Madho Sharma v. The State Of Bihar

Patna High Court CWJC No.15725 of 2010 (14) dt.05-07-2013

31.07.2009. His pension papers were forwarded to the office of the Accountant General who opined that pursuant to the order of this Court in C.W.J.C. No. 10726 of 2004 (Arun Jha vrs. The State of Bihar) pensionable service was to be counted from the date of recognition and not from the date of establishment of the school as also ordered in Government Instruction dated 19.04.2007 issued by the Director (Secondary School), Bihar. The Accountant General also opined that the period of service of the petitioner had been calculated from the date of establishment for eligibility to time bound promotion which should also be reckoned from the date of recognition. The petitioner challenged letter of Accountant General dated 25.01.2010 returning his pension papers with a request that his pay and eligibility to appropriate pension be reconsidered and forwarded appropriately. The learned Single Judge before whom the writ petition was originally placed according to roster, by his order dated 08.10.2012 opined that the authorities have used the words “`Lohd‘r” and “ekU;rk” separately. The former may mean permission for establishment and the latter may mean recognition. The judgment in Arun Jha (supra) did not contain adequate consideration and discussion with regard the aforesaid Patna High Court CWJC No.15725 of 2010 (14) dt.05-07-2013 distinction and thus the reference to the Division Bench. Learned Counsel for the petitioner submits that under the circulars dated 02.12.1975, 01.03.1977 and 12.08.1978 the service was to be calculated from the date of establishment of the school and not from the date of recognition. There was no error in the time bound promotion given calculating his service from the date of establishment. It affects not only his pension but recovery ordered for time bound promotion given from the date of establishment as distinct from the date of recognition shall affect him prejudicially as a retired person. Counsel for the State has relied heavily on the order in the case of Arun Jha (supra). He has placed before us Comprehensive English-Hindi Dictionary by Professor Dr. Raghu Vira. The Hindi version of the words „recognized by Government‟ are ’kklu&`Lohd‘r, the words „recognized by law‟ in Hindi read as fof/k&`Lohd‘r, „recognized local bodies‟ in Hindi reads as `Lohd‘r LFkkuh; fudk;. It leaves nothing to imagination that the words “`Lohd‘r” mean recognition and not establishment. The preface vkaf’kd “partial” does not detract from the meaning of the word “`Lohd‘r” as recognized and not established. The order in Arun Jha (supra) adequately considers the earlier circulars of 1975, 1977 and 1978 and then holds that after promulgation of the Bihar Patna High Court CWJC No.15725 of 2010 (14) dt.05-07-2013 non- Government Secondary Schools [Taking over of Management and Control Act (Bihar Act No. 33 of 1982)] by virtue of the repealing clause under Section 20 they lost efficacy. We are satisfied that the interpretation of the circular dated

25.11.1992 given in Arun Jha (supra) that pensionable service shall be counted from the date of `Lohd‘r “recognition” is the correct interpretation and there is no occasion for us to take any different view of the matter. We therefore hold the service of petitioner as a Government Teacher is to be calculated from the date of recognition i.e. 05.08.1977. In this context, learned counsel for the respondent has invited our attention to Rule-58 of the Bihar Pension rules under which before the service can be pensionable, it must be under the Government and paid for by the Government. Our attention has also been invited by the learned State counsel to 2002 (2) PLJR (SC) 295 (State of Bihar vrs. S.A. Hassan and another). Though it related to a Private Medical college, taken over, and the issue for calculating pensionable service, the conclusion in the law with regard to the period from which the service shall be counted as pensionable after takeover finds discussion at paragraph-13 and 14 as follows : ``13. Rule 58 is clear that a Government servant Patna High Court CWJC No.15725 of 2010 (14) dt.05-07-2013 does not qualify for pension unless he conforms to three conditions viz. (1) his service must be under Government, (2) the employment must be substantive and permanent, and (3) service must be paid by the Government. In view of this Rule the respondents cannot claim the period of their service before the college was taken over as they were neither under the employment the Government nor their salaries were paid by Government. Under the specific Rule 58 the past service rendered by the respondent in the college while it was under the private management cannot be counted.

14. We are, therefore, of the opinion that the respondents are not entitled to claim the benefit of the period of their service while they were under the employment of the erstwhile management for the purpose of calculation of their pension and pensionary liabilities. Consequently, we hold that the findings of the High Court are not sustainable law. Accordingly, appeals are allowed by setting aside the impugned judgment. The judgment rendered by us will come into effect prospectively i.e. apply to the cases of employees who retire on superannuation after the date of this judgment. The State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to any employees and also to the respondents. We are giving this direction especially for the reason that the State Government allowed a number of judgments adverse to it to become final and there was consequent uncertainty in legal position.” In so far as the monetary benefits given on account of time bound promotion calculated from the date of Patna High Court CWJC No.15725 of 2010 (14) dt.05-07-2013 establishment is concerned, we are of the opinion that in absence of any allegations for fraud and or misrepresentation against the petitioner, his status as a retired employee the observations contained in paragraph-14 of S.A. Hassan (supra) in this regard, no recovery shall be made from the petitioner. In support of our conclusion that no recovery shall be made from the petitioner. We also refer to (2000) 4 SCC 335 (Union of India vrs. Ra. Sarangapani) making a distinction on the aspect of recovery between those who are in service and those who are retired as follows: ``24. But there is one exception to this direction for recovery. In case where any of these employees of the technical branch have received the benefit of the increment because of the judgment which we have now set aside, in case they have retired as of today, no recovery will be made from their retiral benefits on the basis of the judgment which we have pronounced today. The writ application stands disposed. (Navin Sinha, J) (Vikash Jain, J) Md. Ibrarul/-