Shiv Narayan Rai v. The State Of Bihar

Patna High Court CWJC No.8087 of 2012 (11) dt.01-02-2013 State. The Municipalities must manage their finance in a manner 2 appropriate for meeting its statutory obligations. In my view, that position may not be correct. Municipalities like Panchayats are institutions of local self-Government. Gram Panchayat being the smallest form followed by Panchayat, followed by Nagar Parishad or Municipal Council, thereafter the Municipal Corporation and ultimately the State Legislative Assembly and Legislative Council, they are all parts of State. The employees of different Municipalities cannot have different service conditions. They are part of the constitutional set up. They are part of different levels of local self-Government. Ultimately, they are all liability and responsibility of the State which is in the paramount control. State, or for that matter, the Municipal bodies cannot absolve themselves of liability towards payment of salary or pensionary benefits which the employee is entitled to in law on the ground of financial stringencies or financial constraints. That would be violative of the constitutional obligation. Reference may be made to the three judgments of the Supreme Court. The first is Municipal Council Ratlam – Versus- Vardhichand & Others since reported in AIR 1980 Supreme Court 1622 = (1980) 4 Supreme Court Cases 162, second is All India Imam Organization & Others –Versus- Patna High Court CWJC No.8087 of 2012 (11) dt.01-02-2013 Union of India & Others since reported in AIR 1993 Supreme 3 Court 2086 and the third is All India Regional Rural Bank Officers Federation & Others –Versus- Government of India & Others since reported in AIR 2002 Supreme Court 1398 = (2002) 2 Supreme Court Cases 554. However, it is not necessary to finally decide this issue in the facts of this case as the Municipal Council has, by its affidavit, shown that the entitlement of the petitioner for pensionary benefits have been fully paid. There is no rejoinder to the counter affidavit or the supplementary counter affidavit. First coming to the question of pension. As per petitioner’s own averment, petitioner joined service of the Municipality, as it then was, on 01.10.1970 and superannuated on

31.08.2010. In the year 1987, State Government enacted the Bihar Municipal Officers and Servants Pension Rules, 1987 which was enforced with effect from 13.11.1987. Prior to this, all municipal servants were entitled to contributory provident fund and were not entitled to pension. By these Rules, for the first time, pensionary benefits were introduced. Rule 4 (i) of the Rules aforesaid clearly provided that within 90 days of the Rules being enforced, an employee could give an option opting amount of CPF or opting for pension. In case, an employee fails to make this option then, by Patna High Court CWJC No.8087 of 2012 (11) dt.01-02-2013 default, he would be deemed to be continuing under the CPF 4 Rules not entitling him to monthly pension. In the counter affidavit, it is clearly averred that petitioner did not opt for monthly pension and, as such, by virtue of the default clause, as contained in Rule 4 (i), he continued in CPF Scheme. Upon his superannuation, CPF contribution and its accrual were calculated and an amount of Rs 36,663/- has been paid in full satisfaction of the said amount. Thus, in my view, it is rightly asserted that there are no further payments to be made in this account and petitioner is not entitled to monthly pension. In the counter affidavit, it is also stated that Group Insurance amount has also been paid in full amounting to Rs 7,720. The next contention of the learned counsel for the petitioner was that the petitioner is entitled to gratuity with dearness allowance. The calculation of gratuity paid is also given in the counter affidavit. It clearly mentions that the last basic pay of the petitioner was Rs 4,100/- but while working out the gratuity payable, the amount is taken to be one and half times thereof and, accordingly, gratuity amounting to Rs 1,01,475/- has been paid. Learned counsel for the petitioner is unable to show any other statutory provision which authorizes him to receive any amount different and above what has been paid. Thus, in my view, there Patna High Court CWJC No.8087 of 2012 (11) dt.01-02-2013 cannot be any further demand on this head. 5 Now coming the question of encashment. The Municipal Council has in its counter affidavit stated that so far as leave encashment or earned leave encashment is concerned, the Council, by its Resolution dated 30.07.2011 took a decision to make it applicable to Municipal employees. As petitioner had retired long before that, the said decision would not apply. Learned counsel for the petitioner is unable to show any other provision which entitles him to the same. Pensionary benefits and leave encashment are statutory entitlements. Either they are statutorily liable to be paid or they are not. In absence of any Statute having been shown to the Court entitling the petitioner to receive the said amount, this Court cannot issue any direction in that regard. Thus, in my view, petitioner cannot claim any further amount than what has been paid to him as pensionary benefits. The writ petition, thus, is devoid of merit and is dismissed accordingly. M.E.H./- (Navaniti Prasad Singh)