IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10594 of 2007 1.Raj Kumar 2.Munna Kumar Both sons of Late Mahendra Ram( substituted in view of Court’s order dated 20.2.2009) resident of Village- Rupaspur, P.O. Sahaynagar, P.S. Danapur, District-Patna ----------------- Petitioner Versus 1.Rajendra Agriculture .University through its Vice Chancellor, Pusa, Samastipur 2.The Vice Chancellor, Rajendra Agriculture University, Pusa , Samastipur 3.Director ( Administration), Rajendra Agriculture University, Bihar, Pusa, Samastipur 4.Associate Dean-cum- Principal, Bihar Veterinary College, Patna -------------- Respondents. ----------- 07 07-07-2011 Heard Sri Ram Hriday Prasad, learned counsel for the petitioner and Sri Chandra Mohan Singh, learned counsel appearing on behalf of all the Respondents/ Rajendra Agriculture University. The original petitioner, while invoking writ jurisdiction of this Court, had prayed for directing the Respondents to sanction and grant pension and gratuity to him and to pay all other consequential benefits. The original petitioner had retired with effect from 31.1.2006 as Class-IV employee and since he had earlier opted for the benefit under the C.P.F. Scheme, he received such relief. Learned counsel for the petitioner has argued that even after retirement of the petitioner an option was sought for from the employees of Rajendra Agriculture University in respect of grant of relief either under the C.P.F. Scheme or under the pensionary Scheme. The petitioner had initially opted for the benefit under the C.P.F. Scheme. However, subsequently he wanted to change his option, but his prayer for such change was rejected on 12.5.1997. Learned counsel for the petitioner 2 submits that even after retirement of the petitioner the University had come out with a proposal for again changing the option in between the scheme of C.P.F. and Pension. Learned counsel for the petitioner has drawn my attention to Annexure-11 to the rejoinder filed on behalf of the petitioner. He has further relied on Annexure-12 to the petition i.e. an order passed by the University for changing the option. He further submits that the Respondent/University had accepted the prayer for changing the option of some of the employees of the University but the original petitioner was discriminated. It was also argued that the petitioner was a Class-IV employee and he did not know about the option, while application was accepted by the authority concerned. Learned counsel for the petitioner has drawn my attention to internal page-9 of the counter affidavit filed on behalf of Respondents. While referring to copy of the Form kept at page-9, he tried to impress upon the Court that the Form itself indicates that the columns were filled up in different pen, whereas the petitioner had only put his signature on the said form. He further tried to develop a new case that the petitioner had never opted for the benefit of C.P.F. Scheme but by committing fraud such form was got filled up and the petitioner was deprived from the pensionary benefit. On the aforesaid premises, it has been prayed that the original writ petitioner was entitled to get the pensionary benefit. While elaborating his argument that the authority concerned was not required to act upon such option as per page- 9 of the counter affidavit, learned counsel for the petitioner has relied upon a single Bench Judgment of this Court reported in 2002 (4) PLJR 131 (Anirudh Tiwary Vs.State of Bihar & Ors.) He has specifically referred to paragraph-4 of the said Judgement , which is as follows: 3 “4. Now, the question remains as to whether such option can be construed to be legal option by the petitioner when already statutes for grant of retiral benefits to the employees of Bihar/ Ranchi/Bhagalpur/Magadh/Lalit Narayan Mathila/Kameshwar Singh Sanskrtit University had come into force from 14.11.1980. Clause-3 of that Statute specifically mentions that those Statutes shall apply to both teaching and non-teaching staff of the University and also such employees of the constituent colleges of the University who were in service on 1.4.1972 or joined service after that date. They shall be entitled to opt for one of the alternative Schemes set out in Appendix A and B to the Statute or to continue in the Scheme mentioned at Clause-C of the Article- 1. It has also been mentioned in that Statute that if such option has not been given by any application within three months from the date of publication of the Statute, then it will be construed that those employees have opted for Appendix-A meaning thereby pension and gratuity benefits. From the wordings of the option as given by the petitioner shows that he had opted for “existing” University Contributory Fund Scheme and gratuity as admissible to pre-1952 members of the Registrar’s establishment transferred to the University under the Patna University Act,1951 under the old Patna University Regulation. The wordings are not convincing on the face of it as at the time when such option had been given there was no “existing” “C.P.F. Scheme of the pre-1952 members”. This can be clarified more in the following manner: The old University Regulations framed under the P.U.Act, 1917 mentions about the pre-1952 members of the Registrar’s Establishment transferred to the University. Therein there was a clause regarding the grant of gratuity to the members of the Registrar’s Establishment having service of exceptional merit for not less than ten years. Patna University Act had gone 4 through amendments time to time. It was amended in the year 1961. It was again amended in the year 1976. In the subsequent amended Act those provisions of the transfer of Registrar’s Establishment as contained in P.U.Act, 1917 did not take place. Moreover, the controversy had been resolved when the Statute for grant of retiral benefits came into force in the year, 1980 and after coming into force of that Statute there is no scope of giving any option as per the provision which was in P.U.Act, 1917. There is merit in the Statute itself and that Statute has specifically given provisions for giving option either in Clause A and B of the Appendix or Clause-C of Article-1 and it has also been mentioned in the Statute itself that if such option had not been given within three months then it should be construed that the employees had opted for the pension Scheme itself as per Clause-A of the Appendix. I have already mentioned that the said Statue came into fore in the last part of 1980 and the petitioner’s so called option as per Annexure-5 is 4.5.1981. At that time the question of option was not there because after the time frame has been lapsed the employees like that of the petitioner of Patna University are to be construed as opted for pensionary benefits. The wordings of the option show that such option was given in respect of “existing “regulations of pre-1952 members. Those were not existing at the time such option was given. In that way, the so-called option as contained in Annexure-5 could have no legal validity rather should be construed only as scrap of paper. The matter should also be considered in that light that the petitioner is not a well educated man rather fourth grade employee who has retired as Daftari alone. He can not be construed to be a man of 3-Rs (reading, writing and arithmetic). Then such writing in the form option must be by some man and not by the petitioner himself and he must have signed without understanding what has been written. The date when such option had been taken 5 or given does not give any scope to any employee to give any option because the date of option regarding the Statute which came into force in the year 1980 had already been elapsed by that time and for that reason I have mentioned earlier that such option as contained in Annexure-5 should be construed only a scrap of paper. It appears that while passing the order as contained in Annexure-4 the authorities of the University had not considered the matter in its proper perspective. Even the legal opinion given which is very much elaborate on the basis of the office note by the University officials had not been considered in its proper perspective while passing the order as contained in Annexure-4” The present writ petition was initially filed by one Mahendra Ram, who retired on 31.1.2006. It is not in dispute that after retirement, the petitioner had also got the benefit under the C.P.F. Scheme. While getting the benefit under the scheme of C.P.F., the original petitioner died on 11.1.2009 i.e. during the pendency of the present writ petition. Subsequently, a substitution petition was filed and the present petitioners were substituted after expunging the name of the original writ petitioner. The petitioners are son of ex-employee, Late Mahendra Ram. Learned counsel for the Respondents/University has argued that the original petitioner after retirement had received the benefit under the C.P.F. Scheme and moreover, after the death of original petitioner, the present petitioners may not be allowed to make a prayer for changing the option, which was given by his father during his service period. Besides hearing learned counsel for the parties, I have also perused the materials on record. I have also perused Annexures-11 & 12 to the rejoinder filed by the petitioner. Annexure-11 was issued in the month of August, 2007 i.e. after the date of retirement of original 6 petitioner. On perusal of Annexure11, the Court is of the opinion that since the original petitioner had already retired prior to issuance of Annexure-11, he was not entitled to get any relief under the pension scheme. This has been further clarified by Annexure-12, which indicates that even after retirement if an employee had availed the benefit fully and partly under the scheme of C.P.F., he shall not be entitled to get the opportunity for changing the option and getting the pensionary benefit. Annexure-12 makes the position clear that the petitioner after retirement and that, too, after availing the benefit even partly was not entitled to claim pensionary benefit, whereas the fact remains that he had availed the benefit of C.P.F. Scheme. So far Judgment referred by the learned counsel for the petitioner is concerned, the Court is of the opinion that it does not help the petitioner due to the simple reason that his prayer for adopting pensionary benefit was not accepted long back in the year 1997 itself and after retirement the original petitioner had received benefit under the C.P.F. Scheme. In view of the facts and circumstances, particularly the fact that the original petitioner, who died subsequently after retirement, had already received the benefit under the scheme of C.P.F., no relief can be granted to the present petitioners. The writ petition stands rejected. NKS/- ( Rakesh Kumar, J. )