Patna High Court
Vyas Narain Singh And Ors. vs B.R. Ambedkar Bihar University And Ors. on 12 October, 2006
Equivalent citations: 2007(1)BLJR138
Author: Mridula Mishra
Bench: Mridula Mishra
JUDGMENT Mridula Mishra, J.
Page 0140
1. Petitioners of all these writ applications are the teaching and non teaching employees of B.R.A. Bihar University, Muzaffarpur. They have retired in between 1992 to 2000 from the colleges which are constituent units of B.R.A. Bihar University. During the pendency of the writ application petitioner No. 5 of C.W.J.C. No. 264 of 2004 namely Phoolan Mishra died on 17.1.2004 and his legal heirs have been substituted by order dated 9.9.2004.
2. Prayer of petitioners in all these writ application is for quashing the Memo No. 1140/B dated 17.12.2003 issued under the signature of the Registrar, B.R.A. Bihar University, Muzaffarpur whereby paragraph 2 of Memo No. B/1135 dated 7.6.2003 issued by the Registrar, B.R.A. Bihar University, Muzaffarpur has been deleted. Petitioners have also prayed for issuance of an appropriate writ commanding the respondent university to pay the post-retiral benefits of the petitioners i.e. Pension, Gratuity as per the amended statute and leave encashment treating them to have opted under appendix-A of Article-1 of the statute enacted for the grant of retiral benefits to the employees of the Bihar/Ranchi/Bhagalpur/Magadh/L.N. Mithila/ K.S.D. Sanskrit University dated 25.11.1982 effective from 1.4.1972.
3. In terms with the provisions of the Bihar Universities Act statute for grant of post retiral benefits to the employees of the Universities of Bihar was framed and approved by the Chancellor in terms of the provisions of the Bihar State University Act and it came into force on 18.11.1980. This statute was amended on 25.11.1932 vide letter No. BSU/52/80/2138GS (1) issued from the office of the Chancellor.
4. Article 1 of the Statute constitutes alternative schemes:
(a) General Provident Fund- Cum Pension-cum Gratuity scheme (given in Appendix-A).
(b) Contributory Provident fund-cum-Gratuity Scheme in which employees contribution to provident fund shall be limited to 8% of pay of the employee (given in Appendix-3)
(c) Contributory provident Fund only, in which the employers contribution shall be 10% pay of the employee. (Appendix-C).
5. Article 3 of the statute dealt with the application of the statute and provided that statute will apply to whole time employees belonging to teaching and non teaching staff of the Universities as also to such employees, who were in service of the constituent colleges of the Universities on 1.4.1972 or joined the service after that date. They are entitled to opt for one of the alternative scheme set out in Appendix-A, B or to continue with Scheme C of Article-1.
6. The statute further provided that all employees who joined the service of the University on or after 1.4.1978 would be entitled only to the first scheme. With respect to the two other categories of the employees namely (1) those who joined the service before 1.4.1978 and were still in service and (ii) those who had retired on or after 1.3.1982 and were alive, on the date of notification of the said rule, they were required under the statute to send their option in writing to the Registrar within three months of the date of such notification. It was specifically Page 0141 provided in Article-4 of the Statute that the option once exercised shall be final. The amendment made on 25.11.1982 were given retrospective effect from the date from which the original statute had come into force and further made it clear that options referred in Article 4 of the statute (as amended) may be exercised afresh by the concerned persons within 90 days from the date of approval of the said amendment by the Chancellor. It was also made clear by the second proviso to Article 3 of the statute that the employees who do not exercise their option within the prescribed period shall be deemed to have opted for the first scheme. Period of three months has been clarified in notes 2 of Article 8 that the option referred to Article 4 of the statute as amended may be exercised afresh by the persons concerned within 90 days from the date of approval of these amendment by the Chancellor.
7. The case of the petitioners is that as per the University statute particularly Article 4, the option had to be exercised within 90 days from the date of notification of the statute i.e. from 25.11.1982 to 23.2.1983. The University vide Memo No. 5305 dated 14.12.1983, after nine months and 10 days invited option under the triple benefits scheme. Further letter of the University reached the respective colleges much after 23.2.1983. The petitioners being ignorant of the implication of the statute exercised their options either Appendix-B or C of the triple benefit schemes, much after the schedule period. At the time of superannuation of the petitioners validity of the options exercised by them was under controversy but the claim settlement of retiral benefits of the petitioners were prepared either for Appendix-B or C by the respective colleges and sent to the University. Petitioners received the claim under the impression that after resolving the issue of validity of option their cases will be re-opened. The validity of the option as per the statute was discussed on the floor of the Bihar Legislative Council. The council referred the matter to the Assurance Committee of the Council. The Deputy Secretary, Bihar State Legislative Council vide letter No. 402 dated 27.3.2003 after discussing the issue and due verification of the records, informed the Registrar of B.R.A. Bihar University that non of the employees of the University have exercised their option within the time, hence all have come under Appendix-A. It was also informed by the Deputy Secretary of the Council that the pension of those employees who had opted Appendix-B and C will continue. The deputy secretary of the council had already informed the office of the chancellor of the university vide letter No. 365 dated 2.11.1988 that non of the teaching and non reaching employee of the university had submitted their option under triple benefit scheme within the prescribed period. The Registrar of B.R.A. Bihar University vide letter No. 444 dated 31.5.2002 had informed the Joint Secretary, Higher Education Department, Government of Bihar that all teaching and non teaching employees of the University have come under Appendix-A of Article 1 of the statute dated 25.11.1982 because non of them have exercised their option within three months i.e. till 25.2.1983 which the cut off date.
8. Counsel for the petitioners submits that considering the admitted position that the petitioners have not exercised their option within the prescribed period of three months from the date of notification, by implication of Article 3 of the statute, they all have come under Appendix-A. It has also been submitted that considering all other circumstance and the stand taken by the University before the State assurance committee of Bihar Page 0142 Legislative council, the Vice Chancellor on the recommendation of the University Pension Cell took a decision that the teaching and non teaching staff of the university are deemed to have opted for option A of the retirement benefit statute (amended). In terms of the provisions of statute laid down in Article 3 and 4 that the remittance of employers saving to the P.F. Accounts of the individual employee to be stopped with effect from October, 2002 onwards. The order of Vice Chancellor was issued by the Registrar vide Memo No. B/322 dated 20.2.2003. In compliance with the direction of the State Assurance Committee of Bihar Legislative Council, Patna on the recommendation of the Finance Committee duly approved by the syndicate, the Vice Chancellor of B.R.A. Bihar University was pleased to order that the pension and gratuity in respect of teaching and non teaching employees of the university will now be settled in terms of Article 3 and 4 of the triple benefit of the retirement benefits statute 1982 as amended up-to-date. The Vice Chancellor on the recommendation of the Finance Committee duly approved by the syndicate was further pleased to order that the cases of the University employees, already finally settled under Group-B and C will be re-opened on receipt of individual representation along with pension paper and current payment of pension will be made after recovery of employers share of provident fund received by them earlier in one lump-sum. The order of the Vice Chancellor was issued by the Registrar vide Memo No. B/1135 dated 7.6.2003.
9. The petitioners in the light of the order dated 7.6.2003 filled their respective representations to the Registrar, Vice Chancellor, B.R.A. Bihar University for grant of post retirement benefits and they were ready to return employers share of provident fund. Some of them already refunded the employers share through bank draft but the bank drafts were returned with note that it will be received only after final calculation in each case by the University. The Registrar of the University had already informed the High Education, Government of Bihar about all these facts and the Higher Education Department, Government of Bihar vide letter dated 1.12.2003 informed the Registrar regarding the implication of such re-opening and pressurized the University to cancel the second paragraph of the office order of the Vice Chancellor in Memo No. 1135 dated 7.6.2003.
10. Under the government pressure the second paragraph of the office order of the Vice Chancellor dated 7.6.2003 was deleted vide Memo No. 1140/B dated 17.12.2003 which is under challenge in the present writ application. Again the government issued second letter on 10.12.2003 to cancel the entire office letter dated 7.5.2003. This letter of the Government was placed for consideration in the meeting of the Finance Committee dated 19.1.2004 as an additional item. The Finance Committee resolved that there is no ground for any change in the stand taken by the University earlier regarding exercise of the option under triple benefit scheme as per the provision of the statute 1980 and 1982. It was decided that legally it will not be proper to resile from the stand taken earlier and an information was sent to the State Government. The said decision of the Finance Committee was placed in the meeting of the syndicate on 21.1.2004 and the syndicate approved the decision of the Finance Committee dated 19.1.2004. Meeting of the syndicate was also attended by the Director, Higher Education. Under the circumstances petitioners stand is that the University is bound to dispose of the pension cases of the teaching and non teaching employees of the University on the same line as decided earlier in Memo No. 1135 dated 7.6.2003.
Page 0143
11. Counsel for the petitioners have contended that the second proviso of Article 3 of the statute of the retirement benefit in an unequivocal terms state that the employees who do not exercised their option within the period prescribed under amended rules shall be deemed to have opted in the scheme set out in Appendix-A. Considering this deeming previsions all teaching and non teaching employees have come under Appendix-A and they are entitled for pension, gratuity and other pensionary benefits. Reliance has been placed on a decision in the case of State of Bombay v. Pandurang vinayak and Ors. . Wherein it has been held that When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.
12. In the counter affidavit filed by the University it has been stated that according to the decision of the University vide memo dated 7.6.2003, all settled cases of retired employees were to be re-opened on refund of the employees share of P.F. money along with statutory interest accrued thereon. However, the State Government vide its letter No. 1153 dated 1.12.2002 directed the University to recall the University order dated 7.6.2003. The decision of the University dated 7.6.2003 was re-considered by the Finance Committee of the University and after approval of the syndicate dated 2.12.2003. The relevant paragraph 2 of the memo dated 7.6.2003 relating to re-opening of the settled cases of the employees was withdrawn by the University vide office order contained in Memo No. 1140/R dated 17.12.2003 under intimation to the State Government. The State government vide its letter No. 1269 dated 13.12.2003 has held that the University Notification dated 17.12.2003 as legal and refused to relax any ground on the basis of the said notification of the University. After careful consideration of the letter of the State government and the position placed by the University the Finance Committee in its meeting dated 19.1.2004 has resolved that there is no cause for any further charge in the stand taken by the University earlier, Regarding exercise of option under triple benefit scheme statute 1980-1982, it is stated that it will not be legal, proper to resile the stand of the University regarding dispose of unsettled cases of the retired employees on the same line as usual under intimation to the State Government. The aforesaid recommendation of the Finance Committee has been approved by the syndicate on 21.1.2004. In view of the facts and circumstances the decision with regard to exercise of option under the provisions of the statute 1982 in respect of the petitioners claim whose cases were well settled long ago in accordance with the group of option B and C with their full consent do not call for any change or re-opening.
13. Considering the submissions of the petitioners as well as the University it is admitted fact that the university had invited options much after the statutory period on 14.12.1983 i.e. after nine months and 19 days. It is not the case of the University that the options were invited within the time and it is the petitioners who had exercised their option beyond the prescribed period. In that case any teaching or non teaching employees who have exercised their options even on the 91st date will automatically come under Appendix-A of the statute of the post retiral benefits in view of the deeming clause under second proviso of Article 3. The action or the part of the university inviting option after the expiry of the statutory period and Page 0144 exercise of option by the petitioners as well as settlement of their claims by the University are all nullity void and inoperative in the eye of law. In the case of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. wherein it has been held that We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative. It has also been held in the same judgment that the purpose and object to create a legal fiction in the statute is well known, when a legal fiction is created it must be given , to full effect. In the case of ANirudh Tiwary v. The State of Bihar and Ors. 2002 (4) P.L.J.R. 131 it has been held that the option not given within the time frame it should be construed. under the provision, that the employee had opted for the pension scheme. The so called option could not have any legal validity after the time frame and it should be construed only as scrap of paper.
14. The State as well as the University have relied upon the judgment of single judge in the case of Prof (Dr) Ram Niranjan Kedia and Ors. v. State of Bihar and Ors. 2001 (4) P.L.J.R. 833. In this case the proposition was that under Rule 4 of the statute option once exercised shall be final. I find that said judgment has no application in the present case for the reasons that the facts of the case was different. Petitioners of that case had exercised their option in February, 1983 within the schedule time under Appendix-B. Lateron by the order of the L.N. Mithi a University dated 16.1.98 they exercised their fresh option under Appendix-A on 26.11.1998. They deposited their required amount in lump-sun and thereafter received pension till June, 2000. Their pension was stopped by the Vice Chancellor till 3.12.2000. That order was under challenge in Ram Niranjan Kedia case (supra) in which this Hon'ble Court has held that in view of Rule 4 of the statute the option once exercised shall be final.... In Ram Niranjan Kedia case the scope of Rule 3 was not under consideration though in paragraph 4 of the judgment this Hon'ble court had taken into consideration that as per proviso of Rule 3 if no option was exercised within the prescribed period then the concerned employee shall be deemed to have opted for the scheme set out in Appendix-A.
15. Rule 4 cannot be read in isolation. It is to be read along with Rule 3 which says that the situation where the option was not exercised within the period mentioned in Rule 4 and if the option under Rule 3 is not valid it cannot be treated as final under Rule 2. The University has relied on the judgment in L.P.A. No. 856 of 2002 (State of Bihar and Ors. v. Gopal Lal and Ors. reported in 2003 (3) P.L.J.R. 119. The ratio of said, case has also got no application in the case of the petitioners. In the said case also Rule 3 was not before the L.P.A. court. The respondents of the said L.P.A. has exercised his option under scheme B of the triple benefit scheme on 21.2.1983, within the time and lateron on the order of the University he changed his option from Appendix-B to Appendix-A in the year 1998. This Hon'ble court in view of Rule 4 has held that the option once exercised shall be final.
16. Counsel for the petitioners has also submitted that so far the law laid down in the case of Ram Niranjan Kedia and in the case of Gopal Lal is concerned, have been virtually verified by bringing the amendment in the statute after adding Rule 4(B). Rule 4(B) states that notwithstanding anything to the contrary as contained in the statute for the grant of retirement benefit approved by the chancellor vide letter No. BSU/52/80-5285/GS (1) dated 18/21.11 .80 as amended by letter No. Page 0145 BSU-52/80-5128/GS (1) dated 25.11.1938, it is hereby provided that all the employees to whom these statute apply and who joined the service of the university/colleges before 1.4.78 and are still in service or have retired and provided with option after cut off data fixed in earlier statute and have already given their option to the University shall be given the benefit of the scheme set out in Appendix-A of the retirement benefits statute.
17. It has also been submitted by the petitioners that the Hon'ble Chancellor has also passed an order in the case of J. Yadav whose retirement benefit was settled under group C. The Hon'ble Chancellor by order dated 8.11.2003 has allowed pensionary benefits under Group-A after recovery of employers share of P.F.
18. Petitioners have also brought on record the opinion of the then advocate General, State of Bihar dated 20.9.2004 which was sought by the Secretary, Higher Education on the five questions as contained in letter dated 28.5.2004. While replying the 3rd question i.e. whether the option in terms of 1982 amendment to be given afresh by the persons concerned is to be exercised by all employers or only those who had not exercised their option in 1380, it has been answered in the following words:
19. The said question overlooks the provisions of the second proviso to Rule 3 which virtually mentions that such employees who do not exercise their option within the prescribed period shall be deemed to have opted for the first scheme i.e. the triple benefits scheme. Thus by virtue of the deeming section every employee whether expressly exercised his option or not, would be deemed to have opted for one or the other for three schemes under the rules hence the benefits of exercising option afresh shall be available to all persons when the statutes were amended in 1982. Since the phrase used that the option may be exercised afresh, thereto it was not mandatory to those who had already exercised their option in the original 1980 statute who again exercised their option, if so such persons who has not exercised their options afresh then their earlier option shall continue to have reached finality under the statute. (However, by. virtue of note (ii) they also acquired the right to exercise the option afresh if they so chose. Thus who have not exercised their option under the original statute and thereby deemed to be covered by the triple benefits scheme also acquired the right to opt for second and 3rd scheme, if they so chose within the stipulated period.
20. I find that the University by issuing Memo No. 1140P/dated 17. 2.2003, amending paragraph 2 of the Memo No. 8/1135 dated 7.6.2003 has created a class within the class which is violative of Articles 1-. and 16 of the Constitution of India specially when the University has accepted that all the teaching and non teaching employees have already come under group-A in terms of Article 3 and 4 of the statute. By making such distinction the University has unsettled the issues which has already been settled for which University is not competent. Such distinction is going to prejudice the right and interest of such persons who have been allowed an opportunity to exercise their option afresh under proviso to Rule 3 of the amended statute providing pensionary benefits.
21. The petitioners are entitled to get revised gratuity as decided by this Court in 2006 (1) P.L.J.R. 506 Petitioners are entitled to receive pension and pensionary Page 0146 benefits only after returning the employer's share of provident fund in one lump-sum. The suggestion has come from the petitioners side that the employers share of the provident fund can be adjusted from the gratuity of the petitioners by the university in view of the provisions of Rule 4A of the statute. The University may proceed in the same direction in view of the provisions of Rule 4A of the statute. In view of the facts and circumstances, the impugned annexure contained in Memo No. 1140/B dated 17.12.2003 issued under the signature of Registrar, Bihar, B.R.A. Bihar University is quashed. The petitioners are entitled For post retirement benefits of Annexure-A of Rule 1 of the statute of post retirement benefit. The B.R.A. Bihar University will proceed in this direction and make payment of retiral benefits to the petitioners within three months from the date of the order.
22. All the aforesaid writ applications are accordingly allowed.