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2004 DIGILAW 563 (PAT)

Sureshwar Prasad Srivastav v. State Of Bihar

2004-05-20

R.M.PRASAD

body2004
Judgment R.M.Prasad, J. 1. In this writ petition, petitioner has sought for mandamus against the respondents directing them to compute and pay pro-rata pension and death-cum-retirement gratuity taking into account the entire service rendered by him from 7.10.1961 to 14.10.1977, under the State of Bihar in the Department of Information and Public Relation whereafter he was appointed in the service of Bihar State Electricity Board, Patna, hereinafter called as the the Board on 15.10.1977. 2. It appears that aforementioned claim of the petitioner has been rejected by the Department vide Annexure-B to the counter affidavit filed on behalf of respondent-State on the ground that his appointment in the Board was made on his own application and not that the he was transferred in the service of the Board in public interest. In this regard a reference to Clause (iii) of the Finance Department Memo No. 5190-F dated 30th April, 1976 has been made and a copy thereof has . been annexed as Annexure-A to the counter affidavit, which provides that all cases of absorption of Government servants on a permanent basis in public undertaking should be examined keeping in view the public interest involved. In the cases of a Government servant, who is elected for appointment in an autonomous body (including public undertakings) on the basis of his own application, the transfer should not be deemed to be in the public interest and the Government will not accept any liability to pay any retirement benefits or for carry forward of leave for the period of service rendered under Government. 3. Learned counsel for the petitioner, however, contended that on 7.10.1961 the petitioner was appointed against the sanctioned permanent post of Radio Mechan-C in the Government department and confirmed on it with effect from 1.3.1970. Later his application for appointment in the service of the Board to the post of Technician Telecommunication was forwarded by the Director, Information and Public Relation Department and on his appointment in the Board he was relieved under the orders of the Director, Information vide Annexure-3. The petitioner joined on 15.10.1977, in the Board, from where he ultimately superannuated in the afternoon of 30th June, 1999. Thus, according to the learned counsel the petitioner possesses the qualifying service for receiving pension and is entitled for pro-rate pension and death-cum-retirement gratuity for the services rendered by him in the Government. The petitioner joined on 15.10.1977, in the Board, from where he ultimately superannuated in the afternoon of 30th June, 1999. Thus, according to the learned counsel the petitioner possesses the qualifying service for receiving pension and is entitled for pro-rate pension and death-cum-retirement gratuity for the services rendered by him in the Government. In support of this he placed reliance on the Supreme Court decision in the case of Praduman Kumar Jain V/s. Union of India, reported in 1994 Supp(2) SCC 548. 4. On the other hand, learned counsel for the State has submitted that in the present case the question of grant of pro-rate pension for the services rendered by the petitioner in the State does not arise as the petitioner on his own applied for fresh appointment in the service of the Board and was relieved from the service of the State Government on his request to join the Board. Learned State counsel contended that it is not a case where the services of the petitioner were transferred or absorbed in the Board in public interest in which case only one is entitled to get pensionary benefits for the services rendered in the State Government. Learned counsel for the State further contended that the conditions of grant of pension is provided in Chapter VI of Bihar Pension Rules and the present case is not covered by any of such conditions. 5. In reply, learned counsel for the petitioner submitted that there are various provisions in the Bihar Pension Rules, which provides for denial of pension under certain circumstances or for forfeiture of past service, but, there is no Rule which provides that a Government servant possessing qualifying service to receive pension can be denied of it in case he is appointed under any Government undertaking or autonomous body. He placed reliance on Rule 101 (b) of the Bihar Pension Rules, which provides that resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service. He placed reliance on Rule 101 (b) of the Bihar Pension Rules, which provides that resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service. Learned counsel for the petitioner contended that in the present case petitioners appointment in the service of the Board will be deemed to be with the approval of the appointing authority as it is evident that his application for appointment was forwarded and later he was also relieved by the Appointing Authority to take up appointment in the Boards service. 6. I am unable to accept this submission of the learned counsel for the petitioner. Firstly, I must indicate here that learned counsel for the petitioner has not been able to show any document according approval by the Appointing Authority to take up the appointment in the Boards service. It may be true that the application of the petitioner for appointment was forwarded by the Appointing Authority and ultimately on his request the appointing authority relieved him for jointing in the Boards service on his appointment. But, merely on these facts it is difficult to infer the approval was accorded by the Appointing Authority of the petitioner to take up the appointment in Boards service. In the case of Praduman Kumar Jain V/s. Union of India, (supra) relied upon by learned counsel for the petitioner the office memorandum dated 31.1.1986, specifically provided that resignation from Government service with a view to secure employment in a Central public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to be retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organization. 7. Leaned counsel for the petitioner has failed to point out any Rule which entitles the petitioner to receive retirement/terminal benefits. Learned counsel for the State has rightly referred to Chapter VI of the Bihar Pension Rules which deals with the conditions of grant of pension. sec. 1 of Chapter VI classifies pension, such as, Compensation pension, Invalid pension, Superannuation pension, Retiring pension. Learned counsel for the State has rightly referred to Chapter VI of the Bihar Pension Rules which deals with the conditions of grant of pension. sec. 1 of Chapter VI classifies pension, such as, Compensation pension, Invalid pension, Superannuation pension, Retiring pension. Note attached to the said Rule further provides that besides the classes of pensions mentioned above, special additional pensions are also granted to certain classes of Government servants under special circumstances. The details about the said classes of pensions are provided in Sections II to V. The case of the petitioner, in my opinion, is not covered by any of these conditions. Moreover, it seems that in absence of any specific Rule dealing with such cases the Government issued executive instructions, contained in Finance Department Memo No. PC 11-40-55/75-5190-F, dated 30.4.1976 (Annexure-A) which clearly provides that in cases of a Government servant who is elected for appointment in an autonomous body (including public undertakings) on the basis of his own application, the transfer should not be deemed to be in the public interest and Government will not accept any liability to pay any retirement benefits or for carry forward of leave for the period of service rendered under Government. Thus, it is clear that even assuming that application of the petitioner was forwarded and ultimately he was also relieved for joining in the Boards service by the Appointing Authority, such change of service/transfer are not deemed to be in public interest and Government decided not to accept any liability to a pay any retirement benefits or for carry forward of leave for the period of service rendered under the Government. 8. This Court, thus, does not find any merit in the writ petition, which is dismissed in limine.