IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 13022 of 2005 Upendra Narain Singh, son of late Tribeni Prasad Singh, resident of Mohalla - Raghunathpuri, Police Station - Sitamarhi, District - Sitamarhi - Petitioner Versus 1 The B R Ambedkar Bihar University, Muzaffarpur through the Registrar, B R Ambedkar Bihar University, Muzaffarpur 2 The Vice Chancellor, B R Ambedkar Bihar University, Muzaffarpur 3 The Finance Advisor, B R Ambedkar Bihar University, Muzaffarpur 4 The Finance Officer, B R Ambedkar Bihar University, Muzaffarpur 5 The Secretary, Higher Education, Government of Bihar, Patna 6 The State of Bihar - Respondents *** For the petitioner : Mr Siya Ram Shahi, Advocate For the University : Mr Ajay Behari Sinha, Advocate For the S t a t e : Mr Amresh Kr Sinha, JC to GP XV *** 3 03.12.2008 The petitioner retired as Head of the Department of History from S R K Goenka College, Sitamarhi, a constituent college of the Bihar University on 31.01.1997. The present writ application relates to dispute regarding pensionary benefits. For the Universities of Bihar, other than Patna University, Patna and Rajendra Agriculture University, Pusa, Samastipur, the Chancellor has framed statutes for grant of retirement benefits to the employees of those Universities. This is commonly referred to as the Triple Benefit Scheme. There are three retirement plans that are available to be chosen from by an employee of the University. The first as contained in Appendix A normally referred to as Scheme A under which on retirement, a person is entitled to General Provident Fund - cum- Pension and also entitled to Gratuity. The second is contained in 2 Appendix B referred to as Scheme B where the retirement benefit is Contributable Provident Fund -cum- Gratuity and in this case, the employees’ contribution to Provident Fund is limited to 8% of the pay. The third is Contributory Provident Fund alone and is commonly referred to as Scheme C in which the employers’ contribution to the provident fund is 10% of the employees’ salary. These statutes were enforced with effect from 01.04.1972 and were issued on 18.11.1980. Clause 3 thereof dealt with applicability of the statute and provided that the statute would apply to employees who had joined the service of University prior to 01.04.1978 and it provided that the employee had to make an option for availing benefits under either one of the schemes. Clause 4 thereafter provided that option had to be exercised within three months of the date of publication of the Scheme and option once exercised shall be final. The reason for this cut off was obvious inasmuch as in each of the Schemes, deductions were contemplated which had to be invested in a particular manner and became payable to the employee on a particular day in a particular manner. The financial treatment which was received by an employee during course of his employment under the three schemes was different. Petitioner admits having made an application and exercised his option in terms of Scheme B that is Contributory Provident Fund - cum - Gratuity Scheme. He was, thus, not entitled to pension. On his retirement, he got the amounts to the credit of his contributory provident fund account and he received gratuity of Rs 1 lac which was the 3 maximum admissible then. In 2003, the matter of exercising option were being considered and ultimately the Registrar of the University informed the State Government that examining the matter, it was found that none of the employees of the University had exercised their option within three months. That being so, as provided in Clause 4 of the Retirement Benefit Scheme, their option was invalid and by default, all employees were deemed to be in Scheme A. It appears that in some other Universities, Universities, from time to time, gave option to its employees to change their options. This matter, when came to the notice of the State Government, the State Government informed the Chancellor that this was not permissible because in terms of Clause 4 of the Scheme, option once exercised was final. Apparently, pursuant to that, the Chancellor issued a general circular to all the Universities pointing out this defect and directing that retirement benefits have to be paid as per first option to be exercised. This brought some of the aggrieved employees to this Court and this Court rejected the contention of the petitioners and held in the case of Prof (Dr) Ram Niranjan Kedia & Others -Versus- State of Bihar & Others (a case arising from L N Mithila University) 2001 (4) PLJR 833 that options once exercised were final and, as such, there was no infirmity in the order of the Chancellor. Apparently, this created a lot of problems with the employees because most of them had changed their options from Scheme B, C to A and assured to themselves the continued pensionary benefits. That was taken away. The State Legislative Assembly took up discussion on this issue and certain assurances were 4 given. The matter was then considered by the Bihar Legislative Assembly Assurance Committee and they issued certain directions. Apparently, considering the fact that the Registrar of Bihar University had found that all applications were submitted long after due date, as such, by default all employees of Bihar University ought to have been treated as falling under Scheme A as also the proceedings before the Assurance Committee, the Vice Chancellor of Bihar University issued a circular as contained in Annexure-4 dated 07.06.2003 wherein it was stated that the pension and gratuity in respect of teaching and non- teaching employees of Bihar University would be considered in terms of Scheme A. The second paragraph of this order provided that even where pensionary benefits were being granted under any other Scheme, it would be referred to Scheme A on refund of monies received by the pensioner alongwith appropriate interest to ensure migration to Scheme A. Accordingly, petitioner became entitled to be considered for retirement benefit to be paid in terms of Scheme A. Immediately thereafter, the petitioner wrote to the University that he was ready and willing to refund the money with appropriate interest and wish to avail of retirement benefits as per Scheme A. While the matter was pending, the impugned office order was issued by the respondent-Vice Chancellor, as contained in Annexure-6 being dated 17.12.2003 whereby the second paragraph of Annexure-4, as referred to above, was withdrawn. The effect was notwithstanding the finding of the Registrar that all employees of the Bihar University had made applications for option belatedly and, as such, fell within Scheme A by default and, thus, 5 notified by Annexure-4 that all employees would be treated under Scheme A and migrations were permissible. Now by the impugned Annexure-6, migration was made impossible and cases of migration were not to be considered. Effectively, petitioner is now stuck again with retirement benefit under Scheme B. The petitioner has, thus, challenged this Annexure-6 by which the migration rights have been withdrawn. The stand of the University is that migration is not a right vested in any employee. Having heard the parties and considered the matter, with their consent, the application is being disposed of at the stage of admission itself. From Annexure-A, the letter of the Registrar of the University to the State Government, it is clear that not a single employee of the University exercised his option under the Triple Benefit Scheme within the stipulated ninety days. In my view, consequences automatically flew from it and all the employees were entitled to be considered only under Scheme A of the Triple Benefit Scheme. Their subsequent options ought not to have been considered. Thus, they were entitled to be in Scheme A and to that extent, the notification issued by the Vice Chancellor, as contained in Annexure-4, accepts that position and declares it to be so. Paragraph-2 is a mechanism to effectuate what is stated in paragraph 1. From the facts above, it is clear that the petitioner was in law entitled to get pensionary benefit under Scheme A but on his option beyond time which ought not to have been considered, he had been 6 given pensionary benefits under Scheme B which was wrong. All that petitioner now wants is that put him under the right scheme as per law. If the impugned Annexure-6 is permitted to operate, the effect would be a wrong committed cannot be corrected because if migration is not permitted to the correction scheme that is Scheme A then a wrong would be allowed to be perpetuated and continued. Courts cannot permit a wrong to be committed and continued. Thus, having found that the petitioner in law was only entitled to be given the benefit of retirement under Scheme A if logically follows. In lieu of it, if he was wrongly given retirement benefit under Scheme B, he should have been migrated to Scheme A by the University itself and any restriction on migration to Scheme A would be an arbitrary and an unreasonable restriction and forcing the petitioner to live with a wrong retirement benefit scheme. Here, I may take note of another aspect. This Court had earlier held in the case Prof (Dr) Ram Niranjan Kedia & Ors (supra) that option once exercised was final, but that judgment has lost its efficacy inasmuch as a new Clause 4 (b) has been introduced in the Triple Benefit Retirement Scheme which clearly empowers University to permit pensioners to change their options once made. If this be seen then also, the petitioner now had a right to change option. Thus, the petitioner has been wrongly denied the right to migrate from Scheme B to A inasmuch as Scheme A was the legal, by default scheme, applicable to the petitioner. Let it be so done. Consequently, petitioner would be required to refund monies to the University as per calculations 7 to be given by the University and University would be liable to restore pension to the petitioner. The amount payable to the petitioner would first be adjusted against the amount refundable by the petitioner. The University must quantify the amounts payable to the petitioner as arrears and then as pension and requisition the same from the State Government who would be bound to give the same to the University for the payment of the petitioner’s claim. All this must be done within a period of six months from today. With these observations and directions, this writ application is allowed. M.E.H./ (Navaniti Prasad Singh)