Pratap Narayan Singh vs The State Of Bihar
2021 Latest Caselaw 5124 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.8581 of 2017
     ======================================================

Bala Kant Prasad Singh, son of Late Chandrika Singh, Resident of Village- Lodipur, P.S. Bind, District Nalanda. Presently resident of S.R.T. 61, Rajendra Nagar, Road No. 13, 800016.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary Urban Development Department, Government of BIhar, Patna

2. The Principal Secretary Urban Development Department Government of BIhar, Patna.

3. The Patna Municipal Corporation at Patna through the Commissioner, Patna Municipal Corporation at Mouryalok Complex, Patna

4. The Municipal Commissioner, Patna Municipal Corporation at Mouryalok Complex, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 12169 of 2019 ====================================================== Pratap Narayan Singh, son of Late Rameshwar Prasad Singh, R/o Mohalla- Vyas Nagar (Phase-I), Indrapuri, P.S.-Shastri Nagar, District-Patna

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna

2. The Patna Municipal Corporation, Mauryalok Complex, Patna through its Commissioner

3. The Municipal Commissioner Patna Municipal Corporation, Mauryalok Complex, Patna

4. The Controller of Municipal Finance and Accounts, Patna Municipal Corporation, Mauryalok Complex, Patna

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

(In Civil Writ Jurisdiction Case No. 8581 of 2017) For the Petitioner/s : Mr. Ram Sumiran Singh, Advocate For the State : Mr. Subhash Pd. Singh, GA-3 For PMC : Mr. Prabhakar Singh, Advocate (In Civil Writ Jurisdiction Case No. 12169 of 2019) For the Petitioner/s : Mr. Shekhar Singh, Advocate Mr. Sunil Kumar, Advocate For the State : Mr. Abbas Haider, SC-6 Mr. Ravish Chandra, Advocate For PMC : Mr. Prabhakar Singh, Advocate Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 01-11-2021

The petitioners in both the cases were employees of

Patna Regional Development Authority (for short PRDA) which

admittedly stood dissolved and merged with the Patna Municipal

Corporation (for short the Corporation) with effect from

02.02.2007. This is also not in dispute that consequent upon

merger with the Corporation all employees of PRDA became the

employees of the Corporation. The employees of the Corporation

are entitled to pensionary benefits under statutory Patna Municipal

Corporation Officers and Servants Pension Rules, 1986 (for short

the PMC Pension Rules), published in Bihar Gazettee on

20.03.1987. The PMC Pension Rules came into force with effect

from 01.01.1986. The sole question, which these two writ

applications involve is, as to whether the employees of erstwhile

PRDA, who became the employees of the Corporation in the

aforesaid manner, are entitled to benefits under the PMC Pension

Rules for grant of monthly pension and family pension. As the

issue involved in both the cases is common, they have been heard

together and are being disposed of by the present common

judgment and order.

2. It is noted at the outset that this question had earlier Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

arisen before this Court in a writ application registered as CWJC

No. 14307 of 2016 and its analogous matters (Avinash Kumar

Singh vs. State of Bihar). A coordinate Bench of this Court upon

noticing the stand of the Principal Secretary, Urban Development

and Housing Department, Government of Bihar, in response to a

query made by the Corporation, had allowed the writ application

by order dated 15.05.2017 with the following direction :-

"The only dispute which arises for consideration is, whether these petitioners after their absorption in the Corporation, were entitled to the benefits under 'the Pension Rule' as applicable to the Corporation employees and for which a query was made by the Municipal Commissioner by letter dated 21.1.2017 addressed to the Principal Secretary, Urban Development and Housing Department, a copy of which is placed on record vide Annexure R3/B filed on behalf of the Corporation in each of the two writ petitions, as to how the pension cases of these employees of erstwhile PRDA who have been absorbed in Patna Municipal Corporation, is to be dealt with. It is in response to the query so made by the Municipal Commissioner through his letter dated 21.1.2017, placed at Annexure R3/B, that the Urban Development and Housing Department through the Director, Municipality cum Joint Secretary has issued an advisory to the Municipal Commissioner of Patna Municipal Corporation that the cases of such of the employees who stood absorbed with the Corporation Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

would be governed in the same manner as the permanent employees of the Corporation. A copy of such advisory dated 24.4.2017 of the Urban Development and Housing Department, Govt. of Bihar has been placed on record vide Annexure 10 to the rejoinder to the counter affidavit.

Having heard learned counsel for the parties and considering that the query whatsoever engaging the Municipal Commissioner, Patna stands satisfied in the advisory present in the letter dated 24.4.2017 vide Annexure 10, it is now for the Municipal Corporation to enforce the same and let the Municipal Commissioner, Patna take a final decision to such effect within a period of six weeks from the date of receipt/ production of a copy of this order.

The writ petitions are allowed with the directions aforementioned."

3. The petitioner of CWJC No. 8581 of 2017 retired with

effect from 30.04.2015, whereas the petitioner of CWJC No.

12169 of 2019 retired with effect from 31.08.2015. Both the

petitioners have filed the writ applications under Article 226 of the

Constitution of India seeking direction to the respondent-

Corporation for payment of the amount arsing out of grant of

Assured Career Progression (ACP) and other post retiral dues

including pension under the PMC Pension Rules.

4. By way of supplementary affidavit, the petitioners

have brought on record an order dated 12.02.2019, issued in the

light of the decision of Empowered Standing Committee of the Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

Corporation in its meeting held on 16.01.2019, which mentions

that the pension scheme under the PMC Pension Rules shall be

applicable with effect 01.01.2019 to the employees of the

Corporation whose services were merged in the Corporation with

the dissolution of PRDA.

5. In one of the counter affidavits filed on behalf of the

Corporation reliance has been placed on Rule 4 of the PMC

Pension Rules which, according to the Corporation, disentitles the

petitioners to claim benefit of pension as they have already

received the amount of provident fund contribution. It is the case

of the Corporation that since the petitioners received the mount of

contributory provident fund, they cannot be granted benefit of

pension.

6. It is the case of the petitioners, on the other hand, that

the matter as to whether the petitioners and similarly situated

employees under the Corporation would be entitled to benefit of

pension under the PMC Pension Rules or not had not been

conclusively decided by the Corporation despite representations

having been made by them and for the first time a decision was

taken in 2019 to extend the benefit of pension under the PMC

Pension Rules with effect from 01.01.2019.

7. It deserves to be noted at this juncture that this Court Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

in its order dated 11.02.2021, passed in these matters, had

observed as under:-

"Learned counsel for the petitioner(s) submits that in fact the State Government was categorical before the learned coordinate Bench in saying that the cases of all such employees who stood absorbed to the Corporation would be governed in the same manner as permanent employees of the Corporation. If this was the stand of the State Government and pursuant thereto the learned coordinate Bench has issued direction to the Municipal Commissioner, Patna to take a final decision to such effect, the Municipal Commissioner would not be justified in issuing a notification restricting the benefit of pension to only those employees who are presently in service while keeping the matter relating to payment of pension and family pension in relation to the retired employees pending for last two years.

In this connection the report as contained in Annexure 'RA' vide Memo No. 01115 dated 19.01.2021 has been referred to and this Court has been called upon to take a view with regard to the payment of pension and family pension relating to the retired employees.

Learned counsel for the petitioner submits that on the one hand, the proposal has been kept pending since 16.01.2019 but at the same time in paragraph '7' of the supplementary counter affidavit filed on behalf of the Corporation a plea has been taken that according to Rule '4' of the Patna Municipal Corporation Officers and Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

Servants Pension Rules, 1986 (hereinafter referred to as the 'Rules of 1986') the employee who has withdrawn both the contribution amount of provident fund shall not be eligible for pension. Learned counsel submits that the statement has been made in the supplementary counter affidavit being completely ignorant of the basic fact that such rule would be applicable only when the employees of the erstwhile 'PRDA' (since dissolved) would have an opportunity to choose between the contributory provident fund and pension. If such option was not available to the employees of the erstwhile 'PRDA', the analogy which is the premise of Rule '4' of the Rules of 1986 would not be available to be applied against the retired employees of the 'PRDA'.

Mr. Prabhakar Singh, learned counsel for the Patna Municipal Corporation submits that since the report filed before this Court shows that the matter is still pending consideration, he may be allowed an opportunity to come back to this Court with further instruction as to the decision in regard to the retired employees.

This Court is granting further four weeks time being fully conscious of the fact that the matters have been adjourned on many occasions but with sole intention that the authorities of the Municipal Corporation must act and take an appropriate decision as keeping the matter pending at their end is not a way out to resolve the disputes."

8. Apparently, in view of the aforesaid order of this

Court and subsequent orders, the Empowered Standing Committee Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

of the Corporation in its meeting held on 29.06.2021 has now

taken a conclusive decision that such employees of the dissolved

PRDA who retired before 01.01.2019 and have received both

components (subscription and contributory) of provident fund

cannot claim benefit of pension and family pension under the PMC

Pension Rules. The said decision has been brought on record by

way of a supplementary counter affidavit filed on behalf of the

Corporation.

9. It has been stated in the supplementary counter

affidavit that between 01.02.2007 to 31.12.2018, 35 employees of

the erstwhile PRDA have retired/ died. The order relating to grant

of pension to the employees of the dissolved PRDA with effect

from 01.01.2019 was brought to the notice of the Empowered

Standing Committee. Paragraph-5 of the supplementary counter

affidavit discloses the reason why the Empowered Standing

Committee has rejected the claim of such employees who retired

before 01.01.2019 and had received the provident fund

contribution. This stand of the Corporation is of immense

significance for determination of the issue involved and, therefore,

it is considered apt to reproduce the same, which reads as under :-

"That the Empowered Permanent Committee of Patna Municipal Corporation in its meeting held on 29.06.2021 decided the proposal No. Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

595 placed for taking decision for providing pension to the retired employees whose services had been merged into Patna Municipal Corporation, who were earlier working in the Patna Regional Development Authority. From the perusal of the copy of the proceeding record it is clear that the Municipal Commissioner placed the facts and explained the proposal for taking decision about providing pension the retired employees of the PRDA whose services were merged in 2007 and stated that between 1.02.2007 to 31.12.2018, 35 employees were retired/ died. Order for granting pension to the employees of repealed PRDA with effect from 1.1.2019 was issued. It was further stated that 35 employees have withdrawn the both contribution amount of Provident Fund after their retirement. During proceeding one member of the empowered committee suggested to reject the claim of the retired employees, because as per provision made under rule 4(1)(2) of the Patna Municipal Corporation Officers and Servants Pension Rules, 1986 they are not entitled as they have withdrawn the both contributory amount of provident fund. Thereafter the committee considered the said matter and rejected the claim for pension regarding the employees who have withdrawn the both amount of the provident fund on the basis of provision made under paragraph 4(1) Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

(2) of the Patna Municipal Corporation Officers and Servants Pension Rules, 1986. (Underlined for emphasis)

10. On careful reading of the supplementary counter

affidavit, it is crystal clear that the provision under Rule 4(i) and

4(ii) of the PMC Pension Rules are the bases why in the opinion of

the Corporation the petitioners and other similarly situated persons

are not entitled to pension/ family pension under the PMC Pension

Rules.

11. It may be noted, at this stage that it is the stand of the

petitioners that they are ready to refund the provident fund

contribution amount received by them to the Corporation with

interest, for availing benefit under the PMC Pension Rules.

12. IA. No. 01 of 2021 has been filed in CWJC No. 8581

of 2017 seeking quashing of the order/ decision dated 23.08.2021,

whereby the claim of the petitioner has been rejected on the

ground that he retired before 01.01.2019 and had received both

components of the provident fund amount.

13. Similar application has been made bearing I.A. No.

02 of 2021 in CWJC No. 12169 of 2019, by the petitioner.

14. Both I.A. No. 01 of 2021 filed in CWJC No. 8581 of

2017 and I.A. No. 02 of 2021 filed in CWJC No. 12169 of 2019

are allowed and accordingly the petitioners are permitted to Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

question the validity and legality of the impugned order/ decision

of the Corporation dated 23.08.2021.

15. Mr. Shekhar Singh, learned counsel appearing on

behalf of the petitioner in CWJC No. 12169 of 2019 has argued

that from the date the employees of the erstwhile PRDA became

the employees of the Corporation, upon dissolution of PRDA, by

virtue of operation of the PMC Pension Rules, they became

entitled to pension/ family pension under the said PMC Pension

Rules. He has submitted that despite there being specific provision

under the PMC Pension Rules the respondent-Corporation itself

was not certain on the point of grant of benefit of pension under

the said Rules apropos employees of the erstwhile PRDA. He has

argued that for the first time the Corporation considered the issue

of applicability of PMC Pension Rules in respect of the employees

of the dissolved PRDA working under the Corporation on

15.02.2019. The said order dated 15.02.2019 (Annexure-I/1 of I.A.

No. 01 of 2021 filed on behalf of petitioner in CWJC No. 12169 of

2019) discloses the decision of the Empowered Standing

Committee in its meeting held on 16.01.2019 to the effect that the

pension scheme shall be applicable to the employees of the

dissolved PRDA with effect from 01.01.2019 at par with the

employees of the Corporation. He contends that the Corporation Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

could not have created a separate class for purpose of

implementation of the PMC Pension Rules from amongst such

employees of the PRDA, who, upon dissolution, became the

employees of the Corporation. He has submitted that apparently

because the Corporation itself was indecisive as regards

implementation of the PMC Pension Rules in respect of the

employees of dissolved PRDA, no option was obtained from them

and the petitioners, who retired before 01.01.2019, did not have

any opportunity to exercise their option. He has further submitted

that considering the indecisive approach of the Corporation itself

the petitioners had no other option but to receive the provident

fund amount which the petitioners are willing and ready to refund

forthwith with statutory interest. He has urged that the impugned

decision of the Empowered Standing Committee is manifestly

bereft of any consideration on the observations made by this Court

in the order dated 11.02.2021 in these matters and order dated

15.05.2017, passed in CWJC No. 14307 of 2016. He has further

argued that the decision to deny the petitioners benefit of pension

under the PMC Pension Rules is illegal being violative of Articles

14 and 16 of the Constitution of India, inasmuch as, a class of

employees, who retired before 01.01.2019, has been created

without any rationale.

Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

16. Mr. Ram Sumiran Singh, learned counsel appearing

on behalf of the petitioner in CWJC No. 8581 of 2017 has adopted

the submission advanced on behalf of Mr. Shekhar Singh, learned

counsel for the petitioner in CWJC No. 12169 of 2019.

17. Mr. Prabhakar Singh, learned counsel appearing on

behalf of the Corporation has heavily relied on Rule 4(ii) of the

PMC Pension Rules to contend that since the petitioners have

already received the provident fund contribution, they are

disentitled to get benefit of pension under the Pension Rules. With

reference to the said provision, he has justified the decision of the

Corporation in denying the benefits of pension to the petitioners

and other similarly situated persons.

18. Mr. Subhash Prasad Singh, learned GA-3 in CWJC

No. 8581 of 2017 and Mr. Abbas Haider, learned SC-6 in CWJC

No. 12169 of 2019 appearing on behalf of the State of Bihar have

argued that the State has limited role in the matter of

implementation of pensionary benefits to the employees of the

Corporation. They have relied on a Division Bench decision of this

Court dated 04.05.2015, rendered in LPA No. 960 of 2007 (The

State of Bihar vs. Bhuwan and another).

19. I have carefully perused the pleadings and other

materials on record and I have given my anxious consideration to Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

the rival submissions advanced on behalf of the parties.

20. The first issue which, in my opinion, is required to

be addressed, is the effect of Rule 4 of the PMC Pension Rules

which is apparently the sole basis for denial of the petitioners'

claim for pension/ family pension. Rule 4 of the Pension Rules

reads as under:-

"4. (i) Corporation employee on roll on the date of confirmation of this rule and who had subscribed to the contributory provident fund under P.M.C. employee 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 from (Annexure-1) and submitted to the Chief Executive Officer 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) Corporation 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."

21. It is manifest on plain reading of sub-rule (i) of Rule

4 of the PMC Pension Rules that it applies to such employees of

the Corporation who were on roll on the date of confirmation of Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

the Rules and who had subscribed to the contributory provident

fund under the Patna Municipal Corporation Employee Provident

Fund Rules. Such employees, already on the roll, if they wanted to

be governed by the PMC Pension Rules, they had the option under

Rule 4(i) to do so which option was to be exercised in writing in

prescribed form by submitting it to the Chief Executive Officer

within 90 days from the framing of the Rules. It further prescribes

that if such option in writing in prescribed form was not received

within the period so fixed, it would be deemed that they would

retain the then existing contributory provident fund rules. Sub-rule

(i) of Rule 4 is apparently applicable only for such employees of

the Corporation who were already on roll on the date of

confirmation of the Rules. Those appointed in the Corporation

after the prescribed date, were not required to exercise their option,

as such employees would be automatically covered by the said

Pension Rules. Requirement of giving option or not giving option

under Rule 4(i) was limited to the existing employees of the

Corporation as on the date of coming into force of the said Pension

Rules, who were covered by the Corporation Employee Provident

Fund Rules.

22. Sub-rule (ii) of Rule 4 refers to class of such

employees of the Corporation who had already retired before the Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

date of the effect of the Pension Rules and had received part or

whole amount of provident fund contribution. Sub-rule (ii) of Rule

4, by no means, can be interpreted to apply for employees other

than those who had retired prior to coming into force of the Rules.

23. In case of Sanchari Devi vs. Ara Municipal

Corporation reported in (2014) 15 SCC 648 : 2015(1) PLJR(SC)

370 the Supreme Court had the occasion to examine the scope of

similar provision under Rule 4(i) and 4(ii) of the Bihar Municipal

Officers and Servants Pension Rules which are in pari materia

with Rule 4(i) and 4(ii) of the PMC Pension Rules. Upon

examining the language of the said provisions the Supreme Court

held in paragraph 5 as under :-

"5. A bare reading of the Rules 1 and 4(i) 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 Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

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."

(Underlined for emphasis)

24. By virtue of Rule 4(i) of the Bihar Municipal

Officers and Servants Pension Rules, the Supreme Court held in

case of Sanchari Devi (supra), that every permanent employee of a

municipality or notified area committee, if he had not retired

before the date of effect of the Rule and had not received part or

whole of the provident fund contribution was statutorily entitled to

the pension. Only such employees of the Corporation who had

retired before coming into force of the said Pension Rules and had

received the amount of provident fund contribution could not avail

the benefit of pension under the Pension Rules.

25. After having analysed the scope of Rule 4 of the

Pension Rules, coming to the facts of the case of these petitioners,

admittedly they became the employees of the Corporation when

the PMC Pension Rules was already in force. They being Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

employees of the Corporation, by operation of Rule 1 of the

Pension Rules, they became entitled to the benefits under the

Pension Rules. It is evident from the materials on record and from

the order of this Court dated 15.05.2017, passed in CWJC No.

14307 of 2016 (Avinash Singh vs. The State of Bihar) that despite

there being clear provision under the PMC Pension Rules, the

Corporation was not certain on admissibility of pension under the

said Rules for employees of the dissolved PRDA after their

absorption in Corporation. A query was made by letter dated

21.01.2017 by the Municipal Commissioner, addressed to the

Principal Secretary, Urban Development and Housing Department,

Government of Bihar and in response to the said query, after

having obtained legal opinion from the Law Department, the

Corporation was communicated through letter dated 24.04.2017 of

the Department that the salary, pension and other retiral benefits

would be payable to the employees of the dissolved PRDA at par

with the employees of the Corporation. Nearly two years

thereafter, the Municipal Commissioner of the Corporation came

out with a resolution in the nature of proposal for implementation

of pension scheme for the employees of the dissolved PRDA with

effect from 01.01.2019. Accordingly, the proposal was accepted by

the Empowered Standing Committee of the Corporation in its Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

meeting held on 16.01.2019 and on that basis it is the case of the

Corporation that such employees of the dissolved PRDA are

entitled to pension under the PMC Pension Rules with effect from

01.01.2019.

26. In the light of the order of this Court dated

11.02.2021, passed in these matters, a fresh proposal was placed

by the Municipal Commissioner of the Corporation before the

Empowered Standing Committee of the Corporation which has

been rejected by the said Committee in its meeting dated

29.06.2021. The said decision of the Empowered Standing

Committee has been issued by the Municipal Commissioner on

14.08.2021. The claim of the petitioners for pension has

accordingly been rejected with the issuance of an order dated

23.08.2021 under the signature of Municipal Commissioner of the

Corporation. The said order is also under challenge in the present

proceeding. It is evident from the order dated 23.08.2021 that the

claim of the petitioners has been rejected by referring to the

provision under Rule 4(i) and 4(ii) of the PMC Pension Rules.

27. As has been discussed hereinabove, Rule 4(i) of the

PMC Pension Rules does not have any application in respect of the

employees of the Corporation who were not on the roll of the

Corporation as on the date of coming into force. Rule 4(ii) of the Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

PMC Pension Rules is referable to only such employees of the

Corporation who had retired prior to coming into force of the

Rules, which does not apply to the petitioners.

28. Rule 1 of the Pension Rules reads thus :-

"1. Those rules may be called the Patna Municipal Corporation Officers and Servants Pension Rules, 1986 and shall apply to all permanent employees of the Corporation." (Emphasis added)

29. By operation of Rule 1 of the Pension Rules, the

petitioners after having become permanent employees of the

Corporation, became entitled to application of the PMC Pension

Rules. In view of the abovementioned discussion, since reliance on

Rule 4(i) and Rule 4(ii) of the Pension Rules by the Corporation

for rejecting the claim of the petitioners for grant of pension under

the scheme, in Court's opinion, is completely misplaced, the

impugned decision of the Empowered Standing Committee taken

in its meeting held on 29.06.2021 is accordingly held to be illegal.

The consequential order issued under the signature of the

Municipal Commissioner of the Corporation dated 23.08.2021 is

also held to be illegal and unsustainable, for the same reason.

30. Coming now to the decision of the Empowered

Standing Committee of the Corporation in its meeting held on Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

16.01.2019, leading to issuance of order dated 15.02.2019 to the

effect that the Pension Rules shall be applicable in case of

employees of dissolved PRDA from 01.01.2019, in my opinion,

the same also cannot be sustained, being contrary to the statutory

PMC Pension Rules. In my opinion, it was not open for the

Corporation to have implemented the PMC Pension Rules in case

of these petitioners differently. Since the Corporation itself had

failed to take any decision and was rather seeking guidelines from

the State Government in this regard, even after the petitioners had

attained the age of superannuation, they cannot be blamed, for the

lapses on the part of the Corporation, by making them receive the

provident fund contribution as they did not have any other option

at the said point of time. The Corporation, completely misdirecting

itself to the provisions under Rule 4(i) and 4(ii) of the Pension

Rules, denied the petitioners' claim and decided to apply the

pension scheme for such employees with effect from 01.01.2019.

There is no rationale nor any intelligible differentia to distinguish

the employees of the dissolved PRDA who retired prior to

01.01.2019 and after 01.01.2019 for the purpose of implementation

of the PMC Pension Rules, which came into force in 1986 itself.

31. Law is well settled that a defaulting party cannot be

allowed to take advantage of its own wrong. The Corporation Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

cannot benefit itself by the mistake to which it itself has

contributed. [See (1955) 1 SCR 108, Manilal Mohan Lal Sah vs.

Sardar Sayed Ahmed Sayed Mahmad and Another]. Taking

similar view in case of Haryana Financial Corporation vs.

Rajesh Gupta reported in (2010) 1 SCC 655, the Supreme Court

held the Corporation in that case having acted unfairly could not

be permitted to take advantage of its wrong. (see para 23, supra)

32. Learned counsel for the petitioners are correct in

their submissions that the petitioners did not have any occasion/

opportunity or choice to exercise their option at any point of time.

No case has been made out on behalf of the Corporation that the

petitioners were ever given any option to elect, to be governed by

the PMC Pension Rules which they declined. In any view of the

matter, in the Court's opinion, the moment the petitioners became

permanent employees of the Corporation, they could not have

exercised any other option other than to be governed by the PMC

Pension Rules, by operation of Rule 1 thereof.

33. In view of the facts and circumstances which have

been noticed hereinabove, and the conduct of the Corporation

despite clear observations made by this Court in previous orders,

the Court is of the definite opinion that the Corporation is trying to

take advantage of its own lapses which is impermissible. Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

34. For the reasons noted above, I am of the considered

view that the petitioners are entitled to benefits of pension/ family

pension under the provisions of the PMC Pension Rules. The

provident fund contribution was wrongly paid to them. They ought

to have been given pension under the PMC Pension Rules, since

on the date of their superannuation there was no reason for the

Corporation to deny them the benefit of pension under the PMC

Pension Rules. Receiving of provident fund contribution by the

petitioners, in Court's opinion, will not amount to waiver of their

legal right to receive pension under the statutory Pension Rules in

view of the facts and circumstances of the case as noted above. As

has been noticed above, the petitioners are ready to refund the

provident fund contribution to the Corporation with interest.

35. In view of the foregoing discussions and the reasons

recorded, the impugned order dated 15.02.2019 of the Corporation,

to the extent it allows payment of pension under the Pension Rules

for employees of the dissolved PRDA who retired with effect from

01.01.2019, deserves interference by this Court and is set aside

accordingly.

36. Both the writ applications are allowed with a

direction that if the petitioners deposit the entire amount of

provident fund contribution received by them right from their Patna High Court CWJC No.8581 of 2017 dt.01-11-2021

initial appointment in PRDA, with interest to the Corporation, they

shall be paid pension under the PMC Pension Rules. The

Corporation shall be required to compute the amount of provident

fund contribution received by the petitioners as employees of

dissolved PRDA and the interest which the petitioners will be

required to pay from the date they received the amount till date,

within a period of one month from the date of receipt/ production

of a copy of this order. Once such computation is made by the

Corporation, the same should be communicated to the petitioners

forthwith. The amount so computed by the Corporation should be

deposited by the petitioners in appropriate account of the

Corporation within a fortnight thereafter. If the said amount is

deposited by the petitioners within the stipulated time, the

Corporation shall be required to pay to the petitioners pension and

arrears of pension under the PMC Pension Rules.

37. There shall be no order as to costs.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR               NAFR
CAV DATE               NA
Uploading Date         02.11.2021
Transmission Date      NA