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Girija Devi v. State Of Bihar
Concise Analytical Summary of the Opinion — Onkar Nath Pandey (substituted)
Factual and Procedural Background
The original petitioner, Onkar Nath Pandey, was appointed as a Lecturer at Shri Yatindra Narain Ashtang Ayurvedic Mahavidyalaya, Bhagalpur (a private college). The college was taken over by the State of Bihar under the Bihar Private Medical (Indian System of Medicine) College (Taking Over) Act, 1985 (the "Act"), with effect from 10.1.1985.
A Screening Committee was constituted under section 6(2) of the Act and submitted a report dated 19.2.1992. The State Government accepted the Committee's recommendations by order dated 20.5.1997 and issued a notification under section 6(3) absorbing the original petitioner into Government service with effect from 10.1.1985. The original petitioner superannuated on 28.2.1991, resulting in Government service effectively from 10.1.1985 to 28.2.1991 (six years, one month and eighteen days).
The petitioner was denied post-retirement benefits on the ground that he had not completed the minimum qualifying period of ten years under the Bihar Pension Rules (specifically Rule 58). The original petitioner filed the present writ petition seeking that past service in the private college (prior to take-over) be counted for pensionary purposes. The original petitioner died during the pendency of the petition and was substituted by his widow as his heir and legal representative.
Legal Issues Presented
- Whether past service rendered by the petitioner in the private college prior to the State's take-over can be counted for the purpose of entitlement to pension and other post-retirement benefits under the Bihar Pension Rules.
- Whether paragraph 14 of the Supreme Court's decision in State of Bihar v. S.A. Hassan (2002) — which states that that judgment will apply prospectively and that the State shall not seek refund of pensionary benefits already granted — affords the petitioner any relief (i.e., whether the prospective application exempts this case).
Arguments of the Parties
Petitioner's Arguments
- Once the State Government accepted the services of the original petitioner (i.e., absorbed him into Government service), the petitioner is entitled to have his previous service in the private college counted for pensionary purposes.
- The petitioner relied on the Supreme Court judgment in State of Bihar v. S.A. Hassan (2002), particularly paragraph 14, contending that the decision operates prospectively in a manner that would assist his claim.
Respondent (State Government)'s Arguments
- Under the scheme of the Act, the determining factor is the date of absorption into Government service; the State relied upon a Division Bench decision of this Court in Janki Tanto v. State of Bihar (C.W.J.C. No. 7379 of 1992, dated 21.9.1994) and analogous petitions.
- The respondent relied on Rule 58 of the Bihar Pension Rules and relevant circulars (Finance Department Resolution No. 3014 dated 31.7.1980) establishing that minimum qualifying service for pension is ten years, and that service qualifying for pension must satisfy the three conditions in Rule 58 (service under Government, substantive and permanent employment, and payment by Government).
- The respondent-counsel asserted that the Supreme Court judgment in State of Bihar v. S.A. Hassan (supra) supports the respondents' position that past private service cannot be counted for pensionary entitlement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Bihar v. S.A. Hassan, 2002 (2) P.L.J.R. 295 (S.C.) | The Supreme Court held that (a) there is no provision in the corresponding Taking Over Act to count previous service rendered under private management for pension, (b) section 6(3) empowers the State to absorb employees on terms it deems fit, and (c) in view of Rule 58 of the Bihar Pension Rules past private service cannot be counted for pensionary entitlement. The judgment also stated (paragraph 14) that its effect would be prospective and that the State shall not seek refund of pensions already granted. | The Court treated the decision as controlling on the present point: it recorded that the Supreme Court discussed section 6 and Rule 58 and reached the effect that past private service cannot be counted. The Court further analyzed paragraph 14 and concluded that its prospective protection (and the no-refund direction) applies only to those who had already received pensionary benefits; since the petitioner had not received any pension, paragraph 14 did not assist him. |
| Janki Tanto v. State of Bihar, Division Bench order dated 21.9.1994 (C.W.J.C. No. 7379 of 1992) | Cited by the State to support the position that the date of absorption into Government service is the determining factor for pensionary entitlement (as applied in analogous writ petitions). | The Court noted that the State relied on this Division Bench decision. The opinion records that the respondents relied on it, but the Court's ultimate reasoning emphasized Rule 58 and the Supreme Court's decision in S.A. Hassan in reaching dismissal of the petition. |
Court's Reasoning and Analysis
The Court proceeded by examining the statutory provisions and rules governing the take-over and pension entitlement, the Committee's report and the State Government's final order, and relevant judicial authorities cited by the parties.
Key steps in the Court's analysis (as presented in the opinion):
- The Court reproduced and interpreted section 6 of the Taking Over Act (entitled "Determination of terms of the teaching staff and other employees of the College"), highlighting that the State is to set up committees to examine records, and that on receipt of committee reports the State may decide whether to absorb employees into Government service or take other actions under sub-section (3).
- The Court recorded that a Committee under section 6(2) submitted its report dated 19.2.1992, and that the State, by notification dated 20.5.1997 under section 6(3), accepted the Committee's recommendations and absorbed the original petitioner with effect from 10.1.1985. The notification, however, did not grant recognition of the earlier private service for pensionary purposes.
- The Court examined Rule 58 of the Bihar Pension Rules, which sets out three conditions for service to qualify for pension: (i) the service must be under Government; (ii) the employment must be substantive and permanent; and (iii) the service must be paid by Government. The Court noted that these conditions have been explained in subsequent subsections and accompanying circulars (noting Finance Department Resolution No. 3014 dated 31.7.1980).
- Applying Rule 58 and the relevant circulars, the Court observed that an employee must put in the minimum qualifying service (ten years) as an employee of the Bihar Government to be entitled to pension. The original petitioner had only six years, one month and eighteen days of Government service (as absorbed from 10.1.1985 to 28.2.1991).
- The Court then considered the binding Supreme Court authority in State of Bihar v. S.A. Hassan (supra). It noted that the Supreme Court, dealing with a corresponding Taking Over Act (1977) in pari materia with the present Act, had held there was no provision in the Act to count previous private service for pension and that Rule 58 prevented recognition of past private service. The Supreme Court also observed (in paragraph 14) that its judgment would have prospective effect and that the State should not seek refund of pensions already granted.
- The Court analyzed paragraph 14 of the Hassan judgment and interpreted the prospective aspect: the Court concluded that paragraph 14's protection (and the no-refund direction) was intended for employees who had already received pensionary benefits despite not having the requisite service; such persons would not be required to refund benefits. Because the original petitioner had not been granted any pension or pensionary benefits, he could not rely on the prospective, no-refund protection in paragraph 14.
- On the combined application of the statutory framework (section 6 of the Act), Rule 58 of the Bihar Pension Rules, the relevant circular, and the controlling Supreme Court authority (S.A. Hassan), the Court concluded that past private service could not be counted for the purpose of pensionary entitlement in the petitioner’s circumstances.
Holding and Implications
Core Ruling: Writ petition dismissed.
Direct implications and consequences:
- The petition is dismissed and the original petitioner (through his legal representative) is not entitled to have service rendered in the private college prior to the State take-over counted for pensionary purposes.
- Because the petitioner did not receive any pension or pensionary benefits prior to the Supreme Court decision in S.A. Hassan, he cannot avail himself of the prospective/no-refund protection contained in paragraph 14 of that judgment.
- The decision applies to the present parties only; the opinion does not purport to create a new departure from existing precedent. The Court's conclusion follows from its reading of the Act, Rule 58 of the Bihar Pension Rules, the relevant Government circulars, and the Supreme Court's decision in S.A. Hassan.
No broader policy change or novel legal principle was announced; the Court applied existing statutory provisions and binding precedent to the facts and dismissed the petition.
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.
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