IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5190 of 2006 Dr.Chandra Deo Pandey, son of late Ram Pravesh Pandey, resident of village Patkhauli, P.S. Sikrahata, District Bhojpur and deemed to have been retired as Medical 2nd Officer, Jagdish State Dispensary, District Bhojpur … Petitioner Versus 1. The State Of Bihar 2. The Commissioner cum Secretary, Department of Health and Family Welfare, Bihar, Patna 3. The Director-in-Chief, Health and Family Welfare, Bihar, Patna 4. The Joint Secretary, Department of Health and Family Welfare, Bihar, Patna 5. The Deputy Secretary, Department of Health and Family Welfare, Bihar, Patna … Respondents ----------- For the Petitioner : Mr. Bindhyachal Singh, Advocate For the State : G.P.-19 PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (30.06.2011) Mihir Kr. Jha, J. Heard Mr. Bindhyachal Singh, learned counsel for the petitioner and the learned counsel for the State. Time they say is the best heater but then not in all cases. The petitioner having been appointed on 22.7.1966 in the Government service after tendering his resignation on 14.4.1977 became over ambitious in 1990 first to challenge the acceptance of such resignation and also in alternative for claiming the payment of pension, gratuity and other retirement benefits. When the same was denied by the 2 respondents on the ground that in terms of Rule 101(a) of the Bihar Pension Rules a person having resigned from the service would not be entitled to payment of pension, gratuity and other retirement benefit, he came to this Court in 1991 after 14 years of acceptance of his resignation assailing the decisions of his acceptance of resignation as also denying him post retirement benefit. Such writ application, C.W.J.C.No. 4684/1991 filed on 16.7.1991, was placed before the Division Bench on 31.7.1991 but the then counsel for the petitioner, appearing in that case, had given up first claim of the petitioner for reinstatement in service by accepting that the petitioner had resigned from service which had also been accepted by the Government. The petitioner, however, in that writ application had continued to press his claim for payment of retirement benefit and as such, when the respondents took help and support of Rule 101(a) of the Bihar Pension Rules envisaging forfeiture of pension on account of resignation the petitioner leave was sought to amend the said writ petition for challenging the vires of Rule 101(a) of 3 the Bihar Pension Rules. All these facts would be evidenced from the order of this Court dated 31.7.1991 in C.W.J.C.No. 4684/1991 reading as follows: “ In this particular case the petitioner is claiming reinstatement to the original post and the post retirement benefits. At the time of hearing of this application, learned counsel for the petitioner has given up the first claim because the petitioner has resigned from the post which has been accepted by the Government. Accordingly, he seeks relief in respect of post retirement benefit on the basis of such resignation. Learned counsel for the State has drawn our attention to Rule 101(a) of Section-V which deals with suspensions, resignations, breaks and deficiencies in service. Rule 101(a) of Bihar Pension Rules provides 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.” Admitted position is that if the petitioner had retired on that date instead of resignation then some post retirement benefit would have been granted to him according to 4 the existing rule. The whole question is whether in view of Rule 101(a) of Bihar Pension Rules he is deprived from getting any post retirement benefit. Learned counsel for the petitioner has submitted that he wants to challenge the validity of the said Rule on the ground of violation of Articles 14 and 16 of the Constitution of India and other provisions of law and accordingly he may be given liberty to amend the said petition. We think this is a fit and proper case, where the petitioner who has put in twelve years of service, should be given such liberty to agitate such point. Accordingly, we allow him to amend the petition by allowing him to challenge the Rule 101(a) of Bihar Pension Rules which debars him from getting any pension or gratuity because of “forfeiture of past service” on the ground of resignation. Let the supplementary petition by way of amendment be filed within one week from this date and the counter affidavit be filed by the learned counsel for the State dealing with the whole facts of the case within two weeks from the date of receipt of the copy of the supplementary petition for 5 amendment. Let this matter appear in our list on 28th of August, 1991 under the heading “To be Mentioned” for fixing a date of hearing of the petition. Let it be recorded that we shall dispose of the petition at the stage of admission itself.” The Division Bench thereafter had heard the matter and had found the issue worth consideration and as such by an order dated 13.7.1993 the writ application was admitted for final hearing. However, when the matter was placed for final hearing on 8.5.1998 counsel for the petitioner had informed this Court that the petitioner did not intend to press the writ application as he had decided to approach the State Government for redressal of his grievance. The writ application as a whole was accordingly dismissed by an order of division bench of this Court dated 8.5.1998. In view of dismissal of the earlier writ application of the petitioner, C.W.J.C.No. 4684/1991, the petitioner could not have revised on the same cause of action as with regard to payment of pension, gratuity etc. as he was/is bound by the well 6 settled principles of resjudicata and constructive resjudicata which is also applicable in the writ proceedings. The petitioner, however, had found a via media to file another writ application, C.W.J.C.No. 8188/1998 , wherein a plea was taken that the earlier dismissal of the writ application of the petitioner, C.W.J.C.No. 4684/1991 would not stand in his way, inasmuch as the same was withdrawn by the petitioner on assurance given by the Secretary to the Government that he was prepared to consider the case of the petitioner for payment of retirement benefits. This Court in the second writ petition filed by the petitioner, C.W.J.C.No. 8188/1998 did not pass any affirmative order in favour of the petitioner and left the petitioner to agitate his grievance before the Government and that is how the second writ petition also got disposed of by the order dated 22.6.1999 in which this Court had also noted about the pendency of certain proceeding against the petitioner. The order of this Court dated 22.6.1999 in C.W.J.C.No. 7 8188/1998 reads as follows: “ Having regard to the relief sought for in this writ application and having further regard to the fact that the proceeding is pending against the petitioner, I am not inclined to pass any positive order at this stage. However, learned counsel for the petitioner seeks permission to withdraw this application in order to file a representation before the respondent authority for the relief sought for in this application. The prayer is allowed with the liberty aforesaid. However, if such a representation is filed, the respondent authority will hear the petitioner and/or his representative and dispose of the same, by speaking order, in accordance with law, without being prejudice by the order of this Court, as early as possible, preferably within six weeks from the date of filing such representation. Pursuant thereto, if the claim of the petitioner is found to be genuine he must be paid accordingly without any further delay. This disposes of this writ application.” In the considered opinion of this Court once the validity of resignation of the petitioner was already upheld by the 8 Division Bench of this Court in the first writ petition there was no question of any proceeding to be still continued against the petitioner and therefore, this Court will have no difficulty in now coming to a conclusion that the order dated 22.6.1999 did not bestow any benefit to the petitioner so far it relates to payment of retirement benefit. The petitioner, however, taking the benefit of the observations made in the order dated 22.6.1999 had filed a representation again claiming payment of retirement benefit as also payment of salary of certain period while the petitioner was in service i.e. on or before 14.4.1977. That has been rejected by the impugned order passed in this case wherein the Commissioner cum Secretary of the Health Department had again come to the same conclusion that in view of Rule 101(a) of the Bihar Pension Rules the petitioner will not be entitled for payment of any pension and gratuity as past services of the petitioner would stand forfeited in terms of Rule 101(a) of the Bihar Pension Rules. Additionally the Commissioner cum Secretary of the Health 9 Department has also come to a finding that the claim of payment of salary of the petitioner of some 25 years back could not have been adjudicated due to non- availability record and in this context his specific finding is that the petitioner had also failed to produce any evidence as with regard to his alleged working in the concerned period prior to his tendering and acceptance of his resignation. The Commissioner cum Secretary of the Department, however, had allowed the claim of the petitioner for payment of provident fund. Learned counsel appearing on behalf of the petitioner had initially pressed the claim of the petitioner for payment of retirement benefit including pension and gratuity but then having noticed the past history of the earlier writ applications filed by the petitioner himself had gracefully not pressed such claim for payment of pension and gratuity as he had found it difficult to now overcome earlier order of the Division Bench in C.W.J.C.No. 4684/1991. Even otherwise the clear and 10 specific Rule of 101(a) of the Bihar Pension Rules reading as follows:- "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. " would not permit the petitioner to claim retirement benefit including payment of pension and gratuity after acceptance of his resignation. Pension though not a bounty is also not a wind fall. It to be earned in the manner prescribed under the Rules. Infact under the Rules there are four types of pension namely: (a) Compensation Pension (b) Invalid Pension (c) Superannuation Pension (d) Retiring Pension. and detailed conditions of grant of such pension under Rules 107 to 134 do not envisage a person tendering resignation from service being also entitled to grant of pension. The petitioner having also not completed twenty five years of service prior to acceptance of his resignation would also not fall within the exception carved out under Rule 135 of the Rules. This aspect of 11 the matter has been recently settled by the Division Bench of this Court in the case of State of Bihar Vs. Dr. (Smt.) Shahida Hassan reported in 2010(2) PLJR 189. Learned counsel for the petitioner next contended that the petitioner would be at least entitled for payment of his salary beyond subsistence allowance as his order of suspension had been revoked and the departmental proceeding had also not been concluded till the date of acceptance of his resignation on 14.4.1977. The difficulty in this regard, however, is be that the respondents are not in a position to now dig out the records of 30 to 35 years back or even for the earlier period of service in which the petitioner claims that he was not paid his salary. Learned counsel for the petitioner, however, submits that he can still produce some evidence as with regard to working of the petitioner in the concerned period which may be helpful of the authorities for deciding such claim of the petitioner. This Court, therefore, would give liberty to the petitioner to file his representation confined only to the payment of salary for 12 the working period of the petitioner prior to his acceptance of resignation on 14.4.1997 and if the authorities would find that the petitioner had actually worked in the relevant period, they would take an appropriate decision for payment of his admitted salary. As with regard to the claim of payment of provident fund there would be no difficulty in holding that the petitioner despite acceptance of his resignation would still be entitled for payment of provident fund. In this regard even the respondents have conceded the claim of payment of provident fund to the petitioner but their only reservation is that since the petitioner himself was drawing and disbursing officer, he himself was required to furnish the details of such deductions made from his salary for its being deposited in the provident fund. In that view of the matter, this Court would give liberty to the petitioner to just inform the authorities about his monthly deductions made from his salary and deposited under the head of provident fund whereafter the concerned District Provident Fund Officer/ Director of 13 Provident Fund would take necessary decision as with regard to payment of provident fund to the petitioner. It is made clear that whatever amount is found payable under the head of provident fund to the petitioner will also accrue interest at the prescribed statutory rate as has been amended from time to time. Such exercise as with regard to payment of amount of provident fund alongwith interest must be completed within a period of six months from the date the petitioner will furnish his statement of deductions and its deposit in the provident fund to the competent authority, namely, concerned District Provident Fund Officer/ Director of Provident Fund. Subject to the aforementioned observations and directions as with regard to payment of provident fund and salary, this writ application is dismissed. (Mihir Kumar Jha,J.) Patna High Court Dated the 30th June 2011 A.F.R/Surendra/