1. Initially this Letters Patent Appeal was filed against the order dated 15.9.2006 passed in Civil Review No. 38 of 2005 arising out of order dated 1.2.2005 passed in CWJC No. 12483 of 2003 by the learned Single Judge but at the time of submission, we also, taking the larger interest into consideration, permitted the learned Counsel to challenge the impugned judgment in the connected writ petition (CWJC No. 12483 of 2003), Therefore, we deal with the submissions raised before us as review petition was dismissed.
2. Following facts may be articulated which have emerged from the record. The appellant original writ petitioner came to be superannuated on 30.9.1997 from service of the State Government in Class III as clerk in Fishery Department. He filed a petition complaining that retiral dues were paid late and, therefore, he desired direction for grant of interest on the delayed payment.
3. Learned Single Judge, upon consideration of the facts and circumstances, reached to the conclusion that there is no substance in the petition. Therefore, dismissed the writ petition on merits, as well as review application. subsequently preferred.
4. The prayer has been that the appellant original writ petitioner should be paid interest upon delaved payment of retiral dues for a spell of 3 and 1/2 years from the date of his superannuation. Ordinarily, in such case, we are sympathetic to the grievances of the pensioners. However, following facts are revealing which would not permit us to take a sympathetic or liberal view at all as there was no omission or commission or mistake un the part of the respondents authorities.
5. Contention has been advanced that in view of the circular of the Government bearing Memo No. Pen. 1032/67-8739F issued on 13.7.1996 an instruction came to be issued that the process for grant of pension has to be initiated by the Head of the Department and no formal application is required to be Made by the retirse. In support such contention reliance has also been placed upon a decision of the Single Bench of this Court in the case of
6. On the other hand, it has been submitted by the other side that formal application is required to be submitted for grant of pension but no such application was received earlier for processing pension papers and fixity of pension and other retiral dues including leave encashment benefit and when such an application was made, it was dealt with and decided within two months of the receipt thereof. This submission, raised on behalf of the respondent, appears to be quite weighty, in the light of the facts of the present case.
7. Let there be a few chronology of events and dates as below:
(i) The appellant original writ petitioner retired on 30.9.1997.
(ii) He applied with requisite form and other material including photographs of the couple for processing of pension papers on 15.2.2001.
(iii) Payment came to be effected after examining the papers on 11.4.2001 i.e. within two months making of the application.
8. The reliance on the circular of the Government dated 13.7.1967 as noticed above is misplaced for the reason that such circular is running diametrically opposite to the statutory rule provision relating to Grant of pension.
9. It will be interesting at this juncture to refer to the provisions of the Bihar Pension Rules 1950 (in short "rules"). These rules are statutory rules about which there is no dispute. It aims at liberalization of pension rules which came into force on 20.1.1950.
10. Chapter X of the Rules provides deals with application for and grant of pension. We are concerned with relevant Rule 189. It prescribes that every Government servant shall submit a formal application for pension and such an employee should submit his formal application for the claim of pension for his own interest to the authorities specified in Rules 193 or 196, as the case may be 18 months (which has been subsequently modified to 12 months) in advance of the date of his actual or anticipated retirement.
11. The underlying design of the statutory rule 189 aims at to obviate avoidable delay in settlement or the claims for pension and to ensure that the Government servant may not retire under misapprehension that ha has earned pension which is subsequently found to be inadmissible. Therefore. it is necessary for the Government to apply in advance the claim of pension with material particulars. It cannot be said, therefore. that it was not necessary on the part of the appellant to apply for claim of pension. Such submission has to be rejected. There is rationale and logic behind this. A concerned employee would make an application for pension with material particulars and datas, as well as requisite information alone with photographs of the couple and then it becomes necessary to process such papers and finalise the claim of pension, expeditious, on the part of the Government, failing which the interest may be attracted on delaved payment of such retiral dues. It would be also interesting to refer to rule provision 196 which provides that non-gazetted Government servant shall submit a formal application ex pension to the Head of the Office. A form is prescribed for making such an application.
12. In the present case such process was completed and the application was filed by the appellant-writ petitioner on 15.2.2001 and within less than two months'' time the amount came to be paid. Where is the question for consideration of granting interest on delaved payment when there is no delay or omission or any mistake on the part of the authority of the respondent State.
13. The interest, in such circumstances, cannot be awarded.
14. The decision rendered by the Single Bench of this Court, in the case of Bhupendra Nath Bariar v. The State of Bihar and Ors. (supra) is based on circular contained in memo No. Pen-1032/67-8739F dated 13.7.1957. We have carefully pone through and examined the said decision. It is held that the decision that the Government servant is not required to submit formal application for sanction of his pension is not a correct. In our opinion, probably, the rule provisions contained in rules 189 and 196 of the Bihar Pension Rules as well as statutory prescription of submitting form IV for claiming pension, perhaps, were not brought to the notice of the learned Single Judge in that case. It is well settled proposition of law relating to the interpretation of statute that there cannot be any circular or instruction contrary to the statutory provision. Apart from that the instruction in the said circular is an instruction for the use of the offices to streamline and liberalise the pension scheme. It does not necessarily mean being an instruction, to be contrary to the provisions of Rules 189 and 196 of the Rules 5 of Pension Rules. This decision in our view, therefore, is erroneous and by this judgment it will stand overruled.
15. After having taken into consideration the relevant facts and circumstances and in view of the foregoing discussions, this Court has no option but to hold that the appeal sans substance and deserves to be dismissed on merit.
16. Accordingly, we, upon joint request, having heard both the parties at this stage itself, dismiss this Letters Patent Appeal. No costs.
