IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1030 of 2009 1. The State of Bihar. 2. The Secretary, Department of Road Construction, Government of Bihar, Patna. 3. The Engineer-n-Chief-cum-Additional Commissioner-cum-Special Secretary, Department of Road Construction, Government of Bihar, Patna. ------------ Appellants-Respondents Versus Shail Devi, Wife of late Dilip Kumar Pathak, Resident of Village Jeeradai Suruwal, Police Station Jeeradai, District Siwan. -------- Respondent-Petitioner ----------- For the Appellants :- Mr. Maruth Nath Ray, AC to SC-XI For the Respondent :- Mr. Anupa Nand Jna, Adv. ----------- 3 11.02.2010 I.A. No. 5004 of 2009 Having heard learned counsel for the parties as also after taking into account the facts and circumstances mentioned in this application seeking condonation of delay of a period of 521 days in filing of this appeal is condoned. I.A. No. 5004 of 2009 is accordingly disposed of. L.P.A. No. 1030 of 2009 Having condoned the delay, this Court with the consent of the parties has taken up the appeal on merits with a view to dispose of the same at the stage of admission itself. By the impugned order dated 25.1.2008, the 2 writ application filed by the respondent writ petitioner seeking relief for payment of post retirement benefit of her husband as also family pension to her has been allowed. Learned counsel for the appellants has assailed the impugned order passed by the learned single Judge by taking a plea that the aforesaid relief given to the writ petitioner despite an order of punishment passed against the husband of the respondent writ petitioner cannot be sustained in law specially when there was no specific prayer to that effect in the writ petition and as such the learned single Judge was not justified in either quashing the same on her own while issuing a direction for payment of post retirement benefits including family pension to the respondent writ petitioner. In this context, reliance has also been placed by him on the provisions of Rule 103 of the Bihar Pension Rules as also a judgment of this Court in the case of Md. Izharul Haque Vs. State of Bihar & Ors. reported in 2006(2) PLJR 112. Learned counsel for the respondent writ petitioner on the other hand has submitted that there would be no dispute that the husband of the respondent writ 3 petitioner holding the post of Assistant Engineer had retired on 1.12.1997 and in fact had also died on 27.5.1999 without there being any decision as with regard to the payment of his retirement benefits. Counsel therefore submits that the direction given for payment of post retirement benefits to the respondent writ petitioner, the wife of the deceased employee who had admittedly completed the qualifying period of service for earning pension in terms of Bihar Pension Rules (hereinafter to be referred to as ‘the Rules’) does not require any interference by this Court. He has also submitted that no flow can be found in the order of learned single quashing such ex-parte order of punishment passed in 2002 much after the death of the employee which was sought to be made the basis for denying post retirement benefit and family pension to the writ petitioner, the widow of the deceased employee. Having given anxious consideration to the aforementioned submissions, we find that there is no merit in this appeal inasmuch as it is an admitted that that the husband of the respondent writ petitioner was initially appointed in the government service on 20.11.1961 on the 4 post of Assistant Engineer and after completing more than twelve years of service, he had proceeded on duly sanctioned leave for three days on 26.5.1974 on the ground of illness of his mother as is borne out from Annexure-3 to the writ application. It however appears that he did not report on duty on 31.5.1974 due to his serious mental and other ailments and he remained from his duty till 13.10.1993. He had however submitted his joining report on 14.10.1993 with the medical certificate but no order was thereon by the competent authority and he was kept waiting for his posting for a period of more than four years and infact till he had attained the age of superannuation on 7.12.1997. It is also not in doubt that the appellants and/or controlling authorities of the husband of the respondent writ petitioner had passed no order of punishment till the date of his superannuation i.e. 1.12.1997 or till date of his death i.e. 27.5.1999. The appellants in fact seem to have woken up from their deep slumber when an order dated 11.8.2000 in C.W.J.C. No. 7409/2000 was passed by this Court in a writ petition filed by the respondent writ petitioner directing them to take a final decision as with 5 regard to the payment of retirement benefit and family pension to the respondent writ petitioner. From the counter affidavit filed by the appellants in the connected writ application, it also transpires that in terms of the order of this Court dated 11.8.2000 in C.W.J.C. No. 7409 of 2000, a decision was also taken by the appellants vide memo no. 915 dated 2.12.2002 in the following terms:- ^^1- lsok fuo`fRr ykHkksa ds Hkqxrku gsrq Lo0 ikBd dks vodk'k jf{kr duh; vfHk;ark] vfHk;ark izeq[k dk dk;kZy;] fcgkj] iVuk ds :i esa inLFkkiu ekuk tk;sxk vkSj ogha ls lsok fuo`fRr ykHk dk Hkqxrku fd;k tk;sxkA 2- Lo0 ikBd] duh; vfHk;ark dh fo/kok Jherh 'kSy nsoh dks o"kZ] 97 esa duh; vfHk;ark dk vuqekU; osru 1500&2750@& :i;s esa izkjfEHkd osru 1500@& :i;s ds vk/kkj ij 90 izfr'kr vkSicaf/kd is'ku@ikfjokfjd is'ku dk Hkqxrku fuca/kd ¼ys[kk½ eq[;ky;] iFk fuekZ.k foHkkx] fcgkj] iVuk }kjk rqjUr fd;k tk;sA 3- tSlk mij dgk x;k gS lsok iqLr miyC/k djkus vFkok f}rh; lsok iqfLr la/kkfjr djkus dk vkna'k dk;Zikyd vfHk;ark] iFk izeaMy la[;k&2] eqtQ~Qjiqj dks fn;k tk pqdk gS] ftldk vuqikyu vHkh rd ugha gqvk gSA vr% mUgsa funs'k fn;k tkrk gS fd ,d lIrkg ds vUnj lsok iqfLrdk vFkok f}rh; lsok iqfLrdk rS;kj dj iFk fuekZ.k foHkkx dks miyC/k djk;k tk;sA vU; dk;Zky;ksa ls osru Hkqxrku fooj.kh izkIr dj fuca/kd ¼ys[kk½ lsok iqLr dks vn;ru :i nsdj vodk'k Lohd`fr ,oa fofu;eu vkfn dh dkjZokbZ lEiUu djsaA 6 4- mu dk;kZy;ksa ls izkIr osru fooj.kh ls lkFk th0ih0,Q0 ,oa lkeqfgd chek ;kstuk ds vUrxZr dkVh xbZ jkf'k ,oa NqV~Vh ys[kk Hkh izkIr dj muds Hkqxrku ds laca/k esa vko';d dkjZokbZ dh tk;sA 5- lHkh lacf/kr dk;kZy;ksa dks vkns'k dh izfr fucaf/kr Mkd ls Hksth tk; vkSj okWfNr lwpuk iUnzg fnuksa ds vUnj izkIr ugha gksus ij mu dk;kZy;ksa ds iz/kkuksa ds fo:) dkjZokbZ dh tk; ,oa ekeys esa izfr'kiFk i= nkf[ky dj fn;k tk;A 6- Lo0 ikBd dh iRuh okafNr lwpuk;sa ;fn muds ikl miyC/k gks rks fuca/kd ¼ys[kk½ iFk fuekZ.k foHkkx dks miyC/k djk;sa rkfd ekeys dk Rofjr fu"iknu lEHko gks ldsA muls ;g Hkh vuqjks/k gS fd os is'ku izi= ,oa Hkfo"; fuf/k ls vafre fudklh dk vkosnu i= Hkh 'kh?kz izLrqr djsaA** The appellants in terms of the aforementioned decision in memo no. 915 dated 21.2.2002 had also considered the admissibility of payment of full post retirement benefit as also full family pension to the respondent writ petitioner and only thereafter by an order contained in memo no. 230 dated 24.6.2002 it was held that as there was break in service of the husband of the respondent writ petitioner for the period 27.5.1974 to 13.5.1993, he in terms of Rule 103 of Bihar Pension Rules, would not be entitled for payment of pension and other post retirement benefits including family pension. It was only thereafter that by an order dated 9.10.2002, the claim 7 of the respondent writ petitioner was rejected by taking the following decisions:- ^^&&&&& of.kZr rF;ksa ds vkyksd esa foHkkxh; vkns'k ifBr Kkikad 915¼bZ½ fnukad 21-2-2002 esa fy;s x;s fu.kZ; dks foyksfir djrs gq, fuEukafdr fu.kZ; fy;s tkrs gS%& 1- Lo0 ikBd ds fnukad 20-11-61 ls 26-5-74 rd dh lsok vof/k tks nl o"kksZa ls de gS] dh lsok ds fy;s fcgkj isa'ku fu;ekoyh ds fu;e 130 ,oa 27 ds v/khu isa'ku@ikfjokfjd isa'ku rFkk miknku vLohd`r fd;k tkrk gSA 2- Lo0 ikBd }kjk 27-5-74 ls 13-10-93 rd yxHkx 19 o"kksZa ds ckn foHkkx 14-10-93 dks foHkkx esa fn;k x;k ;ksxnku fcgkj lsok lafgrk ds fu;e&76 ds v/khu vLohd`r fd;k tkrk gSA QyLo:i fnukad 14-10-93 ls 30-11-97 rd dh vof/k foHkkx esa vfuok;Z inLFkkiu dh izrh{kk ugha ekuh tk;sxh vkSj bldk dksbZ vkfFkZd ykHk bUgsa ns; ugha gSA 3- dk;kZy; vkns'k ifBr Kkikad 915¼bZ½ fnukad 21-2-2002 esa vafdr lsok bfrgkl ds vk/kkj ij lacaf/kr dk;kZy;ksa ls Lo0 ikBd ds lkekU; Hkfo"; fuf/k dVkSrh fooj.kh rFkk xzwi thou chek en esa dVkSrh fooj.kh rFkk NqV~Vh ys[kk izkIr dj lkekU; Hkfo"; fuf/k ,oa xzwi thou chek jkf'k rFkk vuqekU; gks rks vo;og`r NqV~Vh ds cnys uxn jkf'k dk Hkqxrku dh dkjZokbZ fuca/kd] ys[kk ¼iFk fuekZ.k foHkkx½ }kjk dh tk;sxhA&&&&** Thus, it was this order dated 9.10.2002 being Annexure-A to the counter affidavit which was put forward as a defence by the appellants for denying the post 8 retirement benefits and family pension to the Respondent writ petitioner. The learned single Judge, however, having meticulously gone into the entire length and breath of the case in the impugned order has held that the shelter taken by the appellants under Rule 103 of the Bihar Pension Rules for denying post retirement benefits including pension as also family pension was wholly misconceived and in that context, it has been recorded that :- “5. While considering Rule 103, I find that case of the petitioner comes under the exception in which case even though there is interruption in service of a Government servant, past service cannot be forfeited. The husband of the petitioner was allowed to give joining, in spite of the fact that he remained absent for a very long time. Petitioner’s husband after giving joining continued in service kept on working for posting and finally allowed to retire. His case is fully covered under exception (b) and (c) of Rule 103(b)(c) of the Bihar Pension Rules. This is not a case where the past service could have been forfeited. 6. In the given facts and circumstances, the orders which were passed by the respondent authorities but not served upon the petitioner is quashed. The respondents are directed to decide and fix the pension of the petitioner’s late husband. Allow him the pensionary benefit with all consequential benefits, family pension of the petitioner should also be fixed, arrears of pension to the late 9 husband of the petitioner and arrears as well as current family pension should be paid to the petitioner. All decisions must be taken within three months from the date of communication/production of this order.” Counsel for the appellants before us has submitted that there is no dispute that the husband of the respondent writ petitioner had remained absent from duty with effect from 31.5.1974 and thus when his joining report dated 14.10.1993 was also not accepted by the competent authority till the date of his obtaining the compulsory age of his superannuation i.e. 30.11.1997 that by itself, would entail the consequence of forfeiture of his post services rendered between 20.11.1961 to 26.5.1974 in terms of Rule 103 of the Bihar Pension Rules and as such there was no question of payment of any post retirement benefit i.e. pension or gratuity as well as family pension to the Respondent writ petitioner. He has accordingly assailed the aforementioned direction of the learned single Judge in the impugned order by taking a plea that such direction for payment of post retirement benefit including family pension is directly in teeth of Rule 103 of the Bihar Pension Rules. 10 In our considered opinion, such submission of the learned counsel for the appellants is fit to be rejected for more than one reason. Rule 103 of the Bihar Pension Rules on which the learned counsel has placed his reliance itself reads as follows :- “103. An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases – (a) Authorized leave of absence. (b) Unauthorized absence in continuation of authorized leave of absence so long as the post of the absentee is not substantively filed; if his post is substantively filled, the past service of the absentee is forfeited. (c) Suspension, when it is immediately followed by reinstatement whether to the same or to a different post, or where the Government servant dies or is permitted to retire or is retired while under suspension. (d) Abolition of the post or loss of appointment owing to reduction of establishment. (e) Transfer to non-qualifying service in an establishment under Government control. The transfer must be made by a competent authority; a Government servant who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a 11 grant-in-aid school entails forfeiture. (f) Time occupied in transit from one appointment to another provided that the Government servant is transferred under the orders of competent authority, or, if he is a non-gazetted Government servant with the consent of the head of his old office.” (Underlining for emphasis) From bare perusal of the aforementioned rules, it would be clear that only such interruption in the service of a government servant would entail forfeiture of his post service if there was an unauthorized absence for the entire period. In the present case, counsel for the appellants have fairly conceded that when the husband of the respondent writ petitioner had proceeded on leave on 26.5.1974, his such leave for the period of three days had been sanctioned and thus he became absent from duty only from 31.5.1974, as is also clear from the document, Annexure-4 filed by the respondent writ petitioner in the writ application containing the notes in the file and the order of the Engineer-in-chief read with the leave application of the husband of the respondent writ petitioner dated 26.5.1974 (annexure-3 to the writ application). It is thus clear that in terms of Rule 103(b) of the Bihar Pension Rules, the past services of the 12 husband of the respondent writ petitioner could not have been forfeited specially when the learned counsel for the appellants has also accepted before us that the post held by the husband of Respondent writ petitioner had also not been substantially filled by making any fresh appointment. Thus, it would be clear that in terms of Rule 103 (b) the interruption in the service of the husband of the respondent writ petitioner could not have entailed the consequence of forfeiture of his past service. Once this position becomes clear, it would automatically lead to the unassailable position on fact that the past service of the husband of the respondent writ petitioner for the period 20.11.1961 to 26.5.1974 i.e. more than twelve and half years before he had proceeded on leave had to be computed as qualifying service for the payment of pension. There is also no dispute that in terms of Bihar Pension Rules, the qualifying period for earning pension is only ten years and as such, there would be no difficulty for this Court in holding that the husband of the respondent writ petitioner was eligible for payment of his post retirement benefit including pension even in terms of Rule 13 103 of the Bihar Pension Rules. That apart, the appellants can also not be allowed to make a premium of their own lapse, inasmuch as, it is also an admitted fact that the husband of the respondent writ petitioner had submitted his joining report on 14.10.1993 and thereafter was kept waiting for his posting till the date of his superannuation i.e. 30.11.1997. Nothing infact has been brought on record to show that the appellants had ever rejected such joining report of the husband of the respondent writ petitioner till the date of his reaching the age of superannuation and therefore, any decision taken after almost five years of his retirement and in fact after three years of his death on 9.10.2002 vide Annexure-A to the counter affidavit for the purposes of denying the post retiral benefit as also family pension to the Respondent writ petitioner on the face of record was both arbitrary and illegal as also factually incorrect holding that a period of ten years of continuance service was not completed by the husband of the Respondent writ petitioner in between 20.11.1961 to 26.5.1974 whereas the same was infact more than twelve and half years. 14 Additionally it must be held that the order passed on 9.10.2002 eclipsing a valuable right of earning family pension could not have been passed even without affording an opportunity of hearing to the respondent writ petitioner and as such, this Court would find no error in the order of the learned single Judge quashing such order contained in Annexure-A to the counter affidavit. The submission of the learned counsel for the appellants that no specific prayer was made for quashing of the aforementioned order contained in Annexure-A has to be only noted for its being rejected, inasmuch as, it was well open for the learned single Judge to give any equitable relief by looking into pleadings in the context of the main relief prayed in the writ application filed by the respondent writ petitioner regarding payment of post retiral benefit of her husband as also family pension to her. If therefore such order of appellants as contained in Annexure-A dated 9.10.2002 was factually incorrect and legally unsustainable, it was rightly quashed by the learned single Judge. The reliance placed by the learned counsel for 15 the appellants on the judgment of this Court also, in the case of Md. Izharul Haque (supra) is wholly misplaced, inasmuch as, in that case Md. Izharul Haque was not denied his pension and/or family pension rather the same was already allowed and paid in view of his service rendered for the period November 1951 to December, 1972 by ignoring the subsequent period of his absence from 1.1.1973 till the date of his superannuation i.e. 31.1.1992. In fact, the grievance of Md. Izharul Haque was restricted that his such payment should have been made by taking into account the last salary which he ought to have drawn on 31.1.1992 and his payment of pension on the basis of average of last ten months salary drawn by him till December, 1972 was unjustified. This Court, in fact, that context had only held that Md. Izharul Haque on account of admittedly being absent from duty and not paid any salary from January, 1973 to January, 1992 was not entitled for calculation and payment of pension on the basis of his deemed salary which he ought to have drawn on 31.1.1992 as he had never drawn such salary. This Court would thus fail to understand as to 16 how the ratio of the judgment of this Court in Md. Izharul Haque (supra) can be made applicable to the facts of the present case. Here the husband of the respondent writ petitioner had not only completed the qualifying service of more than ten years for earning his pension before his proceeding on leave but in fact he had again been in the service for a period of over four years i.e. from 14.10.1993 to 30.11.1997 and his post was also not substantively filled up at any point of time. If therefore appellants and/or the competent authority had failed to take a final decision as with regard to the acceptance of joining in the aforementioned period of more than four years and in fact had also not initiated any departmental proceeding for the alleged unauthorized absence of the husband of the respondent writ petitioner for the period 26.5.1974 to 14.10.1993, they could not have taken shelter of the provisions of Rule 76 & 76(a) of the Bihar Service Code by implication. It has to be noted that the provisions of Rule 76 of Bihar Service Code with regard to the automatic termination of service on the ground of unauthorized 17 absence for a period of five years or more has been held to be ultra vires by this Court in the case of Sobhana Das Gupta Vs. The State of Bihar & Anr. reported in 1974 PLJR 382 whereafter the provision was inserted by way of Rule 76(a) & (b) requiring that if a government servant does not rejoin his duty after remaining absent for a continuous period of five years of more, he has to be removed from service after following the procedure laid down in the Civil Services (Classification, Control and Appeal) Rules. Admittedly, no such departmental proceeding was ever initiated in the life time of the husband of the respondent writ petitioner and therefore his widow the respondent writ petitioner could not have been deprived of the retirement benefit on the ground of her husband remaining unauthorizedly absent. If such action of the appellants is approved by this Court that would amount to again reviving the provisions of earlier Rule 76 of the Bihar Service Code which was held to be ultra vires by this Court in the case of Sobhana Das Gupta (supra). Thus, on the basis of the aforementioned discussions, we are of the view that the husband of the 18 respondent writ petitioner would be entitled for payment of all post retirement benefit by computing his qualifying service of the period from 20.11.1961 to 30.5.1974 as also from 14.10.1993 to 30.11.1997 i.e. almost seventeen years approximately. We must, however, clarify that though the husband of the respondent writ petitioner would be entitled for payment of salary for the period 14.10.1993 to 30.11.1997 for the period he was kept waiting for posting but his period of absence from duty from 31.5.1974 to 13.10.1993 would not be taken into account either for payment of his salary or towards qualifying service for computation of his post retirement benefit including family pension. Consequently, we find no error in the order of the learned single Judge and accordingly, this appeal, being devoid of any merit, must be and is hereby dismissed. There would be, however, no order as to costs. Rishi (Dipak Misra, CJ.) (Mihir Kumar Jha, J.)