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
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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
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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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