Patna High Court
Smt.Nutan Kumari vs The State Of Bihar on 3 January, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10089 of 2023
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Smt. Nutan Kumari W/O Prabhat Kumar Sinha, Resident of Mohalla Jhilganj,
New Go down, P.O-G.P.O, P.S- Kotwali,District - Gaya, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar Through Chief Secretary Bihar, Patna.
2. The Secretary department of Education Bihar, Patna.
3. The District Magistrate Gaya.
4. The District Education Officer, Gaya.
5. The District Programme Officer, Establishment Gaya.
6. The Block Education Officer Gaya.
7. The drawing and disbursing Officer Town Block Gaya cum Head master
Mahavir Middle School, Gaya.
8. The Headmistress U.H.S. Bitho
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Dr. Alok Kumar Sinha, Advocate
For the Respondent/s : Mr. Amit Bhushan, AC to GP-17
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 03-01-2024
Heard Mr. Dr. Alok Kumar Sinha, learned counsel
appearing on behalf of the petitioner and Mr. Amit Bhushan,
learned AC to GP-17.
2. The petitioner, by invoking the extra ordinary
jurisdiction of this Court under Article 226 of the Constitution
of India, seeking quashing of the Memo No. 594 dated
06.02.2012
, Memo No. 765 dated 23.02.2023 and Memo No.
1357 dated 08.04.2023 to the extent, whereby, the petitioner has
been denied the benefit of retiral benefits under the Old Pension
Scheme and further the petitioner sought a direction upon the
Patna High Court CWJC No.10089 of 2023 dt.03-01-2024
respondents to ensure payment of all the post retiral benefits
such as gratuity, GPF, group insurance, leave encashment and
pension.
3. It is submitted on behalf of the petitioner that she
was as an Assistant Teacher appointed against an advertisement
published in the year 2003. Irrespective of the fact that the
advertisement was issued in the year 2003, the appointment of
the petitioner took place in the year 2012. It is further submitted
that admittedly, there was no laches on the part of the petitioner
and, as such, any benefit, which was accrued in favour of the
petitioner, must be reckoned w.e.f. the date, on which the
advertisement was published and not from the date, on which
appointment has taken place. Thus, in any view of the matter,
the petitioner should be allowed all the retiral benefits, in terms
of the Old Pension Scheme.
4. A counter affidavit as well as supplementary
counter affidavit has been filed on behalf of the respondent no. 4
and submissions has been made that admittedly, the petitioner
was appointed as an Assistant Teacher by the order of the
District Education Officer, Gaya vide Memo No. 01/2012/594
dated 06.12.2012, and the petitioner finally superannuated on
31.12.2022, from Middle School, Bitho, Nagar Prakhand, Gaya.
Patna High Court CWJC No.10089 of 2023 dt.03-01-2024
It is submitted on behalf of the State that, in fact, the Education
Department, Government of Bihar framed the Bihar Special
Primary Teachers Appointment Rules, 2010 for appointment of
34,540 Assistant Teachers. Rule 12 of Bihar Special Primary
Teachers Appointment Rules, 2010 states; "the teachers
appointed under this Rule will have same Pay Scale and
General Service Condition as teachers appointed under District
Cadre. But for pension purposes, the teachers will be covered
under the Contributory Pension Scheme of the State
Government."
5. Learned counsel for the State further submitted that
even in the appointment letter, issued by the Office of the
District Education Officer, Gaya, it was clearly mentioned that
the teachers appointed will have same Pay Scale and General
Service Condition as teachers appointed under District Cadre.
But for the pension purposes, the teachers will be covered under
the Contributory Pension Scheme of the State Government.
However, the petitioner did not raise any concern regarding the
pension and other benefits despite the clear stipulations made in
the appointment letter and it is also the fact that the petitioner
did not apply for New Pension Scheme and even did not open
an account for the same, though there is no money accumulated
Patna High Court CWJC No.10089 of 2023 dt.03-01-2024
in New Pension Scheme also.
6. He next submitted that based on the documents
provided by the concerned office, the District Programme
Officer (Establishment), Gaya has sanctioned final payment of
group insurance as well as leave encashment and consequently,
total payment of Rs. 4,377/- for group insurance and Rs.
1,48,893/- for leave encashment has been paid.
7. Further, the respondent has already processed the
payment of gratuity through Letter No. 3530 dated 30.12.2023.
It has further been clarified that the petitioner has not fulfilled
their responsibilities from 22.11.2022 to 31.12.2022, the date on
which the petitioner superannuated and thus, the entire duration
was marked as absent, as is evident from the attendance register.
Based on this, the payment for the period from January 22, 2022
to December 31, 2022, has been taken in advance by the
petitioner and this, adjustment has been made against the leave
encashment to be received by the petitioner.
8. The aforesaid contention of the respondent has been
vehemently refuted by the learned counsel for the petitioner and
submission has been made that during that period, the petitioner
has attended several meetings.
9. Regard being had to the submissions made on
Patna High Court CWJC No.10089 of 2023 dt.03-01-2024
behalf of the parties and considering the fact that the issue with
regard to the applicability of New Pension Scheme to the
Assistant Teachers, who are appointed, pursuant to the Bihar
Special Primary Teachers Appointment Rules, 2010 has already
been set at rest by the learned Division Bench of this Court in
the case of Nand Kishor Ojha & Ors. Vs. The State of Bihar
& Ors. and other analogues cases (CWJC No. 25362 of 2013)
vide order dated 05.04.2018.
10. This Court does not find any merit in the present
writ petition and accordingly, the present writ petition stands
dismissed, however, it is needless to observe that the petitioner
would be entitled to get all the retiral dues in terms of the rules,
as noted hereinabove, preferably within a period of eight weeks,
from the date of receipt/production of a copy of this Order.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 08.01.2024.
Transmission Date NA
