IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2309 of 2006 DR.SUCHIT NARAYAN PRASAD ………Petitioner Versus THE STATE OF BIHAR & ORS……. Respondents ----------- For the Petitioner: Mr. Rajeev Kumar Verma, Sr. Advocate Mr. Rajneesh, Advocate For the University: Mr. Anil Singh, Advocate For the State : Mr. Shivendra Kishore ------------ 07/ 02.08.2010 Heard learned counsel for the parties. With the consent of the parties the matter has been taken up with a view to its final disposal at the stage of admission itself. The limited issue which falls for consideration in the writ petition is whether the services rendered by the petitioner under the State Government ought to be counted as a qualifying service for the purpose of determination of pension and other pensionary entitlements. The brief facts necessary for disposal of the writ petition is that the petitioner was appointed as an Assistant Teacher in the Subordinate Education Service of the Government of Bihar on 4/5-3-1958. The petitioner continued in the State Government service since his appointment until 5.12.1967 whereafter he joined as a Lecturer in Hindi in J.R.S. Mahavidalaya, Jamalpur on 06.12.1967. The college in question was affiliated to the Bhagalpur University and the initial appointment of the petitioner was for a period of six months on a 2 temporary basis, subject to the approval by the governing body. The said fact is manifest from a letter dated 26.11.1967 of the Secretary of the college present at Annexure-2 to the writ petition. Following the order of appointment aforesaid, the petitioner joined on 06.12.1967 as is evident from the certificate dated 22.12.1987 of the Principal of the college. The name of the petitioner was subsequently recommended by the University Service Commission for appointment against the post of Lecturer and following which the governing body of the college took a decision at its meeting on 13.06.1969 to confirm the services of the petitioner. The petitioner was informed of the said development vide letter dated 30.07.1969 of the Secretary of the college as contained in Annexure-3. Following the appointment in the light of the recommendation of the University Service Commission dated 30.07.1969, the petitioner joined his post on the same day at 11.00 A.M., copy of the joining is placed at Annexure-4 to the writ petition. In due course, the college in question became a constituent unit of the Bhagalpur University. The petitioner subsequently was transferred from J.R.S. Colllege, Jamalpur to R.D & J.D. College, Munger vide notification dated 30.07.1991 issued by the Registrar, Bhagalpur University and pursuant whereto the petitioner was relieved vide letter dated 07.08.1991 issued by the Principal of the J.R.S. College. The petitioner superannuated from the post of Professor/Reader, Department of Hindi, R.D. & 3 J.D. College, Munger with effect from 30.09.1994. Here it would be relevant to mention that consequent upon the appointment of the petitioner against the post of Lecturer in Hindi pursuant to Annexure-3, he submitted his resignation on 22.02.1974 before the State Government from the post of Assistant Teacher. The petitioner upon his superannuation on 30.09.1994 represented before the respondent no. 6, the Director, Secondary Education requesting him for fixation of his retiral benefits on the basis of the entire service rendered by him under the State Government as well as the University Service. The request of the petitioner was referred to the University and upon consideration, was rejected by the Registrar of the University and communicated accordingly vide letter dated 26.03.1999 (Annexure-1). The claim, inter alia, was rejected on grounds of having joined the University service after submitting his resignation and was also communicated vide letter dated 2/3-6- 1999 (Annexure-7). The petitioner being aggrieved with the said rejection, filed a representation/appeal before the Hon‟ble Chancellor, respondent no. 2, which he submits, is yet pending for disposal. It is in these circumstances that the present writ petition came to be filed. Learned counsel for the petitioner, in support of the relief prayed in the writ petition, contends that having completed more than 10 years of service, which qualifies a 4 permanent government servant to draw pension, the resignation cannot entail forfeiture of past service of nine years rendered by the petitioner under the State Government. He relies upon a bench decision rendered in the case of Deo Krishna Mishra Vs. The State of Bihar & Ors. reported in 2004 (1) P.L.J.R. 12 (paragraph-9). Learned counsel further submits that as the case of the petitioner was not of joining the service of the University after resigning from the State Government rather the resignation was subsequent to and much after his absorption in the University service, hence he was not governed by the exclusionary clause present at paragraph-5(II) of the Statutes for grant of retirement benefits to employees of the Bihar/Ranchi/Bhagalpur/Magadh/L.N. Mithila/K.S.D. Sanskrit University framed under the Bihar State Universities Act, 1976 (hereinafter referred to as the „Act‟). Learned counsel submits that his case was covered under Clause5 (i) of the Statutes as he was absorbed in the University after being relieved from the Government service and which was followed by resignation. Learned counsel in support of his submission that the Clauses of the Statutes have to be interpreted in a manner which subserves its purpose and does not lead to manifest contradiction, relied upon a judgment of the Supreme Court rendered in the case of Tirath Singh Vs. Bachittar Singh & Ors. reported in A.I.R. 1955 SC 830. Learned counsel thus submitted that the impugned order dated 26.3.1999 5 (Annexure-1) is illegal and is fit to be set aside and the petitioner is entitled for the reliefs prayed in the writ petition. Mr. Anil Singh, learned counsel appearing on behalf of the University opposing the contentions advanced by learned counsel for the petitioner submitted that the case of the petitioner is not covered by either of the provisions present at Clause-5 of the Statutes under consideration. He submits that two important aspects which are manifestly missing in the case of the petitioner disentitling him for the reliefs claimed in the writ petition are that the petitioner did not come to join the service of the University on transfer from the State Government or any other University rather had joined the service by way of appointment and that at the relevant time when the petitioner accepted appointment in the J.R.S. College, the said college was an affiliated unit of the Bhagalpur University and not a constituent college. He submits that the management of the college was taken over by the University only in the year 1980 and thus it is incorrect on the part of the petitioner to state that his service tenure under the Government followed by the University service, was continuous. Learned counsel submits that the transfer of service of an employee as provided under Clause-5(ii) of the Statutes conceives of a transfer on the same post and not from a different post. He submits that the petitioner was a school teacher under the State Government service before joining his appointment in the J.R.S. College and that the posts 6 not being equivalent, the benefit of Clause-5(ii) is not extendable in the case of the petitioner. He further submits that the reliance of the petitioner on Clause 5(i) of the Statute is also misconceived for the reason that it is only applicable to an employee joining service from another University and not from State Government service. Learned counsel in response to the judgment passed in the case of Deo Krishna Mishra (supra) which in turn relied on a judgment rendered in the case of Tapan Kumar Chatterjee Vs. The State of Bihar & Ors. (1998(1) P.L.J.R. 707), on the issue that a resignation simpliciter does not entail forfeiture, refers to a Division Bench judgment of this Court rendered in the case of Dr. (Smt) Shahida Hassan reported in 2010 (2) P.L.J.R. 189 and submits that the Division bench upon consideration of the issue, held that the decision rendered in Tapan Kumar Chatterjee (supra) did not lay down the correct law and thus overruled the same. With reference to the provision of Rule 101 and 135 of the Bihar Pension Rules, the Division bench held that unless the incumbent has completed 25 years of service at the time of his resignation, any lesser tenure would entail forfeiture. Learned counsel refers to a judgment of the Supreme Court reported in 2006(1) P.L.J.R. 187 (S.C) (Union of India & Ors. Vs. Braj Nandan Singh & Anr.), wherein the Supreme Court while considering similar provisions under 7 Central Civil Services Pension Rules, 1972 held that the provisions of Statutes have to be read together and that the Courts cannot read anything into a statutory provision which is plain and unambiguous. Learned counsel relies upon paragraph- 6 to 8 of the judgment. Learned counsel for the University further submitted that the Division bench judgment passed in the case of Braj Nandan Singh reported in 2003(3) P.L.J.R. 409 was set aside by the Supreme Court. Learned counsel for the University concluding his argument submits that for the reason that the case of the petitioner is not a case of a transferred employee rather a case of direct recruitment, the reliefs prayed in the writ petition is misconceived. Learned counsel for the University thus submits that there is no merit in the claim of the petitioner and which is fit to be rejected. Mr. Shivendra Kishore, learned counsel representing the Hon‟ble Chancellor refers to Annexure-2 which is the appointment letter of the petitioner and submits that as it was a case of direct appointment followed by confirmation in University service and which again was followed by his resignation from the State Government service, hence the case of the petitioner was not governed by the provisions of the Statures under consideration. I have heard learned counsel appearing on behalf of respective parties and have considered the materials on record 8 as also perused the relevant provisions of the Act, the Statutes and the decisions relied upon by the rival parties. Undoubtedly the petitioner was a school teacher in the State Government service and who obtained his appointment in the J.R.S. College by way of a direct recruitment. It is also undisputed that the college in question at the relevant time was an affiliated college and which was made a constituent unit of Bhagalpur University only in the year 1980 i.e. about 13 years after the petitioner joined the service in question on 6.12.1967. Thus the entire case of the petitioner hinges upon whether or not he is covered by either of the categories present at Clause-5 of the Statutes which is being reproduced hereinbelow for the facility of ready reference: “5.(i) Transfer/appointment of an employee from the service of any other University of Bihar to this University.- (i) Employees joining the University after leaving the service of another University of Bihar on transfer or appointment shall, in the event of the permanent absorption in the University be allowed, if the employee so wishes, retirement benefits in respect of the previous service rendered under the old University provided that there has been no break in service of the employee during the period of his qualifying service and the service rendered is qualifying as per Clause 2(i). They will, however, not be allowed to change over from the Scheme which they have already opted in the old University. In case the employee was contributing to C.P. Fund in the former University, that University‟s contribution together with the employee‟s subscription with interest thereon, to the C.P. Fund shall, on permanent absorption of 9 the employee in the University, be transferred to this University or the employee concerned shall deposit in the C.P. Fund of this University a sum equal to what should have been transferred from the former University. Where the employee is already governed in the former University by Scheme in Appendix „A‟, the former University will transfer the amount in G.P. Fund account of the employee with that University to this University. (ii) Transfer of an employee from service of Government of Bihar to the service of the University. Employees joining the University after continuous service in the Government on a permanent post or temporary post subsequently made permanent for a minimum period of five years shall in the event of permanent absorption in the University, be allowed if the employee so wishes, retirement benefit in respect of the past continuous service rendered in the Government provided that the transfer is in the public interest and provided that he has not availed of the retirement benefits in the Government. All transferred Govt. Servants, who have resigned or retired from Govt. Service and have been absorbed in the service of the University without any break, shall be entitled to pension and gratuity from the University on the basis of their total qualifying Service rendered under the Govt. and the University provided they refund to the University the pension and gratuity received by them for service rendered under the Govt. In case they do not choose to count their former State Govt. service for drawal of pension/gratuity from the University, they will be entitled to the benefits of C.P. Fund only for the period of the University service. (iii) Transfer of an employee from another Govt. or University: 10 Employees joining the service of the University after leaving service of another Govt. (i.e. Central Govt. or a State Government other than the State of Bihar) or another University (i.e. any Indian University other than a University in Bihar) shall, in the event of permanent absorption in the University, be allowed if the employee so writes, to count his/her previous service rendered under the Govt./University for the purposes of retirement benefits, provided that (a) there has been no break in service (excluding the extent of normal joining time admissible on transfer) of the employee, (b) the former service was qualifying for retirement benefits/C.P.F. benefits; (c) the former employer or the employee pays to the University the capitalized value of pension and the gratuity due to him/her for the former service, or (d) in case the employee in the former service, was on C.P.F. Scheme the accumulation in his/her C.P.F. account and the gratuity due to him/her for the former service is paid to the University by the former employer or the employee himself/herself at the time of his/her permanent absorption”. Clause-5(i) of the Statutes relates to transfer/appointment of an employee from the service of any other University of Bihar to the Universities covered by the Statutes i.e. Bihar/Ranchi/Bhagalpur/Magadh/L.N. Mithila/K.S.D. Sanskrit University. Admittedly the petitioner was not in University service prior to joining the present University and thus his case is not covered by this Clause. Clause-5(ii) covers cases of transfer of an employee from service of Government of Bihar to the service of University. Again admittedly the petitioner did not join 11 University service on transfer from the State Government service rather he joined the service of the University by way of direct recruitment, hence he does not fall within this category either. Another impediment on the way of the petitioner in so far as this Clause is concerned, is that at the relevant time when the petitioner joined the J.R.S. College on 6.12.1967, it was an affiliated college of the Bhagalpur University and which became constituent only in the year 1980 i.e. after 13 years. In addition to above, the judgment rendered by the Division Bench in the case of Dr. (Smt.) Shahida Hassain and the judgment of the Supreme Court in the case of Braj Nandan Singh (supra) further decimates his contentions advanced in the backdrop of the judgment rendered in the case of Deo Krishna Mishra (supra). In the result, I find no merit in the contentions advanced on behalf of the petitioner. The claim is unsustainable in consideration of the statutory provisions and thus is rejected. Consequently the writ petition is dismissed, however, without any order as to costs. S.Sb/- (Jyoti Saran, J.)