S K Katriar, J.

This writ petition was preferred by one Onkar Nath Pandey (hereinafter referred to as the ‘original petitioner’), for a direction to the State of Bihar to count his services rendered in the private college before its take-over by the State Government, for the purpose of post-retirement benefits. He died during the pendency of the present proceeding and has been substituted by his widow, being his heir and legal representative.

2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The original petitioner was appointed as Lecturer in Shri Yatindra Narain Ashtang Ayurvedic Mahavidyalaya, Bhagalpur. The said College was taken over by the Bihar Government under the provisions of the Bihar Private Medical (Indian System of Medicine) College (Taking Over) Act, 1985 (Bihar Act No. 10 of 1985) (hereinafter referred to as the ‘Act’), with effect from 10.1.1985 The College was admittedly taken over on 10.1.1985 in terms of section 3 of the Act. The State Government constituted the Screening Committee in terms of section 6(2) of the Act, which submitted its report dated 19.2.1992 (Annexure-9). The Government accepted the report in terms of section 6(3) of the Act, vide order dated 20.5.1997 (Annexure-10), wherein it was stated that the services of the original petitioner were absorbed in the Government college with effect from 10.1.1985 He superannuated from the services of the Bihar Government with effect from 28.2.1991 He was thus in Government service from 10.1.1985 to 28.2.1991 He has been denied the post-retirement benefits of a Government servant, inter alia, for the reason that he has not completed 10 years of service, the minimum qualifying service under the Bihar Pension Rules. Hence this writ petition.

3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that once the services of the original petitioner has been accepted by the State Government, he is entitled to the benefit of past services rendered in the private college which would make him eligible for the post-retirement benefits. He submits that the issue is concluded by the judgment of the Supreme Court in the State of Bihar v. S.A Hassan, reported in 2002 (2) P.L.J.R 295 (S.C), paragraph 14.

4. The learned Government Counsel has opposed the writ petition. He submits that, in the scheme of the Act, the date of absorption in the Government service is the determining factor. He relies on the judgment dated 21.9.1994 (Annexure-A), passed by a Division Bench of this Court, in C.W.J.C No. 7379 of 1992 (Janki Tanto v. the State of Bihar), and the analogous writ petitions. He also relies on the provisions of rule 58 and the relevant circulars of the State Government under, the Bihar Pension Rules, the substance of which is that the minimum eligibility criterion to obtain pension is 10 years of service. He also submits that the judgment of the Supreme Court in State of Bihar v. S.A Hssan (supra), entirely supports the respondents' stand.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The private college was taken over by the State Government in terms of section 3 of the Act. Section 6 is headed ‘Determination of terms of the teaching staff and other employees of the College” and is reproduced hereinbelow:

“6. Determination of terms of the teaching staff and other employees of the College.- (1) From the date of the notified order, all the staff employed in the College shall cease to be the employees of the College body:

Provided that they shall continue to serve the College on ad hoc basis till a decision under subsections (3) and (4) of this section is taken by the State Government.

(2) The State Government will set up one or more committees of experts and knowledgeable persons which will examine the bio-date of each member of the teaching staff and ascertain whether appointment, promotion or confirmation was made in accordance with the Act, Statute or Regulations of the University concerned and in keeping with the guidelines laid down by the Indian Medical Council of India and taken into consideration all other relevant materials including length of his service in the College; and submit its report to the State Government.

(3) The State Government on receipt of the report of the Committee or committees, as the case may be, will decide in respect of each member of teaching staff on the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad-hoc basis for a fixed term on contract and shall, where necessary, redetermine the rank, pay allowances and other conditions of service.

(4) The State Government shall similarly determine the terms of appointment and other conditions of service of other categories of staff of the college on the basis of facts ascertained either by a Committee or by an officer entrusted with the task and the provisions of sub-sections (2) and (3) of this section shall apply mutatis mutandis to such cases.”

6. The State Government constituted a committee of experts in terms of sub-section (2) of section 6. The Committee submitted its report dated 19.2.1992 (Annexure-9), wherein it made the following recommendations with respect to the original petitioner:

(Emphasis added)

7. The State Government considered the report, and passed the final order in terms of sub-section(3) of Section 6, accepting the recommendations of the Committee, vide its notification dated 20.5.1997 (Annexure 10), whereby the original petitioner was absorbed in Government service with effect from 10.1.1985 In other words, the State Government finally decided not to give the benefit of past services rendered in the private colleges to the original petitioner. In other words, the original petitioner remained a Government servant from 10.1.1985 to 28.2.1991, i.e for a total period of six years one month and eighteen days. Rule 58 of the Bihar Pension Rules provides as follows:

“58. The service of a Government servant does not qualify for pension unless it conforms to the following three conditions:

First-The service must be under Government.

Second-The employment must be substantive and permanent.

Third-The service must be paid by Government.

These three conditions are fully explained in the following subsections.”

8. In order to earn pension from the Bihar Government, the employee must have served the State Government on a substantive and permanent basis, and must have been paid for by the State Government. This has to be read with paragraph 18 of the relevant circular of the State Government bearing Finance Department Resolution No. 3014, dated 31.7.1980, and is reproduced hereinbelow for the facility of quick reference:

It is thus evident that the State Government liberalised the eligibility criterion, and an employee with lesser number of years as an employee of the Bihar Government would be entitled to the benefit of pension. In other words, an employee must put in a minimum 10 years of service to be entitled to the benefit of pension. As noticed hereinabove, the original petitioner had put in six years, one month and eighteen days of service in the Bihar Government.

9. An identical issue came up for the consideration of the Supreme Court in the State of Bihar v. S.A Hassan (supra), wherein it has laid down to the aforesaid effect. We must clarify that the same discussed an identical situation with respect to an employee governed by the Bihar Private Medical Colleges (Taking Over) Act, 1977, which, to the extent relevant in the present context, is in Pari Materia with the Act in question. The Supreme Court examined the relevant aspects of the matter including section 6 of that Act and Rule 58 of the Bihar Pension Rules. It has been laid down that there is no provision in the Act to count the previous service. There is also no indication in the Act that the past services would be recognised for the limited purpose of pension. After noticing the provisions of section 6 of the Act, it has been held that the State Government is empowered in terms of section 6(3) of the Act to take over the services of the employees on the terms and conditions which it deems fit and proper, of course on the basis of the recommendation of the Committee. It has further been held that in view of Rule 58 of the Bihar Pension Rules, the past services rendered while the college was under private management, cannot be counted.

10. Learned counsel for the petitioner has, however, laid emphasis on paragraph 14 and submits that the judgment shall apply prospectively, i.e the judgment was rendered on 5.3.2002 We have to read the observations in Paragraph 14 of the judgment in State of Bihar v. S.A Hassan (supra) in the background of the submissions of the learned counsel for the State of Bihar in that case in paragraph 4 of the judgment. Paragraphs 4 and 14 are reproduced hereinbelow for the facility of quick reference:

“4. Mr. Ashok Mathur, learned counsel for the State of Bihar has drawn our attention to some other decisions of the High Court wherein a contrary view was expressed. Therefore, Mr. Mathur has submitted that these conflicting views have to be resolved by this Court so that similar disputes which may come up in future may be decided in terms of law laid down by this Court. The learned counsel has fairly stated that in case the impugned judgment is set aside, State will not ask for refund of any pension or pensionary benefits granted to the employees of the college. In regard to the present appeals, the learned counsel has stated that as there was no stay order by this Court of the impugned judgment the benefits to both the respondents ought to have been granted and if not granted it will be so done by the State Government and the result of these appeals would not affect their cases.”

“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 in 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.”

(Emphasis added)

10.1) Taking the judgment as a whole, it appears to us that the Supreme Court intended to mean that those of the employees who have already received the benefits of pension even though they had not completed ten years of service shall not be liable to refund the same. We emphasise the observations in paragraph 14 of the judgment that “… 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…” because of the uncertainty in the legal position. In our view, prospective application of the judgment would arise only in those cases where an ineligible employee had already received the benefit of pension before the judgment was handed down, and such persons would not be required to refund the same. The original petitioner or his heir and the legal representative has not in the present case been granted any pension and pensionary benefits. Therefore, the petitioner cannot get the benefit of the observations in paragraph 14 of the judgment.

12. We do not find any merit in this writ petition. It is accordingly dismissed.