ORDER
Vikramaditya Prasad, J.
1. Heard both sides.
2. In this case the petitioner prays for issuance of a writ of mandamus directing the respondents to make payment of the gratuity amount, provident fund amount, leave, encashment and any other amounts payable to the father of the petitioner, who died in harness on 6.9.1992, when he was working as forester in the State Trading Division Chatra South, Chatra, erstwhile Bihar State. Admittedly, on that date State of Jharkhand was not in existence.
3. The question is who will pay all the dues/retrial dues to an employee who died in harness/retired prior to the creation of State of Jharkhand.
4. Section 53 of the Bihar Reorganization Act reads with schedule 8 of the said Act require consideration for answering this question.
Section 53 of the Act reads as follows :
'The liability of the existing State of Bihar in respect of pension and other retirement benefit shall pass to, or be apportioned between, the successor States of Bihar and Jharkhand in accordance with the provisions contained in the Eighth Schedule to this Act.'
Schedule 8 reads as follows :
'Apportionment of liability in Respect of Pensions and other Retirement benefits
1. Subject to the adjustment mentioned in paragraph 3 each of the successor State shall in respect of pension and other retirement benefits sanctioned before the appointed date, pay from their respective treasuries.
2. Subjects to the said adjustments, the liability in respect of pensions and other retirement benefits of officers serving in connection with the affairs of the existing State of Bihar. who retire or proceed on leave preparatory to retirement before the appointed day, but whose claims for pensions and other retirement benefits are outstanding immediately before that day, shall be the liability of the State of Bihar.
3. Subject to the said adjustments, sanctions of such pension and other retirement. Benefits by the competent authority may be given in those cases., in which their office falls in the territory of Jharkhand State.
4. There shall be computed, in respect of the period commencing on the Appointed day and ending on the 31st day of March of that financial year and in respect of each subsequent financial year, the total payments made in all the Successor States in respect of pensions and other retirement benefits referred to in paragraphs 1 and 2. That total representing the liability of the existing State of Bihar in respect of pensions and other retirement benefits shall be appointed between the successor States in the ratio of number of employees of each successor State and any successor State paying more than its due share shall be reimbursed the excess amount by the successor State or State paying less.
5. The liability of the existing State of Bihar in respect of pensions and other retirement benefits granted before the appointed day and drawn in any area outside the territories of the existing State shall be the liability of the State of Bihar paying subject to adjustments to be made in accordance with paragraph 3as if such pensions and other retirement benefits had been drawn in any treasury in the State of Bihar under paragraph 1.
6. The liability in respect of the pensions and other retirement benefits of any officer serving immediately before the appointed day in connection with the affairs of the existing State of Bihar and retiring on or after that day, shall be that of the successor State granting him the pension and other retirement benefits, but the portion of the pension and other retirement benefits attributable to the service of any such officer before the appointed day in connection with the affairs of the existing State of Bihar shall be allocated between the successor States in the population ratio and the Government granting the pension and other retirement benefits shall be entitled to receive from each of the other successor States its share of this liability.
7. Any reference in this Schedule to a pension and other retirement benefits shall be construed as including a reference to the commuted value of the pension and other retirement benefits.
5. Neither Section 53 nor the Schedule 8 says that till the liabilities is apportioned the payment of retrial dues should be withheld. Even in L.P.A. No. 355 of 2001. Court has considered that aspect and observed that 'the pendency of the ad-judicatory process as mentioned hereinabove is likely to take some time. In the meanwhile, we are of the opinion, that these writ petitioners who are the retired employees of the Board, should not be made to suffer on account of non-payment of their retrial; dues. If this is the situation and which is also supported from the facts as stated above, then I do not understand why the order passed in the L.P.A. should be restricted only to the petitioner of that writs I do not find any rational for not giving same benefits to the retired employee who are similarly situated. Effect of schedule 8 of the Reorganization Act is also not to withhold the payment of retrial dues till the apportionment of liabilities is done between the two Successor States and on same analogy or the two-successor electricity Board. Clause (2) of the Schedule 8 reads as follows :--
2. Subjects to the said adjustments, the liability in respect of pensions and other retirement benefits of officers serving in connection with the affairs of the existing State of Bihar, who retire or proceed on leave preparatory to retirement before the appointed day, but whose claims for pensions and other retirement benefits are outstanding immediately before that day, shall be the liability of the State of Bihar.
6. The Scheme provided under the clause in enabling one. It simply means that the liability of pension between two successor States shall be computed on appointed day and ending on the 31st day of March and in the each subsequent financial years. Thus the computation with regard to total payment in respect of retirement and pension is continuous process which is to be apportioned of that between the successor States. The same analogy in my opinion, in absence of any specific proved with regard to successor Board should apply in their respective cases too.
7. Clause 1 and 2 of the Schedule 8 lay down method Of payment. Undisputedly the petitioner retired prior to creation of Jharkhand State or the J.S.E.B. These two States (for B.S.E.B. is also a State under Article 12 of the Constitution), are liable to pay the retrial dues including pension. There may be a practical difficulty in payment of these dues to the petitioner who retired from an area which now is within the territorial jurisdiction of Jharkhand/ J.S.E.B. So a question may arise as to who will pay those dues. Under the Bihar Pension Rules, the pension Form 4 enables a pensioner to draw the pension from a treasury of his choice. So if a pensioner who retired from a place now falling within the territorial jurisdiction of Jharkhand, if he desires to take pension from a treasury within the State his right cannot be defeated. But still the question is who shallpay/credit the amount to concerned treasury in cases not covered by Clause 2 of the 8th Schedule, ordinarily it is the State of Bihar. The competent authority which used to pay the salary to the petitioner and which was competent to sanction pension to the petitioner, even when it was the State of Bihar is directed to pay, sanction the dues/retirement dues including pension to the petitioner and thereafter sent report of payment so made to be adjusted under Clause 3 of the 8th Schedule. The payment must be made within a period of one month by that competent authority from the date of receipt/production of a copy of this order with statutory interest thereon.
8. The writ is disposed of at the Stageof admission itself.