IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13252 of 2007 Ram Keshi Ram, Son of Late Bhagelu Ram, Resident of Village – Bhekash, P.S. – Bhabhua, District - Kaimur. ---------------- Petitioner Versus 1. The State Of Bihar 2. The Accountant General (A&E), Bihar, Patna. 3. The Senior Accounts Officer, Office of Accountant General (A&E) Bihar, Patna. 4. The Commissioner-cum-Principal Secretary, Health Department, Bihar Government, Patna. 5. The Director-in-Chief, Health Department, Bihar, Patna. 6. The Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur. 7. The Incharge Medical Officer, Primary Health Centre, Sakara, Muzaffarpur. ---------- Respondents ----------- 4 5/08/2011 The sole petitioner invoking extraordinary writ jurisdiction of this court has prayed for quashing of an Order dated 03.04.2007 issued under the signature of Senior Accountant Officer, Office of the Accountant General (A&E), Bihar, Patna, addressed to In-charge Medical Officer, Primary Health Centre, Sakara, Muzaffarpur. By the said communication the Office of Accountant General (A&E), Bihar, Patna had returned the claim of petitioner for pension since petitioner had tendered his resignation. Short fact of the case is that the petitioner was a Class III employee and before completion of twenty years of service he tendered resignation on 31.01.1990 which was accepted by the Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur, vide its Order dated 01.02.1990. It is further case of the petitioner that after acceptance of resignation he filed an application on 03.04.1990 before the In-charge Medical Officer, Primary Health Centre, Sakara, Muzaffarpur, for granting all the retrial dues and also for fixation of his pension. After vigorous pursuation made by the petitioner the Civil 2 Surgeon on 06.12.2005 directed the In-charge Medical Officer for sending application of the petitioner alongwith all papers including ‘Service Book’ to the Accountant General (A&E), Bihar, Patna. However, the Accountant General (A&E), Bihar, Patna, vide the impugned Order i.e. Annexures – ‘9’ & ‘9A’ to the writ petition returned the case of the petitioner with an indication that petitioner is not entitled to get pensionary benefit since he had tendered his resignation. In this case no counter affidavit has been filed on behalf of Respondent Nos. 2 & 3/Accountant General (A&E), Bihar, Patna. Only counter affidavit has been filed on behalf of Respondent Nos. 6 & 7, wherein, the Respondent/State has taken the plea that the Accountant General (A&E), Bihar, Patna, was the competent authority for authorization and payment of retrial dues. It has been admitted by Respondent Nos. 6 & 7 in its counter affidavit that after receiving the pension form and other necessary documents which were submitted by the petitioner the Respondent No. 7 sent those papers to the office of Accountant General (A&E), Bihar, Patna for fixation of pension and payment of other retrial dues to the petitioner. In this case petitioner has also filed a reply to the counter affidavit filed on behalf of Respondent Nos. 6 & 7 and petitioner has brought on record a photo copy of an Order passed by a Single Bench of this Court reported in 2004(1) BLJ 489 (Dr. (Smt.) Shahida Hasan Vs The State of Bihar & Ors.). Sri Y.C. Verma, learned Senior Counsel appearing on 3 behalf of the petitioner while questioning the impugned order has emphatically argued that the petitioner had tendered resignation due to his personal necessity, however whole service career of petitioner was found satisfactory. It was submitted that the resignation of the petitioner was resignation simpliciter and it was not due to the reason that any proceeding was contemplated against the petitioner. It was further submitted by Sri Verma that qualifying service for availing pensionary benefit as per the provisions contained in the Bihar Pension Rules is ten years of service. It was submitted that it is true that petitioner had not completed twenty years of service but fact remains that petitioner had completed qualifying service for claiming pension and as such in view of resignation tendered by the petitioner which was resignation simpliciter petitioner was entitled to get all the retrial benefits. Relying on the Single Bench judgment of this Court i.e. Dr. (Smt.) Shahida Hasan’s Case (Supra), Sri Y.C. Verma, learned senior counsel has argued that the present case is squarely covered and is liable to be allowed. In sum and substance it was argued that since a Single Bench of this Court has already held that even in case of resignation simplicitor if an employee completes ten years of qualifying service he cannot be denied retrial dues and as such it was argued that the present writ petition is fit to be allowed and the impugned order is liable to be set aside and it was submitted that direction may be issued to the authority concerned to pay all the retrial dues to the petitioner 4 and fix pension without any further delay. Sri L.P.K. Rajgrihar, learned counsel appearing on behalf of Accountant General (A&E), Bihar, Patna, has submitted that the Accountant General (A&E), Bihar, Patna, has rightly and legally passed the impugned order. It was submitted that since the petitioner had tendered resignation even before completion of twenty years of service in view of Rule 101 of the Bihar Pension Rules all his past service was forfeited. He further submits that even in a case of voluntary retirement minimum qualifying service for proportionate pension is twenty years of service. Accordingly, he has argued that writ petition has got no merit and is fit to be rejected. Sri Rajeev Kumar Sinha, learned AC to Additional Advocate General No. XV has adopted the argument advanced by Sri Rajgrihar. He also submits that it is true that pension papers were sent by the Respondent/State to the Accountant General (A&E), Bihar, Patna but Accountant General (A&E), Bihar, Patna, in accordance with provisions contained in Rule 101 of the Bihar Pension Rules has rightly rejected the claim of the petitioner for his pension and other retrial dues. Besides hearing learned counsel for the parties I have also perused the material available on record. Prima facie the communication dated 03.04.2007 issued by Accountant General (A&E), Bihar, Patna (Annexures – ‘9’ & ‘9A’ to the writ petition) appears to be in accordance with provisions contained in Bihar Pension Rules. Rule 101(a) of the Bihar Pension 5 Rules specifically makes it clear that in case of resignation all past services of an employee shall stand forfeited. It would be appropriate at this moment to quote Rule 101(a) of the Bihar Pension Rules which is as follows:- “101. (a) Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.” In view of aforesaid provisions there is no ambiguity in coming to the conclusion that the Respondent/Accountant General (A&E), Bihar, Patna, has rightly taken decision for not granting pensionary relief to the petitioner. It is true that a Single Bench of this Court in Dr. (Smt.) Shahida Hasan’s Case (Supra) has held that even in a case of resignation if it is resignation simplicitor after completion of ten years of service an employee can be entitled to get pensionary benefit. In the light of Single Bench judgment of this Court I would have allowed the writ petition but fact remains that the judgment on which learned senior counsel for the petitioner has placed heavy reliance has already been over ruled by a larger Bench of this Court. The Single Bench of this Court in Dr. (Smt.) Shahida Hasan’s Case (Supra) had relied on an another Single Bench judgment of this Court reported in 1998(1) PLJR 707 (Tapan Kumar Chatterjee Vs The State of Bihar & Ors.). The Order passed by this Court in Dr. (Smt.) Shahida Hasan’s Case (Supra) was challenged by the State by way of filing an appeal vide LPA No. 373 of 2004 and a Division Bench of this Court 6 after examining all the relevant provisions such as Rules 101 & 135 of the Bihar Pension Rules and other relevant provisions including Tapan Kumar Chatterjee’s Case (Supra) has come to the conclusion that law laid down in Tapan Kumar Chatterjee’s Case (Supra) is not the correct law and as such the said judgment was over ruled by Division Bench of this Court and this Court further set aside the Order passed in Dr. (Smt.) Shahida Hasan’s Case (Supra). The Division Bench judgment of this Court whereby the Order passed in Dr. (Smt.) Shahida Hasan’s Case (Supra) was set aside is reported in 2010(2) PLJR 189 (State of Bihar Vs Dr. (Smt.) Shahida Hassan). Since the issue raised in the present case has already been set at rest by a Division Bench of this Court reported in 2010(2) PLJR 189 (State of Bihar Vs Dr. (Smt.) Shahida Hassan) the Court is of the opinion that no contrary view can be taken by this Court and following the Division Bench judgment this Court has got no option but to reject the present writ petition. In the present case it is admitted that before completion of twenty years of service the petitioner had tendered resignation and same was accepted and accordingly in view of Rule 101 of the Bihar Pension Rules coupled with the law laid down by the Division Bench of this Court in a case reported in 2010(2) PLJR 189 (State of Bihar Vs Dr. (Smt.) Shahida Hassan) the writ petition stands rejected. Before parting with the order it would be appropriate to indicate that at the time of hearing of a case it is expected that learned counsel may not refer an over ruled judgment /order. The Court is of 7 the opinion that referring an over ruled judgment before the Court in a proceeding amounts to misconduct on the part of a counsel. However, in the facts and circumstances of the present case I am not recording any finding on this issue. Accordingly, the writ petition stands dismissed. Praful (Rakesh Kumar, J.)