Sudha Devi vs The State Of Bihar And Ors
2021 Latest Caselaw 3928 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.15564 of 2017
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Sudha Devi Widow of Late Arbind Kumar, Resident of Village/Mohalla- Ajij Ghat, Daira, Khandakpar, P.O. P.S.- Bihar, District- Nalanda.

... ... Petitioner/s Versus

1. The State Of Bihar and Ors

2. Commissioner-cum-Secretary, Human Resources Development Department, Govt. of Bihar, Patna.

3. Director, Primary Education, Bihar, Patna.

4. Director, Mass Education, Bihar, Patna.

5. District Magistrate-cum-Collector, Nalanda at Bihar Sharif.

6. District Program Officer, Nalanda at Bihar Sharif.

7. Director, Provident Fund, Bihar, Patna.

8. District Provident Fund Officer, Nalanda at Bihar Sharif.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr.Pramod Kumar
                                   Mr. Ritesh Kumar
     For the Respondent/s   :      Mr.Jitendra Kr. Roy No-1-SC-13

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 03-08-2021

This matter has been taken up for hearing online

because of COVID-19 pandemic restrictions.

2. Heard learned counsel for the parties.

3. Before noticing the nature of relief, which the

petitioner has sought in the present writ application, it would be

apt to notice the admitted facts, which are essential for

determination of controversy in hand.

4. The petitioner is widow of one Arvind Kumar, Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

who was appointed as Supervisor in Non-Formal Education in

the year 1985. The services of all persons working in Non-

Formal Education were terminated on 12.12.1994 in the light of

the letter of the said date issued under the signature of the

Director, Mass Education, Government of Bihar, which is

available at Annexure-2 to the writ application. From the said

letter, it transpires that noticing the fact that the programme of

Non-Formal Education was not being carried out in accordance

with the guidelines issued by the Government of India and it

was impossible to improve the system of supervision of quality

of Informal Education Centers, it was decided that all honorary

Supervisors engaged in the said scheme should be relieved of

their duties. The said letter dated 12.12.1994 indicates that the

petitioner's appointment was not on regular and permanent basis

under any Department, rather, it was on honorarium basis. The

said decision of the Government was challenged before this

Court. It appears from Annexure-5 dated 06.06.2011 that it was

decided to hold a limited competitive examination for the

Informal Education Supervisors whose services were terminated

by virtue of the said order dated 12.12.1994 for their

appointment as Primary Teachers. An advertisement was,

accordingly, issued by the Bihar Public Service Commission in Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

2001 (Annexure-4). The petitioner's husband had participated

and after having been declared selected in the year 2004, was

appointed on the post of Primary Teacher. He, however, died in

harness on 30.09.2012.

5. New Rules for appointment and service

conditions of Panchayat Primary Teachers were framed, in the

meanwhile, in 2006. A question had arisen before this Court in

CWJC No. 8611 of 2007 (Pramila Kumari and ors Vs. State of

Bihar and ors) as to whether service conditions of the persons

appointed as teachers through limited competitive examination

held by the Bihar Public Service Commission of ex Non-Formal

Education Supervisors shall be governed by the rules/provisions

existing prior to coming into force of 2006 Rules. This Court by

an order dated 11.08.2008 passed in case of Pramial Kumari

(supra) held that service conditions of such persons shall be

governed by the rules as existing on the date of the

recommendations made by the Bihar Public Service

Commission. This is not in dispute that for employees

appointed under the Government on or after 01.01.2004, a new

contributory pension scheme was introduced by the Government

of India, following which the State Government of Bihar has

adopted the same scheme for its employees appointed after Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

01.09.2005 as stipulated in the resolution no. (27) issued vide

memo No. 1964 dated 31.08.2005 by the Finance

Commissioner, Government of Bihar.

6. The petitioner has filed the present writ

application seeking direction to the respondents to grant and fix

family pension; grant benefits of first and second Assured

Career Progression and other consequential benefits. She has

also sought for a direction for payment of full pension, gratuity,

GPF amount and leave encashment. She is also seeking a

direction for payment of difference of salary arising out of

implementation of sixth pay revision. The petitioner has sought

for a direction for payment of interest on the amount which

according to her, has been illegally withheld so far.

7. A counter affidavit has been filed on behalf of the

State of Bihar, wherein the facts asserted in the writ application

as noted above, have not been disputed. It has been stated that

the petitioner's husband was appointed on the post of Assistant

Teacher on 07.01.2007. It is the specific case of the respondents

that all admissible dues have been paid to the petitioner. It has

been stated that a sum of Rs.10618/- has been paid to the

petitioner, being the cash equivalent to unutilized earned leave

of the deceased employee in 2013 itself. Group Insurance Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

amount of Rs.32235/- has also been paid to her. The provident

fund amount has also been paid to her. As regards payment of

pension and gratuity, it has been stated in paragraph 10 that the

District Programme Officer (Establishment), Nalanda vide his

letter dated 14.08.2013 requested the Accountant General, Bihar

and accordingly provisional pension and gratuity have been paid

to the petitioner. Difference of salary arising out of sixth pay

revision Commission Report has also been paid.

8. The Accountant General, Bihar vide his letter

dated 12.12.2013 addressed to the District Programme Officer

(Establishment), Nalanda has noted that all Government

servants appointed after 01.01.2004 are covered by new pension

schemes. The office of the Accountant General had, however,

requested the District Programme Officer (Establishment) to

communicate any decision for payment of family pension and

gratuity in respect of the employees covered by new pension

schemes. There is nothing on record to demonstrate that the

State respondents have ever responded to the said

communication of the Accountant General.

9. Learned counsel appearing on behalf of the

petitioner has submitted that the pension scheme, prevailing as

on the date of recommendation made by the Bihar Public Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

Service Commission should govern her claim for grant of

family pension and gratuity in the light of this Court's

observation in case of Pramial Kumari(supra). He has argued

that for the lapses on the part of the respondents, the petitioner

cannot be denied her legal rights. He has argued that similarly

situated persons selected on the basis of same selection process

shall be entitled for pension, family pension and gratuity under

the Bihar Pension Rules on account of their appointment before

the cut-off date, whereas the petitioner is being denied such

benefits on erroneous considerations.

10. Learned counsel representing the State of Bihar

has submitted that in view of the objections raised by the

Accountant General through its letter dated 12.12.2013, the

petitioner has not been held to be entitled to get pensionary

benefits in accordance with the provisions of Bihar Pension

Rules, 1950.

11. It is surprising to note that whereas the

Accountant General in his letter dated 12.12.2013 (Annexure-F

to the counter affidavit filed on behalf of the State of Bihar) has

mentioned 01.01.2004 as the cut-off date to determine whether a

Government servant shall be entitled to pensionary benefits

under the old pension scheme or the new pension scheme, the Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

State Government decision as contained in resolution No. 1964

dated 31.08.2005 mentions 01.09.2005 as the date for such

determination. No decision has been brought to this Court's

notice as to whether the said date, viz, 01.01.2004 has been

adopted as the cut-off date for the employees appointed under

the State Government of Bihar. If 01.01.2004 is the cut-off date,

the petitioner cannot have any claim as admittedly the

recommendatins were made after 01.01.2004. If on the other

hand, a Government servant under the State of Bihar on or

before 01.09.2005 is entitled to pensionary benefits under the

Bihar Pension Rules, the question would arise as regards

applicability of this Court's decision in case of Pramial Kumari

(supra).

12. In the absence of any clear pleadings on record

on the crucial aspects of the matter for determining the

petitioner's claim, the Court deems it fit and proper to dispose

of this writ application with a direction to respondent No.2 to

take a decision as to whether the petitioner's claim for family

pension and gratuity under the Bihar Pension Rules, 1950 is

made out or not and pass an order in this regard within a period

of two months from the date of receipt/production of a copy of

this order. The respondent No.2 shall be under obligation to Patna High Court CWJC No.15564 of 2017 dt.03-08-2021

respond to the query made by the Accountant General, Bihar in

its letter dated 12.12.2013 in this regard, immediately thereafter.

13. This writ application stands disposed of with the

aforesaid observations and directions.

(Chakradhari Sharan Singh, J) arun/-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          05.08.2021
Transmission Date