A pension is a right under constitutional law, and its claim can be waived if alternative benefits are accepted, as evidenced in this case by the employee's adoption of the EPF Scheme.

JUDGMENT :

Sujit Narayan Prasad, J.

1. Learned counsel for the appellant-State of Bihar, at the outset, has submitted that one interlocutory application being I.A. No. 3134 of 2016 had been filed on 12.05.2016 for accepting the supplementary affidavit dated 12.05.2016 to rely upon the fact that the deceased employee, original petitioner, had shifted to EPF Scheme.

2. It has also been submitted that one supplementary affidavit had also been filed on 08.01.2015 for relying upon the service book of the deceased employee since the same was not brought to the notice of the learned writ court.

3. Learned counsel for the appellant-State of Bihar has submitted that the service book since is not a disputed document and the same is having bearing upon the issue, hence, the same may be taken into consideration for proper consideration of the issue.

4. No rebuttal reply has been filed to the said interlocutory application as also to the supplementary affidavit.

5. We have heard the learned counsel for the parties and after going through the same, has found that the service book has been brought on record by filing supplementary affidavit dated 08.01.2015 for the purpose of consideration of the lis. Service book having not a disputed document and having bearing upon the issue since the date of entry in the service under the Food, Supply and Commerce Department, Government of Bihar or posting of the deceased employee under the Bihar State Food and Civil Supplies Corporation and getting benefit of MACP or other allied service benefits including the terminal benefits found mentioned in the service book.

6. This Court, applying the principle as provided under Order XLI Rule 27 of CPC is of the view that the said document is just and proper to be considered.

7. We are conscious that the provision of CIVIL PROCEDURE CODE is not applicable herein but the principle enshrined in the CPC is applicable. Therefore, the supplementary affidavit dated 08.01.2015 which has been filed for relying upon the service book of the deceased employee, since the same was not brought to the notice of the learned writ court, is hereby accepted for its consideration.

8. Further the interlocutory application being I.A. No. 3134 of 2016 which had been filed on 12.05.2016 for accepting the supplementary affidavit dated 12.05.2016 to rely upon the fact that the deceased employee, original petitioner, had shifted to EPF Scheme is being allowed and accordingly, disposed of.

Prayer:

9. The instant appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 25.10.2013 passed by learned Single Judge of this Court in W.P.(S) No. 5874 of 2007, whereby and whereunder, the learned Single Judge while allowing the writ petition has directed the respondent-State of Bihar to grant pension to the writ petitioner along with simple interest @ 6% w.e.f. 01.08.1991.

10. The brief facts of the case as per the pleading made in the writ petition requires to be enumerated, which is as under:

The original writ petitioner-deceased employee was initially appointed as Chowkidar (Class-IV) in Food Supply and Commerce Department under the then Bihar State Government on 02.05.1967, thereafter he was sent on deputation in the State Food and Civil Supplies Corporation on 01.10.1973 and was posted in S.F.C. Depot, Dumka from where he retired on 31.07.1991 on attaining the age of superannuation.

It is the case of the original writ petitioner that after retirement, he had