IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.168 of 2006 ------- Dwarika Prasad Son of Late Dewaki Prasad, Resident of Village- Kurkuri, P.O.& P.S.-Phulwari sharif, District-Patna …… Petitioner-Appellant. Versus 1. The Food Corporation of India, through the Zonal Manager (E) Food Corporation of India, 10-A, Middleton Row, Kolkatta-71. 2. The Deputy Manager, Food Corporation of India, 10-A, Middleton Row, Kolkatta-71. 3. The Deputy Manager, G.P.F., F.C.I. Head Quarter, C.P.F. Division 42-44, Dinar Bhawan, Neharu Place New Delhi. 4. The Assistant Manager, (Pension), Food Corporation of India, 10-A Middleton Row, Kolkatta-71. 5. The Senior Regional Manager, Food Corporation of India, Regional Office, Exhibition Road, Patna. 6. The District Manager, Food Corporation of India, Firdaus Building, Exhibition Road, Patna. 7. Regional Commissioner, Employees Provident Fund Organisation, Regional Office, R.Block, Bihar, Patna. Respondents-Respondents ----------- For the appellant : Mr.Lala Sachindra Kumar, Advocate Mr. Anil Kumar Pandey, Advocate For respondent nos.1 to 6 : Mr.Prabhakar Tekriwal, Advocate For respondent no.7 : Mr. Ramashankar Pradhan, Senior Advocate Mr. Rajeev Lochan, Advocate ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 18th November, 2008. This Letters Patent Appeal is at the instance of unsuccessful petitioner. In the writ petition filed by him, he prayed that rejection of - 2 - his claim for pension under Employees Pension Scheme, 1995 (for short, ‘Scheme, 1995’) vide order dated 29th July, 2003 was unjustified and a direction be issued to the respondents to grant him pension under that Scheme. 2. The case has a chequered history, but it is not necessary to go into details thereof. Suffice, however, to say that the service of the petitioner in the central government, was transferred to the Food Corporation of India (for short, ‘the Corporation’) upon its establishment somewhere in the year 1965. It transpires that the petitioner remained absent from the duty for about nine years since 1969. The Corporation considered this aspect and vide its order dated 21st March, 1987, treated the petitioner’s service as a fresh appointment to the post of watchman with them. The petitioner aggrieved thereby filed a writ petition being CWJC No.11243/1996 before this court for quashing the office order dated 21st March, 1987. This court dismissed the writ petition on 17th April, 1997. It was observed that although the petitioner had absented almost for nine years without prior permission of the authorities, but the authorities after taking lenient view in the matter and to avoid undue hardship accommodated the petitioner by providing him the post of watchman by re-appointment and, therefore, the order of re-appointment cannot be said to be improper. That the said order has attained finality is not in dispute. By the time, the writ petition came to be disposed of on 17th April, 1997, the petitioner had already retired on 31st March, - 3 - 1997. The petitioner’s claim for G.P.F and pension was not accepted by the Corporation and that necessitated the petitioner to approach this court again by filing another writ petition being CWJC No.3243/2003. It is pertinent to notice that in that writ petition, the petitioner confined his prayer for grant of contributory provident fund (C.P.F.) and pension under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 (for short, ‘ the Act, 1952’). 3. In so far as the grant of C.P.F. was concerned, the stand of the Corporation was that the said amount could not be paid to the petitioner as he refused to accept the same. In the light of the stand set up by the Corporation, this court by its order dated 30th June, 2003, directed the Corporation to pay the entire C.P.F. amount with up-to- date statutory interest to the petitioner within a week therefrom. As regards pension, the petitioner was given liberty to move the concerned authority and it was observed that such authority would pass a reasoned order, and if the amount is held payable, the same would be paid as admissible without any delay. Pursuant to the liberty granted by this court in the order dated 30th June, 2003, the petitioner applied for pension under the Scheme, 1995 to the concerned authority. The said representation came to be rejected on 29th July, 2003 by a speaking order and it was this order which was put in issue by the petitioner by filing yet another writ petition being CWJC No.11829/2003. It is this writ petition which has been dismissed by the Single Judge vide order dated 15.12.2005 giving rise - 4 - to the present appeal. 4. The counsel for the appellant contended before us that the option having been exercised by the appellant on 11th June, 1977 for leave, provident fund, retirement or other terminal benefits being paid to him in accordance with the rules and orders of the central government, he was not required to be the member of the Scheme, 1995 framed under the Act, 1952, and, therefore, his entitlement to pension has been wrongly denied by the authority and the Single Judge erred in affirming such erroneous order. 5. The contention of the counsel is wholly misplaced. As noticed above, in the earlier writ petition (CWJC No.3243/2003), the specific case of the petitioner for grant of pension was under the Act, 1952 and not under the rules applicable to the central government employees. Even otherwise, the petitioner could not have claimed for grant of pension under the rules applicable to the central government employees since by the order dated 21st March, 1987, the petitioner’s employment to the Corporation was treated afresh and not as transfer of employment from the central government which ceased to be operative in view of the continuous absence for nine years. Once this position is clear that claim of the petitioner for grant of pension was under the Scheme, 1995 framed under the Act, 1952, the only thing that needed to be seen is whether the petitioner met the eligibility of getting the pension under that Scheme. Since it is an admitted position without any reservation by the petitioner that he was not a - 5 - subscriber/member of the Scheme, 1995, obviously, he did not fulfill the eligibility for grant of pension under the said Scheme. In the circumstances, the writ petition filed by the appellant was liable to be dismissed and that is exactly what the Single Judge has done. 6. The Letters Patent Appeal thus, is wholly frivolous and devoid of any substance. We thought of imposing cost upon the appellant for such frivolous appeal, however, since the appellant has retired long back, we refrain from imposing any cost upon him while dismissing the appeal. 7. Letters Patent Appeal is, accordingly, dismissed with no order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil