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2014 DIGILAW 921 (PAT)

Chaturbhuj Sahay v. State Of Bihar

2014-08-27

AJAY KUMAR TRIPATHI

body2014
ORDER : Petitioner is a retired Head Clerk of Nagar Panchayat Dumra, in the district of Sitamarhi. Post superannuation, all his retiral dues came to be settled which he readily accepted. Thereafter he decided to file this writ application, after moving the authorities, with a claim or demand for payment of pension to him. The Board considered the claim of the petitioner in its meeting dated 31.5.2013 and came to a considered opinion that since petitioner never moved any proposal nor made any demand during the service period to avail the benefit of pension scheme, such a demand after retirement and after receiving his provident fund contribution in lieu of pension is a misplaced and illegal expectation to have. The present writ application was filed on 1st August, 2013 bringing various materials on record to show as to how employees of Municipal Corporation or Nagar Parishads are entitled to payment of pension, especially after coming into play of what is known as Bihar Municipal Officers and Servants Pension Rules, 1987. Emphasis is on Rule 4(1). He also annexes an order passed by the Hon’ble Apex Court on 25th June, 2013 rendered in the case of Sanchari Devi & others Versus Ara Municipal Corporation & others. 2. The stand of the petitioner is that the decision and the ratio rendered by the Hon’ble Supreme Court in the said case squarely applies to the present petitioner and he has a right for pension as a matter of course. Counsel relies on para 5 and 6 of the said decision which are reproduced here-in-below: “5. We have heard learned counsel for the parties and we find that the only point that we have to decide in these appeals is whether Ramashish Prasad and Vishwanath Ram were entitled to the benefit of the Rules even though they had not exercised their option for pension as required by Rule 4 of the Rules. For deciding this point, we have to look at the Rules 1 and 4 of the Rules which are quoted here-in-below: 1. These rules may be called the Bihar Municipal Officers and Servants Pension Rules, 1987 and shall apply to all permanent employees of the Municipalities and Notified Area Committees. 4. For deciding this point, we have to look at the Rules 1 and 4 of the Rules which are quoted here-in-below: 1. These rules may be called the Bihar Municipal Officers and Servants Pension Rules, 1987 and shall apply to all permanent employees of the Municipalities and Notified Area Committees. 4. (i) Municipal employees on roll on the date of confirmation of this rule and who had subscribed to the contributory provident fund under provident fund rules and want to be governed by these rules shall have the option to do so and such option shall be exercised in writing in the prescribed form (Annexure-1) and submitted to their head of office within 90 days from the date of framing of this rule by the State Government. If such option in writing in prescribed form is not received within the period so fixed, it will be deemed that they would retain the existing contributory provident fund. (ii) Municipal employees who retired before the date of effect of this rule and have received the part or whole amount of provident fund contribution will not be eligible for the pension. 6. A bare reading of the Rules 1 and 4(1) of the Rules makes it clear that the Rules apply to permanent employees of the Municipalities and Notified Area Committees in the State of Bihar. Thus, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation were statutorily entitled to the pension under the Rules. Rule 4 (ii) of the Rules provided further that municipal employees who retired before the date of effect of the Rules and received part or whole amount of provident fund contribution will not be eligible for pension. Hence, Municipal employees who had retired before the date of effect of the Rules and had received part or whole of provident fund contribution were not entitled for the pension under the Rules. In other words, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation had a statutory right to get pension if they had not retired before the date of effect of the Rules and had not received part or whole of provident fund contribution.” 3. In other words, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation had a statutory right to get pension if they had not retired before the date of effect of the Rules and had not received part or whole of provident fund contribution.” 3. The Court in addition to the above two paragraphs of the decision of the Hon’ble Supreme Court has gone through the entire decision and cannot be unmindful what the Hon’ble Supreme Court had to say in para 10 of the said decision, which also is quoted here-in-below: “10. We make it clear that this judgment has been delivered in the facts of the present case and will not be treated as a precedent applicable to all other cases the facts of which are not before this Court.” 4. Even if the submission of the learned counsel for the petitioner is accepted on the face value on the basis of the decision of the Hon’ble Apex Court, he has serious problem coming in his way both in terms of facts relatable to him as well as his conduct which was of his own making. 5. There is no serious dispute on the factual position that the petitioner at no point of time had given any indication much-less option with regard to the choice of settling for pension scheme after coming of the Rules. When the petitioner superannuated in the year 2012, he cornered all the benefits including CPF without any kind of resistance or protest being put up by him. It is only thereafter when the petitioner was in the comfort zone he is taking to take a chance by first moving the authorities and then filing a writ application in the hope of hitting a jack-pot by way of pension. 6. Law has not been created for the purposes of speculative kind of litigation. An application under Article 226 has to be decided within the parameters of the entitlements of a citizen within the frame-work of rules, coupled with the factual aspect of the pleadings emerging by way of assertion. There is no dispute about the fact that the petitioner never expressed desire or demanded that he be covered under the pension scheme. An application under Article 226 has to be decided within the parameters of the entitlements of a citizen within the frame-work of rules, coupled with the factual aspect of the pleadings emerging by way of assertion. There is no dispute about the fact that the petitioner never expressed desire or demanded that he be covered under the pension scheme. His acceptance of CPF after retirement is also an indicator that he wanted to stick on with the CPF provision and the demand of pension is only as an add-on and after thought over and above what has already been paid by the organization, which any way is in dire financial strain. 7. Even a broad interpretation of what had been interpreted by the Hon’ble Supreme Court in Sanchari Devi (supra) does not help the petitioner in begetting what he was expecting through the present litigation. Since the petitioner was paid CPF and accepted by him without protest, he has no case. 8. It is clarified that other claim of the petitioner with regard to 5th Pay Revision Committee has already been dealt with in Annexure-A filed with the counter affidavit of the respondents and they have explained the reason why it is not being extended to the employees of the organization. 9. For the reasons indicated above, this writ application has no merit. It is dismissed.