K. Vinod Chandran, CJ.—The challenge raised in the batch of writ petitions; by the teaching and non-teaching staff of the Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna ('L.N Mishra Institute' for short), is to the sustainability of the amendment to the rules regulating service conditions brought out by notification dated 19.12.2017, produced as Annexure-6 in CWJC No. 644 of 2023. By the said notification the benefit of pension as per the Old Pension Scheme, as applicable to the Government employees, which was made applicable to the teaching and non-teaching staff of the L.N Mishra Institute by the Lalit Narayan Mishra Institute of Economic Development and Social Change Institute Service Condition Rules, 2017 (Rules of 2017, for short) was amended and modified to one under the Provident Fund Scheme. The petitioners, all of whom are/were the employees of the L.N Mishra Institute prior to 01.09.2005, claim that the notification at Annexure-6 cannot take away their vested rights to pension on superannuation, brought in by the Rules of 2017.

2. Mr. Mrigank Mauli, learned Senior Counsel appeared for the petitioners in CWJC No. 644 of 2023, the first of whom has already retired in March-2024 and the second petitioner is still in service. It is pointed out that the Institute was taken over by the State under the Bihar Private Educational Institutions (Taking Over) Act, 1987 ('Act of 1987' for short) produced as Annexure-1 in CWJC No. 644 of 2023. Even before the said enactment, there was an Ordinance by which the take-over was effected which culminated in the Act of 1987. As per Section 3, the L.N Mishra Institute, which alone was scheduled in the Act, stood vested absolutely in the State Government. Section 6 provided for the manner of determination of the terms of service of the teaching and other employees of the L.N Mishra Institute. The statutory requirement was the appointment of a Committee of Experts to examine the credentials of each member of the teaching and non-teaching staff and based on the Committee's recommendation, to decide as to whether the individuals should be absorbed into the service of the L.N Mishra Institute or not. As per the statutory mandate, Committees were formed and the writ petitioners were regularized and absorbed into the service of the Government as per Annexure-12 produced in the supplementary affidavit filed. The petitioners herein are at Serial No. 3 and 5 having been regularized respectively from their date of appointment i.e.18.04.1986 and 17.08.1987. The recommendation which led to their regularization is produced at Annexure-3 to the writ petition which is a report of 15.10.2007.

3. While the petitioners were continuing so, the Executive Government made the Rules of 2017 as empowered under Section-11(1) of the Act of 1987. The translation of Annexure-4 i.e. the Rules of 2017 is produced along with the supplementary affidavit. Rule-9 provided for regular employees appointed and working prior to 01.09.2005 to be governed by the Old Pension Scheme and by the Bihar General Provident Fund Scheme while those appointed after 01.09.2005 would be governed by the New Pension Rules determined by the State Government. A few days later, by Annexure-5, Rule 9 was kept in abeyance and subsequently by Annexure-6 in the year 2017 itself, it was amended taking away the benefit of pension conferred on the employees of the L.N. Mishra Institute, as was available to the Government employees.

4. It is argued that Annexure-5 was a letter issued by the Secretary and not one emanating from the Government or issued under the authority of the Governor. Employee's State Insurance Corporation vs. Union of India and Others reported in (2022) 11 SCC 392 was relied on to argue that when there is a conflict between the executive instruction or an office memorandum and statutory regulations, the latter would prevail. Annexure-6 is also asserted to be not notified in the Gazette which makes the a