DR. INDRA KANT JHA son of Late Yugeshwar Jha v. THE STATE OF BIHAR & Ors

Learned counsel for the petitioner, during hearing however, fairly submits that the terms and conditions of service on the date petitioner retired did not provide for - 2 - payment of pension nor the statutory rule laying down the service conditions of the employees of the Institute which came subsequent to the superannuation of the petitioner contains any provision for payment of pension, but provide for payment of gratuity and also the contributory provident fund. Petitioner admits to have received the above two benefits. The petitioner, however, raises a grievance that he ought not to have retired on 31st January, 2001 on attaining the age of 58 years instead of 60 years. In the alternative, the submission is that the petitioner either should have been provided pension or would have allowed to continue in service till attaining the age of 60 years. Mr. J.P. Shukla, learned senior counsel appearing for the respondent-Institute on the other hand submits that admittedly there was no provision of payment of pension in terms of the previous service rules governing the service conditions of the petitioner at the time of his retirement, and as such, he was not entitled to receive the pension. Besides the above, it is submitted that even in the new statutory rule which came after the superannuation of the petitioner in the year 2005, there is no provision for payment of pension, and therefore, the claim of pension is not justified in law. Mr. Shukla further submits that admittedly the - 3 - petitioner has received the contributory provident fund dues which obviously compensate the non-payment of pension besides the specific rule that there is no provision for pension. The other permissible retiral benefits i.e. gratuity, has been paid to the petitioner. As regards the submission of the petitioner that he ought not to have retired on attaining the age of 58 years, it is submitted that the petitioner neither raised this issue in this writ application nor in the earlier writ application filed by him which has been disposed of long ago i.e. on 01.04.2005 vide C.W.J.C. No. 12068 of 2000. The said writ application was disposed of by this Court holding to the effect that the petitioner is entitled to the contributory provident fund and gratuity, which have been paid to him. The petitioner did not raise the issue at any point of time that he should not have been retired on attaining the age of 58 years, and as such, in absence of such pleading nor there is any challenge to the order (Annexure-1) retiring him, the submission of the petitioner can not be considered at this stage more so the petitioner did not raise the issue in his previous writ application as mentioned above. With regard to the grievance of the petitioner that the retiral dues were paid to him after long delay, and as such, he is entitled to the interest, learned Senior counsel submits that the above grievance of the petitioner, if raised by him before - 4 - the authorities, shall be attended to without delay. Considering the submissions of the parties and their respective pleadings, this Court is of the opinion that the submission of the petitioner that either he should have been provided pension or allowed to continue in service till attaining the age of 60 years has no merit. Under the service conditions as on the date of retirement of the petitioner did not provide for payment of pension rather it provided for payment of contributory provident fund which has been received by the petitioner. As regards the submission that petitioner ought not to have retired on attaining the age of 58 years, can not be gone into in absence of any pleading in the present writ application nor it was raised in the earlier writ application. There is another aspect of the matter that having accepted the benefits of his retirement in terms of Annexure-1, petitioner can not be allowed to take a round and assail the same. However, the grievance of the petitioner that since the retiral dues have been paid after long delay he is entitled to interest deserves consideration. In the above circumstances, petitioner is permitted to make a representation with regard to his grievances for claim of interest over the delayed payment of retiral dues before the respondent no.3. In case such representation is filed by the - 5 - petitioner within a period of four weeks from today along with the certified copy of the present order, the respondent no.3 shall consider and dispose of the same by a reasoned order in accordance with law expeditiously preferably within a period of three months on receipt of such representation. The writ application is disposed of with the above observations/directions. Manish/- ( Shailesh Kumar Sinha,J.)