Binod Kumar Yadav v. The State Of Bihar & Ors.

The State Of Bihar & Ors ====================================================== Appearance : For the Petitioner/s : Mr. Vishwanath Prasad Sinha, Sr.Advocate Mr. Shree Kant Pandey, Advocate For the Respondent/s : Mr. Rajiv Roy GP5 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 3 06-03-2013 Heard counsel for the petitioner and the State. The petitioner had initially moved against the order dated

28.2.2012 of the District Programme Officer (Establishment) whereby he was show caused as to why he be not retired from the service w.e.f.31.1.2012 as he has put in more than 40 years of service. The petitioner has filed I.A. No.2599 of 2012 challenging the memo no.572 dated 6.3.2012 whereby District Programme officer (Establishment) has retired the petitioner from service w.e.f. January, 2012 and consequently posted one Santosh Jha as Drawing and Disbursing Officer of the school. The fact of the case in short is as follows; the petitioner was appointed in a private school in the year 1969. The school was taken over as one of elementary schools w.e.f. 1.12.1976. The date of birth of the petitioner is 4.1.1985. The retirement age of Assistant Teacher is 60 years. The petitioner as such would complete 60 years on Patna High Court CWJC No.5424 of 2012 (3) dt.06-03-2013 2

3.1.2015. The petitioner has put in by now 36 years of service from the date the school was taken over. The respondents calculated the length of service of the petitioner from the year 1969. 7 years of service, which petitioner had put in private institution was also calculated by the respondents while computing the number of years of service. The respondents submit that the petitioner had put in more than 42 years of service and in view of government policy and decision of this Court dated 27.4.1994 passed in C.W.J.C. No.7737 of 1991, any length of service beyond 40 years is to be deducted from the date of superannuation. Paragraphs 6 and 8 of the order is quoted herein below: “6. In one of the writ applications, namely, C.W.J.C. No. 7549 of 1993 a counter affidavit has been filed wherein it has been stated the petitioner thereof was found to be below 18 years of age as on 1.1.1971. A counter affidavit has been filed by the State in other cases”. “8. We may, however, observe that in these cases where the petitioner(s)is/are found to be minor(s) on the date of appointment/nationalization of the school the said period superannuation”. subtracted I find that in the year 1998, the government took a policy decision that as per Rule 73 of Bihar Service Code, superannuation date would be one on which the government Patna High Court CWJC No.5424 of 2012 (3) dt.06-03-2013 3 employee completes 58 years as it existed then. It is not in dispute that at present the superannuation age is at 60 years for the Assistant Teacher. In my view, the government policy and the order of the Division Bench would not cover the period which an employee has put in a private institution prior to its „take over‟. The petitioner had entered in service in the year 1969 when the Institution was a private institution. The Institution was taken over w.e.f. 1976. Admittedly the government did not provide any monetary aid or any other facility to the private institution prior to its „take over‟ in the year 1976. As such, the period of service of the petitioner would be counted w.e.f.1976, the date from which the school was taken over. The petitioner would complete 40 years in the year 2016 and would reach superannuation age on 30.1.2015. As such, the impugned order retiring the petitioner is set aside with the direction to the respondents to reinstate him in service. In the result, this writ application is allowed to the extent indicated above. KHAN/- (Samarendra Pratap Singh, J)