IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.146 of 2010 1. GIRIJA DEVI W/O LATE ONKAR NATH PANDEY, R/O VILL GOLDARPATTI, NATH NAGAR, P.O & P.S- NATH NGAR, DISTT- BHAGALPUR ..Appellant Versus 1. THE STATE OF BIHAR 2. SECRETARY, DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA 3. DISTRICT INDIGENOUS MEDICINE (DESI CHIKITSA,) DEPARTMENT OF HEALTH (HEALTH EDUCATION), GOVT. OF BIHAR, PATNA 4.PRINCIPAL SRI YATINDRA NARAIN ASTANG RAJKIYE AYURVED MAHAVIDYALAYA NATH NAGAR, P.O CHAMPA NAGAR, DISTT- BHAGALPUR ..Respondents ----------- For the appellants: Mr. Indu Shekhar Prasad Sinha, Sr. Advocate Mr. Shivendra Narain Sinha, Advocate Mr. Manish Kumar, Advocate For the State: Mr. Anil Kumar, G.P XI ------------ 4 27-07-2010 Heard learned counsel for the appellant and learned counsel for the State. Through this Letters Patent Appeal under Clause 10 of the Letters Patent of this court, the appellant has challenged the judgement and order of the learned Single Judge dated 24-11-2009 whereby writ petition preferred by the husband of the appellant, in which after his death the appellant was substituted, claiming post retiral benefits has been dismissed. The relevant facts are not at all in dispute. The original writ petitioner was a lecturer in Sri Yatindra Narain Astang Rajkiye Ayurved Mahavidyalaya, Bhagalpur. That college was taken over under the 2 provisions of the Bihar Private Medical (Indian System of Medicine) College (Taking Over) Act, 1985 w.e.f. 10-1-1985. There is no dispute that services of the original writ petitioner were absorbed in the college w.e.f 10-1-1985 and he superannuated from service w.e.f. 28-2-1991. Admittedly, he had not completed 10 years of service under the State Government, the minimum qualifying service under the Bihar Pension Rules. The writ petitioner relied upon report of the Committee constituted under the provisions of the Take Over Act to claim that he was appointed as Lecturer in the college on 17-9-1975 and after three years, w.e.f., 17-9-1978 he could be granted recognition as Lecturer and in the period between 17-9-1975 to 19-9-1978 he was treated as Demonstrator as per recommendation of the Committee. The Committee noted that the Managing Committee had recognized the petitioner as Reader w.e.f. 1-3-1981 and hence, since then the petitioner could be treated as Reader. The petitioner wanted the authorities to include his service in the college rendered prior to take over in the length of service for the purpose of qualifying 3 service under the Pension Rules. For that purpose, he preferred writ petition in the year 1994 which was disposed of on 19-2-1996 vide annexure-1 to the writ petition with direction to the Director, Indigenous Medicine, Department of Health, Government of Bihar, Patna to examine the claim of the petitioner and dispose of the same by a reasoned order within fixed time. In order to seek compliance with the said order of the writ court the writ petitioner had to prefer contempt petition which was disposed of 2-2-2000 with a liberty that if the petitioner was not satisfied with the decision of the authorities, he could challenge the same before the appropriate authority/court of law. Thereafter the writ petition in question was filed in the year 2001. From the judgement of the writ court, it is clear that the authorities are in agreement that by the judgement of the Supreme Court in the case of State of Bihar Vs. S. A. Hassan and another, reported in 2002 (2) PLJR 295 (S.C.) the issue involved in the present case has been finally settled in favour of the State. The only dispute between the parties is with regard to 4 implications of the directions and observations made by the Apex Court in paragraph 14 of that judgement. The writ court has extracted paragraphs 4 and 14 of the judgement for the purpose of convenience and appreciation. In paragraph 4 the Apex Court noticed the submission of learned counsel for the State that there were conflicting views in the decisions rendered by the High Court and, therefore, the conflicting views required resolution by the Apex Court so that similar disputes may be decided in terms of law laid down by the Apex Court. In that case the counsel for the State conceded that even if the judgement of the High Court under appeal was set aside, the State will not ask for refund of any pension or pensionary benefits granted to the concerned employees of the college. From paragraph 4 of the aforesaid judgement of the Apex Court, it is clear that the Apex Court laid down the law that the employees of the college were not entitled to claim the benefit of period of their service under the employment of the college before its take over when it was under a different management for the 5 purpose of their pension and other retiral benefits. After allowing the appeal of the State the Apex Court recorded that the judgement will come into effect prospectively in the following words:- “The judgement rendered by us will come into effect prospectively i.e. apply to the cases of employees who retire on superannuation after the date of this judgement”. The Court further directed that the State Government shall not be entitled to claim refund of any pension or pensionary benefits already granted to any employee including the respondents of that case. Thereafter the reason for earlier directions and observations were also indicated in the following words: - “We are giving this direction especially for the reason that the State Government allowed a number of judgements adverse to it to become final and there was consequent uncertainty in legal position”. After underscoring and emphasizing the last observation that the State Government cannot claim refund, the writ court held that the judgement was made prospective so as to prevent the State Government from claiming refund but the pending litigations like in the 6 present case in which the pension or pensionary benefits had not been paid to the employees as yet, had to be decided against the employee in view of law laid down by the Apex Court in the case of State of Bihar Vs. S. A. Hassan (Supra). Accordingly, the writ court rejected the submissions on behalf of the writ petitioner not to apply the ratio of the aforesaid Supreme Court judgement in the case of writ petitioner and other employees who retired on superannuation before the date of that judgement delivered on 5-3-2002. The issue raised before us on behalf of the appellant is whether in view of directions and observations of the Apex Court noticed as mentioned in paragraph 14 of the judgement, the employees who retired on superannuation before the date of that judgement, like the writ petitioner are to get the pensionary benefits in view of State Government allowing a number of judgements adverse to it to become final or the ratio flowing from the Supreme Court judgement shall cover the case of earlier retired employees also so as to deprive them of pension and 7 pensionary benefits. Having considered the facts noticed above by the Apex Court in paragraphs 4 and 14 of the judgement in State of Bihar Vs. S. A. Hassan (Supra), we are of the view that the Apex Court took serious note of the fact that the State Government had allowed a number of judgements adverse to it to become final leading to uncertainty in legal position and on this account, it made the judgement prospective with a further clarification that it shall “ apply to the cases of employees who retired on superannuation after the date of this judgement”. We find merit in the submission advanced on behalf of the appellant. If we accept the submission of the State and the reasoning given by the writ court, the effect would be to obliterate the direction of the Apex Court that the judgement will apply to the cases of employees who retired on superannuation after the date of that judgement. It will not be proper for this court to interpret the judgement of the Apex Court so as to render a clear observation and direction otiose and meaningless. Hence, we are constrained to take a different view 8 contrary to that of the writ Court and hence, the judgement and order under appeal is set aside. We direct the respondents to settle the pension and other retiral claims of the deceased husband of the appellant on the lines the State had allowed the claim of S. A. Hassan, respondent in the case of State of Bihar Vs. S. A. Hassan (Supra) and pay all the dues to the appellant within a period of four months. Considering the peculiar facts of the case where the claim itself was in serious dispute, we are not inclined to allow the prayer for interest. This appeal is allowed to the aforesaid extent. No costs. BKS/- (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.)