IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13909 of 2007 MD.ALI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : None For the Respondent No.6 : Mr. Lalit Kishore, Additional Advocate General-III For the Respondents 1 to 5: Mr. S.S.Mishra, Junior Counsel to Government Advocate-V ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 13th August, 2008. Although the petitioner or his counsel is not present but with the assistance of the Additional Advocate General-III and Government Counsel, we considered the matter in the light of the available material. 2. That the petitioner was a member of the Bihar Judicial Service and that he initially joined his service on 3rd April, 1975 is not in dispute. It is also not in dispute that the petitioner has been granted promotion from time to time and that at the time of his retirement at the end of the day of 31st December, 1999, he was holding the post of Additional Sessions Judge. 3. After his superannuation, the petitioner made - 2 - an application for pension and based on that his pension was fixed at Rs.6,664/- per month. He also seems to have got the commuted value of pension as per existing norms. 4. In the light of the recommendation of the First National Judicial Pay Commission and the decision of the Supreme Court, the Government of Bihar/Finance Department issued notification No.189/03/735 dated 7th April, 2005 for the revised pension for the members of the Bihar Judicial Service. 5. The petitioner wrote to the Accountant General, Bihar on 2nd May, 2005 pursuant to the Notification dated 7th April, 2004, for fixation of revised pension. However, he was informed that there was no provision for fixation of revised pension. 6. On 4th April, 2006, the petitioner is said to have written a letter to the Registrar General of this Court regarding enhanced payment of commuted value of 10% in accord with the resolution dated 27th October, 2005 issued by the Finance Department, Government of Bihar. The Registrar General of the Patna High Court is said to have requested the Deputy Secretary, Personnel and Administrative Reforms Department, Government of Bihar to expedite the payment of enhanced commuted value of pension to the petitioner. 7. It appears that the petitioner also made an application to the Accountant General for enhanced payment of - 3 - commuted value of 10% to which he was replied by the Accountant General vide letter dated 5th April, 2006 that he must contact the concerned department for sanction. 8. The State Government rejected the petitioner’s prayer for sanction of commuted value of pension as per the resolution dated 27th October, 2005. 9. The petitioner has, accordingly, approached this Court in extra ordinary jurisdiction for quashing the communication dated 22nd June, 2006, by which the petitioner’s claim for enhanced payment of commuted value of pension came to be rejected. The petitioner also prayed for quashing the communication dated 16th May, 2007 by which the revision of pension after retirement at 58 years of age has been turned down. 10. A counter affidavit has been filed by respondent no.3. A separate counter affidavit has also been filed by respondent no.6. 11. It transpires from the counter affidavit filed by respondent no.6, that the letter of the petitioner for enhancement of commuted value of pension was received and by communication dated 15th May, 2006, the petitioner was informed to send duly filled- up application form for enhancing the commuted value of pension to the Patna High Court on administrative side for its onward transmission to the Personnel and Administrative Reforms - 4 - Department, Government of Bihar, Patna. It is also admitted that on 23rd May, 2006, the petitioner sent necessary papers to this Court on administrative side, which was forwarded to the Personnel and Administrative Reforms Department, Government of Bihar on 29th May, 2006, wherein request was made to the Government to expedite the payment of enhanced commuted value of pension. Paragraph 9, 10 and 11 of the counter affidavit of respondent no.6 is reproduced as it is : - “9. That the petitioner under his letter no.153 dated 21.4.2006 wrote to the answering respondent requesting that the Finance Department, Bihar be requested to enhance his commuted value of pension by further 17% as now provision has been made to sanction commuted value of pension upto 50% of pension from 33% fixed earlier in view of the fact that the Accountant General, Bihar by letter no.55 dated 5.4.2006 had asked him to contact the concerned Department for his said claim. 10. That the petitioner was informed under Court’s letter no.4675 dated 15.5.2006 to send duly filled up application for enhancing the commuted value of pension to the Patna High Court in its administrative side for its onward transmission to the Personnel and Administrative Reforms Department, Government of Bihar, Patna. 11. That the petitioner under his letter no.199 dated 23.5.2006 sent the necessary papers to the Patna High Court in its administrative side regarding enhancement of commuted value of pension. In turn the Patna High Court in its administration side under letter no.5827 dt. 29.5.2006 forwarded the said papers of the petitioner to the Personnel and Administrative Reforms Department, Government of Bihar, Patna requesting therein to expedite the payment of enhanced commuted value of pension to the petitioner.” - 5 - 12. From the counter affidavit filed by respondent no.3, it is clear that after his retirement, the petitioner was sanctioned 33% of commuted value of pension. He applied for enhancement of commuted value of pension through the Registrar General of this Court, which was received by the Government on 1st June, 2006. The stand of the Government is that the petitioner’s application for enhancement of commuted value of pension was examined in the light of resolution No.2370 dated 27.10.2005 issued by the Finance Department but since the said application was not made within six months from the issuance of resolution dated 27.10.2005, the petitioner’s application came to be rejected. In the counter affidavit of respondent no.3, it is also stated that all District and Sessions judges were informed by the Personnel and Administrative Reforms Department letter No.11126 dated 13.12.2005 with regard to the resolution dated 27.10.2005 and the notice was also published in the daily newspaper, (Hindustan, a vernacular paper) on 20th December, 2005. According to the respondent no.3, despite all this information, the petitioner did not submit his application in time and, therefore, it has been rejected. 13. That the Finance Department issued the resolution No. 2370 dated 27.10.2005 permitting enhancement of commuted value of pension to those Judicial Officers, who superannuated on 1st January, 1996 and, thereafter is not in dispute. In - 6 - clause 2(e) of resolution, period of six months has been prescribed for making an application for enhancement of commuted value of pension and it has been further provided that if the application is not made within six months, such matters shall not be considered for enhancement of commuted value of pension. The question that now falls for determination is : whether in the facts and circumstances of the case, the application for enhanced commuted value of pension made by the petitioner has been rightly rejected. 14. That the petitioner, otherwise, fulfils the eligibility prescribed in resolution issued by the Finance Department on 27.10.2005 is not disputed by the Government Counsel. It is true that the Personnel and Administrative Reforms Department sent a communication to the Registrar General of this Court in the month of December, 2005 informing him about the resolution dated 27.10.2005 and that the application for enhanced commuted value of pension was required to be made within six months from the date of resolution and that all District and Sessions Judges were sent copies of the said communication. What transpires from the available material is that the petitioner initiated the process of getting the enhanced commuted value of pension by writing a letter to the Registrar General on 4th April, 2006, which is apparently within six months of the resolution dated 27.10.2006. It appears that the Registrar General forwarded the request to the Deputy Secretary, Personnel and Administrative - 7 - Reforms Department on 29th May, 2006, which is said to have been received by the State Government on 1st June, 2006. If in the process of communication, some delay occurred, in our view, the benefits of the resolution dated 27th October, 2005 cannot justifiably be denied. The communication dated 5th April, 2006 sent by the office of the Accountant General, A & E, Bihar, Patna to the petitioner supports the petitioner’s case that before the expiry of six months pursuant to the Government resolution dated 27.10.2005, he started corresponding for enhanced commuted value of pension. The mistake that he committed was that he sent the applications to the office of the Accountant General, A & E and the Registrar General instead of sending it directly to the concerned Department of the Government. We are afraid in a fact-situation like this, it would be travesty of justice, if a retired employee is denied enhanced commuted value of pension, although he is otherwise eligible under the resolution dated 27.10.2005. 15. We, accordingly, allow this writ petition and quash and set aside the communication dated 22nd June, 2006. The respondent nos. 1 to 5 are directed to grant to the petitioner the benefit of resolution dated 27.10.2005 and pay him the enhanced commuted value of pension to the extent provided in the said resolution. The said payment shall be made to the petitioner within two months from the date of receipt of the order of this Court. It is clarified that petitioner - 8 - shall not be entitled to any interest for any delay that might have occurred in payment of commuted value of pension as per resolution dated 27.10.2005. No costs. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-