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Patna High Court

Siya Ram JhaversusThe State of Bihar

Decided
Disposal
DISMISSED

Holding

The petitioner is covered by the 07‑08‑2020 notification and must challenge that notification, not the Single Judge’s order.

Summary

The petitioner, a former university employee, appealed an intra‑court order that dismissed his writ petition seeking post‑retrials benefits under the Old Pension Scheme. He argued that a later notification dated 07‑08‑2020, which introduced a New Pension Scheme retroactive to 01‑09‑2005, could not affect his entitlement already decided in an earlier case. The respondents contended that the Single Judge correctly granted the petitioner liberty to challenge the notification itself, and that the petitioner’s regularisation in 2006 fell within the scope of the new scheme. The Court examined the statutory provisions of the notification, noting that it expressly applies to all employees appointed or regularised after 01‑09‑2005. Concluding that the petitioner is indeed covered by the 2020 notification, the Court held that the appropriate remedy is to contest the notification, not the Single Judge’s order, and dismissed the appeal. The decision affirms that retrospective pension scheme notifications bind employees regularised after the specified date.

Issues considered

  • Whether the petitioner is entitled to pension benefits under the Old Pension Scheme despite the 07‑08‑2020 notification introducing a New Pension Scheme.
  • Whether the Single Judge erred in directing the petitioner to challenge the 2020 notification rather than granting the relief sought.
  • Whether the notification dated 07‑08‑2020 applies to the petitioner, who was regularised in 2006.

Subjects

  • pension
  • new pension scheme
  • old pension scheme
  • retrospective notification
  • intra‑court appeal
  • civil writ jurisdiction
  • university employees

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                     Letters Patent Appeal No.1149 of 2023
                                                         In
                                Civil Writ Jurisdiction Case No.24260 of 2019
                 ======================================================
                 Siya Ram Jha S/o late Deonarayan jha Resident of janta Flat no .ER- 176
                 Bahadurpur housing colony bhutnath road P.s agam kuan District Patna
                 present resident of sitjain chak Bairiya PS- Sampatchak District Patna
                                                                              ... ... Appellant/s
                                                       Versus
           1.     The State of Bihar
           2.    The Principal Secretary, Education Department, Government of Bihar,
                 Patna.
           3.    The Vice Chancellor, Patna University, Patna.
           4.    The Registrar, Patna University, Patna.
                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Appellant/s    :       Mr. Sudhir Kumar, Advocate
                 For Respondents 3&4    :       Mr. Mrigank Mauli, Sr. Advocate
                                                Mr. Manish Dhari Singh, Advocate
                 For the State          :       Mr. Sarvesh Kr. Singh, AAG-13
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                         and
                         HONOURABLE MR. JUSTICE PRAVEEN KUMAR
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

4   08-01-2026                   Heard learned counsel for the parties.

                                 2. The present intra court appeal has been preferred

                   against the order dated 22.08.2023 passed in C.W.J.C. No.

                   24260 of 2019, whereby the learned Single Judge has disposed

                   the writ petition and observed as under:

                                                   “4. So far as the issue relating to
                                        grant of pension of the petitioner is
                                        concerned, the same requires challenge to
                                        the notification dated 07.08.2020, which has
                                        been made retrospective w.e.f. 01.09.2005.”
                                 3. CWJC No. 24260 of 2019 was filed for granting of

                   post retrial benefits to be paid in accordance with law. The

                   petitioner was granted pensionary and retiral benefits under the
Patna High Court L.P.A No.1149 of 2023(4) dt.08-01-2026
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          New Pension Scheme. The petitioner however claims that he

          should be given benefit under the Old Pension Scheme. The

          Writ Petition had been filed for the following reliefs:

                                          “(i) For directing the respondents
                                to pay the retiral benefits i.e. Pension,
                                Gratuity Leave Encashment, Part of G.P.F.
                                with up-to-date statutory interest.
                                          (ii) For directing the respondents
                                to pay the difference of salary from June,
                                2006 to May, 2014 and the benefits of A.C.P.
                                from 2016.
                                          (iii) For directing the respondents
                                to provide the calculation chart of G.P.F. so
                                that the petitioner may verify the actual due
                                amount of G.P.F.
                                          (iv) For necessary order/direction
                                for which the petitioner is found entitled
                                under the law and in the facts and
                                circumstances of the case.”
                       4. The learned counsel for the appellant submits that

          the appellant’s entitlement to pension had already been decided

          in CWJC No. 3155 of 2017 and could not be nullified by a

          subsequent notification. It was further submitted that the

          notification dated 07.08.2020 is inapplicable as appellant’s right

          to pension had already been decided and the judgment by

          learned Single Judge is not sustainable in the eyes of law.

                       5. The learned counsel for the respondents submit that

          the learned Single Judge had granted liberty to the appellant to

          challenge the notification dated 07.08.2020 and thus, the appeal
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          is devoid of any merits, and the order of the learned Single

          Judge requires no interference.

                       6. It is pertinent to consider the relevant paragraph of

          the supplementary counter affidavit filed on behalf of

          respondent No. 02 in the writ petition, which is as under:-

                                             “9. That it is humbly stated that
                                   the State of Bihar has preferred an Intra
                                   Court Appeal against the order under
                                   contempt bearing LPA No.2159 of 2016 (The
                                   State of Bihar Vs Birendra Kumar Gupta &
                                   Ors.) and the Hon'ble Division Bench of this
                                   Hon'ble court vide order dated 08.01.2018
                                   gave following direction, while dismissing
                                   the appeal;
                                             "The learned Single Judge has
                                   rightly taken a view that corresponding
                                   changes and amendments have to be brought
                                   about by the University in conformity with
                                   the Bihar Pension Rule and it cannot be an
                                   automatic kind of application to the
                                   amended provisions in the Bihar Pension
                                   Rules. In fact, instead of wasting judicial
                                   time and energy on this litigation, the
                                   University is free to bring about changes
                                   even now...."
                                             10. That it is humbly stated the
                                   Hon'ble Chancellor of the Universities, in
                                   view of the aforesaid liberty granted by the
                                   Hon'ble Division Bench of the Hon'ble Patna
                                   High Court judgment dated 08.01.2018
                                   passed in LPA No.2159 of 2016 (The State of
                                   Bihar Vs Birendra Kumar Gupta & Ors.),
                                   has been pleaded to notify one Statute for
                                   New Contributory Pension Scheme as
                                   applicable to the employees who are
Patna High Court L.P.A No.1149 of 2023(4) dt.08-01-2026
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                               appointed on or after 01.09.2005 in the
                               universities and their Constituent Colleges,
                               vide notification contained in memo
                               no.1445/GS(1) dated 07.08.2020. The
                               Statute is being brought on record for the
                               better appreciation of this fact.
                                          11. That it is important to mention
                               here that earlier, State Government
                               implemented the new pension scheme
                               through executive order, which was
                               disallowed by this Hon'ble court and this
                               Hon'ble court, granted liberty to make
                               necessary amendment in the relevant Statute
                               to implement the new pension scheme.
                                          12. That it is humbly stated that
                               Clause-1(iii) of the aforesaid Statute has
                               been made effective from 01.09.2005.
                               Clause-2 of the said Statute prescribe its
                               application which is as follows;
                                          2. Application
                                          The provision of this Statute shall
                               apply to all teachers, officers, and other
                               employees of the University who have been
                               appointed on or after 01.09.2005, by a
                               regular manner on posts sanctioned or
                               approved by the State Government by the
                               due process of appointment.
                                          13. That it is humbly stated that in
                               view of the aforesaid Statute, the petitioner
                               comes under the purview of new pension
                               scheme.”
                       7. Upon perusal of materials on record it is apparent

          that as per the notification prevalent, the respondent university

          has rightly given the benefits of the New Pension Scheme to the

          petitioner. The services of the petitioner have been regularized

          in the year 2006, and the notification clearly states that those
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                    regularized after 01.09.2005 have to be covered under the New

                    Pension Scheme.

                                 8. Therefore the appellant-petitioner is covered under

                    the aforesaid notification dated 07.08.2020. As such the

                    effective remedy available to the petitioner is challenging the

                    said notification itself, which was not done by the writ

                    petitioner. The learned Single Judge thus rightly disposed of the

                    matter and granted liberty to the writ petitioner to challenge the

                    notification dated 07.08.2020.

                                 9. Considering the discussions made above and the

                    materials on record, we are of the considered opinion that there

                    is no illegality or perversity in the order of the learned Single

                    Judge. If so advised, the appellant/petitioner may avail the

                    remedy as indicated by the learned Single Judge in paragraph-4

                    of the order under challenge, as referred above.

                                 10. The present appeal is accordingly dismissed.

                                 11. Pending application(s), if any, shall stand disposed

                    of.


                                                 (Sudhir Singh, J)


                                                ( Praveen Kumar, J)
shivam/Rajesh
U


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