STATE OF BIHAR Vs. SHAHIDA HASSAN

JUDGEMENT

(1.) Regard being had to the commonality of controversy in both the appeals it was thought apposite to hear them analogously and, accordingly, they were heard together and are disposed of by singular order. It is imperative to state the factual matrix of each case separately although the interpretations of rules involved are the same.

(2.) In L.P.A. No. 373 of 2004 the expose of facts are that the respondent had joined the service as Medical Officer under Health Department, Government of Bihar on 15.7.1981 and submitted her resignation from the said service which was accepted by the State Government with effect from 21.1.1995. Though her resignation was accepted, she was not paid gratuity, full pension, G.P.F., group insurance, leave encashment and arrears of salary. Being aggrieved by the aforesaid action of the State Government she preferred writ petition forming the subject matter of C.W.J.C. No. 1678 of 2003. It was contended in the petition that she had completed more than thirteen years and six months service and, hence, was entitled for pension and other post retiral benefits under clause 18 of Appendix 6, contained in Part-ll of the Bihar Pension Rules, 1950 (for short 'the Rules') which prescribes ten years of minimum service as qualifying service for payment of pensionary benefits. The stand put forth by the writ petitioner was resisted by the State and its functionaries stating, inter alia, she is not entitled to get pension and gratuity, etc. As far as arrear salary is concerned it is pleaded that a sum of Rs. 38,659/- had been handed over to her counsel on 13.5.2003. In opposition of the said stand, it was urged that her services stood, forfeited under Rule 101(a) of the Rules and, therefore, no fault can be found with the decision taken by the State Government.

(3.) Learned Single Judge upon analysing the provisions, namely, Rule 101(a) and Rule 135 of the Rules and Rule 74(b)(i) of the Bihar Service Code (for short 'the Code') and placing reliance on the decisions rendered in Tapan Kumar Chatterjee V/s. The State of Bihar & Ors.,1998 1 PLJR 707, Union of India & Ors. vs. Braj Nandan Singh & Anr., 2003 3 PLJR 409 and Union of India & Ors. vs. Lt. Col. P.S. Bhargava, 1997 2 SCC 28 came to hold that there is a distinction between resignation simpliciter and resignation which is given for misconduct, insolvency and insufficiency; that Rule 101(a) of the Rules is contradictory to the provision contained in Rule 135 of the Rules: that it is difficult to reconcile Rule 135 of the Rules with Rule 74(b)(i) of the Code; and that when there is manifest contradiction, construction should be placed which emphasises the meaning of the words; that once resignation has been accepted, denial of pension after completion of qualifying service would be violative of Articles 14 & 16(1) of the Constitution of India; and that writ petitioner is entitled to get pension, gratuity, leave encashment and G.P.F.