JUDGMENT
U.P. Singh, J.
1. By this writ application the petitioner, who retired in February, 1975 has prayed for the payment of his appropriate pension which has been denied to him for last 13 years. He has sought for a suitable direction to be issued to the respondents that while determining the appropriate pension, the period spent by him in training be counted and the scale of pay be given to him in the selection grade with effect from 1.4.1956. A further direction has been sought that his salary for the period June 1966 to September 1966 and 21.3.1968 to 21.11.1972 be paid and the respondents should not arbitrarily treat that period as spent on leave. It is rather unfortunate that his grievances decision. It was only on 17.6.1988 that a communication from the office of the Lokayukt was issued asking the petitioner to move again before the appropriate department for proper relief.
2. In the year 1984 the petitioner was appointed as a teacher in the Basic School. After the said appointment he was asked to undertake two years teacher’s training course from the Bikram Basic Training School. He was paid a sum of Rs. 25/- per month as stipend during the training period. After completion of training the petitioner, along with other teachers, was posted in different schools by the order of the District Inspector of Schools which is contained in Memo No 2158-84 dated 12.4.1930. The petitioner was asked to join at Babhangawan Basic School. The said memo is contained in Anuexure-1. The petitioner regularly worked as a teacher in different Basic Schools and while he was functioning as such at Ailaya Basic School he was promoted and given selection grade with effect from 1.4.1956 by the Regional Deputy Director of Education, Patna Division, Patna as per his order contained in memo No. 29 dated 31.2.1961. After completing the age of 58 years he retired from service on 27.2.1975 from the Government Basic School, Bimwa. His grievance is that for the period 9.6.1966 to 26.9.1966 and 21.3.1968 to 20.11.1972, he was not paid his salary. In the latter of the Director, Primary Education, addressed to the Joint Secretary, Bihar Vidhan Sabha, it was pointed out that the department had not yet taken and decision in respect of the payment of the arrears of the petitioner’s salary. Till the date of retirement of the petitioner in February. 1975 not decision was taken regarding the payment of his due salary, the pension, and other dues. In this distress condition, the petitioner, in his petition filed in August 1975, raised his grievances before the Lokayukt requesting him to take effective measures for the payment of his due salary and pension etc. It appears that in August 1975 the Secretary of the Lokayukt in his letter addressed to the Director (respondent No. 2) asked him to inform regarding the steps taken in regard to the payment of the salary, the pension and the gratuity etc. to the petitioner. After series of correspondence between respondents 2 to 4 i.e. the Director Primary Education, District Education Officer Special Officer-cum-Joint Secretary, Education Department and respondent No. 5, the Lokayukt, a provisional pension was however paid to the petitioner, which was 75% of the actual pension to which he was entitled. In so far as the payment of his salary for the period 23.4.1968 to 22.11.1972 was concerned, it was alleged that the petitioner was absent from duty and had filed a case in the court of Munsif, Arrah, and, therefore, the dues were not paid.
3. The petitioner has firmly denied those allegations and has asserted that no case was ever filed by him in the court of Munsif, Arrah. He was never absent from duty for the period mentioned above and he never applied for leave for the said period nor was he ever put under suspension during that period. In paragraphs 11 and 12 of the writ application, a categorical assertion has been made that while fixing his pension, the scale of selection grade granted to him with effect from 1.4.1956 by the Regional Deputy Director, was not counted although the same had been so entered in his Service Book. He was sent for the teacher’s training course by the department only after his due appointment as a teacher find during that period he was paid only a stipend of Rs. 25/- per month. From the perusal of Annexures 6 and 7 it appears that the office of the Lokayukt impressed upon the Education authorities that the delay was rather unfortunate and due to the recalcitrated attitude of the department the same has been kept pending for more than seven years, In those letters, it was made clear that if no appropriate action is taken in the matter then the Lokayukt will be compelled to take suo muto action for the mismanagement as defined in the Bihar Lokayukt, Act, 1973. It was only then that the department prepared the pension account without collating the period spent in training and without calculating the salary of the petitioner granted to him in the selection grade. The petitioner, therefore, filed a protest against the said arbitrary fixation of the pension by the department and the Lokayukt, thereafter, in his latter dated 9.6.1983 expressed displeasure over the malicious action of the District Education Officer, Bhojpur. The said letter is contained in Annexure-8. In another letter issued in the year 1984 addressed to the D.E.O., Bhojpur it was communicated to the D.E.O., which is contained in Annexure-9, that for the delay caused in the payment of the pension to the petitioner, the interest may be realised from the concerned officer and up-to-date report was again called for by the office of the Lokayukt within a week since the matter was pending from 1975, The petitioner accepted the payment under protest and made a complaint to the office of the Lokayukt in October 1986 and by letter dated 4.11.1986 the Director (Respondent No. 4) was asked to send his comment. Finally, by letter dated 9.6.1988/17.6.1988 contained, in Annexure-12 the petitioner was informed by the office of the Lokayukt that h is file which was pending for the last 13 years raising grievances for the clearance of his salary and pension has been closed and the petitioner may move the concerned department for redress of his grievances. Thus the petitioner was left without any relief and ultimately he approached this Court by this writ application seeking the reliefs as indicated above.
4. In the counter affidavit tried on behalf of the respondent No. 3, the Range Education Officer, it was stated that the pension has been calculated by the Accountant General, Bihar on the basis of last pay drawn by the petitioner. It was alleged that the petitioner was not appointed in the year 1948 but on 15.4.1950 and that he was not deputed by the department for the Basic training after his appointment therefore, the period spent in the training period to his appointment could not be taken into account for fixing his pension. The petitioner was absent from duty from 9.6.1566 to 26.9.1966 and 21.3.1968 to 20.11.1972, and, therefore, not entitled for the salary for the said period. His salary for the period March, 1968 to November 1972 was withheld by the department not because of uncertainty of the place of posting but because of his willful absence from the duties and non compliance of the order of transfer issued by the department. For the act of defiance of the departmental order of transfer his annual increment was with held as a measure of punishment and the period of absence from the duty was treated as extra ordinary leave.
5. In reply to the counter-affidavit the petitioner refuted the allegations on the ground that neither any reference to any record of the office was made in reply, nor, any documents were filed in support of those allegations and, therefore, the allegations were not established. The specific assertion of the petitioner in paragraph-12 of the writ application, that he was sent for teacher’s training course by the department only after his appointment as a teacher and during that period he was paid a stipend of Rs. 25/- per month has neither been refuted nor controverter. Annexure-1 cannot be read as a letter of appointment. It is a letter regarding posting of the basic trained teachers, Thus, the fact remained undisputed that the petitioner was seat for training only after appointment as Assistant Teacher in the year 1948 and received stipend during the said period of training. After completing his period of training on 12.4.1950 he was posted at Babhangawan Basic School which is clearly mentioned in Annexure-1 issued by the District Inspector of Schools. The averment to this effect has also been made in paragraph-3 of this writ application. In the counter affidavit the allegation that the petitioner was not appointed in the year 1948 but on 15.4.1950 has been made without reference to any document. The petitioner has emphatically denied the said averment and has asserted that the same is not borne out from the Service Book. The said statement in the counter affidavit appears to have been made only on the basis of Annexure-1. It is difficult to hold that Annexure-1 is a letter of appointment. On a plain reading of Annexure-1, as stated above, it appears that seven persons mentioned therein were posted to different schools and were asked to join their respective schools. Regarding the appointment of some of the teachers and one of them being Sri Rajendra Kishore Verma, who is mentioned at serials number 6 amongst the seven teachers, was forwarded a separate memo indicating that he should Joint his new appointment. No such memo was forwarded in the case of the remaining six teachers. In the case of petitioner memo No. 2158/64 dated 15.4.1950 was forwarded for his information without indicating that he was to join his now appointment. It there would have been a new appointment of the petitioner like Sri Rajendra Kishore Verma, there was no reason why the same would not have been indicated in the said memo like the one mentioned in the case of Sri Rajendra Kishore Verma. Therefore, the contention of the petitioner has to be accepted that he was sent for trimming after appointment as Assistant Teacher in the year 1948 and was paid stipend by the department during that period and after successful completion of his training he was posted at Babhangawan Basic School on 12.4.1950 in view of the memo contained in Annexsre-1 issued by the District Inspector of School. No document to the contrary has been produced by the respondents in support of their allegation that, the petitioner was appointed on 15.4.1950. There is a mandatory requirement that the appointee must be a trained teacher. In the facts of the present case, it has to be held that the petitioner was sent for training after his appointment as Assistant Teacher in the Year 1948. Therefore, in accordance with Rule 96 of the Bihar Pension Rules, the petitioner is entitled to pesion even for the period spent on training. In so far as his grievance that with effect from 1.4.1956, the suite of pay be given to him in the selection grade, which was so entered in his Service Book and even then the same has not been considered while fixing the pension, chore is it categorical and definite assertion in paragraph 11 of the writ application. The same has not been controverter in the counter affidavit and the only reply in that the pension was calculated by the Accountant General on the basis of the entries made in the service hook and the L.P.C. Respondent No. 3 has accepted this petition in paragraph 6 of the counter affidavit that the petitioner was promoted to the selection grade. Even respondent No. 6 has not reason why the selection grade granted to the petitioner with effect from 1.4.1956 would not be counted for fixing his pension.
6. The other grievance of the petitioner is that he has not been paid his salary for the period 9.6.1966 to 26.9.1966 and for the period 23.4.1968 to 22.11.1972. The assertion of the petitioner made in paragraph-5 of this application has been controverted by the respondents in paragraph-7 of the counter affidavit alleging that the petitioner absented himself without information and, therefore, his salary was not paid. There is a catagorical assertion in paragraph-10 of the writ application that he was never absent from duty for the period mentioned above, and he had never applied for leave for those period. He was never put under suspension during that period nor did he file any case in the court the Munsif for the said relief. These assertions have not been denied in paragerph-10 of the counter affidavit filed by respondent No. 3. If the petitioner had disobeyed the order of the superiors then it appears curious how the petitioner could be allowed to continue at Basic School, Bimwa. Except the vague assertion, no document has been produced in support of the allegation that the authorities had inflected punishment by stopping one increment and had also decided to treat that period as spent on extraordinary leave. No such communication was ever made to the petitioner and lie has emphatically stated that neither such order were passed nor ever communicated to him at any point of time. Therefore, tin; fact remains undisputed that during those periods the petitioner was on duty and had neither taken leave nor was he placed under suspension during that period. Nothing to the contrary has been shown on record to deny his claim for the payment of his salary for the said period. Thus, in the facts and circumstances of this case, it has to be held that the petitioner is entitled for the salary for the period June 1966 to September, 1966 and March 1968 to November, 1972. Neither any material has been placed nor any reason has been assigned as to how the said period could be treated as spent on leave.
7. It is now well settled principle that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The liability to pay penal interest on these dues at the current market rate commences at the expiry of two months from the date of retirement. The instant case is a glaring example of such culpable delay in the settlement of pension and other dues of the petitioner who retired from the service in February, 1975. For the last 13 years, after his retirement, the matter was kept pending either in the office of the Lokayukt or in the office of these respondents. In spite of several communications between the office of the Lokayukt and these respondents the pension of the petitioner was neither determined in accordance with law nor was it ever paid on rightful considerations. In the facts and circumstances of this case, therefore, the respondents 2, 3, 4 and 6 are directed to fix the pension of the petitioner in accordance with the directions indicated in this judgment. The petitioner will be entitled for the interest over the due amount at the rate of 12% per annum. Since for last 13 years the petitioner has not been paid the pension and other dues, I hope and trust that the respondents will fix the pension within a period of four months from the date of communication of this order in accordance with the directions indicated above. This application is accordingly allowed with cost.
