Letters Patent Appeal No.886 OF 2000 ( Against judgment and order dated 28.4.2000, passed in CWJC No. 7299 of 1999, by Hon’ble Mr. Justice Radha Mohan Prasad) ****** OM PRAKASH, son of Late Lekh Raj Ram, resident of Village Nagwan, PO Bahpura, PS Maner, District Patna (Petitioner in the writ petition) …… Appellant Versus 1. RAJENDRA AGRICULTURAL UNIVERSITY, Bihar, Pusa, Samastipur, through its Registrar, having office at Pusa, Samastipur 2. The Vice Chancellor, Rajendra Agricultural University, Bihar, Pusa, Samastipur 3. The Comptroller, Rajendra Agricultural University, Bihar, Pusa, Samastipur 4. The Director of Administration, Ragendra Agricultural University, Bihar, Pusa, Samastipur 5. The Regional Director, Agricultural Research Institute, Patna (Respondents in the writ petition)- Respondents ********** For the Appellant : Mr. Gajanan Arun Mr. Gajendra Kumar Singh Advocates For the Respondent University : Mr. Y V Giri, Senior Advocate Mr.Vikas Ratan Bharti Advocate P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & K K Mandal, J. J. This appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna has been preferred by the petitioner of CWJC No.7299 of 1999, against the judgment and order dated 28.4.2000 , whereby the writ petition has been allowed in part. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. The petitioner had joined the services of the Bihar Government way back on 12.11.1956 as a Peon, a class IV employee. The respondent University had issued an advertisement for appointment of class III employees, and after completion of the selection process, the appellant was appointed as a Lower Division Clerk, a class III post, in the services of the University which he had joined on 22.10.73. It appears that the petitioner resigned from the services of the Bihar Government on 1.3.1982, and his lien was terminated. He superannuated from the 2 services of the University with effect from 1.3.1998 whereafter he was given his post-retirement benefits with effect from 1.3.1982, the date of his resignation from the service of the Bihar Government. The appellant filed a writ petition for a direction to the University to count his service for the purpose of post-retirement benefits after taking into account the service rendered in the Bihar Government. The writ petition was allowed to the extent that the petitioner is entitled to the post- retirement benefits with effect from 22.10.1973, the date on which he had joined the University. Hence this appeal. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident that the appellant served the Bihar Government on a class IV post. The University had given him a fresh appointment on a class III post, in pursuance of the selection process and in terms of the advertisement. There is no material on record to suggest that the State Government had released him to join the University after according due permission for the same. After having joined the University service, he committed the mistake of holding both the posts as a result of which he was called upon to submit his resignation. Consequently the appellant resigned his job of the Bihar Government with effect from 1.3.1982, and his lien with the Bihar Government was terminated. Viewed from this angle we entirely agree with the learned single Judge that the appellant is rightly entitled to post-retirement benefits in the service of the University with effect from 22.10.1973, the date on which he joined the University on a class III post, in a situation where it is nobody’s case that the appellant had obtained any post-retirement benefit for the services rendered to the State Government. It is another matter that the appellant did make the mistake by not resigning his job with the Bihar Government when he joined the services of the University, which he did on 1.3.1982 after the mistake was detected by the University. However, no issue was raised before the learned writ court nor before us in this behalf and, therefore, we would not like to raise this issue at this belated stage in a situation where no material advantage seems to have accrued against him. 4. This takes us on to a more vital aspect of the matter. It is more important to consider whether or not the services rendered by the appellant to the 3 Bihar Government should be counted for purposes of post-retirement benefits in the University. We entirely agree with the learned single Judge that the appellant is not entitled to the same, inter alia, for the reason that he had joined a new post altogether in pursuance of an advertisement and a fresh selection process. As indicated above, there is no material on record to show that he had obtained prior permission of the State Government to enable him to join the University service. Rule 101(b) of the Bihar Pension Rules 1950 may be considered in the present context. Rule 101 is reproduced hereinbelow for ready reference:- “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. (b) Resignation of an appointment with the approval of the appointing authority to take up another appointment, service in which counts, is not a resignation of the public service.” It appears that sub-rule (b) applies in a situation where the approval of the appointing authority, namely, Bihar Government in the present case, was not obtained. Therefore, the appellant had forfeited the benefits of past service rendered to the Bihar Government, in so far as the question of computation of retirement benefits with the University is concerned. 5. We must also consider the effect of the following resolution dated 8.6.1990 passed by the Management Board of the University (Annexure 9) :- “RESOLVED that the past services rendered by the Teachers, Scientist, Officers and staff in any Central/State/Autonomous bodies, Universities be counted as qualifying service for the purpose of Pension, Gratuity, and other retirement benefits in Rajendra Agricultural University on the same terms and conditions as stipulated in the Govt. of India, Department of Personnel and Administrative Reforms O.M.No. 28-10/84 Pension Unit dated 29th Aug., 1984 and Govt. of India, Department of Pension and Pensioner’s Welfare O.M.No.28/10/ Pension Unit, Volume –I dated 12.9.1985.” In our opinion, the resolution does not apply to the present case for two reasons. This has to be read with rule 101(b) set out hereinabove. In other words, the appellant shall be entitled to the benefits of past service in the University provided he had joined the University service with the approval of the appointing authority which is not the case here. Secondly, no material has been placed before the learned single Judge or before us that the conditions stipulated in the Circulars dated 29.8.84 4 and 12.9.85, adverted to in the aforesaid resolution, are satisfied in the present case. Therefore, we do not fine any merit in this appeal. 6. The appeal is accordingly dismissed. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 11th of November 2009 NAFR/mrl