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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 200 OF 2011  

STATE OF BIHAR & ORS. APPELLANTS

                VERSUS

SUDHIR CHANDRA KUMAR & ORS.                      RESPONDENTS

WITH  C.A.NO.205/2011,  206/2011,  207/2011,  208/2011,  209/2011,  210/2011, 202/2011, 203/2011, 201/2011 AND 204/2011.

O R D E R

1. We  have  heard  Mr.Manish  Kumar,  learned  counsel  

appearing for the appellant State of Bihar and Mr.P.N.Mishra,  

learned senior counsel appearing for the respondent no.1 and  

Mr.Atul Jha, learned counsel appearing for respondent nos.2 to  

6 in C.A.No.200 of 2011 etc. and other respective counsel in  

the connected appeals.

2. Since the facts arising from all these appeals are  

similar, we take Civil Appeal No.200 of 2011 as the lead case.

Civil Appeal No.200/2011:

3. This appeal, by special leave, seeks to challenge the  

judgment and order dated 23rd July, 2008 passed by the High  

Court of Judicature at Patna in L.P.A.No.439 of 2008.  This  

judgment allowed the appeal filed by the respondents concerning  

their right to receive pension as per the revised formula.  

The short facts leading to this appeal are this-wise:

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4. The  respondents  are  the  teachers  working  in  

T.M.Bhagalpur University.  Their case was that the State of  

Bihar  had  merged  50%  of  the  Dearness  Allowance  (for  short  

'D.A.') into the basic pay for the purposes of calculating the  

pension,  vide  its  resolution  dated  11.04.2005  and  which  

resolution was to be given effect from 01.01.2005.  It was  

pointed  out  by  them  that  in  spite  of  passing  of  this  

resolution, the benefit thereof was not being given to them. In  

this regard, it may be pertinent to quote Statute 16 of the  

University, which reads as follows :  

“16. An employee eligible for pension under any of the  categories  mentioned  above,  shall  be  granted  pension  according to the scales given in schedule 'A' (I) if he  ceased to be in University service between 1-4-72 and 31- 12-72 and schedule A(ii) if he ceased to be in University  service between 1-1-73 and 30-3-79. For those who ceased  to  be  in  University  service  from  31-3-79  onwards,  the  scales given in Schedule A(iii) will be applicable.  Any  further change in the rate of pension  as also relief in  pension  under  the  Bihar  (Govt.)  Pension  Rules  will  be  equally applicable to the University employees (emphasis  supplied)”  

5. It  was  their  submission  that   the  Statute   was  

specifically  enacted  for  the  purposes  of  calculating  the  

pension. Any further change in the rate of pension as also  

relief  in  pension  under  the  Bihar  Government  Pension  Rules  

will, therefore, be automatically applicable to the University  

employees. The learned Single Judge had disposed of their Writ  

Petition in  the light of the orders passed by the Court in an  

earlier  Writ  Petition  bearing  No.CWJC  13925  of  2006,  dated  

31.10.2007.  The effect   of that would be that only those who

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retire  subsequent to  1st January, 2005  would be  getting the  

benefits of this changed formula. The respondents, therefore,  

filed  an  L.P.A.  wherein  the  aforesaid  submission,  based  on  

Statute 16, has been accepted by the Division Bench.

6. Being aggrieved by this judgment and order, present  

Civil Appeal has been filed by the State of Bihar.

7. Mr.Manish  Kumar,  learned  counsel  appearing  for  the  

appellant-State, submitted that the State Government cannot be  

made  to  bear  the  burden  which  will  arise  out  of  this  

responsibility.  His submission is that this resolution of the  

State  Government  was  meant  only  for  the  State  Government  

employees and not for anybody else. There is no dispute that  

under this resolution of 11th April, 2005, the State Government  

has decided that 50% of the D.A. will be merged in the basic  

pay for the purposes of calculating the pension, and this will  

be with effect from 1st January, 2005.  This was in the back-

drop  of  the  Central  Government  taking  a  similar  decision  

earlier from 1st March, 2004. Obviously, there must have been  

similar  demands  from  the  State  Government  employees  and,  

therefore, this decision from the State Government.

8. Mr.Manish Kumar, submits that the University is not  

supposed to create financial liabilities for the government and  

his submission has been that   wherever  there is any financial

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implication    under  any   of   the  statutes, those financial  

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implications are not enforceable unless prior approval of the  

State Government has been obtained.  He has relied upon Statute  

No.36(6) and, particularly, the proviso thereof.  The Statute  

36(6) proviso reads as follows :

“...36(6)..... “Provided that if there be any financial implication which  may arise under the statute, it shall not be enforceable  unless  prior  approval  of  State  Government  has  been  obtained.”

9. He also pointed out that as far as the creation of  

the posts and payment to the teachers and the employees in the  

University are concerned, though the decisions are taken by the  

University, the responsibility with respect to the payment of  

salaries etc. is on the State Government and that is why the  

above provision is made into the proviso in Statute No36(6).  

10. It is, however, material to note that, as far as this  

proviso is concerned, it has been substituted by Act No.16 of  

2008. As far as present resolution of the State Government is  

concerned, it is dated 11th April, 2005, which is much prior to  

the coming into force of this proviso to Statute 36(6).  That  

apart, as we have seen, under the Statute 16 (which has been in  

force from 1982), it is specifically provided that any change  

in the rate of pension or relief therein  into the service  

conditions of the State Government employees would be extended  

to the University.  Therefore,  in our view, the Division Bench  

cannot  be  faulted  for  taking  the  view  that  the  reading  of  

Statute  read  with  the  resolution  passed  by  the  State

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Government,  University   employees will be entitled to include  

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50%  of  the  D.A.  into  their  basic  pay  for  the  purposes  of  

calculating their pension.

11. It is interesting to note that the University was a  

party to the Writ Petition but the University did not challenge  

the decision rendered either by the Single Judge or by the  

Division Bench.

12. In view of this position, in our view, there is no  

reason  to  entertain  this  appeal.  The  Civil  Appeal  is,  

accordingly, dismissed. No costs.

C.A.NO.205/2011,  206/2011,  207/2011,  208/2011,  209/2011,  210/2011, 202/2011, 203/2011, 201/2011 AND 204/2011.

13. In view of the order passed in Civil Appeal No.200 of  

2011, all the appeals stand disposed of with similar order.

.......................J. (H.L. GOKHALE)

.......................J. (J. CHELAMESWAR)

NEW DELHI; JULY 23, 2013