IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5143 of 2004 AKHILANAND UPADHYAY S/O LATE PANDIT JEWANAND UPADHAYAYA R/O EAST LOHANIPUR, KASHINATH LANE PS- KADAM KUAN, DISTT- PATNA---PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECY. URBAN DEVELOPMENT & HOUSING DEPARTMENT, HAVING HIS OFFICE IN VISHESHSARAIYA BHAWAN, PS- SHASTRINAGAR, DISTT. PATNA 2. THE MANAGING DIRECTOR, BIHAR STATE HOUSING BAORD, HAVING HIS OFFICE IN 6 MANGLES ROAD, PS- SACHIVALAYA, DISTT- PATNA 3. THE FINANCE COMMISSIONER, GOVT. OF BIHAR HAVING HIS OFFICE IN OLD SECRETARIATE, PS- SACHIVALAYA, DISTT- PATNA 4. THE ACCOUNTANT GENERAL (ACCOUNTS & ESTABLISHMENT) BIHAR, PATNA HAVING HIS OFFICE IN VIRCHAND PATEL PATH, PS- KOTWALI, DISTT- PATNA---------RESPONDENTS. ----------- For the Petitioner: M/s. Man Mohan & Vikas Mohan Advocates. For the State: Mr. G. Kumar, AC to AAG-3 For the A. G: Mr. J.P.Karn, Sr. Advocate For the Housing Board: Mr.R. Naraya Singh,Advt. ---------- 5 23.7.2010 Heard learned counsel for the parties. Annexure 1 is under challenge in the present writ application which is dated 5.7.2003. It has been communicated to the petitioner that his pension cannot be fixed on the basis of last pay drawn for the reason that promotion given to the petitioner on the post of Assistant from the Correspondence Clerk, by the Housing Board, was based on a High Court decision and that the Government is not bound by such promotion order given by the Housing Board. The claim of the petitioner was examined by the Department of Finance and the impugned order dated 5.7.2003 came to be passed and communicated. Short facts are that the petitioner did join the Housing Board on its creation on a post of Correspondence Clerk. When promotion was not granted to him despite long period of - 2 - service he had to approach the High Court. The High Court granted the prayer made by the petitioner and an order of promotion to the post of Assistant was passed. According to the petitioner the last pay drawn by him was Rs. 7600/- per month but the State Government is not willing to fix his pension on the basis of last pay drawn. Contention of learned counsel for the petitioner is that such a decision is in teeth of the Full Bench decision of this Court which is the case of State of Bihar & Ors. vrs. Ram Tawakya Singh & ors. (2006(1) PLJR 476. The Full Bench had to decide this issue in view of certain conflicting decisions which had been rendered by two Division Benches. Rendering its opinion the Full Bench concluded its finding in paragraph-16 of the said decision which has been reproduced herein below for ready reference: Para :- 16: We have no hesitation in finding that the impugned order of fixity of pension dated 13.10.1995, merely keeping in mind the contents of the Government circular or resolution dated 31.7.1980, does not, in our correct appreciation and intensive evaluation thereof indicate to deal with a situation as we have in the present Letters Patent Appeal. Therefore, while quashing the impugned order of fixity of pension dated 13.10.1995, we direct the appellant State to consider the case of the original writ petitioner for fixation of the pension and pensionary benefits in the light of last pay drawn in terms of the provision of the Bihar Pension Rules, 1950 within one month.” There are some other orders also which has been passed in favour of some other employees which has also been brought on record by learned counsel representing the petitioner. If that is the view of the Court that an employee - 3 - working in the Housing Board was entitled to pension on the basis of last pay drawn. If others have been given this benefit there is no special reason why this petitioner can not be granted this benefit merely because the State Government has taken the stand that promotion given to the employee by the Housing Board is not binding upon them. The fallacy of the stand of the State can very well be made out from the given fact that many government employees were sent to the Housing Board when it came to be created in 1972. The background of which has also been noted in the Full Bench decision. The State notification had categorically stated that the terms and conditions of service of those employees will remain the same as other government servants till the Housing Board made its own service rules and laid down the conditions. Despite the formation of the Housing Board in the year 1972 they have not been able to notify any service rules or conditions for its employees. At least that was the position of few years back. The Court is informed that not much has changed on this issue. In view of the Full Bench decision, this writ application is allowed. Annexure-1 is quashed. The respondents are directed to issue necessary order for refixation of the pension of the petitioner on the basis of last pay drawn, if the same has not been done as has been alleged by the petitioner in this case. The Court expects that the respondent State Government will take a decision and communicate to the Accountant General, Bihar for its - 4 - authorization within a period of three months from the date of communication or production of a copy of this order. This writ application is allowed with the direction/observation above. RPS (Ajay Kumar Tripathi, J.)