JUDGMENT
R.M. Prasad, J.
1. In this writ petition, the petitioner is aggrieved by the office order dated 25-3-2000 (Annexure 11) issued by the Assistant Comptroller (Fund), Rajendra Agricultural University (hereinafter referred to as ‘the University’), whereby sanction for payment of 100% pension has been accorded less Rs. 410/- purporting to be proportionate pension paid by the State Government and 100% gratuity less the gratuity paid from the State Government besides 100% family pension.
2. In short, the relevant facts are that the petitioner was initially appointed as a Government servant in the Animal Husbandry Department and after his confirmation, his services were transferred to the University on creation of the University where later he was absorbed in the University service on 1-4-1977 after resigning from the State Government. The petitioner finally retired as Associate Professor-Cum-Senior Scientist (Animal Nutrition), Bihar Veterinary College, Patna on 31-10-1999.
3. By office order No. 593 dated 25-3-2000 (Annexure 11), the petitioner has been sanctioned 100% pension i.e., Rs. 2,570/- per month but after deducting Rs. 410/- paid by the State Government towards proportionate pension sanction for payment of Rs. 2,160/- only (+) relief with effect from 1-11-1939 has been accorded. By the said office order 100% gratuity has also been sanctioned but after deducting the amount of gratuity already paid by the State Government. A sanction for 100% family pension at the rate of Rs. 1250/- (+) relief upto 24-10-2004 and thereafter Rs. 771/- (+) relief if the petitioner is not alive, is accorded.
4. According to the learned counsel for the petitioner, said deductions are contrary to the Rule and the Statutes of the University and in any view of the matter, recovery of the amount of proportionate pension already paid to the petitioner for serving the State Government prior to his absorption is not permissible in view of the law laid down by the Apex Court in the case of Sahib Ram v. State of Haryana, reported in 1995 Supp(1) SCC 18 followed in a recent judgment of this Court in the case of Shiv Narain Singh v. State of Bihar, reported in 2000(1) PUR 185 and also in the case of S. V. Bhim Bhatta v. State of Karnataka, reported in JT (1996) 2 SCC 236. Learned counsel for the petitioner has submitted that the petitioner’s pension should be re-fixed on the basis of his last ten months’ basic salary i.e., Rs. 5,550/- per month and not on the basis of Rs. 5, 140/- and consequential fixation/payment of gratuity and family pension.
5. On the other hand, learned counsel for the University has submitted that there is no infirmity in the impugned order as the calculation of pay in accordance with Rule 161 of the Bihar Pension Rules has’already been approved by this Court and University is fully justified in calculating pension on the basis of the pay legally payable to the re-employed Government servant. With respect to deduction of amount of pension being paid by the Government/it has been submitted that Section 39(9) of the Rajendra Agricultural University Act, 1971 (hereinafter referred to as ‘the Act’) clearly provides that such Government servants who choose to resign from Government service and enter the service of the University, shall be considered for compensation/proportionate pension, provided that no such compensation, proportionate pension under the Government, carrying emoluments not less than his pay at the time of such resignation. The words “Proportionate Pension” according to the learned counsel for the University, .can’only mean total pension calculated on the basis of last pay legally payable and reduced by the amount of pension which the employee is receiving from the State Government. In this regard he also referred to the other passed by the learned single Judge of this Court in C.W.J.C. No. 2105 of 2002 and analogous cases disposed of on 16-7-2002, vide Annexure A to the counter-affidavit filed on behalf of the University.
6. On claim being raised by similar retired employees, a dispute arose as to whether the Government is liable to pay pension and if so to what extent, which was finally settled by the Apex Court in the case of the State of Bihar v. B.S. Mathur, reported in 1996 (1) BLJR (SC) 617. The Apex Court while considering the scope of Section 39(19) of the Act read with Rule 161 (b) of the Bihar Pension Rules, 1950 and Rule 83 of the Bihar Service Code, 1952 held as follows:
“(6) The first part of section clearly indicates that such Government servants while on deputation with the University service who choose to resign from Government service and enter the service of the University, shall be considered for compensation/proportionate pension. The other part is. not material for the purpose of this case. Hence, it is not necessary to consider the same. Therefore, it is clear that if a Government servant, while on deputation in the University, had chosen to resign from Government service and was absorbed in the University service, by operation of Section 39(19) the State bears proportionate pension/ compensation payable to such a former Government servant.
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(8) A reading of the Rule clearly indicates that by a fiction it would apply to the University employees or the erstwhile Government servant deeming them to be re-employed in the University. Such Government servant should draw his initial pay of the post unless the Government sanctions advance increments under Rule 83 of the Bihar Service Code. The proviso makes it clear that the sum total of pay plus pension would not exceed the substantive pay last drawn by him before discharge. In other words, if a Government servant opts for absorption in University service after resignation from Government service, he is entitled to the sum total of pay plus pension which would not exceed the substantive pay last drawn by him before he had tendered his resignation and was discharged by the Gpvernment. In otherwords, the proportionate pension of such Government employee should be calculated with reference to the last drawn pay of the Government employee at the time of acceptance of his resignation by the Government. The rest of the benefits, which such an employee would get with reference to the last drawn pay on his retirement from the University service on attaining superannuation, would not be borne by the Government. The proportionate liability which the Government is required to bear, by operation of Section 39(19) would be with reference to the last drawn pay and the sum total as envisaged in proviso to Sub-rule (b) of Rule 161.”
7. Clause 16.1 (b) (iii) of Chapter XVI of the Rajendra Agricultural University Statutes, 1976 provides that permanent Government servants as are eligible for proportionate pension from Government will be allowed on absorption under the University the benefit of Contributory Provident Fund or in lieu thereof pension if they so chose on the basis of total period of service rendered under the Government and the University. It further provides that the pension to which such employees will be entitled would be the pension that would accrue to them on the basis of the total period of service under the Government and the University minus the pension payable by Government.
8. In view of the law laid down by the Apex Court in the case of the State of Bihar v. 8. S. Mathur (supra) it is clear that if a Government servant, while on deputation in the University, had chosen to resign from Government service and was absorbed in the University service, by operation of Section 39(19), the State bears proportionate pension/compensation payable to such a former Government servant.
9. Rule 161 (b) of the Bihar Pension Rules is the provision relating to fixation of pay of such Government servant on re-employment and it provides that sum total of pay plus pension would not exceed the substantive pay last drawn by him before discharge. In other word, according to the Apex Court if a Government servant opts for absorption in University service after resigning from Government service, he is entitled to the sum total of pay plus pension which would not exceed the substantive pay last drawn by’ihim before he had tendered his resignation and was discharged by the Government. The Apex Court held that the proportionate pension of such Government employee should be calculated with reference to last drawn pay of the Government employee at the time of acceptance of his resignation by the Government. The rest of the benefits, which such an employee would get with reference to last drawn pay on his retirement from the University service on attaining superannuation, would not be borne by the Government. Thus, according to the Apex Court, proportionate liability which the Government is required to bear, by operation of Section 39(19), would be with reference to the last drawn pay and the sum total as envisaged in proviso to Sub-rule (b) of Rule 161.
10. Section 39(4)(b)(ii) of the Act read with Clause 16.1 (b)(iii) of Chapter XVI of the Statutes were not under consideration before the Apex Court which specifically deals with the manner how the pension of such employees is to be fixed. As per the provisions contained in Section 39(4)(b) of the Act, employees of the State Government transferred to the University by the State Government from time to time are deemed to have been appointed by the University and they ceased to be Government servants and under Clause (ii) the services rendered by them in the regular establishment under the State Government are to be taken into account in calculating their pension and gratuity in case they are appointed to the pensionable establishment of the University. Every such individual, who has been employed by the University is subject to the provisions of the Act and the enactment and the Statutes made and under Sub-section (19) such Government servant on entering the service of the University becomes entitled for compensation, proportionate pension except who resigns in spite of being required by the Government to serve on some other post, under the Government carrying emoluments not less than his pay at the time of such resignation. Keeping in view this provision, Clause 16.1 (b) of Chapter XVI of the Statutes was framed under which a Government servant is entitled to compensation/proportionate pension for the pensionary service rendered by him in the Government from the State Government in addition to pay he would get under the University service with only one rider that sum total of pay plus pension would not exceed the substantive pay last drawn by him before discharge.
11. Thus, on harmonious reading of the provisions, contained in Section 39(4)(b)(ii) and 39(19) of the Act and Clause 16.1 (b)(iii) of Chapter XVI of the Statutes it is clear that such employees of the University shall be entitled for the pension that would accrue to them on the basis of total period of service rendered in the Government and the University minus the pension payable by the Government. Strictly speaking, Rule 16(b) of the Bihar Pension Rules specifically deals with as to how much pension is payable to a Government servant from the Government on his re-employment and neither of these provisions provides for fixation of pension of such employee on the reduced pay.
12. This view is substantiated by the fact that it is only for the purpose of actual payment of pay the Statute provides that pay plus pension should not exceed the substantive pay last drawn by him before discharge from the Government service, but his actual pay itself in the University does not get reduced. It is only the mode that as against his actual pay he receives part of it as proportionate pension from the Government and the remaining from the University. In other words, a Government servant on transfer to the University service continues to get the amount of pay admissible to him before his discharge from Government service but in the form of proportionate pension from the Government plus the remaining amount not exceeding the substantive pay last drawn by him before his discharge from the Government service from the University and in view of the provisions contained in Sub-clause (ii) of Clause (b) of Sub-section (4) of Section 39 and Sub-section (19) of Section 39 of the Act read with Clause 16.1(b)(ii) of the Statutes, the pension accrues to such employee on the basis of total period of service under the Government and the University minus the pension payable by the Government. Any other interpretation would lead to double jeopardy i.e., reducing the pay admissible to such employee under the University service and also reducing the pension admissible on last pay drawn which would be violative of Articles 14 and 311 of the Constitution besides the provisions of the Statute fixing pay and pension of similarly placed employees.
13. Thus, in my opinion, such employee of the University is entitled for fixation of his pension on the basis of the pay for which he is entitled and not that his pension by the University is to be fixed on. the amount paid by the University as pay i.e., minus proportionate pension paid by the Government. However, as per Clause 16.1(b)(iii) of the Statutes, he would be entitled to receive the pension from the University minus the pension payable by the Government but on the basis of total period of service under the Government and the University.
14. The writ application is, thus, allowed. The respondents are directed to re-fix the pension, family pension of the petitioner accordingly within two weeks and pay the remaining amount, if any, within two weeks of the receipt/production of a copy of this order.