Letters Patent Appeal No.190 OF 2003 ******* Against the judgment and order dated 28th January, 2003 passed in CWJC no. 9132 of 2000. ******* RAJENDRA AGRI.UNIVERSITY & ORS----Appellants Versus DR.AJIT KUMAR SINGH---------------Respondent ******* For RAU University : M/s Mahesh Narayan Parbat Sanjay Kumar Jha For the Respondent : Mr. Madan Mohan ****** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, JJ. Chapter XVI of the Statutes made in terms of the Bihar Agricultural University Act, 1987, deals with pension, General Provident Fund and Contributory Fund. Clause 16.1(a)(iii) provides as follows:- “Permanent Government Servants as are eligible for proportionate pension from Government will be allowed on absorption under the University the benefit of Contributory Provident Fund or in lieu 2 thereof pension if they so chose on the basis of total period of service rendered under the government and the University. The pension to which such employees will be entitled would be the pension that would accrue to them on the basis of the total period of service under the Government and the University minus the pension payable by Government.” 2. In view of the clear provisions made in the Statutes to the extent as above, the length of service of an employee of the University, if he was a permanent Government Servant before his absorption in the University, to be recognized for pension would be the total period of service rendered by him under the Government and under the University and that the obligation of the University on account of pension of such an employee would be that amount of pension as may be determined in accordance with the formula given in other parts of the Statute, minus pension payable by the Government. 3 3. Permanent Government Servants who were absorbed under the University did not reach their age of superannuation prior to their absorption, but still then, it appears, the Government settled pension payable by it to them for the services rendered by them, while serving the Government, at a time when they, upon being absorbed by the University, were serving the University. As a result while paying remuneration to those employees, University used to deduct from their pay the amount of pension settled and paid by the Government. When those employees attained their age of superannuation, the University fixed the amount of pay, being the basis of calculation of pension, at such amount which the University was actually paying to them, i.e., their pay minus pension. This action on the part of the University resulted in filing of a writ 4 petition which having been allowed, the University is before us in this appeal. 4. There is no dispute that the basis of calculation of pension is the pay of the pensioner drawn before his superannuation. At the same time, an employee could not draw more than his pay. Accordingly, when the employee was getting pension, the same used to be deducted from his pay. However, the entitlement of the employee did not stand reduced for he, being entitled to, was paid pension. The employee was entitled to that sum as pay from which pension used to be deducted. In the circumstances, while determining the pay, upon which the pension is to be calculated, the pay to which the employee was entitled, was required to be taken note of and not the amount actually paid to him by deducting from such pay the amount of pension that the employee was 5 receiving from the Government for the period he served in the Government. 5. It may be possible that the confusion has been created by creating an obligation on the part of the Government to pay a part of the pension and the remaining upon the University. The confusion has been aggravated by settlement and payment of pension by the Government before the employee concerned has reached the age of superannuation. In this connection, it would be appropriate to take note of Clause 16.1(b) of the said Statute, which in no uncertain terms makes it clear that pension is payable only upon the employee attaining his superannuation under the University or to his family in the event of his death in accordance with general rules under the State Government. The Rules governing 6 pension in the State Government do not allow pension before superannuation. 6. In the circumstances, we find no reason to interfere with the judgment and order under appeal. The appeal, accordingly, stand disposed of. (Barin Ghosh, J.) (Chandra Mohan Prasad, J.) Patna High Court, The 03rd September, 2008. AAhmad/NAFR.