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2012 DIGILAW 1664 (PAT)

Arjun Kumar v. State of Bihar

2012-12-10

RAMESH KUMAR DATTA

body2012
ORDER Heard learned counsel for the petitioner and learned counsels for the respondent Rajendra Agriculture University including Bihar Agriculture University and for the State. 2. The petitioner seeks a direction on the respondents to grant him pension as well as G.P.F. and other post retiral benefits which have fallen due with effect from 1.11.2011 on his retirement from 31.10.2011. The writ petition was filed on 16.1.2012. However, during the pendency of the writ application by Resolution No.3660 dated 13.7.2012 of the Government of Bihar in Agriculture Department the retirement age of the teachers/scientists of Rajendra Agriculture University, Pusa, Samastipur and the Bihar Agriculture University, Sabour, Bhagalpur has been raised from 62 years to 65 years with effect from 30.6.2010. Consequently the petitioner continues to be in the service of the Bihar Agriculture University upon bifurcation of the Rajendra Agriculture University. The further prayer of the petitioner is to quash the order dated 30.10.2007 of the Special Secretary, Agriculture Department, Government of Bihar as also to quash the office order dated 23.11.2011 passed by the Controller, Rajendra Agriculture University pursuant to the direction of this Court by order dated 20.6.2011 passed in CWJC No. 15133 of 2010. 3. The petitioner was appointed as an Assistant Professor-cum-Junior Scientist in Cattle Production Division, Rajendra Agriculture University, Pusa on 19.7.1982. Paragraph-4 of the appointment letter has stated that he will get the benefit of Contributory Provident Fund and other allowances, if any, according to the Rules of the University. By Notification No. 1685 dated 17.4.1979 an amendment to the Statutes of the University which had been approved by the Syndicate at its 10th meeting held on 9.12.1978 and consented to by the Chancellor, necessary amendment dated 23.4.1979 in the pension and General Provident Fund was introduced amending Chapter XVI of the Rajendra Agriculture University Statutes, 1976. The said Chapter originally provided for CPF for every employee of the University except the transferred Government servants. By the amendment it was provided that the employees who have been appointed by the University will be entitled to pension provided that they do not opt for CPF. Under the pension scheme the pensioners’ entitlement included monthly pension or terminal gratuity, death-cum-retiral gratuity and family pension. It was stated that the said benefits shall be allowed by the University in accordance with the General Rules under the State Government. Under the pension scheme the pensioners’ entitlement included monthly pension or terminal gratuity, death-cum-retiral gratuity and family pension. It was stated that the said benefits shall be allowed by the University in accordance with the General Rules under the State Government. Certain further amendments were made in the year 1983 which is not relevant for the decision of the present matter. Pursuant to the Statutes and after the petitioner was appointed the Rajendra Agriculture University published a Scheme for payment of pension in which option was to be given within a period of one month stating that if no option is received then the teachers/scientists shall be transferred to the pension scheme otherwise they will remain in CPF scheme. It appears that from time to time options were sought by the University and at one stage by the impugned letter dated 31.10.2007 of the State Government in the Agriculture Department the State Government expressed disapproval of the Resolution of the Board of the University for further extension of exercise of option for pension-cum-gratuity. Subsequently the petitioner on finding that his name has not been included in the list of employees entitled to the benefit of the Pension-cum-GPF Scheme he represented before the Controller for inclusion of his name in the pension scheme in 2009 and again on 5.6.2010. However, on the representation not including his name in the pension scheme he approached this Court by filing CWJC No. 15133 of 2010 which was disposed of by order dated 20.6.2011 with a direction to the authorities of the respondent University to consider and dispose of the claims of the petitioner. Pursuant to the same reasoned order dated 23.11.2011 was passed stating that by office order dated 21.2.2008 the University asked the employees of the University to exercise their option under triple benefit within a period of one month from the date of issue of the said order and in response to the same the option of the petitioner was received through the Associate Dean-cum-Principal, Bihar Agriculture College, Sabour by letter No.407 dated 7.5.2008, i.e., one and a half months late and for the said reason his name was not included in the UGPF-cum-Pension Scheme of the University. However, by letter dated 20.6.2011 the University had submitted a request to the Joint Secretary, Agriculture Department to pass a direction in the case or permit to invite last option for triple benefit scheme from the employees of the University and on receipt of the direction/order from the State Government, Department of Agriculture, Bihar, Patna the case of the petitioner and others shall be considered accordingly. In response to the letter dated 26.9.2011 and subsequent reminders the State Government by its letter dated 4.9.2012 addressed to the Controller, Rajendra Agriculture University has stated that in terms of paragraph 16.1 Clause (a)(b)(i) of the Rajendra Agriculture University Statutes the University Administration is itself competent to take action in the matter; however, with respect to the question of seeking a last opportunity for grant of pension reference was made to the letter dated 31.10.2007 of the State Government by which the State Government’s disapproval was communicated to the Vice-Chancellor for grant of any further extension for exercise of option. 4. Learned counsel for the petitioner submits that from a perusal of the provisions of Clause 16.1 of the amended Statutes it is evident that all employees appointed by the University are entitled to pension unless they opt for CPF and the University has not been able to produce any chit of document showing that the petitioner has ever exercised his option for subscribing to the CPF. It is submitted that it is the specific stand of the petitioner that he never opted for CPF Scheme and had only filed representations before the authorities of the University for including his name in the Pension Scheme, whether the same was sent belatedly or in time by the college authorities can have no relevance so far as the inclusion of the petitioner under the Pension Scheme is concerned. It is contended by learned counsel for the petitioner that mere statement in the appointment letter dated 19.7.1982 that the petitioner will get the benefit of CPF does not make any difference as the same is not in accord with the provisions of the Statutes which were approved prior to that date and would override any terms and conditions indicated to the contrary in the appointment letter. It is urged that the mere acceptance of the appointment letter does not amount to exercise of any option in favour of CPF by the petitioner which has to be a specific exercise showing an application of mind to be included in the CPF Scheme. 5. It is further submitted by learned counsel that at all times the petitioner showed his intention to be included in the Pension Scheme and when his name was not included in the list of employees covered by the Pension Scheme he had filed representations in that regard. 6. Learned counsel for the University admits that the University does not have any document to show that any option was filed by the petitioner for being included under the CPF Scheme. 7. It is submitted by learned counsel for the University that from the very beginning the University was acting on the presumption that even for pension the teachers/scientists would be required to exercise their option and hence repeated notifications were issued in different years calling for exercise of option in that regard. It was under such misunderstanding of the provisions of the Statutes that the University ordered the last option to be exercised in February, 2008 but the options were received late and therefore they forwarded the case of the persons concerned to the State Government to permit last exercise of option. 8. It is admitted by learned counsel for the University that from a bare reading of Clause 16.1 of the Statutes it is evident that no option was required so far as getting the benefit of pension is concerned. 9. Learned counsel for the State has not made any specific submission on the question of application of the Statutes except to refer to the letter dated 4.9.2012 of the Agriculture Department. However, in the counter affidavit filed on behalf of the State it is clearly stated that for availing the benefit of the Scheme 90 days was granted to submit the option if any, otherwise the employee will be entitled to GPF-cum-Pension-cum-Gratuity Scheme. 10. Before considering the submissions of learned counsels for the parties it would be appropriate to refer to Clause 16.1 of Chapter XVI of the Rajendra Agriculture University Statutes which is in the following terms :– “16.1(a) In accordance with item no. 10. Before considering the submissions of learned counsels for the parties it would be appropriate to refer to Clause 16.1 of Chapter XVI of the Rajendra Agriculture University Statutes which is in the following terms :– “16.1(a) In accordance with item no. (10) of section 35 of the Act, the scheme for pensions, general provident fund and Contributory Provident Fund for the benefit of the officers, teachers and other employees of the University shall be as mentioned in this chapter. (b) The University employees shall be allowed the benefit of pension as below :– (i) Employees as have been appointed by the University will be entitled to the pension provided they do not opt for subscribing to the Contributory Provident Fund. (ii) Temporary Govt. Servants as have been transferred and absorbed in the University service will be entitled to the benefit of pension in which case the temporary services rendered by them in the regular establishment of Govt. will be taken into account for the purpose of calculating pension. (iii) Permanent Govt. servants as are eligible for proportionate pension from Govt. will be allowed on absorption under the University the benefit of Contributory Provident Fund or in lieu thereof pension if they so chose on the basis of total period of service rendered under the Govt. 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 Govt. and the University minus the pension payable by Government. (c) The pensionary entitlements of the University employees will accrue on their attaining the age of superannuation under the University or to their families in the event of death and will comprise at the following:– (i) Monthly Pension or terminal gratuity (ii) Death-cum-retirement gratuity (iii) Family Pension The above benefits shall be allowed by the University in accordance with the general rules, under the State Government. Provided that the terminal gratuity and Death-cum-retirement gratuity will be admissible as shown in the Schedule attached at the end of this Chapter. (d) Pension Fund:– The University shall maintain a pension fund for payment of pension and operate the same as per regulation prescribed. (e) General Provident Fund:– The University shall allow the benefit of the General Provident Fund to such employees as are not admitted to the Contributory Provident Fund. (d) Pension Fund:– The University shall maintain a pension fund for payment of pension and operate the same as per regulation prescribed. (e) General Provident Fund:– The University shall allow the benefit of the General Provident Fund to such employees as are not admitted to the Contributory Provident Fund. The General Provident fund of the University will be governed by the rules and orders of the State Government.” 11. It is evident from the narration of facts that earlier as per un-amended Statutes, 1976 the only provision was with respect to CPF for all the employees of the University. However, by the amendment to Clause 16.1 of the Statutes as per Notification No. 1685 dated 17.4.1979 the scheme for pension was introduced in the University along with benefit of gratuity and G.P.F. The Statutes were very clear that all employees appointed by the University would be entitled to pension except those who have opted for subscribing for CPF. There is nothing ambiguous regarding the said point in the Statutes. In the said circumstances, it was futile action on the part of the University that they have repeatedly sought for exercise of option with respect to employees of the University who have not got the benefit of pension scheme. As a matter of fact, the option was to be exercised only by those who wanted to be in the CPF scheme. From the facts and materials on the record it is the clear stand of the petitioner that he never exercised the option for CPF which fact could not be contradicted by the University by producing anything to show that the petitioner had opted for CPF. The only conclusion, therefore, is that in terms of Clause 16.1 of the Statutes the petitioner would be entitled to benefit of pension. 12. That being the position, the order dated 23.11.2011 passed by the Controller of the University by order of the Vice-Chancellor is clearly contrary to the Statutes of the University and there was no occasion to deny the benefit of the triple benefit scheme, i.e., pension, G.P.F. and gratuity to the petitioner on the ground that the so-called option of the petitioner was received through the Associate Dean-cum-Principal, Bihar Agricultural College, Sabour belatedly on 7.5.2008 after one and a half months of the time granted for exercise of option by office order dated 21.2.2008. There was further no occasion for seeking any direction from the State Government to invite last option for triple benefit scheme from the employees of the University at least with respect to those who had never exercised the option in favour of CPF. The said order dated 23.11.2011 is, accordingly, quashed. 13. So far as challenge to the order dated 31.10.2007 of the State Government is concerned, the same has no relevance to the facts of the case of the petitioner as it relates to a proposal of the University for extension of time to exercise option. Similarly the letter dated 4.9.2012 of the State Government has no relevance to the facts of the present matter. 14. The writ application is, accordingly, allowed in terms of the aforesaid observations and directions holding that the petitioner would be entitled to the benefit of the Pension Scheme from the date he retires from the service, in accordance with law.