Patna High Court
Nusrat Jahan @ N Jahan vs The State Of Bihar on 18 June, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12281 of 2023
======================================================
Mansoor Alam, Son of Mohammad Mehboob Alam @ Manghu Mian,
Resident of Mohalla- Nun Ka Chauraha Bangla Par, Jama Masjid, P.S.-
Khajkala, District-Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Minority Welfare
Department, Government of Bihar, Patna.
2. The Additional Chief Secretary, Department of Minority Welfare,
Government of Bihar, Patna.
3. The Additional Chief Secretary, Finance Department, Government of Bihar,
Patna.
4. The Bihar State Sunni Waqf Board, 34 Ali Imam Path (Hardin Road), Patna
through its Chief Executive Officer.
5. The Chairman, Bihar State Sunni Waqf Board, 34 Ali Imam Path (Hardin
Road), Patna
6. The Chief Executive Officer, Bihar State Sunni Waqf Board, 34 Ali Imam
Path (Hardin Road), Patna
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 14677 of 2023
======================================================
1. Ashique Rasool, son of Late Abdus Samad, Resident of Makhdoom Rasti
Nagar, P.S.- Phulwarisharif, District- Patna, Bihar.
2. Shahzad, son of Late Md. Rahmat, resident of Village- Jamaluddin Chak,
Near Gausia Masjid, P.O. and P.S.-Khagaul, District- Patna, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Department of Minority Welfare,
Government of Bihar, Patna.
2. The Additional Chief Secretary, Finance Department, Government of Bihar,
Patna.
3. The Secretary, Department of Minority Welfare, Government of Bihar,
Patna.
4. The Bihar State Sunni Waqf Board, through the Chief Executive Officer,
Bihar State Sunni Waqf Board, 34, Ali Imam Path, Harding Road, Patna.
5. The Chairman, Bihar State Sunni Waqf Board, 34, Ali Imam Path, Harding
Road, Patna.
6. The Chief Executive Officer, Bihar State Sunni Waqf Board, 34, Ali Imam
Path, Harding Road, Patna.
... ... Respondent/s
======================================================
with
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
2/25
Civil Writ Jurisdiction Case No. 3736 of 2024
======================================================
1. Nusrat Jahan @ N. Jahan, Wife of Late Md. Aftab Alam, Resident of House
No-85/1, Road No-7, Haroon Nagar Sector-1, P.S.- Phulwari Sharif, District-
Patna.
2. Md. Sami Ahmad, Son of Late- Md. Khalil, resident of Mohallah- Gayas
Nagar, Nohsa, P.S.- Phulwari Sharif, District- Patna
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna
2. The Additional Chief Secretary, Department of Minority Welfare,
Government of Bihar, Patna
3. The Additional Chief Secretary, Finance Department, Government of Bihar,
Patna
4. The Joint Secretary-cum-Director, Minority Welfare Department,
Government of Bihar, Patna
5. The Bihar State Sunni Waqf Board, 34 Ali Imam Path (Hardin Road), Patna
through its Chief Executive Officer.
6. The Chairman, Bihar State Sunni Waqf Board, 34 Ali Imam Path (Hardin
Road), Patna
7. The Chief Executive Officer, 7. Bihar State Sunni Waqf Board, 34 Ali Imam
Path (Hardin Road), Patna
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 12281 of 2023)
For the Petitioner/s : Mr. Md. Kamal Ashraf, Advocate
Mr. Avinash, Advocate
Mr. Anup Kumar, Advocate
For the Respondent/s : Mr. Sita Ram Yadav, GP- 16
Mr. Yatindra Narayan, AC to GP- 16
For the Waqf Board : Mr. Helal Ahmad, Advocate
(In Civil Writ Jurisdiction Case No. 14677 of 2023)
For the Petitioner/s : Mr. Rashid Izhar, Advocate
Mr. Adil Abbas, Advocate
Mr. A. Imam, Advocate
For the Respondent/s : Mr. Sita Ram Yadav, GP- 16
Mr. Yatindra Narayan, AC to GP- 16
For the Waqf Board : Mr. Helal Ahmad, Advocate
(In Civil Writ Jurisdiction Case No. 3736 of 2024)
For the Petitioner/s : Mr. Rashid Izhar, Advocate
Mr. Arif Daula Siddiqui, Advocate
Mr. Nouman Ahmad, Advocate
For the Respondent/s : Mr. Addl. Advocate General (13)
Mr. Ravi Kumar, AC -AAG-13
For the Waqf Board : Mr. Helal Ahmad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 18-06-2025
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
3/25
Heard the learned Advocate for the petitioners,
Waqf Board and the State of Bihar.
2. The reliefs prayed for in all these writ petitions
giving rise to one and identical issues, as such, with the consent
of learned Advocate for the respective parties, the same are
being heard together and disposed of by this common order.
3. The petitioners before this Court are either the
retired employees of the Bihar State Sunni Waqf Board, Patna
(hereinafter referred to as 'the Waqf Board') or their dependent,
who approached this Court for issuance of writ in the nature of
Mandamus, directing the respondent State as well as the Waqf
Board to primarily hold and declare the petitioners entitled to
get pension/family pension at par with the employees of the
State Government. Further challenge has also been made to
Memo No. 2365 dated 04.09.2023 issued by the Joint Secretary-
cum-Director, Minority Welfare Department, Government of
Bihar, Patna whereby it has been informed to the Bihar State
Sunni Waqf Board, Patna as well as Bihar State Shia Waqf
Board, Patna that in absence of the provision for pension, the
employees of the Waqf Board are not entitled to get
pension/family pension.
4. To impress this Court regarding entitlement of
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
4/25
pension/family pension to the retired employees/dependent of
the Waqf Board, Mr. Rashid Izhar, learned Advocate appearing
in C.W.J.C. No. 14677 of 2023 and C.W.J.C. No. 3736 of 2024
has contended that the Waqf Board through its Resolution no.2
dated 14.08.2010 as well as Resolution No. 26 dated 21.05.2014
had approved the proposal for the payment of pension to its
employees in the light of the provision contained in Clause 25
of the Bihar Waqf Regulation, 2009. The Central Waqf Council
had taken note of the pitiable condition of the employees of the
Waqf Board vide its letter no. 45 dated 14.08.2018 directed to
all the Chief Executive Officers for immediate implementation
of the pension scheme for the employees or dependent of the
State Waqf Board as recommended in 9th Joint Parliamentary
Committee. The Waqf Board in its meeting dated 12.09.2018
has considered the matter in the light of the aforesaid resolution
and directed to ensure compliance and implementation of the
pension scheme. Finally the Bihar State Shia Waqf Board in its
meeting dated 26.10.2018 has resolved to implement the
monthly pension scheme to its employees or dependent family
members at par with the State Government employees. It is
further contended that nonetheless, the matter for extending the
pension stands resolved, surprisingly Waqf Board through its
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
5/25
Resolution No. 1985 dated 08.07.2019 issued under the
signature of Chief Executive Officer, Bihar State Sunni Waqf
Board came out with a rigor that the pension/family pension
shall be extended to the regular employees, who were appointed
prior to 01.09.2005 and the same will be implemented w.e.f.
26.06.2019.
5
. Aggrieved with the irrational cut off date of
extending benefit w.e.f. 26.06.2019, the petitioners Nusrat Jahan
@ N. Jahan and Md. Sami Ahmad of C.W.J.C. No. 3736 of
2024 had preferred C.W.J.C. No. 3605 of 2020, which writ
petition was allowed and disposed of vide order dated
15.12.2022 setting aside the part of the Resolution no.40 dated
26.06.2019 whereby it was made effective with effect from
26.06.2019. The matter was remitted to the Sunni Waqf Board
to consider the claim of the petitioners of the said case for grant
of pension/family pension, as has been granted to other similarly
situated persons.
6. The respondent Waqf Board to utter disregard of
the order of this Court while considering the claim of the
aforenoted petitioners stayed the operation of Resolution no.40
dated 26.09.2019 in its meeting dated 30.01.2023 vide
Resolution dated 23.01.2023 and communicated to the Principal
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
6/25
Secretary, Minority Welfare Department, Government of Bihar
for issuing guidelines. In response to the request of the Sunni
Waqf Board, the Joint Secretary-cum-Director Minority Welfare
Department, Government of Bihar issued order as contained in
Memo No. 2365 dated 04.09.2023, which is impugned herein,
whereby it has been informed to Waqf Board(s) that in absence
of provision of payment of pension, the employees of the Waqf
Board are not entitled to get pension/family pension at par with
the employees of the State Government.
7. While assailing the impugned order, Mr. Rashid
Izhar, learned Advocate for the petitioners submitted that the
impugned Memo No. 2365 is in the teeth of the order passed by
this Court in various cases; One Md. Nayeemuddin, a retired
employee of the Waqf Board filed CWJC No. 19799 of 2011 for
grant of monthly pension and other retiral dues, which writ
petition came to be disposed of by a Bench of this Court on
17.12.2014 with a specific finding that the Board cannot deny
payment of pensionary benefits to the petitioner on the ground
that it does not have sufficient fund for such payment. The
respondent State authorities have completely failed to take note
of the direction of the Central Waqf Council for immediate
payment of pension/family pension to the employees of the
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
7/25
State Waqf Board.
8. Md. Kamal Ashraf, learned Advocate
representing the petitioner in C.W.J.C. No. 12261 of 2023 has
further argued that Central Waqf Council, Ministry of Minority
Affairs, Government of India through its letter dated 14.08.2018
has directed for immediate implementation of the pension
scheme for the employees/dependents of State Waqf Board, as
recommended in the 9th Joint Parliamentary Committee. Placing
the copy of the discussions of the Joint Parliamentary
Committee, efforts have been made to impress upon the Court
that Central Waqf Council was authorized to issue direction
which would be binding to the State Waqf Board and the State
Government. The Central Waqf Council has also taken note of
the fact the State of Bihar did not bother to follow the provision
of the Act and till the date regulations have yet not been
prepared. The Central Waqf Council being authorized to issue
direction, have directed all the Chief Executive Officers of the
Waqf Board for immediate implementation of pension scheme;
and once it was directed to implement the pension scheme for
the employees of the Waqf Board, the Sunni Waqf Board has
rightly been taken a decision to extend the benefit of pension
scheme.
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
8/25
9. It is also submitted that in similar circumstances,
Shia Waqf Board has taken a decision to give pension/family
pension to its employee at par with the employees of the State
Government, but when discrimination has been caused, some of
the aggrieved persons approached this Court and when in the
case of some of the employees, suitable orders have been passed
and have been allowed pensionary benefits, the State
Government without having any justifiable reason by issuing the
impugned order that snatched away the rights and entitlement of
the petitioners and other identically situated employees. Heavy
reliance has been placed on a judgment rendered in the case of
Sant Ram Sharma Vs. State of Rajasthan & Ors., reported in
AIR 1967 SC 1910, Abraham Jacob & Ors. Vs. Union of
India, reported in (1998) 4 SCC 65, Union of India & Anr. Vs.
Central Electrical & Mechanical Engineering Services
(Ce&Mes) Group ‘A’ (Direct Recruits) Assn., CPWD, reported
in, (2008) 1 SCC 354, Paluru Ramkrishnaiah & Ors. Vs.
Union of India & Anr. reported in (1989) 2 SCC 541, Union of
India & Ors. Vs. Rakesh Kumar, reported in (2001) 3
Supreme 48. The Employees’ State Insurance Corporation
Vs. Union of India & Ors., (Civil Appeal No. 152 of 2022) and
Tej Prakash Pathak & Ors. Vs. Rajasthan High Court &
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
9/25
Ors., reported in (2013) 4 SCC 540.
10. Referring to the decisions aforenoted, it is
vehemently submitted that in absence of legislative rules, it was
competent to the Waqf Board and State Government to take a
decision and issue necessary order or administrative instructions
to fill up the gaps and supplement the statutory rules. In any
view of the matter, extending the benefits of pension to the
employees of the Waqf Board is said to be sub-serving to the
statutory provisions. Even if there is no rules or the rules are
silent on the subject, administrative instructions may be issued
to supplement the statutory rules. In that even, the
administrative instruction govern the filed provided till they are
not ultra vires of the provisions of Rules or Statutes or the
Constitution, is the contention of the learned Advocate.
11. It is lastly contended that the respondent Waqf
Board has not placed the correct facts and on many occasion has
tried to mislead the Court by giving incorrect projection of the
facts.
12. Refuting the aforesaid contention, Mr. Helal
Ahmad, learned Advocate for the Sunni Waqf Board has
candidly urged that the very claim of the petitioners is
misconceived in law as well as on facts. Till date, the Bihar
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
10/25
Waqf Regulation, 2009 or any amended regulation has not been
published in the official Gazette of Government of Bihar and
thus never came into force. It is specifically contended that the
Waqf Board in its meeting held on 30.01.2023 has considered
the matter of pension/family pension to its employees and
finally referred the entire matter to the State Government for
approval, as the same was done without approval of the State
Government; In the meanwhile Resolution No. 40 dated
26.09.2019 passed by the Waqf Board has been stayed. The
decision of the Waqf Board was further communicated to the
Principal Secretary, Minority Welfare Department, Government
of Bihar. In response to the query and the guidelines sought for
by the Waqf Board, the Joint Secretary-cum-Director of
Minority Welfare Department, Government of Bihar has
communicated to the Waqf Board that the employees of the
Board were not entitled to pension/family pension at par with
the employees of the State Government. Reliance has also been
placed on the decision of the Apex Court in the case of State of
Orissa & Anr. Vs. Orissa Khadi and Village Industries
Board Karmachari Sangha & Anr., reported in, 2023 SCC
OnLine SC 281 wherein the Court held that in absence of any
provision in the Regulation, Board Employees cannot claim
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
11/25
benefits of pension/family pension.
13. Taking this Court through the Bihar State Sunni
Waqf Regulation, 1973, it is further contended that there is no
provision for pension/family pension, hence the employees of
the Waqf Board, whose services and service conditions are
governed under the Waqf Act, 1995 and the Regulation made
therein are not entitled to pension/family pension.
14. Mr. Yatindra Narayan, learned Advocate for the
State representing the answering respondent nos. 1 and 2 has
taken this Court through the counter affidavit filed on their
behalf of answering respondent nos. 1 and submitted that in
response to the guidelines sought for by the Waqf Board, legal
opinion was sought for by the answering respondent and finally
the respondents came to the decision that there is no provision
or scheme for payment of pension/family pension to the retired
employees of Waqf Board. The employees of the State of Bihar
is being governed by the Bihar Service Code and allied
guidelines as well as Bihar Pension Rules, 1950 whereas the
employees of the Waqf Board is governed by the Waqf Act,
1995 and the Rules, hence the services of the employees of the
Waqf Board is not at par with the services of the employees of
State Government. The reliance of the petitioners on any of the
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
12/25
provisions of the proposed Bihar Waqf Regulation, either 2009
or any amended regulation has never been come into force.
15. The contentions of the petitioners have also
been denied that till date, the monthly pension scheme of the
Shia Waqf Board has been approved by the State Government.
Further, to oppose the reliefs prayed for in the writ petition,
reliance has also been placed on a decision rendered by the
Apex Court in the case of Orissa Khadi and Village Industries
Board Karmachari Sangha & Anr. (supra) that the issue has
already been set at rest that the employees are not entitled to get
pension/family pension in absence of any Regulation for
payment of the same.
16. This Court has anxiously heard to all the
learned counsel for the respective parties and also perused the
materials available on record meticulously.
17. To sustain a claim for pension, the employee(s)
have to first establish his lawful entitlement to prefer such
claim. The entitlement might be dependent upon various
consideration or conditions. The right to receive pension
emanates and dependent upon the service condition of an
employee, which is being governed under the statutory Rules
and Regulation. To examine the claim of the petitioners, it
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
13/25
would be incumbent upon this Court to consider the necessary
statutory prescriptions of the Acts and the Regulations, which
governs the service condition of the petitioners.
18. Section 24 of the Waqf Act, 1995 talks about
the Officers and other employees of the Board and it reads as
follows:
“(1) The Board shall have the assistance of
such number of officers and other
employees as may be necessary for the
efficient performance of its functions under
this Act, details thereof shall be determined
by the Board in consultation with the State
Government.
(2) The appointment of officers and other
employees, their term of office and
conditions of service shall be such as may
be provided by regulations.”
19. The aforesaid statutory prescriptions clearly
prescribes that the Waqf Board has extended the power to make
Regulation, inter alia, in respect to and terms and condition of
its Officers and other employees of the Waqf Board. Further
Section 110(1) of the Waqf Act clearly stipulates that the Board
may, with previous sanction of the State Government, make
regulations not inconsistent with this Act or the rules made
thereunder, for carrying out its functions under this Act. Section
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
14/25110(2)(e), inter alia provides that such regulation shall be with
respect to all or any of the matter, including the terms and
conditions of service of the officers and other employees of the
Board under sub-section (2) of section 24.
20. From the reading of the aforementioned
provisions, it would be evident that the terms and conditions of
service of the officers and other employees of the Board shall be
regulated by Regulation, which has to be duly sanctioned by the
State Government. The Regulation, 1974, which is enforced at
present, has neither any provision nor any scheme for grant of
pension/family pension.
21. It is not in dispute that except the Bihar Waqf
Regulation, 1974, there is no other Regulation either 2009 or the
State Government as per the terms of the prescription prescribed
under Section 110(1) of the Waqf Act, 1995. The reliance of the
petitioners on any of the prescriptions of the proposed
Regulation, which is yet to receive the sanction, cannot
strengthen the claim of the petitioners.
22. Section 9 of the Waqf Act, 1995 talks about the
Establishment and constitution of Central Waqf Council. The
very establishment and Constitution of Central Waqf Council is
for the purpose of advising the Central Government, the State
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
15/25Governments and the Boards on matters concerning the working
of Boards and the due administration of Waqf, hence without
any reservation to accept that any direction of the Central Waqf
Council is advisory in nature.
23. The next point for consideration is as to
whether the service conditions of the employees, in absence of
statutory rule could be governed by the Administrative
instructions; there is no confrontation to the legal proposition. It
is now well settled principle of law that undoubtedly where
there are no rules or where the rules are silent on the subject,
administrative instructions must be issued to supplement and fill
up the gaps of the rules. In the case of Sant Ram Sharma
(supra), the Constitution Bench of the Hon’ble Supreme Court
while clarifying the aforenoted position has categorically held,
“It is true that Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules are silent on
any particular point Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent with
the rules already framed.
24. In the case of Central Electrical &
Mechanical Engineering Service (supra) the Hon’ble Supreme
Court held that it is now a well settled principle of law that an
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
16/25executive order must be passed in conformity with the Rules.
Power of the State Government to issue executive instructions is
confined to filling up of the gaps or covering the area which
otherwise has not been covered by the existing Rules.
25. In the case of Dhananjay Malik & Ors vs
State of Uttaranchal & Ors. reported in, 2008 (4) SCC 171,
the Hon’ble Supreme Court while responding to the question as
to whether the Government can fill up the gaps by
supplementing the rules by way of administrative instructions,
has reiterated the Constitution Bench decision in the case of
Sant Ram Sharma (supra) and held in para. 15 as follows:
15. The aforesaid ruling has been reiterated in
para 9 of the judgment by a three-Judge Bench of
this Court in Union of India v. K.P. Joseph
[(1973) 1 SCC 194 : 1973 SCC (L&S) 133] as
under: (SCC p. 196)“9. Generally speaking, an administrative
order confers no justiciable right, but this
rule, like all other general rules, is subject
to exceptions. This Court has held in Sant
Ram Sharma v. State of Rajasthan [Arising
out of SLP (C) No. 7989 of 2006] that
although Government cannot supersede
statutory rules by administrative
instructions, yet, if the rules framed under
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
17/25Article 309 of the Constitution are silent
on any particular point, the Government
can fill up gaps and supplement the rules
and issue instructions not inconsistent with
the rules already framed and these
instructions will govern the conditions of
service.”
26. Recently in the case of Tej Prakash Pathak
Vs. High Court of Rajasthan, (2025) 2 SCC 1, the Hon’ble
Supreme Court while clarifying the subject/issue held that
“there can therefore be no doubt that where there are no Rules
or the Rules are silent on the subject, administrative instructions
may be issued to supplement and fill in the gaps in the Rules. In
that event administrative instructions would govern the field
provided they are not ultra vires the provisions of the Rules or
the Statute or the Constitution. But where the Rules expressly or
impliedly cover the field, the recruiting body would have to
abide by the Rules”. The Court further held that the extant
Rules, which was the subject matter in the aforesaid case,
having statutory force are binding on the recruiting body both in
terms of procedure and eligibility. Thus, the law already stands
crystallized that where the Rules are non-existent, or silent,
administrative instructions may fill in the gaps.
27. In the light of the discussions, now coming to
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
18/25
the case in hand as to whether the decisions taken or any letter
issued by the Waqf Board can be termed as Executive or
administrative instruction.
28. Answering the aforenoted question, it would be
pertinent to remind the decision of the Apex Court in the case of
B.K. Srinivasan & Others Vs. State of Karnataka & Ors.,
reported in (1987) 1 SCC 658. It would be worth encapsulating
the relevant extract of para.15 of the said decision.
“15. There can be no doubt about
the proposition that where a law, whether
parliamentary or subordinate, demands
compliance, those that are governed must be
notified directly and reliably of the law and all
changes and additions made to it by various
processes. Whether law is viewed from the
standpoint of the “conscientious good man”
seeking to abide by the law or from the
standpoint of Justice Holmes’s “unconscientious
bad man” seeking to avoid the law, law must be
known, that is to say, it must be so made that it
can be known. We know that delegated or
subordinate legislation is all-pervasive and that
there is hardly any field of activity where
governance by delegated or subordinate
legislative powers is not as important if not more
important, than governance by parliamentary
legislation. But unlike parliamentary legislation
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
19/25
which is publicly made, delegated or subordinate
legislation is often made unobtrusively in the
chambers of a Minister, a Secretary to the
Government or other official dignitary. It is,
therefore, necessary that subordinate legislation,
in order to take effect, must be published or
promulgated in some suitable manner, whether
such publication or promulgation is prescribed
by the parent statute or not. It will then take
effect from the date of such publication or
promulgation. Where the parent statute
prescribes the mode of publication or
promulgation that mode must be followed.
Where the parent statute is silent, but the
subordinate legislation itself prescribes the
manner of publication, such a mode of
publication may be sufficient, if reasonable. If
the subordinate legislation does not prescribe the
mode of publication or if the subordinate
legislation prescribes a plainly unreasonable
mode of publication, it will take effect only
when it is published through the customarily
recognised official channel, namely, the Official
Gazette or some other reasonable mode of
publication. There may be subordinate
legislation which is concerned with a few
individuals or is confined to small local areas. In
such cases publication or promulgation by other
means may be sufficient [Narayana Reddy v.
State of A.P., (1969) 1 Andh WR 77].”
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
20/25
29. In the case of Gulf Goans Hotels Co. Ltd. &
Anr vs Union of India & Ors., reported in, (2014) 10 SCC
673, the Hon’ble Supreme Court reminded that it is also
essential that what is claimed to be a law must be notified or
made public in order to bind the citizen. The Court further
observed that it will not be necessary to notice the long line of
decisions reiterating the aforesaid view. So far as the mode of
publication is concerned, it has been consistently held by this
Court that such mode must be as prescribed by the statute. In the
event the statute does not contain any prescription and even
under the subordinate legislation there is silence in the matter,
the legislation will take effect only when it is published through
the customarily recognized official channel, namely, the official
gazette.
30. It is basic principle of law, long settled, that if
the manner of doing, a particular act is prescribed under any
Statute, the Act must be done in that manner or not at all.
31. It would also be pertinent to emphasize here
that the doctrine of ultra vires envisages that a Rule making
body must function within the purview of the Rule making
authority, conferred on it by the parent Act. As the body making
Rules or Regulations has no inherent power of its own to make
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
21/25
rules, but derives such power only from the statute, it must
necessarily function within the purview of the statute. Even if
delegated legislation should not travel beyond the purview of
the parent Act.
32. In view of the settled legal proposition and the
facts that till date the proposed Regulation has not received the
sanction of law and/or published in the official gazette, any
reliance to claim the pension/family pension is not at all
permissible in the law. The decision of the Waqf Board or any
order issued in this behalf is per se cannot be said to be
administrative and executive instruction and has no force of law
in absence of any provision in the instant Regulations and the
prescription of the Act, 1995.
33. Now coming to the decision of Orissa Khadi
and Village Industries Board Karmachari Sangha (supra),
which was an appeal directed against the judgment and order
whereby the Division Bench of High Court of Orissa has
dismissed the intra-court appeal filed by the appellant State of
Orissa and has affirmed the order of the learned Single Judge of
the High Court, holding the employees of the Orissa Khadi and
Village Industries Board entitled to pension at par with the
Government employees and also directing the State Government
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
22/25
to amend the applicable regulations accordingly. The Hon’ble
Supreme Court while allowing the appeal has held that even
when the State has established the Board to carry out its
obligations in terms of Article 43 of the Constitution of India, it
cannot follow as a corollary that the employees of this body
corporate have to be treated as State Government employees in
all respects. Such a corollary proposition would practically
amount to merging of the Board with the State Government;
rather making it as one of the Departments of the Government.
This, in the face of existing statute, cannot be done. That being
the position and when Regulations in question specifically make
a distinct provision as regards retiral benefits, the same cannot
be ignored by any stretch of arguments.
34. While setting aside the decisions rendered by
the High Court of Orissa, the Hon’ble Supreme Court has
clarified that the observations in the impugned judgment and
order dated 20.12.2012 as also the contentions urged on behalf
of the respondents, seeking to put the employees of the Board at
par with the employees of the State Government for all
purposes, carry their own shortcomings. Even if Orissa Khadi
and Village Industries Board has been established under an
enactment of the State and for several relevant factors, it could
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
23/25
be considered to be an instrumentality of the State, its distinct
characteristic of being a Board established with particular aim
and objective cannot be ignored altogether. The Board being a
body corporate, incorporated by its name, has been established
to carry out the purposes of the Act of 1955 and not beyond. In
view of its independent corporate entity and existence, the
provisions have been made in the Act of 1955 for making
regulations by the Board consistent with the Act of 1955 and
rules made thereunder with the previous sanction of the State
Government, where the Regulations could provide, inter alia,
for remuneration, allowances and other conditions of service of
the staff of the Board (vide Section 36 of the Act). The
Regulations of 1960 were framed accordingly. Therein, even
while otherwise applying a substantial part of the Rules in the
Orissa Service Code mutatis mutandis to the employees of the
Board, Regulation 40 itself starts with a clause of exception,
making that provision subject to the other provisions of the
Regulations. Then, in Regulation 52 it has specifically been
provided that the employees of the Board shall not be entitled to
any pension except gratuity and CPF benefits; and further
provisions have been made for the purpose of
subscription/contribution to CPF.
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
24/25
35. The Hon’ble Supreme Court further also
negated the contention of the respondent employees that a small
number of affected employees may not bring as much financial
burden on the State, and hardly make out a case for issuing a
mandamus to the State to amend the Regulations. Whether to
amend the Regulations or not, in the scheme of Act of 1955 as
also the Regulations of 1960, is required to be left to the State
and for that matter, the number of employees to be
affected/benefitted is not of much relevance. The Hon’ble
Supreme Court finally observed that irrespective of the
observations and irrespective of the result of the litigation,
nothing would prevent the State Government to carry out the
amendment in the form suggested or in any other modified
form, if the State Government would be willing to do so. The
only question in the present appeal is as to whether a mandamus
could have been issued to the State to carry out amendment. The
Hon’ble Supreme Court finally held that the answer could only
be in the negative.
36. Before parting with the case, it would also be
pertinent to observe that the contention of the petitioners that at
some instances, some of the employees have been accorded
pensionary benefits have not persuaded this Court in any
Patna High Court CWJC No.12281 of 2023 dt.18-06-2025
25/25
manner. Merely, because the benefit has been wrongly granted
to another employee that by itself shall not entitle another
employees to similar benefits.
37. Well settled it is that there is no negative
equality; benefit conferred without legal basis cannot be relied
upon as a principle of parity.
38. In view of the discussions made hereinabove in
the premise of the settled legal position, this Court does not find
any merit in all the writ petitions. Accordingly, all the writ
petitions are hereby dismissed.
39. The parties shall bear their own cost.
(Harish Kumar, J)
uday/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 19.06.2025 Transmission Date NA