CIVIL APPEAL NO. 200 OF 2011
STATE OF BIHAR & ORS. APPELLANTS
SUDHIR CHANDRA KUMAR & ORS. RESPONDENTS
WITH C.A.NO.205/2011, 206/2011, 207/2011, 208/2011, 209/2011, 210/2011,
202/2011, 203/2011, 201/2011 AND 204/2011.
O R D E R
1. We have heard Mr.Manish Kumar, learned counsel appearing
for the appellant State of Bihar and Mr.P.N.Mishra, learned senior
counsel appearing for the respondent no.1 and Mr.Atul Jha, learned
counsel appearing for respondent nos.2 to 6 in C.A.No.200 of 2011 etc.
and other respective counsel in the connected appeals.
2. Since the facts arising from all these appeals are similar,
we take Civil Appeal No.200 of 2011 as the lead case.
Civil Appeal No.200/2011:
3. This appeal, by special leave, seeks to challenge the
judgment and order dated 23rd July, 2008 passed by the High Court of
Judicature at Patna in L.P.A.No.439 of 2008. This judgment allowed
the appeal filed by the respondents concerning their right to receive
pension as per the revised formula.
The short facts leading to this appeal are this-wise:
: 2 :
4. The respondents are the teachers working in T.M.Bhagalpur
University. Their case was that the State of Bihar had merged 50% of
the Dearness Allowance (for short ‘D.A.’) into the basic pay for the
purposes of calculating the pension, vide its resolution dated
11.04.2005 and which resolution was to be given effect from
01.01.2005. It was pointed out by them that in spite of passing of
this resolution, the benefit thereof was not being given to them. In
this regard, it may be pertinent to quote Statute 16 of the
University, which reads as follows :
“16. An employee eligible for pension under any of the
categories mentioned above, shall be granted pension according
to the scales given in schedule ‘A’ (I) if he ceased to be in
University service between 1-4-72 and 31-12-72 and schedule
A(ii) if he ceased to be in University service between 1-1-73
and 30-3-79. For those who ceased to be in University service
from 31-3-79 onwards, the scales given in Schedule A(iii) will
be applicable. Any further change in the rate of pension as
also relief in pension under the Bihar (Govt.) Pension Rules
will be equally applicable to the University employees (emphasis
5. It was their submission that the Statute was specifically
enacted for the purposes of calculating the pension. Any further
change in the rate of pension as also relief in pension under the
Bihar Government Pension Rules will, therefore, be automatically
applicable to the University employees. The learned Single Judge had
disposed of their Writ Petition in the light of the orders passed by
the Court in an earlier Writ Petition bearing No.CWJC 13925 of 2006,
dated 31.10.2007. The effect of that would be that only those who
: 3 :
retire subsequent to 1st January, 2005 would be getting the benefits
of this changed formula. The respondents, therefore, filed an L.P.A.
wherein the aforesaid submission, based on Statute 16, has been
accepted by the Division Bench.
6. Being aggrieved by this judgment and order, present Civil
Appeal has been filed by the State of Bihar.
7. Mr.Manish Kumar, learned counsel appearing for the
appellant-State, submitted that the State Government cannot be made to
bear the burden which will arise out of this responsibility. His
submission is that this resolution of the State Government was meant
only for the State Government employees and not for anybody else.
There is no dispute that under this resolution of 11th April, 2005,
the State Government has decided that 50% of the D.A. will be merged
in the basic pay for the purposes of calculating the pension, and this
will be with effect from 1st January, 2005. This was in the back-drop
of the Central Government taking a similar decision earlier from 1st
March, 2004. Obviously, there must have been similar demands from the
State Government employees and, therefore, this decision from the
8. Mr.Manish Kumar, submits that the University is not
supposed to create financial liabilities for the government and his
submission has been that wherever there is any financial
implication under any of the statutes, those financial
: 4 :
implications are not enforceable unless prior approval of the State
Government has been obtained. He has relied upon Statute No.36(6)
and, particularly, the proviso thereof. The Statute 36(6) proviso
reads as follows :
“Provided that if there be any financial implication which may
arise under the statute, it shall not be enforceable unless
prior approval of State Government has been obtained.”
9. He also pointed out that as far as the creation of the
posts and payment to the teachers and the employees in the University
are concerned, though the decisions are taken by the University, the
responsibility with respect to the payment of salaries etc. is on the
State Government and that is why the above provision is made into the
proviso in Statute No36(6).
10. It is, however, material to note that, as far as this
proviso is concerned, it has been substituted by Act No.16 of 2008. As
far as present resolution of the State Government is concerned, it is
dated 11th April, 2005, which is much prior to the coming into force
of this proviso to Statute 36(6). That apart, as we have seen, under
the Statute 16 (which has been in force from 1982), it is specifically
provided that any change in the rate of pension or relief therein
into the service conditions of the State Government employees would be
extended to the University. Therefore, in our view, the Division
Bench cannot be faulted for taking the view that the reading of
Statute read with the resolution passed by the State Government,
University employees will be entitled to include
: 5 :
50% of the D.A. into their basic pay for the purposes of calculating
11. It is interesting to note that the University was a party
to the Writ Petition but the University did not challenge the decision
rendered either by the Single Judge or by the Division Bench.
12. In view of this position, in our view, there is no reason
to entertain this appeal. The Civil Appeal is, accordingly, dismissed.
C.A.NO.205/2011, 206/2011, 207/2011, 208/2011, 209/2011, 210/2011,
202/2011, 203/2011, 201/2011 AND 204/2011.
13. In view of the order passed in Civil Appeal No.200 of 2011,
all the appeals stand disposed of with similar order.
JULY 23, 2013