IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14811 of 2004 MADAN MISHRA, son of Late Purushottam Mishra, resident of Mohalla-Defence Colony, Kankarbagh, P.S.-Kankarbagh, District-Patna. Versus 1. THE BIHAR STATE UNIVERSITY(CONSTITUENT COLLEGE)Service Commission, through its Chairman, Gokul Path, Boring Road, Patna. 2. The Secretary, Bihar State University (Constituent College) Service Commission, Gokul Path, Boring Road, Patna. 3. The State of Bihar through the Secretary, Human Resources Development Department, New Secretariat Vikas Bhawan, Baily Road, Patna. 4. The Director, Higher Education Government of Bihar New Secretariat Vikas Bhawan, Baily Road, Patna. 5. Principal Secretary, Department of Finance Main Secretariat, Patna. . WITH CWJC No.8247 of 2008 SARASWATI DEVI, wife of Late Mohendra Kumar, resident of Mohalla-Ashokpuri(Khajpura), 12/A, Police Station-Shastri Nagar, District-Patna. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Human Resources Development Department Govt. of Bihar, Patna. 3. The Director Higher Education, Govt. of Bihar, Vikas Bhawan, Patna. 4. The Deputy Secretary, Human Resources Development Deptt. Govt. of Bihar, Patna. 5. The Bihar State University (constituent Colleges)Service Commission, Patna (Now Reapeeled) through the respondent no.4 6. The Principal Secretary, Dept. of Finance Court of Bihar Main Secretariat, Patna. WITH CWJC No.435 of 2009 MD NAZIM, son of Late Md. Jumai, resident of Mohalla- Mogulpura, Patna City. Versus 1. THE BIHAR STATE UNIVERSITY(CONSTITUENT COLLEGE)SERVICE COMMISION, through its Chairman, Gokul Path, Boring Road, Patna 2 2. The Secretary, Bihar State University (Constituent Colleges) Service Commission, Gokul Path, Boring Road, Patna. 3. the State of Bihar through the Secretary, Human Resources development Department, New Secretariat, Vikas Bhawan, Patna. 4. The Secretary, Department of Finance, Government of Bihar, Main secretariat, Patna. 5. The Director, Higher Education, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 6. Principal Secretary, Department of Finance, Main Secretariat , Patna. WITH CWJC No.489 of 2009 ASHOK KUMAR MUKHERJI, son of Late Rama Prasad Mukherjee, resident of Mohalla- Tahal Tola, P.S.-Phulwarisharif, Town and District- Patna. Versus 1. THE BIHAR STATE UNIVERSITY(CONSTITUENT COLLEGE) SERVICE COMMISION, through its Chairman, Gokul Path, Boring Road, Patna. 2. The Secretary, Bihar State University (constituent Colleges) Service Commission, Gokul Path, Boring Road, Patna. 3. The State of Bihar through the Secretary Human Resources Development Department, New Secretariat, Vikas Bhawan, Patna. 4. The Secretary, Department of Finance, Government of Bihar, Main Secretariat, Patna. 5. The Director, Higher Education, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 6. Principal Secretariat, Department of Finance, Main Secretariat, Patna. ----------- For the Petitioners :- Mr. Kishore Kumar Thakur, Advocate Mr. Abhay Kumar Thakur, Advocate For the State :- Mr. Lalit Kishore, AAG III Mr. Shashi Bhushan Kumar, S.C.16. 16 18.12.2009 Heard learned counsel for the parties. The petitioners in these writ petitions are retired employees or heirs of such employees of the erstwhile College Service Commission who were subsequently sent on 3 deputation with the Bihar State University (Constituent College) Service Commission and got absorbed there. The petitioner of C.W.J.C. No. 14811 of 2004 has come up against the refixation of his retiral benefits vide Annexure-11 which according to him is not inconsonance with the direction passed by this Court in his earlier writ petition bearing C.W.J.C. No. 8272 of 2002 allowed vide order dated 8.7.2004 (Annexure- 10). He thus prays for refixation of his retiral benefits on the basis of last salary drawn by him in the revised scale and payment of the arrears arising by reason of such refixation in the light of the direction passed by this Court in C.W.J.C. No. 8272 of 2002 placed at Annexure-10. The petitioner of C.W.J.C. No. 8247 of 2008 is a widow of Late Mahendra Kumar and seeks a direction for refixation of her family pension, gratuity and other retiral dues in the revised scale admissible to her together with its arrears on the basis of the last pay drawn by her deceased husband and the payment of arrears arising there from. The petitioners of C.W.J.C. No. 435 of 4 2009 and 489 of 2009 also seek similar direction regarding refixation and payment of pension and other retiral benefits on the basis of last salary drawn in the revised scale of pay together with its arrears. The writ petitioner Madan Mishra was drawing his salary as per revised pay scale pursuant to the Central Pay Revision Committee recommendation and even after retirement was paid part of the retiral benefits in accordance with revised pay scale which was subsequently stopped w.e.f. June 2003. The petitioner challenged the action of the authorities by filing a writ petition being C.W.J.C. No. 8272 of 2002 and which was disposed of by order dated 8.7.2004 (Annexure-10) in terms of an earlier order of this Court passed in the case of Harinandan Sharma arising from C.W.J.C. No. 12958 of 2001 (Annexure-9). In purported compliance of the order passed by this Court in C.W.J.C. No. 8272 of 2002 (Annexure-10), the retirement benefits of the petitioner, Madan Mishra was fixed vide Annexure-11 but in the unrevised scale and which has given rise to the present proceedings. So far as the case of petitioner Saraswati 5 Devi (C.W.J.C. No. 8247 of 2008) is concerned her grievance is that her family pension has been fixed in the unrevised scale and thus the retiral benefits admissible to her should be recalculated and refixed on the basis of last salary drawn by her late husband in the revised scale and the arrears arising therefrom should be paid to her together with current family pension. So far as the case of petitioners Md. Nazim (C.W.J.C.No.435 of 2009) and Ashok Kumar Mukherji (C.W.J.C.No.489 of 2009) is concerned, they have drawn their salary in the revised pay scale and have even drawn part of their retiral benefits in the revised pay scale but which have subsequently been stopped. Thus their case is also on the same footing as that of Madan Mishra. As the writ petitions raise common issues hence they have been taken up together for disposal with consent of the parties. For the same reason the representative facts are drawn from C.W.J.C. No. 14811 of 2004(Madan Mishra versus State of Bihar). Learned counsel for the petitioner contends that the down grading of the pay scale 6 was sans any proceedings. It is submitted that neither any opportunity nor any show cause notice was asked from the petitioner before taking such action. It is submitted that in fact no order of withdrawal of the benefits of the pay revision was ever issued to the petitioner nor have been brought on record in the present proceedings. It was further submitted that despite clear orders passed by this Court in the case of petitioner Madan Mishra and several similarly situated employees, the respondents are still engaging these employees in legal battles. The same position exists in the case of other petitioners except the judgment on the issue passed in the case of petitioner Madan Mishra. During the pendency of the proceedings a further development took place and which has been brought on record by the petitioner by filing a supplementary affidavit on 19.2.2009. It has been mentioned that the Bihar State University (Constituent College) Service Commission of which these writ petitioners and the husband of the petitioner Saraswati Devi were employees has ceased to function with 7 effect from 2007 under the decision of the State Government to wind up the said Commission. It is stated that a further decision was taken by the State Government to make payment of the salary of the current employees of the erstwhile Commission and the retiral benefits of the retired employees of the Commission from the funds of the State Government. In support of the contention the petitioner has enclosed a letter No. 88 dated 11.10.2007 (Annexure-14) written by the Joint Secretary cum Incharge Officer, Human Resources Department, Government of Bihar, Patna. The Joint Secretary-cum-Incharge Officer of the dissolved Bihar State University(Constituent Colleges) Service Commission, Human Resources Development Department, Bihar, Patna addressed to the Director, Human Resources Development Department (Higher Education) Department, Bihar, Patna while forwarding the budget for the financial year, 2007-2008 and 2008-09 in the revised pay scale has requested for necessary action at his end. Learned counsel submits that after the dissolution of the Commission the State Government in its Human Resources Development 8 Department have stepped into the shoes of the Commission to administer the pending work of the dissolved Commission and in this background, the Incharge officer has been appointed for the dissolved Commission who is an officer of the State Government in the Human Resources Development Department. He submits it is in the light of the decision taken by the State Government that the budget for payment of salary in revised pay scale was forwarded. Learned counsel further submits that the Deputy Secretary, Human Resources Development, Department after examining the budget submitted by the Incharge officer has also released the necessary funds vide letter dated 4.12.2007, Annexure-15 for payment of salary and retiral benefits. It is indisputed that the employees including the retired employees of the dissolved Commission are now under the jurisdiction of the State Government in its department of Human Resources Development Department. It is also indisputed that the financial liabilities in relation to such of the employees is now a responsibility of the said 9 Department and who are also discharging the same, evidence of which is present at Annexures 14 and 15 of the present proceedings. The said position has not been controverted by the State respondents. The only issue which requires consideration is whether the action of the respondents in withdrawing the revised pay scale of the petitioners is justified and whether it has any lawful support especially in the light of the judicial pronouncements on the issue which have become final and binding on the parties. During the course of the proceedings a counter affidavit was filed on behalf of the State wherein it was stated that the opinion of the Finance Department had been sought in the present matter as regarding the grant of revised pay scale to these employees and payment of their arrears. It is rather preposterous that despite clear directions of this Court on the issue vide orders placed at Annexures 9 and 10 of the C.W.J.C. No. 14811 of 2004 which have become final and conclusive on the issue and binding on the respondents, they have not taken steps 10 for implementing the directives and have engaged these petitioners in protracted litigations. In view of the statement made in the counter affidavit referred to above, this Court vide order passed on 6.10.2009 adjourned the matter to enable the State respondent to come out with a positive stand keeping in view the earlier orders of this court. Thereafter the matter came up on 15.10.2009 and on 20.11.2009 but no fresh development was expressed by the State counsel. The matter was thus heard on merits. The entitlement of the employees of the dissolved Commission to receive the revised pay scale in the light of the Rule 13 of the University Service Commission (Miscellaneous) Rules 1963, copy of which is placed at Annexure-1 of the writ petition, came up for consideration before this Court as early as in the year 2001 in the writ petition filed by one Harinandan Sharma giving rise to C.W.J.C. No. 2958 of 2001. A bench of this Court by order dated 10.4.2002 after examining the issue threadbare, allowed the writ petition directing the respondents to grant all pensionary 11 benefits including fixation of pension and balance of leave encashment and gratuity etc. along with statutory interest within a period of 10 weeks from the date of presentation of a copy of the order. The Court taking into consideration the financial aspect of the matter further directed that in case of absence of finance available at the hands of the Commission, a requisition be placed before the Human Resources Development Department who shall issue grants within the period mentioned in the order. It was further directed that the failure on the part of the Commission and the State of Bihar to maintain the period would entitle the petitioner of the said case to penal interest at the rate of 9 and 1/2 % per annum over and above the statutory interest until the payments are actually made. Copy of the order is placed at Annexure-9 of the writ petition. As already mentioned above, the order passed by this Court placed at Annexure-9 was not challenged by the respondents and thus has become final and binding on the parties and the issue stands settled. The petitioner Madan Mishra facing similar situation had moved this Court through 12 C.W.J.C. No. 8272 of 2002 and the writ petition was allowed by a Bench of this Court by order dated 8.7.2004 (Annexure-10) in the light of the order passed by this Court in the case of Harinandan Sharma(supra) and on the same terms. In view of the settled position emanating under the orders of this Court placed at Annexures-9 and 10 of the writ petition in respect of the issue in hand coupled with the fact that the action of the respondent authorities in withdrawing the benefits arising under the revised pay scale was not supported by any justifiable reason and was carried out without notice or affording any opportunity of hearing to the petitioners and was thus in gross violation of the principles of natural justice, the same cannot be sustained. The fact that no order withdrawing the benefits was brought on record by the respondents further adds up to the arbitrariness in the action of the authorities. In the result writ petitions are allowed and the respondent Principal Secretary and/or the authority concerned in the Department of Human Resources Development are directed to refix the pensionary and other retiral benefits 13 to which the petitioners are entitled on the basis of last salary drawn by the petitioners herein and the husband of petitioner Smt. Saraswati Devi in the revised pay scale and after recalculation of the post retiral benefits pay the same together with arrears and statutory interest, if any, within a period of three months from the date of receipt/production of a copy of this order. Let it be clarified that the failure on the part of the respondents to give effect to this order within the period stipulated herein above would entitle the petitioners to claim 10% interest over and above statutory interest admissible on the retiral benefits. The writ petitions are allowed with the direction aforesaid. Bibhash (Jyoti Saran, J. )