In Urmila Kumari vs. The State of Bihar through the Chief Secretary, Government of Bihar, Patna & Ors. (2025), Justice Nani Tagia of Patna High Court delivered the 5-page long judgement dated September 4, 2025 concluded: "Consequent upon setting aside of the order 12.07.2021 passed by Regional Deputy Director Education, Patna Division, Patna, the petitioner would be deemed to have retired from service and his pension be restored with immediate effect. The petitioner shall also be paid arrears of pension from the period when he has been denied such pension by reason of the impugned order in the writ petition, within a period of six months from today, i.e. 04.09.2025. 13. In the event the arrears of pension of the petitioner is not paid within the period prescribed hereinabove, the same shall carry an interest of 5%. 14. The writ petition is disposed off with the above directions."
The petitioner's advocate included Senior Advocate Yogesh Chandra Verma, Dr. Gopal Krishna and Anuj Kumar. The counsels for the respondents were: Jitendra Kr. Roy, SC 13 and Hitesh Suman, AC to SC-13. Justice Tagia drew on the decision of High Court's Division Bench in Geeta Kumari vs. The State of Bihar & Ors. (2024) delivered on October 29, 2024
The judgement recalled that several teachers were terminated from service on the ground that there initial appointments were irregular, which termination orders were put to challenge by filing various writ petitions before this Court including the petitioner whose writ petition No. was CWJC No. 19550 of 2016. All the writ petition filed were disposed off by an order dated 21.02.2017 whereby the termination orders of the teachers including the petitioner was set aside with a liberty to the State authorities to proceed afresh in accordance with law and pass appropriate orders after affording an opportunity of hearing. It was thereafter that a departmental proceeding was initiated against the petitioner, who was working as Assistant Craft Teacher in the State Girls High School, on April 11, 2017 alleging that at the time of appointment of the petitioner as Assistant Craft Teacher in the year 1989, the petitioner was over aged and accordingly the petitioner’s appointment as Assistant Craft Teacher was irregular. As the petitioner retired from service on January 31, 2018, the departmental proceeding initiated on April 11, 2017 was continued under Rule 43(b) of the Bihar Pension Rules, 1950 vide Memo No. 29 dated January 5, 2019. On conclusion of the departmental proceedings continued under Rule 43(b) of the Bihar Pension Rules, 1950 the impugned order dated July 12, 2021 was passed by the Regional Deputy Director Education, Patna Division, Patna whereby petitioner’s 100% pension, gratuity and encashment of earned leave was withheld.
The petitioner challenged the impugned order dated July 12, 2021 issued by the Regional Deputy Director Education, Patna Division, Patna withholding the petitioner’s pension, gratuity and encashment of earned leave. She contended that under Rule 43(b) of the Bihar Pension Rules, 1950 the proceeding can be continued only with respect to an event which took place not more than four years before the institution of such proceeding. The petitioner had contended that since the proceeding initiated against the petitioner was for the event which took place beyond four years, the proceeding could not have been continued under Rule 43(b) of the Bihar Pension Rules, 1950.
The senior counsel for the petitioner submitted that this issue was settled in an LPA preferred by a similarly situated person called Geeta Kumari in LPA No. 866 of 2024, wherein a departmental proceeding instituted and continued under Rule 43(b) of the Bihar Pension Rules, 1950 for the event that had taken place beyond four years of such institution of such proceedings had been held to be illegal and the order passed for withholding 100% pension, gratuity and earned leave was set aside.
In Geeta Kumari vs. The State of Bihar & Ors. (2024), High Court's Division Bench of Chief Justice K. Vinod Chandran, and Justice Partha Sarthy had delivered a 11-page long judgement dated October 29, 2024 recalling that the appeal was similar to that disposed of in LPA No. 1219 of 2023 Kamini Kumari & Ors. vs. The State of Bihar & Anr. (2024), wherein the Division Bench of Chief Justice Chandran and Justice Harish Kumar had delivered a 39-page long judgement dated February 27, 2024. It set aside the 87-page long judgement dated September 26, 2023 by Justice Rajeev Ranjan Prasad, the Single Judge The writ petitions from which the appeals arise, were cases in which the challenge was to the domestic enquiry proceedings initiated against teachers appointed long back, on allegations of their appointments having been made irregularly. The enquiries concluded with termination, some of which orders were once successfully challenged before the High Court and again the very same consequence was visited on the teachers who were still in service; after a de novo proceedings as permitted by the High Court. As against those who had retired; 100% of their pensions were withheld on the conclusion of enquiry proceedings. The domestic enquiry proceedings were initiated on the ground that the teachers who were the petitioners and the appellants, were appointed irregularly between 1980 to 1990.
In the earlier batch of writ petitions, it was noticed that in the year 1998 by reason of an order dated December 18, 1998 passed in Brajesh Kumar Sinha & Ors vs. the State of Bihar & Anr, CWJC No. 9847 of 1998 there was a direction to the Central Bureau of Investigation (CBI) to carry out investigation into the alleged irregular appointments. The CBI submitted its report on November 9, 2004 before the Chief Secretary, State of Bihar; but no FIR was registered or any criminal proceedings were initiated. The Government slept over the matter despite receipt of the CBI report. In the year 2016, another PIL was filed numbered as CWJC No. 10002 of 2016 Kaushal Kumar vs. the State of Bihar & Ors. in which the State was called upon to apprise this Court as to what transpired after the CBI enquiry report was filed. This led to a spate of domestic enquiry proceedings which were carried out in total violation of the principles of natural justice and also absolute disregard of the principles governing domestic enquiries; as enjoined upon in the Bihar (Classification Control and Appeal) Rules as also the Bihar Pension Rules.
A number of writ petitions were filed and a group of them in Shanti Kumari vs. State of Bihar (CWJC No. 17904 of 2016) were disposed of on January 17, 2017 finding that the petitioners, therein, who were teachers were deprived of a reasonable opportunity to canvass their respective cases, produce relevant documents and also the binding authorities relating to domestic enquiries. The Writ Court set aside the domestic enquiry proceedings and the termination orders passed, but left liberty to the State to proceed de novo with the enquiry proceedings.
Notably, it is based on such liberty reserved that the proceedings were taken against a number of teachers, some of whom had retired by the time the proceedings were initiated. Others who were reinstated in service by reason of the earlier writ proceedings having set aside the termination orders, were also proceeded with. Some of the writ petitions were filed against the proceedings initiated, others against the termination orders and many against the withholding of pension after retirement; which withholding was also of 100 per cent of applicable pension.
The High Court recalled that in Kamini Kumari case, it found that the proceedings against retired employees were against Rule-43(b) and Rule-139 of the Bihar Pension Rules. Reliance was also placed on the decision of the Supreme Court in State of Bihar vs. Md. Idrish Ansari; 1995 Supp 3 SCC 6.
Following the declaration in Md. Idrish Ansari case, it was held that the right of withholding of pension or
any part of it permanently or for a specified period by virtue of Sub clause-(i) and (ii) of Clause-(a) of the proviso to Rule 43(b) of the Bihar Pension Rules had to necessarily satisfy two requirements. One, that it can be instituted only with the sanction of the State Government and second, it can only be with respect to an event which took place not more than four years before the institution of such proceedings. All the proceedings which were taken up against the retired employees were with respect to the irregular appointments made between 1980 to 1990 far beyond the four-year period provided. There was also no sanction obtained from the State Government in any of the cases.
The Court's judgement reads: "10. Further, it was noticed that even in the enquiry carried out, the CBI report was not produced and it was not marked through the officer who prepared it; which alone can be valid proof of the document, even in a departmental proceeding. Mere, tabulation of the irregularity alleged against each teacher was produced but not proved in the enquiry through a witness. It was also held so, in the matter of the CBI report and the proceedings taken pursuant to it in paragraph no. 42, extracted hereinbelow: -
“42. At the risk of repetition, it has to be stated that the appointments made in the year 1981, 1988 and 1989 were subjected to a CBI inquiry, the report of which was filed in the year 2004. Apparently no FIR was lodged and the reports submitted remained with the State Government, without any further action. It was long after, in the year 2016 that a Public Interest Litigation motivated the State Government into taking action. The order in the PIL only directed the State Government to take proceedings in accordance with law. We have found that the State Government had flouted all principles of fairness in disciplinary inquiry and also violated the specific rules of procedure as brought out under Article 309 of the Constitution of India.”
In Roop Singh Negi vs. Punjab National Bank; (2009) 2 SCC 570, it was was specifically reiterated that departmental proceeding is a quasi-judicial proceeding, the enquiry officer perform in a quasi-judicial function and the charges levelled against the delinquent requiring to be proved. The enquiry officer, it was held had a duty to arrive at a finding based on the materials brought on record by the parties. A mere report filed by the investigating officer cannot be treated as evidence in the disciplinary proceeding, especially when, no witness was examined to prove the documents, was the authoritative pronouncement.
The High Court observed:"13. We additionally observe that the allegations raised in the Enquiry Report of the CBI were that, an advertisement was not issued, candidates were not sourced from the Employment Exchange, reservation roster was not followed, sanction of the Competent authority was not obtained and there was no interview; in the appointment of the teachers who were proceeded with. These are allegations against the government officers who appointed the teachers and not necessarily a misconduct committed by the newly appointed teachers. Indisputably all the teachers who had service had an unblemished record and there was nothing revealed in their service regarding their incapacity to discharge their duties or disentitlement to be so appointed....19. The facts are identical and the enquiry conducted against the appellant suffers from the same infirmities as pointed out in the decision of this Court in Kamini Kumari (supra) which was against the very same common judgment, impugned in this case. The appeal is allowed setting aside the impugned judgment dated 26.09.2023."
The State respondents have contested the case by filing a counter affidavit, wherein the factual aspect of the case were disputed but referred to a decision rendered in CWJC No. 14172 of 2021 in which writ petition the challenge made to such an order passed by the respondent authorities withholding the pension, gratuity and encashment of earned leave, pursuant to conclusion of a departmental proceeding initiated and continued under Rule 43(b) of the Bihar Pension Rules, 1950 have been dismissed.
Notably, the Government Advocate did not dispute that the said decision rendered by the Single Judge in CWJC No. 14172 of 2021 was put to challenge in the LPA No. 866 of 2024, which LPA was allowed vide judgment dated October 29, 2024 and thereby set aside the orders passed by the respondent authorities withholding pension, gratuity and encashment of earned leave pursuant to conclusion of a departmental proceeding under Rule 43(b) of the Bihar Pension Rules, 1950 for an event which took place beyond four years from the institution of such a departmental proceeding. The Government Advocate admitted that the issue raised in the writ petition for determination was squarely covered by the judgment rendered in the LPA No. 866 of 2024.
Justice Tagia observed: "10. In that view of the matter as the issue raised in this writ petition for determination has been stated to be squarely covered by the judgment rendered in the LPA No. 866 of 2024, this writ petition is also allowed by setting aside the order dated 12.07.2021 passed by Regional Deputy Director Education, Patna Division, Patna (Annexure-13 to the writ petition). 11. The writ petition accordingly stands allowed."
In the Kamini Kumari's case, the High Court had observed: "The appellant shall also be entitled to be paid Rs. 5000/- as litigation costs."
The termination order dated July 12, 2021 by Deputy Director, Regional Education Department, Patna Division, Patna relating to alleged misconduct of Urmila Devi, the petitioner was based on a blatant act of fraudulent misrepresentation regarding the petitioner’s selection pursuant to the advertisement dated March 24, 1988 published in Aaj newspaper. The letter letter terminating the services of the petitioner makes a unpardonable and indefensible claim that there was no such advertisement. The advertisement was annexed with the petition. The Deputy Director, Regional Education Department, Patna Division, Patna had issued an office order dated July 12, 2021 in Memo No. 824 communicated that the departmental inquiry against the petitioner stands terminated and ordered cancellation of encashment of pension, gratuity and earned leave because of allegations against the petitioner under Rule 43 (b) and Rule 139 of Bihar Pension Rules. He failed to show which specific provision under Rule 43 (b) and Rule 139 of Bihar Pension Rules has been invoked for this action, In fact the provision under Rule 43 (b) make the order of termination of the services of the petition indefensible.
The Rule 43(b) reserves the right of the State Government to withhold or withdraw the pension or any part of it, whether permanently or for a specified period along with right of ordering the recovery from a pension, of any pecuniary loss caused to the Government. When the pensioner is found to be guilty of grave misconduct or caused pecuniary loss to the Government by misconduct or negligence, the proviso to the rule kicks in. The proviso prescribes that if proceedings are not instituted when the government servant is on duty, then it shall not be instituted without the sanction of the State Government. It is also provided that such inquiry shall only be in respect of an event which took place not more than four years before the institution of such proceedings. Both these mandatory requirements, one of sanction, and the other, of an absolution for any incident prior to four years prior to retirement, have not been complied with.
In total violation of the principles of natural justice and also in absolute disregard of the principles governing departmental inquiries; enjoined upon in the Bihar (Classification Control and Appeal) Rules as also the Bihar Pension Rules, after retirement the petitioner, Urmila Kumari, a retired assistant teacher is yet to get her pension although in a catena of decisions of the Supreme Court and Patna High Court, it has been held that pensions cannot be withheld even when enquiry departmental proceedings are pending after retirement. She was appointed as Assistant teacher on February 13, 1989 subsequent to her application, interview by selection committee and selection pursuant to the advertisement dated March 24, 1988 published in Aaj newspaper. The departmental inquiry commenced some 29 years later, few months ahead of her retirement.
The office order, Memo No. 824 dated July 12, 2021 issued by Deputy Director, Regional Education Department, Patna Division, Patna was without even an iota of legal basis. The order was legally invalid, malafide, unjust and arbitrary. The order was error-ridden without perusal of relevant documents and the chain of orders issued prior to the issuance of July 12, 2021 order. It is noteworthy that the office order, Memo No. 1023 dated August 24, 2016 issued by Deputy Director, Regional Education Department, Patna Division, Patna terminating 30 teachers including Urmila Kumari, the petitioner was quashed and the 30 teachers including her were reinstated with consequential benefits by the High Court in Shanti Kumari vs. The State of Bihar CWJC 17904 of 2016 by its judgement dated August 24, 2016. By office order, Memo No. 151 dated February 16, 2017 issued by Deputy Director, Regional Education Department, Patna Division, Patna, Urmila Kumari was reinstated along with others.
Few months ahead of the retirement of the petitioner from the service on January 31, 2018 after serving as assistant teacher for 29 years, office order, Memo No. 344 dated April 11, 2017 issued by Deputy Director, Regional Education Department, Patna Division, Patna informed Urmila Kumari that a fresh enquiry is being instituted to examine the irregularity of her appointment. In the aftermath of her retirement, prior to the conclusion of the “fresh inquiry”, Deputy Director, Regional Education Department, Patna Division, Patna issued a letter with Memo No. 712 dated June 12, 2018 directing her to encash her earned leave and to encash the gratuity amount. By order dated July 20, 2018, a direction was issued for payment of her pension. The entire retiral benefit was paid to her. She started getting her pension as well.
The Deputy Director, Regional Education Department, Patna Division, Patna had issued a letter with Memo No. 29 dated January 5, 2019 directing a departmental enquiry against her. The District Programme Officer (Establishment), Patna-cum-Inquiry Officer issued Letter No, 1803 dated June 20, 2020 which was served upon the Deputy Director, Regional Education Department, Patna Division, Patna containing the enquiry report prepared in pursuance of the reply to show-cause submitted by Mrs. Urmila Kumari, submitted the findings of the Enquiry Officer. The report revealed that the matter related to the office of the District Education Officer which had appointed the petitioner but it did not have any document. Deputy Director, Regional Education Department, Patna Division, Patna issued a show cause notice to the petitioner vide letter no. 984 dated July 31, 2020. The petitioner submitted her reply on August 24, 2020. Without going into merit of the petitioner’s reply, Deputy Director, Regional Education Department, Patna Division, Patna issued an office order dated July 12, 2021 in Memo No. 824 communicated that the departmental inquiry against the petitioner stands terminated. But ordered cancellation of encashment of pension, gratuity and earned leave because of allegations against the petitioner under Rule 43 (b) and Rule 139 of Bihar Pension Rules.
The judgement of the High Court in LPA No. 1219 of 2023 (Kamini Kumari vs. The State of Bihar) had found that the proceedings against retired employees were against Rule-43 (b) and Rule-139 of the Bihar Pension Rules. Reliance was also placed on the decision of the Supreme Court in State of Bihar Vs Md. Idrish Ansari; 1995 Supp 3 SCC 6. The 29-page long judgement dated April 15, 2024 in Neelam Kumari vs. The State of Bihar rough Principal Secretary, Education Department, Patna Letters Patent Appeal No.1260 of 2023 by the Division Bench of Chief Justice K. Vinod Chandran and Justice Harish Kumar of Hon’ble Patna High Court set aside the judgment dated September 26, 2023 order of withholding pension.
A bare perusal of Rule 43(b) made it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. The right to receive pension was recognised as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330].
The pension granted to a government teacher on her retirement is 'property' within the meaning of Article 31(1) of the Constitution of India. The character of pension as 'property' cannot possibly undergo such mutation at the whim of a particular person or authority. The pension and gratuity are rights accrued by her for her service and cannot be withheld arbitrarily. The basic object behind crediting the benefit of pension, gratuity and other retiral benefits is that after retirement when an employee is of an old age, may not face any financial problem for her livelihood or necessities.
There was a compelling legal logic to review/rescind/cancel the termination order to pave the way for legitimate release of her pension in order to protect the fundamental right to life and livelihood of a retired lady teacher, the petitioner.
Post retirement pensions cannot be withheld because of pending enquiry proceedings
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