Patna High Court
Arun Kumar Singh vs The State Of Bihar on 1 May, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6957 of 2022
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Arun Kumar Singh, Son of Shiv Mangal Prasad Singh, presently Resident of
Mohalla-Sikandarpur (Behind of S.P. Kothi on River Bank), P.S. Town,
District-Muzaffarpur (Bihar)-842001.
... ... Petitioner/s
Versus
1. The State of Bihar through Directorate, ICDS, Bihar, Patna.
2. The Accountant General (A & E), Patna Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Satyabir Bharti, Sr. Advocate
Ms. Kanupriya, Advocate
Mr. Abhishek Anand, Advocate
For the Respondent/s : Mr. S.K. Mandal, SC-3
Ms. Neelam Kumari, AC to SC-3
For the AG, Bihar : Mr. Ram Yash Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 01-05-2025
Heard Mr. Satyabir Bharti, learned Sr. Advocate with
Ms. Kanupriya, learned Advocate for the petitioner, Mr. S.K.
Mandal, learned Standing Counsel No.3 for the State and Mr.
Ram Yash Singh, learned Advocate for the Accountant General.
2. The petitioner upon being superannuated on
31.01.2016
from the post of Clerk-cum-Typist at the office of
the CDPO, Paroo, Muzaffarpur, has approached this Court
seeking a direction upon the respondent concerned to extend all
the admissible retiral benefits and other dues. During the
pendency of the writ petition, though substantive amount under
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the retiral benefits have been paid to the petitioner, however, the
respondent authorities vide letter dated 23.02.2023 as contained
in Memo No. PEN-14-2146/2022-23 have slashed down
pension of the petitioner along with the gratuity by excluding
the period of retrenchment of the petitioner, from 01.10.2001 to
25.07.2006 and also the period from 16.06.2013 to 05.12.2014,
while making fixation of the pension. It is this letter which was
put to challenge by filing Interlocutory Application No.1 of
2024 in the present writ petition. The petitioner also sought
quashing of the consequential PPO No. 202411141018PO/GPO
No. 202411141018GO dated 09.04.2024, by which reduced
pension and gratuity has been fixed.
3. Before adjudicating the legality of the impugned
action and the order, it would be apt to summarize the short
facts for better appreciation.
4. The petitioner was initially appointed as Clerk-
cum-Accountant in the office of Adult Education Project,
Goriakothi, District-Siwan on 06.02.1985. Subsequently, the
petitioner and other identically situated Class-III as well as
Class-IV employees including the Supervisors, who were
employed under the Mass Education Directorate, were
retrenched w.e.f. 01.10.2001, which order was put to challenge
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and finally the petitioner along with others were absorbed under
Memo No. 582 dated 20.05.2005 in different departments of the
State. The petitioner was duly absorbed in ICDS under
department of Social Welfare on 25.07.2006. The petitioner was
paid his salary on the basis of his Last Pay Certificate issued by
the Assistant Director, Non-Formal Education, West
Champaran, Bettiah and accordingly salary of the petitioner was
determined by the CDPO, Goraul and paid without any
interruption till his retirement on 31.01.2016.
5. Time to time, pay-scale of the petitioner was
revised in terms of the recommendation made by the Pay
Commission. However, notwithstanding his superannuation on
31.01.2016, when the petitioner has not been allowed his
admissible retiral benefits, he approached this Court by filing
C.W.J.C. No. 7284 of 2021 and only thereafter the concerned
department sent his pension paper and service book to the office
of the Accountant General but the same was returned to the
department with certain objection. There was repeated
communications between the CDPO and the Accountant
General with regard to the fixation of retiral benefits of the
petitioner and finally vide letter no. 318 dated 25.06.2021, the
CDPO forwarded the petitioner’s application for fixation of
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pension, which was again returned by the office of the
Accountant General, Bihar vide letter dated 09.09.2021 stating
therein that the petitioner was employed in Adult Education
Directorate on 06.02.1985 and was retrenched on 30.09.2001
and later on he was absorbed in ICDS on 25.07.2006; hence, in
view of letter no. 464 dated 28.02.2019 issued by the Education
Department, Government of Bihar, the period of retrenchment
afore-noted, shall not be counted for any financial/service
benefit in determination of pension.
6. Based upon the office objection of the Accountant
General, Bihar, the office of the CDPO, Goraul recalculated the
pay of the petitioner and sent it for approval to the District
Accounts Officer, Muzaffarpur.
7. Mr. Satyabir Bharti, learned Senior Advocate for
the petitioner has firstly taken this Court through the order dated
20.07.2006 as contained in Memo No. 2102 of the Social
Welfare Department, ICDS Directorate, Government of Bihar,
whereby the petitioner along with others were absorbed.
Referring thereto, it is submitted that it was specifically
prescribed that though the employees would not be entitled for
seniority based upon the past services and their absorption shall
be treated as new appointment, however, their past services
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rendered in the Mass Education Directorate before retrenchment
shall be counted for pension. It was also directed that the salary
would be paid in accordance with the Last Pay Certificate issued
by the previous office where the employee was posted.
8. The learned Senior Advocate, thereafter, has taken
this Court through the resolution dated 15.07.2013 issued by the
Education Department, Government of Bihar, wherein in the
light of the decision of this Court dated 19.04.2011 passed in
C.W.J.C. No.20780 of 2010 along with C.W.J.C. No.20801 of
2010, it was directed that the period of retrenchment of the
employees of the Adult Education would be notionally counted
for fixation of salary after the employees absorbed in another
department. The learned Senior Advocate, placing reliance upon
the aforesaid resolution as well as the order passed by this Court
in C.W.J.C. Nos. 20780 of 2010 and 20801 of 2010, has
strenuously argued that the petitioners of the said writ petition
on being aggrieved with the order of the exclusion of their
retrenchment period between 1992 to 1998 had approached this
Court and the learned Court while setting aside the impugned
order of the Principal Secretary, Government of Bihar, directed
to consider the petitioners as continuing in service between
1992 to 1998 on notional basis only for the purpose of grant of
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monetary benefit from 1998 onwards and post retiral monetary
benefits. It was made clear that the petitioner and other
supervisors shall not be entitled for salary of the period in any
manner and shall also not claim any seniority over other
Government servants. The period shall be counted in the service
only for personal monetary benefits of the petitioners and
nothing more.
9. The resolution of the Education Department
contained in Memo No. 1366 dated 15.07.2013, in no uncertain
terms made explicit that in compliance with the order of this
Court afore-noted, the period of retrenchment shall be counted
notionally only for the purpose of pension; hence, in any view
of the matter, the exclusion of retrenchment period for the
purpose of pension is wholly illegal and unjustified. So far the
impugned order whereby the pension of the petitioner has been
slashed down by including the period of retrenchment, is wholly
misconceived, inasmuch as the same is based upon irrelevant
and incorrect facts. The letter dated 20.12.2018, would reveal
that the Director, Mass Education by misinterpreting the
judgment of the Hon’ble Supreme Court in SLP No. 7358 of
2018 have requested the Additional Chief Secretary, Social
Welfare Department not to consider the period of retrenchment
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from 2001 to 2006-07 for the purpose of any service
benefit/pension etc. The recommendation, in fact, is contrary to
resolution of the State Government notified on 15.07.2013. It is
further clarified that SLP No. 7358 of 2018 was with respect to
payment of salary for retrenchment period from 2001 to 2006-
07 and thus any decision of the Apex Court in the said matter
has no relevance to the issue involved in the present writ
petition. It is further urged that the order passed in LPA No.
2307 of 2016 arising out of C.W.J.C. No. 22208 of 2018, which
was the subject matter in SLP No. 7358 of 2018 was only with
respect to salary for the period of retrenchment, which was
adjudicated and finally the order of this Court came to be set
aside by the Hon’ble Supreme Court. The petitioner’s claim is
confined to determination of pension on the basis of notionally
counting the period of retrenchment from 2001 to 2006-07 and
has no concern with the salary for the period in question.
10. Mr. S.K. Mandal, learned Standing Counsel No.3,
dispelling the afore-noted contention has submitted that the
issue involved and the relief sought for by way of interlocutory
application in the present case came to be set at rest by the Apex
Court. The Director, ICDS, Bihar, Patna vide letter dated
15.01.2019 addressed to all the District Officer, highlighting
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therein the order dated 29.10.2018 of the Hon’ble Supreme
Court passed in SLP No. 7358 of 2018, explicitly held that the
period of retrenchment of adjusted employees from 2001 to
2006-07 should not be counted for any kind of salary/pension
purpose. In this regard, Memo no. 3094 dated 20.12.2018 of the
Director Education Department, Government of Bihar has also
been issued prescribing therein the period of retrenchment shall
not be counted in the light of the order of the Hon’ble Supreme
Court. In compliance with the afore-noted resolution and the
order of the Apex Court, the pension of the petitioner came to be
fixed by the Accountant General, Bihar, Patna, and accordingly
issued the admissible PPO/GPO. In no circumstances, the
services of the petitioner for retrenched period for the year 2001
to 2006-07 is countable for retiral benefit(s).
11. This Court has anxiously heard the learned
Advocate for the respective parties and also perused the
materials available on record.
12. Having gone through the Bench decision of this
Court in C.W.J.C. No.20780 of 2010 along with C.W.J.C.
No.20801 of 2010, there is no iota of confusion that the issue
before this Court was with respect to continuation of service for
the period between 1992-1998, during which services of the
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petitioners of the said writ petition were retrenched. The learned
Court after taking note of Rule 103(d) of the Bihar Pension
Rules, 1950 has allowed the writ petition and set aside the
impugned order with a direction to the respondent to consider
the petitioner as continuing in service between 1992-1998 on
notional basis only for the purpose of grant of monetary
benefit(s). Pursuant to the aforesaid direction, the Government
of Bihar in the department of Education came out with the
resolution as contained in Memo No. 1366 dated 15.07.2013
approving the services of retrenchment period notionally for the
purpose of pension. The said resolution still holds the field.
13. It is not in dispute that some of the petitioners of
the afore-noted writ petitions have also come up before this
Court in C.W.J.C. No. 22208 of 2013 for payment of salary for
the period from 01.10.2001 to 03.07.2007, by placing reliance
upon the decision rendered in the case of Smt. Ram Laxmi
Mishra v. The State of Bihar and Others (C.W.J.C. No. 1712
of 2002), which decision was duly affirmed up to the Apex
Court in Special Leave to Appeal (Civil) No. CC9401 of 2008;
thus the writ petition, C.W.J.C. No.22208 of 2013, also came to
be allowed vide order dated 22.08.2016, directing the
respondents to ensure payment of salary to the petitioners of the
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said writ petition for the period 01.10.2001 to 03.07.2007,
which order also subsequently got affirmed by the learned
Division Bench of this Court in LPA No. 2307 of 2016.
However, when the legality of the order of this Court were
questioned before the Supreme Court by the Government of
Bihar in SLP (C) No. 7358 of 2018, the Hon’ble Apex Court on
being found the case of Smt. Ram Laxmi Mishra (supra)
distinguishable on facts, has been pleased to allow the appeal
and set aside the impugned judgment and order passed by the
learned Division Bench of this Court in L.P.A. No. 2307 of 2016
and dismissed the C.W.J.C. No. 22208 of 2013.
14. Having gone through all the orders discussed
hereinabove, this Court is of the opinion that the issue involved
in C.W.J.C. No. 22208 of 2013 as well as L.P.A. No. 2307 of
2016 was only confined to the salary of the petitioners for the
period of retrenchment from the year 2001-2006-07. There is no
adjudication on the issue which has already been given a quietus
in the earlier round of litigation in C.W.J.C. No. 20780 of 2010
along with C.W.J.C. No.20801 of 2010. Consequent thereto, the
Government has come out with the resolution as contained in
Memo No. 1366 dated 15.07.2013 extending approval to the
period of retrenchment for the purpose of fixation of pension.
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15. So far the period from 16.06.2013 to 05.12.2014 is
concerned, the petitioner specifically contended that he was all along on
duty in the period afore-noted, which has not been denied by the
answering respondents, hence, this Court does not find any merit in such
objection.
16. In view of the aforesaid facts, this Court is of the opinion,
that the order of the Director, ICDS, Bihar, Patna as contained in Letter
no. 315 dated 15.01.2019 as also the letter as contained in Memo no.
3094 dated 20.12.2018 issued by the Director Education Department,
Government of Bihar, are wholly misconceived to the extent whereby the
respondents have excluded the period of retrenchment while making
fixation of pension of the petitioner, especially in view of the order of
absorption as contained in Memo No.2102 dated 20.07.2006 as also the
consequential resolution dated 15.07.2013, which are explicitly clear and
hold the field.
17. In view thereof, this Court finds the impugned
order as contained in Memo No. PEN-14-2146/2022-23 dated
23.02.2023 unsustainable in law as well as on facts, and are
hereby set aside. The respondents are directed to revisit the
matter and make proper calculation of pension of the
petitioner by counting the period of retrenchment for the
purpose of fixation of pension and send it to the office of the
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Accountant General, Bihar, Patna for issuance of fresh
PPO/GPO.
18. The writ petition stands allowed to the extent
indicated above.
(Harish Kumar, J)
rohit/-
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