IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3779 of 2005 1(a). Prabhat Kumar 1(b). Vijay Kumar 1©. Suman Kumari 1(d). Bibha Kumari, all sons and daughters of Late Vidyavati Sinha wife of Janardan Prasad Singh, resident of Mohalla- Sarboday Nagar Chauk, P.O. Mirjapur, Begusarai. Petitioners. Versus 1. Lalit Narayan Mithila University Darbhnaga through its Vice Chancellor 2. The Director, Higher Education Department, Govt. of Bihar, Patna 3. The Registrar, Lalait Narayan Mithila University, Darbhanga 4. The Principal, Shri Krishna Mahila College, Begusarai- respondents. ----------- O r d e r 29. 15.3.2010. Heard Mr. Yugal Kishore, learned Senior Advocate appearing on behalf of the petitioners, Mr. Partha Sarthy learned counsel representing the respondent University and Mr. Pritish Kumar Lal, learned Assisting Counsel to S.C.11 for the State. The mother of the substituted petitioners superannuated from the post of University Professor with effect from 31.1.1998. Under the statute framed for grant of post retiral benefits of the employees of different Universities including the respondent University a retiral scheme was introduced with effect from 14.1.1980. Whereas the scheme at 2 Appendix-A provided for payment of general provident fund cum pension cum gratuity, the scheme at Appendix-B provided for contributory provident fund cum gratuity in which the employees contribution to provident fund was required to be up to 8 % of the pay of the employee. The third scheme at Appendix-C was provided for contributory provident fund only in which the employees‟ contribution was 10% of the pay. Undisputedly, the mother of the petitioners had opted for the benefits as provided under Appendix-C. However, before her superannuation on 31.1.1998, she exercised the option to shift over to the benefits provided in Appendix-A. The said option was exercised on 19.1.1998. Upon non payment of the post retiral benefits, the mother of the petitioners filed the present writ petition for payment of the post retiral dues and other admissible benefits from the University. A perusal of the relief(s) as set out in para-1 of the writ petition demonstrates that the petitioner sought her relief(s) as provided under Appendix-A of the Scheme. During the pendency of the proceedings, the original petitioner expired on 3 3.1.2006 and was substituted by her husband vide order passed in I.A.No.4010 of 2006 who again has been substituted by his children under the orders of this Court passed on 10.8.2007 in I.A.No.4389 of 2007. The present writ petitioners are the children of the original writ petitioner who are pursuing the matter. Admitted position is that during the pendency of the proceedings, the entire post retiral benefits as found admissible to the original petitioner including the pension for the period June, 2003 until her death on 3.1.2006, stands cleared at the hands of the respondent-University. The only grievance of the original petitioner which still exists as of today, is the arrears of pension for the period 1.2.1998 until May, 2003 and arrears of salary of Rs.2,27,955/ by reason of implementation of the revised pay scale and which also stands approved by the State Auditors. While the matter was pending adjudication before this court, two sets of orders came to be passed at the level of the Vice Chancellor of the University which have been brought on record vide Annexure-D and E respectively to the third 4 supplementary counter affidavit filed on behalf of the University. The reasoned order passed on 2.8.2008 placed at Annexure-D mentions that the petitioner changed her option of the Scheme on 19.1.1998 and was getting pension from June, 2003 to which she was not entitled but the University started the payment with effect from June, 2003. In the said situation, a direction was issued for calculation of the pensionary benefits with effect from June, 2003. The second reasoned order is placed at Annexure-E of the same affidavit which was passed on 11.4.2009 titled „Detailed, Reasoned order of the Vice Chancellor passed in the matter of payment of Pension to Smt. Vidyavati Sinha, retired Teacher of S.K.M. College, Begusarai’. Once again the decision as taken note in the first reasoned order has been reiterated. The Vice Chancellor held that the petitioner had represented for change of her option for claming pension on 19.1.1998 and though in terms of Clause 4(A) of the Scheme she had no right to change option but fortunately or unfortunately, she was getting pension since 2003. He further holds that in view of the amendment introduced in December, 2005, the 5 petitioner might get benefit of pension since January, 2006. (Empahasis supplied by me). He further holds as the university has allowed the payment of her pension since June, 2003, so the petitioner may be considered for arrears since June, 2003. In the series of affidavits filed on behalf of the University, a 5th supplementary counter affidavit came to be filed on 10.2.2010 and in para- 3 thereof, it has been mentioned as follows: “3.- That as per the direction of the assurance committee, the pension of the petitioner was started with effect from 1.6.2003. The retiral dues were calculated as follows: Payable Paid Difference 1. Pension(1.6.03 to 31.3.06) 458,731 268,142 195,589 2. Gratuity 348,348 78,742 269,606 (University contribution) 3. Leave encashment(110 days) 76,296 73,577 32,719 497,915 The aforesaid calculation of retiral benefits was audited by the State Finance Auditors and the sum of Rs.4,97,914/- was released by the State Government. The University paid this amount to all the four nominees of Late Vidyavati Sinha by 6 four cheques of Rs.1,24,478.50 each (Annexure-C to 3rd supplementary counter affidavit).” Thus it was admitted that between 1.6.2003 to 31.2.2006, the original petitioner was liable for payment of a sum of Rs.4,97,014 and it had been released by the State Government and also paid to the four nominees (the present petitioners) by four Cheques of Rs.1,24,478.50 each. The most relevant statement is placed at paragraph-5 of the affidavit for the purpose of deciding the issue at hand and in which the University after seeking legal opinion on the issue has calculated the pension benefit to the original petitioner with effect from 1.2.1998 until the date of her death on 3.1.2006. As per the calculations made by the University, a sum of Rs.12,59,444/ was found payable to the petitioners by way of pension for the period 1.2.1998 to 3.1.2006 and out of which the original petitioner had received certain amounts as set out in the said paragraph and the balance sum payable to the present petitioners was to the tune of Rs.8,00,713/. The said position is eloquent from the submissions made in para-5 of the 5th supplementary counter affidavit which has been sworn by none other than the Registrar of the University. 7 Thus, there appears to be no dispute nor any objection on part of the University as regarding the entitlement of the deceased employee. The position as emanated from the order(s) of the Vice Chancellor placed at Annexures-D and E in which no consideration as regarding the manner in which the period prior to 1.6.2003 was to be dealt with, finds explanation in the 5th supplementary counter affidavit of the University. In so far as the payment of the arrears of salary amount of Rs.2,27,951/ is concerned, the same admittedly stands approved by the State Auditors and there should not have been any impediment in the payment of the said amount. The two amounts which remained pending were arrears of pension to the tune of Rs.8,00,713/ and arrears of salary for an amount of Rs.2,27,951/. It is in these circumstances that the order dated 10.2.2010 was passed adjourning the matter and enabling the University to make the payment of the admitted dues of the petitioners and place the same by way of filing affidavit. Thereafter a sixth supplementary counter affidavit has been filed on behalf of the University through the Registrar on 12.3.2010 and in which the University has taken a shelter of the State 8 Auditors‟ objection. By enclosing a file note placed at Annexure-L of the said affidavit, it has been stated that as the State Auditors have objected to the payment of the arrears of pension in view of the newly added Clause 4B of the Statute, hence, the payments have not been made to the petitioner. The ground set forth by the University for not making the payment to the petitioner is only taken to be rejected. Even otherwise, all that the objectors have stated in the file noting, is that since the University had decided to make payment only with effect from 1.1.2006 hence, the issue could be decided in that background. The State Auditors in no manner have raised any objection with regard to the payment of the amounts for the period prior to 1.1.2006 and they could not have made such objection once the University on principle had decided to make payment of the arrears of the petitioner for the period 1.2.1998 to May, 2003. The University also in no circumstances can deny the pensionary benefits of the deceased employee, for the period 1.2.1998 to May, 2003. Taking into consideration the accompanying circumstances and the statements made in the numerous affidavits filed in the proceedings, the 9 concerned authorities of the University are directed to take steps for seeking clearance of the State Auditors in so far as the amount of pension is concerned within a period of eight weeks from the date of receipt/production of a copy of this order. Needless to add that the State Auditors would grant clearance within the period stipulated above to enable the University to make payment of the dues in terms of the calculation placed at Annexure-J to the 5th supplementary counter affidavit In so far as the payment of arrears of salary is concerned, as the same has been found admissible and also approved by the Auditors, the University shall make payment thereof within four weeks from the date of receipt/production of a copy of this order. The writ petition is allowed with the directions aforesaid. ahk (Jyoti Saran, J.)