LETTERS PATENT APPEAL NO.226 OF 1999 ------- AGAINST THE JUDGEMENT AND ORDER DATED 16.12.1998 PASSED IN C.W.J.C. NO. 1589 OF 1998. --------- 1.THE STATE OF BIHAR 2.LABOUR COMMISSIONER, GOVT. OF BIHAR,PATNA 3.DIRECTOR OF AGRICULTURAL WAGES, GOVT. OF BIHAR, PATNA…………………………………………….Appellants Versus KAILASH PATI CHATURVEDI SON OF LATE JAGARNATH CHATURVEDI, FLAT NO.-1, SANGITA LAXMI APAPRTMENT, RAM BRIKSH PATH, NEHRUNAGAR, P.O. PATLIPUTRA, PATNA -800 013……………………………………RESPONDENT --------- FOR THE APPELLANTS : MR.ANILKUMAR JHA,G.A-II MR.UDAYBHAN SINGH ,A.C. TO G.A- II FOR THE RESPONDENT . MR. BISHWANATH SINGH NO. 1, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & B.P. Verma,JJ Heard learned counsel for the appellants and learned counsel for the respondent-writ petitioner. This Letters Patent Appeal is directed against the judgment and order dated 16.12.1998, whereby writ petition bearing C.W.J.C. No. 1589 of 1998 was disposed of with a direction to issue sanction order as well as authority slip for payment of pension along with interest @ 10% per annum from the date of submission of pension paper till the date of payment. The essential facts emerging from the order under appeal disclosed that the writ petitioner claimed to have been appointed on the post of Labour Inspector on 13.7.1955 and for reasons known to him he resigned - 2 - from service on 31.3.1966. He claimed to have filed pension papers on 25.5.1966. Since counter affidavit had not been filed on behalf of the State and the respondent, the writ court entertained the writ petition filed in the year 1998 and issued order in favour of the writ petitioner tacitly accepting his claim that he was entitled for pension. No doubt, by subsequent amendments 10 years of service under the State is sufficient as a qualifying service to entitle an employee for pension but the issue which calls for consideration is effect of Rule 101(a) of the Bihar Pension Rules which runs 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 for forfeiture of past service”. According to the learned counsel for the appellants, that is State of Bihar and its officials, the said rule was wrongly interpreted and construed in a judgment of this court in the case of Tapan Kumar Chaterjee Vs The State of Bihar, reported in 1998 (1) PLJR 707, that only where resignation from public service is on account of misconduct, insolvency, inefficiency etc. it would entail for forfeiture of past service, like dismissal or removal for such reasons. It was further submitted that recently a Division Bench of this Court by judgment and order dated 27.1.2010 passed in L.P.A. No. 373 of 2004 (State of Bihar and another V Dr. Smt. Shahida Hassan and other analogous appeals) has held that the decision rendered in Tapan Kumar Charterjee’s case does not lay down the correct law. The Division Bench has further held that issue of minimum qualifying service for the purpose of pension is in- dependent of the effect of rule 101(a) under which resignation simplicitor or - 3 - Patna High Court, The 18thFeb.2010. Rahman/(NAFR) resignation otherwise cannot stand on different footings. A perusal of the Division Bench judgment of this Court in L.P.A. 373 of 2004 (Supra) reveals that the issue initially for determination in this case is no longer res integra and it has to be held, on the basis of said Division Bench judgment, that the writ court failed to notice the provisions of rule 101(a) of the Bihar Pension Rules and to appreciate that as an effect of the said rule the past service of the writ petitioner was forfeited on account of his resignation. Since the past service was forfeited under a valid rule, it cannot be held in his favour that he had completed the qualifying service for entitlement to pension under Bihar Pension Rules. As a result of aforesaid discussion, we have no option but to hold that the order under appeal is contrary to law. Accordingly, this appeal is allowed and the judgment and order under appeal is set aside. The writ petition stands dismissed but without any order as to costs. (Shiva Kirti Singh, J) (Birendra Prasad Verma, J)