SURENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The only controversy which still remains in the present case is whether the petitioner is entitled to pension under the Bihar Municipal Officers and Servants Pension Rules, 1987 (hereinafter referred to as the 'Rules').

(2.) Learned counsel for the petitioner submits that upon retirement, he had not received the entire Contributory Provident Fund amount and in light of the aforesaid Rules, he was entitled to pension and the respondents refusing to pay the same on the plea that it was adopted by the respondent no. 7 with effect from 1/8/2011 and the petitioner had superannuated prior to that on 31/5/2011, he was forced to approach the Court in the present writ application. Learned counsel submits that the Rules came into force with effect from 13/11/1987 and it is immaterial as to when the particular Local Body adopted it. Learned counsel submits that the Hon'ble Supreme Court has also held that the correct view was that the Rules would be effective from 13/11/1987. For such proposition, he has relied upon a decision of the Hon'ble Supreme Court in the case of Sanchari Devi vs. Ara Municipal Corporation reported in 2015 (1) PLJR (SC) 370, the relevant being at pargraph-8. It is thus submitted that the petitioner, upon superannuation, having applied for pension, denial of the same on the ground that the said Rules have been adopted by the respondent no. 7 only with effect from 1/8/2011 is untenable and discriminatory.

(3.) Learned counsel for the respondents no. 7 and 8 submits that the petitioner cannot be granted the benefit of pension, firstly, for the reason that once the Government has clearly held that the pension can be given by the Local Body from their own resources without the government having any financial liability, it is the concerned Local Body to take a decision with regard to payment of pension from its own resources and unless the same is justified from its financial condition, such benefit cannot be given. It is submitted that in the present case, the respondent no. 7 took a conscious decision of implementing the pension scheme with effect from 1/8/2011 which cannot be faulted. Learned counsel further submits that the decision relied upon by learned counsel for the petitioner in the case of Sanchari Devi (supra), the facts are distinguishable, inasmuch as the Court has held that the statutory right to get pension of an employee of the concerned Local Body is subject to them not having retired before the date of effect of the Rules and had not received part or whole of Contributory Provident Fund. It is submitted that unless both the conditions are fulfilled the entitlement to pension cannot be upheld and in the present case it is an admitted position that the petitioner has received the entire Contributory Provident Fund amount. Learned counsel further submits that the Hon'ble Supreme Court in paragraph-10 has also made it clear that the said judgment was being delivered in the facts of the said case and will not be treated as a precedent applicable to all other cases, the facts of which were not before the Hon'ble Supreme Court whereas in the present case the facts being distinguishable inasmuch as the petitioner before the Hon'ble Supreme Court had not received part or whole of the Contributory Provident Fund amount, the petitioner cannot be granted the said benefit.