counsel for the petitioner has not been able to show any provision on the basis of which the benefit of enhanced pension would accrue to such employee on account of longer period of service. Under clause 16.1(b)(iii) of Chapter XVI of the Statutes, the benefit of monthly pension or terminal gratuity, death- cum-retirement gratuity and family pension is to be allowed by the University in accordance with the general rules under the State Government. The said provision was brought by way of amendment approved by the Syndicate on 9.12.1978 assented to by the Chancellor vide his D.O. letter no. 990 dated 24.3.79 and circulated vide no. 1685 dated 17.4.79. The said provision was brought by way of amendment approved by the Syndicate on 9.12.1978 assented to by the Chancellor vide his D.O. letter no. 990 dated 24.3.79 and circulated vide no. 1685 dated 17.4.79. Accordingly, in my opinion, pension is to be calculated on the basis of last pay drawn and not on the basis of pay received by the employee while in State service and under clause 16.1(b)(iii) of the Statutes the petitioner is entitled for calculation of his pension on that basis before his retirement and the same is payable by the University minus the pension payable by the Government. 7. Writ application is, accordingly, allowed. The impugned order, contained in Annexure 13 is quashed. Respondent-University is directed to re-calculate the pension of the petitioner accordingly and pay the amount as is payable by the University with arrears, if any, within two weeks of the receipt/production of a copy of this order. Learned counsel for the petitioner has submitted that the petitioner has not been paid the amount of leave encashment for which the learned counsel for the University had produced a photo copy of the cheque on the last date of hearing. Learned counsel for the University is not in a position to confirm as to whether the amount of leave encashment has been paid to the petitioner till date or not. However, in view of the aforementioned grievance on behalf of the petitioner, the Comptroller, Rajendra Agricultural University (respondent no. 6) is directed to make the payment of the amount of leave encashment, if not already paid, within three days from today, failing which he shall be liable to pay a cost of Rs. 1,000/- (one thousand) from his pocket to the petitioner and the petitioner will be at liberty to file two pages affidavit for revival of this writ petition and taking appropriate action.