The Municipal Commissioner vs The State Of Bihar
2023 Latest Caselaw 3662 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Letters Patent Appeal No.240 of 2021
                                       In
                 Civil Writ Jurisdiction Case No.18940 of 2018
     ======================================================

The Municipal Commissioner Municipal Corporation Munger through Shir Srikant Shashtree Aged about 48 Son of Late Sukndeo Prasad Presently posted as Municipal Commissioner, Munger

... ... Appellant/s Versus

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

2. The District Magistrate, Munger

3. The Chairman Munger Municipal Corporation, Munger

4. Binod Raut @ Binod Mehtor, Son of Late Tunni Raut, Resident of Gumti No. 2, Munger Bazar, P.s.- Kotwali, District- Munger

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

For the Appellant/s : Mr. Anjani Kumar, Sr. Advocate Mr. Sanjay Prasad, Advocate Mr. Amit Kumar Jha, Advocate For the Respondent/s : Mr. Rajeev Kumar Verma, Sr. Advocate Mr. Y. P. Sinha, AAG-7 Mr. Karuna Nath Sahay, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 10-08-2023

The petitioner, who retired in 2018 was before the

Writ Court seeking the differential pay as per the 4 th , 5th & 6th

pay revisions, the benefit of ACP, pension from the date of

retirement, amount of un-utilized leave and amount of Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

contributory provident fund with interest. The respondent,

Munger Municipal Corporation submitted that gratuity and

leave encashment has been paid to the petitioner. The learned

Single Judge directed consideration of the pay revisions sought

for by the petitioner, within a period of three months and also

directed payment thereof, failing which 9% interest would be

due. As far as the pension is concerned, the learned Single Judge

followed Sanchari Devi v. Ara Municipal Corporation, (2015)

1 PLJR (SC) 370.

2. Mr. Anjani Kumar, the learned Additional

Advocate General specifically pointed out that Sanchari Devi

(supra) was on the peculiar facts coming out in the said case and

the Hon'ble Supreme Court had specifically noticed that it

would not have the effect of a binding precedent. It is pointed

out that the Bihar Municipal Officers and Servants Pension

Rules, 1987 (for brevity Rules of 1987) provided for an option

to be given, if an employee has to be paid the pension. The

failure to give the option, as per the statutory mandate would be

deemed to be an expression of interest to continue the existing

contributory provident fund. The petitioner-respondent had

never exercised the option. It is also submitted that claims for

pay revision were never made when he was in service and it Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

cannot be agitated after his retirement.

3. Learned Senior Counsel appearing for the

respondent Mr. Rajeev Kumar Verma, however, would read out

Sanchari Devi (supra) and assert that there is a statutory right to

pension conferred on every employee of the Municipality. It is

also pointed out that the response to the various queries made

under the Right to Information Act would indicate that many of

the employees in the other Municipalities within the State of

Bihar were granted pension. Annexure-3 and 4 in the writ

petition is specifically pointed out to argue that the State

authorities directed payment of pension to all the employees in

the Municipalities.

4. We have first gone through the decision in

Sanchari Devi (supra) which at paragraph 10 specifically

notices that the judgment is delivered on the facts of the present

case and will not be treated as a precedent. The Hon'ble

Supreme Court had also considered the provisions of Rules of

1987, which according to the Court applied to permanent

employees of the Municipalities and Notified Area Committees

in the State of Bihar. The Rules statutorily entitled pension to

the employees who were continuing in employment on the date

of effect of the Rules. Noticing Rule 4 (ii), which was also Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

quoted in the judgment, it was held that Municipal employees

on the rolls, as on the date of effect of the Rules and who had

subscribed to the provident fund, according to their option

would be governed by the pension rules; on such option being

exercised within 90 days from the date of framing of the Rules.

It was also found that the Rules further provided that if such

option in writing in the prescribed forum is not received, it will

be deemed to be an option, to be retained under the existing

Contributory Provident Fund Rules. It was declared that by the

option, a right was given to the employee to either continue with

the contributory provident fund or to switch over to the pension

under the Rules. On the facts of that case, it was noticed that the

Ara Municipal Corporation adopted the resolution only in

19.06.2004 with the provision that pensionary benefits would be

applicable only to those employees who had retired from service

from the year 2000 onwards. This was held to be in clear

contravention of Rule 1 and Rule 4 (ii) of the Rules of 1987. It

was also held that if the Corporation had taken the correct view,

that the Rules of 1987 would be applicable from 13.11.1987 and

the two employees, whose pension was the subject matter of

consideration, had not exercised their options then the

employees would be found to have had a fair opportunity to Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

exercise the option as per the statute. However, the delayed

adoption of the Rules by the Corporation, disabled the

employees from exercising their option as per the pension rules

and such disability which was against the statutory rule could

not be used to deny their statutory right to pension under the

Rules, was the finding.

5. In the present case, no such distinct or peculiar

facts are available. There is no case that the Munger

Municipality did not accept the Rules on its promulgation or

that the employees were denied an opportunity to make an

option. The first respondent, who is the petitioner in the writ

petition, admittedly, did not make any option; in whch

circumstance he is deemed to have opted to continue under the

contributory provident fund rules. The respondent has also paid

the entire retirement dues as per the Contributory Provident

Fund Rules and he cannot have a claim for pension under the

Rules of 1987.

6. The responses received under the RTI queries

does not indicate any employee having been granted pension

without the exercise of option under the rules. Further Annexure

3 only directs pension to be paid in accordance to the Rules, if

the option under the rules was exercised. Annexure 4 also Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

directs pension to be paid in accordance with law.

7. As far as the differential pay in accordance with

the 4th , 5th and 6th pay revisions; it is to be noticed that the 4 th

pay revision was between 1989-1997, the 5 th between 1997-

2007 and the 6th was from October 2007 to the date of

retirement. These were all pay revisions which came within the

period of service of the respondent. The respondent did not seek

for such differential pay when he was in service and within a

reasonable time from the revisions being effectuated. As far as

the un-utilized leave and contributory provident fund, the

Munger Municipality submitted before the learned Single Judge

that the amounts have been paid.

8. We find the reliance placed by the learned Single

Judge on Sanchari Devi (supra) to be not possible, as a binding

precedent and also by reason of the distinctive facts noticed in

the said decision being not applicable in the respondent's case.

The respondent is not entitled to the pay revisions, for reason of

the delay occasioned in seeking the same as also the pension;

for which he failed to exercise the option as per the rules which

granted pension to the employees.

9. The L.P.A. stands allowed, the impugned

judgment is set aside and the writ petition, as a necessary Patna High Court L.P.A No.240 of 2021 dt.10-08-2023

consequence is dismissed.

(K. Vinod Chandran, CJ)

( Partha Sarthy, J)

sharun/-

AFR/NAFR
CAV DATE
Uploading Date          17.08.2023
Transmission Date