Devata Devi vs The State Of Bihar
2021 Latest Caselaw 4892 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.6672 of 2019
     ======================================================

Devata Devi, aged about 67 years, Gender- (Female), W/o Late Yugal Kishore Mishra, resident of - Sijaulia Godiyari, P.S.- Sijaulia, District - Madhubani.

... ... Petitioner Versus

1. The State of Bihar through the Director, Higher Education, Govt. of Bihar, New Secretariat, Patna.

2. The Director, Higher Education, Govt. of Bihar, New Secretariat, Patna.

3. The Vice-Chancellor, L.N. Mithila University, Darbhanga.

4. The Registrar, L.N. Mithila University, Darbhanga

5. The Finance Officer, L.N. Mithila University, Darbhanga

6. The Principal, C.M.B. College Deorh, Ghoghardiha, District Madhubani

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 7735 of 2019 ====================================================== Baleshwar Jha, aged about 78 years, Male, son of late Balram Jha, Resident of Rajendra Nagar, Power Hose Road, P.S. and District- Begusarai, a Superannuated Employee as Reader, in the Department of Chemistry, G.D. College, Begusarai.

... ... Petitioner Versus

1. The State of Bihar through the Principal Secretary, Education Department, Govt. of Bihar, New Secretariat, Patna.

2. Principal Secretary, Education Department, Govt. of Bihar, New Secretariat, Patna.

3. The Director, Higher Education, Govt. of Bihar, New Secretariat, Patna.

4. The Vice-Chancellor, L.N. Mithila University, Darbhanga.

5. The Registrar, L.N. Mithila University, Darbhanga.

6. The Finance Officer, L.N. Mithila University, Darbhanga.

7. The Principal, G.D. College Begusarai, District- Begusarai.

... ... Respondents ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 6672 of 2019) For the Petitioner : Mr. Shashi Bhushan Singh, Advocate For the State : Mr. Madhaw Prasad Yadaw, GP-23 For the University : Ms. Binita Singh, Advocate (In Civil Writ Jurisdiction Case No. 7735 of 2019) Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

For the Petitioner : Mr. Shashi Bhushan Singh, Advocate For the State : Mr. Madanjeet Kumar, G.P.-20 For the University : Mr. Nadeem Seraj, Advocate Ms. Alka Verma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 06-10-2021

Heard learned counsel for the parties.

2. The petitioner of C.W.J.C. No.6672 of 2019 is

widow of late Yugal Kishore Mishra, who retired as Reader

while serving in C.M.B. College, Deorh, Ghoghardiha, District-

Madhubani, a constituent unit of L.N. Mithila University,

Darbhanga. He died subsequently. The petitioner of C.W.J.C.

No.7735 of 2019 retired as Reader while working in a

constituent College of the same University. They have

approached this Court by filing these writ applications, seeking

direction for payment of arrears of post retiral and other dues.

3. Since both the cases raise common issues, they

have been heard together and are being disposed of by present

common judgment and order.

4. The common issues involved in both the cases

relate to their claims for merger of 50% of Dearness Allowance

with pension for the purpose of calculation of monthly pension,

payment of compound interest at the rate of 12.5% on the

amount of Group Insurance and arrears of Medical Allowance. Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

5. I have heard Mr. Shashi Bhushan Singh, learned

counsel representing the petitioners in both the cases, Mr.

Madhaw Prasad Yadav, G.P.-23 and Mr. Madanjeet Kumar, G.P.-

20 for the State of Bihar. The University has been represented

by Ms. Binita Singh, Mr. Nadeem Seraj and Ms. Alka Verma,

learned counsel.

6. In respect of merger of 50% of Dearness

allowance with pension for the determination of the amount of

monthly pension, the University in its counter affidavit has

taken a stand that claim of merger of 50% of Dearness

Allowance is not sustainable as per direction of the University

Grants Commission. In the counter affidavit, however, the

University has not referred to any such direction of the

University Grants Commission.

7. In the counter affidavits filed on behalf of the

State of Bihar, it has been specifically stated that the State

Government vide its resolution contained in memo no.1674

dated 16.08.2012 has extended the benefit of merger of 50% of

Dearness Allowance with basic pension with effect from

01.04.2005 to the teaching and non-teaching employees of the

Universities in the State appointed in accordance with law

against sanctioned and vacant posts and it has revised the Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

pension with effect from 01.01.2006 with stipulation that actual

monetary benefit shall be payable in three annual increments of

15%, 40% and 45% during the financial years 2012-13, 2013-14

and 2014-15. It has been specifically stated in the counter

affidavit that the stand taken by the University that merger of

50% of Dearness Allowance with basic pension is applicable to

non-teaching employees only is incorrect as both teaching and

non-teaching employees are covered by the said resolution. It

has further been stated that after implementation of merger of

50% of Dearness Allowance with basic pension, the State

Government has released grant of Rs.300 crores vide memo

no.2636 dated 25.11.2012 to the Universities for payment of all

sorts of arrears accrued on account of pensionery/retiral

benefits, arrears of pension and arrears of salary to the

employees of the University. The State Government through its

affidavit has also brought on record, a letter issued vide memo

no.848 dated 24.04.2013 whereby, a sum of Rs. 543,37,75,990/-

has been released for payment to its employees towards arrears

of pension, post retiral benefits and arrears of salary etc. There

is specific statement made in the counter affidavit that it is

evident from the communication dated 24.04.2013 that separate

amounts have been released for payment of other dues of salary, Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

pension and post retiral benefits which includes the payment of

arrears to the retired employees, accrued due to merger of 50%

of Dearness Allowance with basic pension. Further, a sum of Rs.

165,82,73,064/- was released for payment of second installment

of 40% to the employees of various Universities due to revision

in pension since 01.04.2007. It has also been stated in the

counter affidavit that it is upto the concerned University to

examine the case of the petitioners for their eligibility to get

merger of 50% of Dearness Allowance and if found admissible,

pay the same, if not already paid.

8. In view of clear stand taken in respect of

entitlement of the employees of the University to get the benefit

of merger of 50% of Dearness Allowance with the basic pension

in accordance with the resolution of the State Government, as

noted above, no dispute in the said regard survives. The

petitioners are accordingly, held entitled to get the benefit of

merger of 50% of Dearness Allowance for determination of

amount of pension in accordance with the resolution of the State

Government.

9. The second aspect of payment of interest at the

rate of 12.5% on Group Insurance amount is also not much in

controversy. The petitioners have relied on a decision of this Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

Court dated 31.08.2015 rendered in C.W.J.C. No. 11219 of 2011

(Dr. Shyam Sunder Acharia vs. The State of Bihar and Ors.) by

a co-ordinate Bench of this Court wherein, this Court has

required the University to consider the grievance of the

petitioner in the light of this Court's decision rendered in the

case of Professor Surender Bahadur vs. State of Bihar

reported in 2006(4) PLJR 369.

10. It is the petitioners case that other employees

of the University have been allowed compound interest at the

rate of 12.5% per annum on Group Insurance amount. By way

of illustration, an order dated 22.06.2014 passed by the

Registrar of the University in case of Savitri Sinha has been

brought on record. This Court's attention has also been drawn to

a recent communication dated 25.01.2020 whereby, compound

interest at the rate of 12.5% per annm on Group Insurance

amount has been allowed in case of another employee. There

does not appear to be much dispute in respect of payment of

Medical Allowance. A copy of resolution dated 06.03.2019 of

the Education Department, Government of Bihar, has been

brought on record, Clause-9 of which prescribes that the

pensioners / family pensioners shall be entitled to Medical

Allowance at the same rate as is admissible to employees of the Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

State Government. It is specific case of the petitioners that a

retired State Government employee and his family are entitled

to Medical Allowance at the rate of Rs.1000/- per month with

effect from 20.10.2017 by virtue of Finance Department's

resolution no.754-755 dated 20.10.2017.

11. It is to be kept in mind that the question of

merger of 50% of Dearness Allowance with basic pension, had

arisen before the Division Bench of this Court. The Division

Bench, upon examining Section 35 of the Bihar State

Universities Act, 1976, Clause-16 of the Statutes governing

retiral benefits of the employees of the University and State

Government Circular dated 11.04.2005 specifically held by a

judgment and order dated 23.07.2008 rendered in L.P.A. No.434

of 2008 (Prof. (Dr.) Ram Dinesh Sharma vs. The T.M.

Bhagalpur University & Ors.) that retired employees of the

University are entitled to merger of 50% of Dearness Allowance

in their basic pension with effect from 01.01.2005.

12. The view came to be reiterated again by the

Division Bench in its order dated 23.07.2008 rendered in L.P.A.

No.439 of 2008 (Sudhir Chandra Kumar vs. The T.M.

Bhagalpur University).

13. Mr. Shashi Bhushan Singh, learned counsel Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

representing the petitioners, has submitted that there are certain

other issues relating to non-payment of the amount under un-

utilized earned leave. It appears that the said amount has been

paid as it emerges from the counter affidavit filed on behalf of

the University.

14. He has argued that the University has adopted

arbitrary and discriminatory attitude in the matter of payment of

interest on Group Insurance amount. It has been submitted that

whereas some of the employees of the University have been

paid interest at the rate of 12.5% per annum, others have been

denied including these petitioners. He has also submitted that

despite their being conclusive pronouncement by this Court on

the point of merger of 50% of Dearness Allowance with basic

pension, which has attained finality upto the Supreme Court, the

respondents, without any valid reason, have delayed extension

of benefit arising out of the said judicial pronouncement. He has

further submitted that the respondent University has not paid

Medical Allowance as admissible to the retired employees of the

University.

15. Learned counsel appearing on behalf of the

University, on the other hand, have submitted that the petitioners

are not entitled to interest at the rate of 12.5% on Group Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

Insurance amount which is admissible to such employees who

retired prior to 01.01.2006.

16. In reply to the said submission, learned counsel

for the petitioners has relied on a communication dated

10.08.1985 issued under the signature of the Registrar of the

University wherein, reference has been made to decision taken

by the Senate of the University on 27.07.1985 that teaching and

non-teaching employees shall be given benefit of Group

Insurance -cum- Saving Scheme at par with the State

Government employees. He has submitted that in any event,

other employees have been paid interest at the rate of 12.5% per

annum.

17. Learned counsel for the University have also

raised issue relating to non-availablity of fund for payment

against various heads to the teaching and non-teaching

employees of the University. They have contended that once the

fund is released, the University shall be in a position to make

payments.

18. Considering the facts and circumstances, as

noted above, I am of the view that the respondent University

cannot delay any more payment of arrears arising out of benefit

of merger of 50% of Dearness Allowance with the basic Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

pension/family pension of the petitioners in the light of the

Division Bench decision in the case of Prof. (Dr.) Ram Dinesh

Sharma (supra) which has been subsequently affirmed by the

Supreme Court and subsequent resolution of the State

Government in this connection, as noted above. The Registrar of

the University is directed to ensure that the petitioners are paid

arrears of pension/family pension upon granting them the

benefit of merger of 50% of Dearness Allowance within a period

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

this order. Since there is no valid justification for delay in

payment of arrears against this head, the University shall be

required to pay to the petitioners interest at the rate of 6% per

annum from the date the said amount become due till its actual

payment.

19. In respect of interest on Group Insurance

amount, the respondent University is directed to pay to the

petitioners interest at the rate of 12.5% which has been paid to

other employees as has been asserted by learned counsel for the

petitioners referring to the documents which have been brought

on record.

20. The Registrar of the University is further

directed to ensure payment of Medical Allowance to the Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

petitioners, as admissible to them, within a period of two

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

order.

21. At this juncture, the Court takes note of

submission made on behalf of the University that the State

Government while releasing the fund to the University

incorporates the heads against which the fund so released is to

be utilized. That being the position, the University finds it

difficult to utilize the said fund for payment to the employees

against the heads other than those mentioned in the letter of the

State Government while releasing the funds. They have

submitted that it would be convenient to the University to make

payment if the State Government permits the University to use

the said fund for the purpose of payment of the nature involved

in the present case.

22. Be that as it may, the entitlement of the

petitioners cannot be withheld in any circumstance. The Court

excepts the State Government to issue necessary direction/

guidelines in this regard to the University.

23. If any grievance of the petitioners remains

unresolved in relation to calculation of arrears of salary against

various heads, they shall be at liberty to approach the Registrar Patna High Court CWJC No.6672 of 2019 dt.06-10-2021

of the University by filing separate representations. If any such

grievance is raised by filing representation by the petitioners,

the Registrar of the University shall be obliged to consider the

same and take a final decision within a period of two months

from the date of filing of such representation.

24. These writ applications are allowed with the

aforesaid observations and directions.

25. There shall be no order as to costs.

26. The number of order dated 20.09.2021 has been

wrongly typed as order no.13 in place of order no.12. The order

dated 20.09.2021 shall be treated to be order no.12.

(Chakradhari Sharan Singh, J) pawan/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A.
Uploading Date          09.10.2021
Transmission Date       N/A.