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Judgment
Heard learned counsel for the petitioner; State and
respondents no. 3 to 5.
The petitioner has claimed payment of post retiral
dues like Gratuity, Pension, Leave Encashment etc.
The basic issue involved is whether the petitioner,
who superannuated from the post of Clerk, from the office of
respondent no. 3 on 31.08.2010, is entitled to retiral benefits, for
which initially he represented before the respondent no. 4, but later
on has moved the Court in the present writ application when such
benefit was denied to him by a decision taken by the respondent no.
3 on 06.11.2015.
Learned counsel for the petitioner submitted that the
service conditions of persons employed under the respondent no. 3 is
governed by the decision of the respondent no. 3 under the Bihar and
Orissa Nurses Registration Act, 1935. It was submitted that in terms
of such power, earlier in the case of a similarly situated employee,
Bishambhar Thakur, upon his superannuation, the respondent no. 3
took a decision to grant him retiral benefits in terms of what was
payable by other Medical Councils to their employees. Learned
counsel submitted that the Homeopathic Medical Board and the
State Ayurvedic and Unani Medical Council have granted retiral
benefits at par with those payable and admissible to Government
employees. It was further submitted that once a decision has been
taken in the case of a similarly situated person, the benefit to the
petitioner cannot be denied. Learned counsel submitted that even the
financial liability is not much as there are only three or four
employees working under the respondent no. 3 and, thus, the post
retiral benefits ought to be paid to the petitioner.
Learned counsel for respondents no. 3 to 5 submitted
that learned counsel for the petitioner has rightly stated that the
power to decide with regard to the service condition including such
payment vests with the respondent no. 3 and till date, there is no
decision taken to grant such benefit to the petitioner and rather a
decision was taken not to pay the retiral dues, as claimed by the
petitioner, in the meeting held on 06.11.2015. Learned counsel
submitted that no payment was made to Bishambhar Thakur in terms
of the resolution taken by the respondent no. 3, due to which he had
moved the Court in C.W.J.C. No. 3800 of 1996, which came to be
dismissed by a Bench of this Court by order dated 08.03.2000. It
was, thus, submitted that the said decision in the case in Bishambhar
Thakur was never implemented by the respondent no. 3 and such
decision has now become redundant in view of there being no
interference by the Court in the matter and rather the Court had
observed that Bishambhar Thakur was at liberty to agitate his
grievance before any other appropriate authority. It was submitted
that none of the employees of the respondent no. 3 are being given
these benefits and uniformity is being maintained and the petitioner
having joined the services being fully aware of the conditions
prevailing and the decisions of the respondent no. 3 and also the fact
that no post retiral benefits were being paid, cannot now claim, as a
matter of right, such payment.
Learned counsel for the State submitted that twice
earlier the petitioner had moved the Court for the same relief and the
writ petition came to be dismissed as withdrawn with liberty to
pursue the matter before the respondent no. 3. He draws the attention
of the Court to Annexures-8 and 10, which are copies of orders
passed in the two writ petitions i.e., C.W.J.C. No. 12026 of 2011
dated 05.08.2011 and C.W.J.C. No. 23522 of 2013 dated
07.12.2015. Learned counsel further submitted that thereafter the
respondent no. 3 has taken a decision on 06.11.2015 refusing such
payment.
Having considered the matter, the Court is unable to
interfere in the matter. Admittedly, the terms and conditions of
service of the petitioner are governed by the decisions of the
respondent no. 3. Since, consciously, a decision has been taken not
to grant post retiral benefits of Pension, Gratuity and Leave
Encashment, the Court cannot direct for such payment or for the
respondent no. 3 to take such decision in favour of the petitioner. As
far as the case of Bishambhar Thakur is concerned, the Court finds
that there cannot be any comparison, for the reason, that first of all it
was the decision specifically with regard to Bishambhar Thakur and
thereafter also the same was not implemented and challenge to the
same was rejected by the Court earlier and the same has attained
finality and the position today is that uniformly the respondent no. 3
is not extending any post retiral benefits to any of its employees. It
being totally in the domain of respondent no. 3 to take a decision,
the role of the Court in judicial review is limited to the decision
making process and not the merits of the decision. Once, the law is
clear that the respondent no. 3 has an absolute discretion in the
matter, the decision taken by it cannot be faulted on the parameters
of settled principles of law.
For the reasons aforesaid, the Court does not find
any merit in the writ petition and, accordingly, the same stands
dismissed.