Patna High Court
BiharversusDileep Kumar
- Decided
- Disposal
- DISMISSED
Holding
The petitioner is entitled to elect the Old Pension Scheme, and the Letters Patent Appeal is dismissed.
Summary
The State of Bihar appealed against a single judge’s order granting Dileep Kumar, appointed as a clerk under a compassionate appointment, the option to opt for the Old Pension Scheme despite his formal appointment occurring after the 1 September 2005 cutoff. The petitioner argued that his selection process began before the cutoff and that similar cases had been granted the old scheme. The single judge relied on several earlier writ judgments that allowed similarly situated employees to choose the old scheme and directed the Director of Secondary Education to obtain the petitioner’s option and implement it. The State contended that the order was erroneous, but the Division Bench held that the factual findings were supported by evidence and not perverse. Consequently, the Letters Patent Appeal was dismissed, confirming the petitioner’s right to choose the Old Pension Scheme.
Issues considered
- Whether an employee whose selection process was initiated before 1 September 2005 but whose formal appointment letter was issued after that date is entitled to the benefits of the Old Pension Scheme.
- Whether the court may direct the respondent authorities to provide the employee with an option to opt for the Old Pension Scheme versus the New Contributory Pension Scheme.
- Whether the Letters Patent Appeal can disturb the factual findings of the Single Judge in the absence of perversity or lack of evidence.
Subjects
- Old Pension Scheme
- Contributory Pension Scheme
- Compassionate appointment
- Government service
- Letters Patent Appeal
- Appointment delay
- Bihar Education Department
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.211 of 2025
In
Civil Writ Jurisdiction Case No.13092 of 2024
======================================================
1. The State of Bihar through the Additional Chief Secretary, Education
Department, Govt. of Bihar, Patna.
2. The Additional Chief Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Additional Chief Secretary, Finance Department, Govt. of Bihar, Patna.
4. The Director, Secondary Education, Bihar, Patna.
5. The Regional Deputy Director, Patna Division, Patna.
6. The District Education Officer, Patna.
7. The Programme Officer (Establishment), Patna.
... ... Appellant/s
Versus
1. Dileep Kumar S/o Late Mahesh Prasad Singh, R/o Mohalla- Kalyani
Colony, Near Mitra Mandal Colony Phulwari, P.O.- Anisabad, District-
Patna.
2. The Accountant General, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sri Krishna Ranjan (Ac To Gp 17)
For the Respondent/s : Mr. Mrigank Mauli, Sr. Advocate
Mr. Gyan Shankar, Advocate
Mr. Lala S.N Rais, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 02-02-2026
The Letters Patent Appeal has been filed by the State
of Bihar challenging the order dated 09.09.2024 passed by the
learned Single Judge in C.W.J.C. No. 13092 of 2024.
2. It appears that the Respondent No. 1, Dileep Kumar
filed the writ petition seeking for following reliefs:
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“...i. Issuance of a writ, writ(s), order order(s)
commanding the respondent authorities to grant the
benefit of old pension scheme and government
provident fund to the petitioner instead of
contributory pension scheme and contributory
provident fund under the new pension scheme,
treating the petitioner to be appointed in
government service before 01.09.2005.
ii. Issuance of a writ, writ(s), order, order(s)
commanding the respondent authorities to treat the
petitioner to have been appointed prior to
01.09.2005 e.i. appointed on 24.02.2005 for the
purposes of application of the service condition in
regard to old pension scheme and government
provident fund.
iii. For issuance of a writ, writ(s), order, order(s)
commanding the respondent authorities to pay all
the consequential benefits under old pension scheme
and government provident fund to the petitioner.
iv. Issuance of any other writ(s), order(s), or
direction(s) as may be deemed fit and proper by this
Hon'ble Court...”
3. In the writ petition, it is specifically stated that the
father of the petitioner was posted as Assistant Teacher in
Government Primary School, Rasalpur, Fathua, Patna and he
died in harness on 05.02.2004 and after the death of his father,
the petitioner filed an application before the District
Superintendent of Education, Patna for his appointment on
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compassionate ground and the District Superintendent of
Education, Patna vide letter No. 2849 dated 17.08.2004 sent the
recommendation for compassionate appointment before the
District Compassionate Committee, Patna which was considered
by the District Compassionate Committee and the name of the
petitioner was recommended for appointment on the post of
clerk Grade-III.
4. On the basis of such decision taken by the District
Compassionate Committee on 25.09.2004, the District
Superintendent of Education, Patna recommended the name of
the petitioner for appointment to the post of clerk Grade-III to
the Regional Deputy Director, Patna vide letter dated
24.02.2005.
5. After the lapse of two years, the respondent
authorities issued the appointment letter which is dated
01.02.2007 to the petitioner. It is the further case of the
petitioner that the petitioner joined the post of clerk in
pursuance of such order dated 01.02.2007 and is continuing to
discharge his duties. According to the writ petitioner, the action
of the respondent authorities in issuing the appointment letter
two years of recommendation, was arbitrary for which the
petitioner should not be allowed to suffer the latches.
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6. It is the further case of the writ petitioner that the
State Government took a decision that from 01.09.2005 any
person appointed in the Government service will not be entitled
to the existing policy of pension being paid to them under the
Bihar Pension Rules and they would be governed by new
Contributory Pension Scheme framed by the Government.
7. Since the petitioner was appointed by notification
dated 01.02.2007, he was not given the benefit of the pension
under Old Policy and Scheme governed by Bihar Pension Rules
and he was to accept the new policy of the Contributory Pension
Scheme which is less beneficial in comparison to the earlier
pension scheme.
8. It is the further case of the petitioner that in
identical cases, since there was latches on the part of the
authorities and the persons who filed the writ petitions were also
appointed after 01.09.2005 and, therefore, deprived of the Old
Pension Scheme, this Court allowed the writ petitions and
directed the respondents to grant them the benefit of the Old
Pension Scheme by shifting their date of appointment back
notionally and the case of the petitioner squarely covered by the
principle laid down in those cases by this Court.
9. It is further highlighted in the writ petition by the
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petitioner that the Finance Department, Government of Bihar
has come out with a resolution contained in Memo No. 1206/PE
dated 28.11.2023, whereby, it was decided for grant of benefit of
the Old Pension Scheme in the case of those employees where
advertisement was issued before the cutoff date i.e. 01.09.2005
and the selection process has been completed before
01.09.2005.
10. The District Programme Officer, Establishment,
Patna vide Memo No. 1519 dated 30.03.2024 sent the proposal
to the Director, Secondary Education, Bihar, Patna to grant Old
Pension Scheme to the petitioner as his recommendation for
appointment was made through letter No. 282 dated 24.02.2005
mentioning therein that similarly situated employees were
granted Old Pension Scheme in the light of resolution of the
Finance Department of Bihar. The letter No. 1519 dated
30.03.2024 was annexed to the writ petition as annexure-P/7.
11. The petitioner approached before the District
Education Officer, Patna and other higher authorities by filing
representation for grant of benefit of the Old Pension Scheme
and Government Provident Fund but the same was not
considered for which the petitioner filed the writ petition.
12. The learned Single Judge, by the impugned order,
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has been pleased to hold that since in similar cases, this Court in
CWJC No. 663 of 2010 which was confirmed in LPA No. 204 of
2014, CWJC No. 10901 of 2006, CWJC No. 20654 of 2010, and
CWJC No. 1487 of 2015 has granted relief to the respective
petitioners of the writ petition, in the operative part it was held
as follows:
“..7. Thus, it is found that the petitioner was
recommended for appointment prior to 01
September 2005 but the formal letter of appointment
was issued in 2007 due to delay and red-tapism in
the Office of the respondents. As the process of his
selection was initiated prior to 01 September 2005.
Relying on the above-mentioned precedence, this
Court holds that the petitioner is entitled to give
option as to whether he would be governed by the
Old Pension Scheme or the New Pension Scheme.
8. The respondent no. 04, the Director Secondary
Education, Bihar, Patna is directed to act according
to the order passed in the instant writ petition, and
after obtaining the option from the petitioner, he will
send the same to respondent no. 08, the Accountant
General, Bihar to do the needful…”
13. Though the learned counsel for the State
challenged the order of the learned Single Judge, but he has not
disputed that the petitioner is similarly situated like the
petitioners in the aforesaid C.W.J.Cs, one of which was also
confirmed by the Divisional Bench in LPA no. 204 of 2014.
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14. After hearing the learned counsel for the
respective parties, we find that the learned Single Judge is quite
justified in considering the case of similarly situated persons
and observing that the petitioner is entitled to give the option
whether he would be governed by the Old Pension Scheme or
New Pension Scheme and passing necessary direction to the
respondent no. 4, Director Secondary Education Bihar, Patna to
act according to the order passed.
14.1 A Letters Patent Appeal is normally an intra
court appeal whereunder the Letters Patent Bench sitting as a
Court of correction, corrects its own orders in exercise of same
jurisdiction as was in the Single Judge. In appellate jurisdiction,
the High Court exercises the powers of a court of error. The
Division Bench in the Letters Patent Appeal should not disturb
the finding of fact arrived at by the learned Single Judge of the
court unless it is shown to be based on no evidence, perverse,
palpably unreasonable or inconsistent with any particular
position of law, the scope of interference is within a narrow
compass.
15. The appellate jurisdiction under the Letters
Patent is really a corrective jurisdiction and it is used rarely only
to correct errors, if any made.
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16. After going through the averments taken in the
writ petition and the documents enclosed to such writ petition,
we are of the humble view that the learned Single Judge is quite
justified in granting necessary relief to the petitioner.
17. There is no perversity in the said order and
accordingly, the Letters Patent Appeal stands dismissed.
(Sangam Kumar Sahoo, CJ)
(Nani Tagia, J)
Guddukr/-
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CAV DATE
Uploading Date 03.02.2026
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