Patna High Court
Ram Bilas Sharma vs The State Of Bihar on 22 December, 2022
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1525 of 2021
======================================================
Ramdev Prasad Yadav @ Ramdev Yadav, Son of Late Ramotar Yadav,
resident of village- Jogidih, Ward no. 12, Bariyarpur, P.S.- Cheriya
Bariyarpur, District- Begusarai
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Patna
2. The Principal Secretary, Finance Department, Government of Bihar, Patna
3. The Accountant General Bihar, Patna
4. The Education Officer, Begusarai
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 699 of 2021
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Ram Bilas Sharma, Son of Late Janak Sharma, Resident of Ward No. 5,
Basahi, P.S.- Cheriya Bariyarpur, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Patna.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Education Officer, Begusarai.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 1671 of 2021
======================================================
Devendra, Son of Late Parmeshwar Mahto, resident of Ward No- 9, Tara
Fafot, P.S. Khodawandpur, District Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Patna.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Education Officer, Begusarai.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 1823 of 2021
======================================================
Patna High Court CWJC No.1525 of 2021 dt.23-12-2022
2/12
Narendra Prasad Saini, Son of Late Ram Chandra Prasad Saini, Resident of
Ward No. 11, P.S.- Khodawandpur, District- Begusarai
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Patna
2. The Principal Secretary, Finance Department, Government of Bihar, Patna
3. The Accountant General, Bihar, Patna
4. The Education Officer, Begusarai
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3017 of 2021
======================================================
Ripusudan Choudhary, Son of Late Ram Kehlawan Choudhary, resident of
Pachgama, P.S. Rosera, District- Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Education Department,
Patna.
2. The Principal Secretary, Finance Department, Government of Bihar, Patna.
3. The Accountant General, Bihar, Patna.
4. The Education Officer, Begusarai.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 1525 of 2021)
For the Petitioner/s : Mr. Madhav Kumar, Advocate
For the Respondent/s : Mr. Raghwendra Kumar, SC-22
(In Civil Writ Jurisdiction Case No. 699 of 2021)
For the Petitioner/s : Mr. Madhav Kumar, Advocate
For the Respondent/s : Ms. Bandana Singh, AC to SC-21
(In Civil Writ Jurisdiction Case No. 1671 of 2021)
For the Petitioner/s : Mr. Madhav Kumar, Advocate
For the Respondent/s : Ms. Namrata Singh, AC to GA-12
(In Civil Writ Jurisdiction Case No. 1823 of 2021)
For the Petitioner/s : Mr. Madhav Kumar, Advocate
For the Respondent/s : Mr. Anil Kumar Singh, GP-26
(In Civil Writ Jurisdiction Case No. 3017 of 2021)
For the Petitioner/s : Mr. Madhav Kumar, Advocate
For the Respondent/s : Mr. Anil Kumar Singh, GP-26
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 23-12-2022
Patna High Court CWJC No.1525 of 2021 dt.23-12-2022
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Heard Mr. Madhav Kumar, learned counsel appearing on
behalf of the petitioners in all the cases and respective counsels for
the State respondents.
2. The issue involved in all the writ applications are
identical, based on similar facts and circumstances, hence all the
matters have been heard together and are being disposed of by the
common order/judgment with the consent of the respective
counsels appearing on behalf of the parties.
3. The petitioners are retired teachers, who
superannuated from different Primary Schools prior to 01.01.2016
approached before this Court by filing writ applications seeking
quashing of the order dated 02.06.2020 passed by the Principal
Secretary, Finance Department whereby the representation filed by
the petitioners pursuant to the order dated 13.02.2020 passed in
C.W.J.C. No. 3116 of 2020, C.W.J.C. No. 1858 of 2020, C.W.J.C.
No. 1854 of 2020, C.W.J.C. No. 1977 of 2020 and C.W.J.C. No.
3027 of 2020 whereby the claim of the petitioners for enhanced
retiral and pensionery benefits have been rejected illegally and
without assigning any reason.
4. It is not in dispute that the petitioners in the aforesaid
writ applications were initially appointed to the post of Assistant
Teachers in different Primary Schools/Middle Schools in different
Patna High Court CWJC No.1525 of 2021 dt.23-12-2022
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Districts of the State of Bihar and after rendering unblemished
services, they superannuated prior to 01.01.2016. It is the case of
the petitioners that prior to 2016, the pay scale and grade pay of
the petitioners was 6500-10500 + 4800/-.
5. On being superannuated, the petitioners have been
allowed the admissible post retiral benefits. However, despite 7 th
Pay Revision with effect from 01.01.2016 when the petitioners
have not been allowed the benefit and they have been put to huge
loss in pension, as also they suffered loss of seniority on account
of procedure followed for notional pay fixation in respect of
pension revision benefits, they approached before this Court by
filing separate writ applications with regard to their grievances for
payment of pensionery benefits on account of 7th Pay revision. All
the aforesaid writ applications were heard and disposed of by order
dated 13.02.2020 directing the petitioners to file a detailed
representation before the respondent nos. 2 and 3 with regard to
their grievances and the respondents were directed to look into the
matter and disposed of the same by passing reasoned order.
6. In compliance of the aforesaid order of learned
coordinate Bench of this Court, the petitioners filed detailed
representation before the concerned respondent nos. 2 and 3,
which was duly considered by the Principal Secretary, Finance
Patna High Court CWJC No.1525 of 2021 dt.23-12-2022
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Department, who turned down the claim of the petitioners and
rejected the representations by the impugned order dated
02.06.2020, which are impugned in all the respective writ applications.
7. While assailing the impugned order dated 02.06.2020, learned counsel for the petitioners vehemently submits that while passing the impugned order, the respondent Principal Secretary, Finance Department, Government of Bihar, did not take into account the resolution issued by the Finance Department, Government of Bihar, as contained in Memo No. 630 dated 21.01.2010 to revise the pay scale with effect from 01.01.1996, in which the pensioners belonging to up till 31.12.2005 were put in the frame of pay band and grade pay, but at the time of consideration their pre-revised scale to revised pay band and grade pay, no attention was paid to the seniority in the pay band and the grade pay. He further submits that in the same pay band, the senior employees ought to have been given higher pay than that of their junior employees, but such aspect has not been taken into consideration causing anomaly and disparity amongst the pensioners. He also submits that the recommendation made by the 7th Pay Commission for the benefit to regular employee entitled increment during notional period, but neither the Central Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 6/12 Government nor the Government of Bihar followed the said recommendation. In other words, the petitioners have been deprived of pensionery benefits as in the wake of notional pay fixation on 01.01.2016, the enhancement in the salary with effect from 31.05.2006 to 31.12.2015 has not been incorporated, causing huge loss in pension amount. The learned counsel while arguing the matter vehemently relied upon the judgment of the Hon'ble Supreme Court in the case of D.S. Nakara and others Vs. Union of India and others, reported in AIR 1983 SC 130 emphasizing the ratio that difference in the date of superannuation shall not encroached upon or impede the passage of seniority, as the same shall be violative of Articles 14 and 16 of the Constitution of India.
8. Per contra, learned counsel for the State uniformally submitted that pursuant to the order of this Court, the respective representation of the petitioners were duly considered by the Principal Secretary, Finance Department and the claim of the petitioners were rejected by a reasoned and speaking order after considering the resolution contained in Memo No. 755 dated 20.10.2017 of the Finance Department, Government of Bihar in the light of the recommendation made by the State Pay Commission for revision of pension and family pension. It is further submitted that in the light of the recommendation made by Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 7/12 the State Pay Commission and considering the recommendation of the 7th Central Pay Commission for revision of pension/family pension and specially the provisions contained in memo no. 38/37/2016- P&PW(A) dated 12.05.2017 of the Welfare Department, Government of India, two modes have been recommended for payment of revised pay/family pension for the employees, who superannuated prior to 01.01.2016. Out of the two modes, which have been recommended for revision of pension/ family pension, the mode which determined the higher pension for the pensioner shall be accepted for the pensioner. He lastly submits that there is no discrimination with regard to payment of the pension of the pensioners/ family pensioners by the State Government and as the State Government has accepted the revised pension of the pensioners/family pensioners, who have retired before 01.01.2016 as per the resolution contained in Memo No. 755 dated 20.10.2017, the claim of the petitioners have been rejected, accordingly.
9. At this juncture, learned counsel for the petitioners while relying upon the judgment of the Hon'ble Supreme Court in the case of D.S. Nakara (supra) tried to impress upon this Court to submit that the Hon'ble Supreme Court in the aforesaid case has been pleased to hold "that the Central Government cannot pick out Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 8/12 a date from a hat and that is what it seems to have done in saying that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso. In case before us, the eligibility criteria for being eligible for liberalised pension scheme have been picked out from where it is difficult to gather and no rationale is discernible nor one was attempted at the hearing. The ratio of the decision would squarely applies to the facts of this case."
10. I have heard the learned counsel for the respective parties at length. Before adjudicating the matter, it would be relevant to quote relevant part of the Resolution No. 755 dated 20.10.2017 issued by the Finance Department, Government of Bihar, on the basis of which notional pay fixation of the petitioners has been done.
"2- jkT; osru vk;ksx dh vuq'kalk ds vkyksd esa iw.kZ fopkjksijkar fnukad 01-01-2016 ds iwoZ ds isa'kujksa@ifjokj isa'kujksa ds isa'ku ds iqujh{k.k gsrq fuEu funs'k fuxZr fd;k tkrk gS& fnukad 01-01-2016 ds iwoZ ds isa'kuj@ifjokj isa'kuj ds isa'ku iqujh{k.k gsrq lkrok¡ dsUnzh; osru vk;ksx ds vuq'kalk ,oa isa'ku rFkk isa'kuj dY;k.k foHkkx] Hkkjr ljdkj ds dk;kZy; Kkikad&38@37@2016&P & PW(A)] fnukad 12-05-2017 ds izko/kku dks /;ku esa j[krs gq, fuEukafdr nks lk/; ¼lw=½ dh vuq'kalk dh x;h gS ,oa vuq'kaflr fd;k x;k gS fd izfr isa'kuj Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 9/12 ds ekeys esa nksuksa lw= esa ls ftl lw= ls mPprj isa'ku fu/kkZfjr gksrk gS] mls gh ml isa'kuj gsrq ekU; fd;k tk,& ¼d½ izFke lw=& lacaf/kr dehZ dh lsokfuo`fŸk@e`R;q dh frfFk dks muds osrueku@osru cS.M ,oa xzsM&is esa izkIr ewy osru dks lsokfuo`fŸk@e`R;q dh frfFk ds Ik'pkr~ lHkh vuqorhZ osru lfefr dh vuq'kalk ds vkyksd esa izfrLFkkuh osrueku@osru cS.M ,oa xzsM&is esa oSpkfjd fu/kkZj.k djrs gq, fnukad 01-01-2016 dks Hkqxrs; isa'ku@ifjokj isa'ku dk fu/kkZj.k fd;k tk,xkA ¼i½ fnukad 01-01-1981 ls fnukad 31-12-2005 rd lsokfuo`Ÿk@e`r dfeZ;ksa dks muds ewy osru ds vk/kkj ij fnukad 01-01-2016 dks izkIrs; isa'ku jkf'k dh x.kuk dh tk,xhA nks fLFkfr;k¡ gks ldrh gSa& ,d tgk¡ fof'k"V osrueku ,oa izdze dk fu/kkZj.k vafre osru ds vk/kkj ij fd;k tk ldrk gS rFkk nwljk tgk¡ ,slk laHko ugha gSA nksuksa gh fLFkfr esa isa'ku fu/kkZj.k dh izfØ;k layXu ,usDpj&lh dh rkfydk&1 ¼tgk¡ osrueku ,oa izØe dk fof'k"V fu/kkZj.k laHko gS½ ,oa rkfydk&2 ¼tgk¡ osrueku ,oa izØe dk fof'k"V fu/kkZj.k laHko ugha gS½ esa fnukad 01-01-2016 dks vafdr oSpkfjd ewy osru rFkk ,usDpj&Mh esa fofgr izfØ;k@lw= ds vk/kkj ij dh tk;sxh] ijUrq tgk¡ fof'k"V osrueku ,oa izØe dh lwpuk vuqiYkC/k gS ogk¡ vafre fu/kkZj.k ds iwoZ lacaf/kr dk;kZy; ls bldh lwpuk izkIr dh tk,xhA mnkgj.k ds fy, eku ysrs gSa fd dksbZ O;fDr dk;kZy; ifjpkjh ¼xzqi&Mh½ ds in ls o"kZ 1982 esa lsokfuo`Ÿk gq, FksA rRle; mudk ewy osru :0 360 Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 10/12 ¼osrueku 350&425½ ds vk/kkj ij isa'ku :0 180 fu/kkZfjr gqvkA vc fnukad 01-01-2016 dks ,usDpj&lh ds Vscy&1 ds vk/kkj ij :0 360 dks iqujhf{kr oSpkfjd osru :0 18000@& gS] fnukad 01-01-2016 dks iqu% bl in gsrq U;wure osru Hkh ¼xzsM Iks&1800 ysoy&1½ :0 18000 gSA vr% ,usDpj&Mh ds lw= ds vuqlkj fnukad 01-01- 2016 ls iqujhf{kr isa'ku= 18000x180/360= :0 9000 gksxkA (;gkWa X1 =360, Y1 = 180 RkFkk N1 =18000) blh izdkj ifjokj isa'ku = 18000 x 30/100= :0 5400 gksxkA ysfdu U;wure isa'ku ds izko/kku dks ns[krs gq, bls Hkh :0 9000 ¼ukS gtkj½ izfrekg fu/kkZfjr fd;k tk,xkA isa'kuj dh vk;q 80 o"kZ ls vf/kd gksus dh fLFkfr vfrfjDr isa'ku lacaf/kr izko/kku ykxw jgsaxsA ¼ii½ fnukad 01-01-2006 ls 31-12-2015 ds chp lsokfuo`Ÿk@e`Rk dfeZ;ksa ds lanHkZ esa isa'ku dk fu/kkZj.k mUgsa izkIr vafre osru dks 2-57 ls xq.kk dj 01-01-2016 dks laxr is&eSfVªDl esa vuqekU; osru ds vk/kkj ij fd;k tk,xkA ,usDpj&ch ds mnkgj.kksa esa bls Li"V fd;k x;k gSA ¼[k½ nwljk lw=& fnukad 31-12-2015 dks izkIrs; isa'ku jkf'k esa 2-57 ds fLFkj xq.kd ls xq.kk dj isa'ku jkf'k dk fu/kkZj.k fd;k tk,xkA mi;qZDr nksuksa lw= esa ls tks vf/kd ykHkdkjh gksxk] ogh vafre isa'ku ds :i esa Lohd`r gksxk] ysfdu 01-04-2017 ds iwoZ dh vof/k gsrq dksbZ cdk;k jkf'k dk Hkqxrku vuqekU; ugha gksxkA vafre fu/kkZj.k rd lw= ^[k^ ds rgr~ isa'ku dk Hkqxrku tkjh jgsxkA "
Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 11/12
11. From bare reading of the aforesaid resolution, prima facie, it appears that for the purposes of notional pay fixation with effect from 01.01.2016, the fixation shall be made on the basis of last pay drawn so far the benefit of increment of pay is concerned, it should only be applicable to those, who are in service, as the increment of pay is admissible to the employees on account of their satisfactory services rendering during service period.
12. This Court also carefully gone through the impugned order passed by the respondent no.2, it has been rightly noted that retired employees and the employees in service cannot be kept in one category and allowed similar benefits. Furthermore, the pension revision order issued by the Government of India in the Department of Pension & Pensionary Welfare Department, as contained in order no. 38/37/2016- P&PW(A) dated 12.05.2017, there is no provision for taking into account the increments for the purposes of fixation of notional pay. Further, the reliance of the petitioners that the ratio laid down by the Hon'ble Supreme Court in the case of D.S. Nakara (supra) has been passed in a situation where the discrimination has been caused amongst the pensioners by fixing a cut off date. However, the fact involved in these writ applications are different where the applicability of the benefit of notional pay fixation by taking into account the increment of pay Patna High Court CWJC No.1525 of 2021 dt.23-12-2022 12/12 is confined to the employees, who are in service and so far the pensioners are concerned, their notional pay fixation has been made on the basis of last pay drawn, as has been discussed in the foregoing paragraphs. This Court further feels that if the petitioners had any grievance with regard to the applicability of the resolution no. 755 dated 20.10.2017 issued by the Finance Department, the same may be challenged to the extent whereby the petitioners feel aggrieved, which has not been done so.
13. In view of the aforesaid circumstances and the position obtaining in law, all the writ applications are devoid of any merit and accordingly the same are dismissed.
(Harish Kumar, J) uday/-
AFR/NAFR NAFR CAV DATE 06.12.2022 Uploading Date 24.12.2022 Transmission Date NA