Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14195 of 2008 ====================================================== 1. Baburam Singh son of Sri Ram Awtar Singh, resident of village Vaishakhi, P.S. Pachrukhi in the district of Siwan. 2. Swaminath Chaudhary son of Sri Sarowar Chaudhary, resident of village Papaur Tola Nawada, P.S. Pachrukhi in the district of Siwan. .... .... Petitioners 1. The State of Bihar, through the Secretary, Department of Home Versus (Police) Government of Bihar, Patna. 2. The Director General of Prosecution, Bihar, Department of Home (Police), Government of Bihar, Patna. 3. The Inspector General-cum-Additional Director of Prosecution, Department of Home (Police), Government of Bihar, Patna. 4. The Deputy Director, Legal, Prosecution Directorate, Department of Home (Police), Government of Bihar, Patna. 5. The District Magistrate, Gopalganj, District Gopalganj. 6. The District Magistrate, West Champaran at Bettiah. 7. The District Prosecution Officer, Gopalganj, District Gopalganj. 8. The District Prosecution Officer, West Champaran at Bettiah. .... .... Respondents ====================================================== For the Petitioners : Mr. T.B. Singh, Sr. Advocate with Mr. Manish Kumar, Advocate. For the Respondents : Mr. Sri Krishna Ranjan, AC to SC-15. ====================================================== P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 4 16-04-2013 Heard learned counsel for the petitioners and learned
Legal Reasoning
counsel for the respondents. 2. This writ petition has been filed by the petitioners challenging order dated 17.02.2001 (Annexure-8) issued by the Inspector General-cum-Additional Director, Prosecution, Bihar (respondent no.3) directing the period between 26.11.1999 and 06.02.2001 to be treated as break in service of the petitioners. The petitioners have also challenged order dated 05.02.2008 Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 2 (Annexure-11) issued by the Director (Prosecution) as well as order dated 03.09.2008 (Annexure-13) issued by the Directorate of Prosecution, Bihar affirming the initial order dated 17.02.2001. 3. It is not in dispute that in October, 1981 advertisement was issued by Deputy Development Commissioner, Siwan inviting applications for appointment of clerks in the district and in response the petitioners submitted their applications and finally after following due procedure the petitioners were appointed on the posts of clerk in Siwan Collectorate on 02.04.1983 and in due course of time they were confirmed in service by the District Establishment Committee of the Collectorate on 11.11.1994 with effect from back dates as mentioned in the said order. In the meantime they were granted First Time Bound Promotion on 07.12.1993 after completion of ten years of service. 4. It is also not in dispute that on 01.02.1999 (Annexure-3) the Director, Employment & Training directed the District Magistrate/Deputy Development Commissioner to relieve the clerks working under him under the Un-employment Token Allowance Scheme for being adjusted on the post of Clerk-cum-Typist in different offices under the Collectorate of Prosecution. 5. It is claimed by the respondents that pursuant to the Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 3 said order dated 01.02.1999 the petitioners were relieved on 26.11.1999, but according to the petitioners no such communication was ever made to the petitioners and they had absolutely no knowledge of the same. Hence these writ petitioners along with two others filed CWJC No.11766 of 1999 on 01.12.1999 challenging the said order of Director, Employment & Training, Bihar. In the said writ petition an interim order dated 21.12.1999 (Annexure-4) was passed by a bench of this court directing that until further order, the petitioners be not relieved, if not yet relieved in pursuance of order dated 1st February 1999. 6. Subsequently the aforesaid CWJC No.11766 of 1999 was finally heard by a bench of this court and the writ petition was dismissed vide order dated 31.01.2001 (Annexure-5) after coming to the conclusion that the appointment of petitioners was under a temporary scheme, discontinuation of which could in fact result in cessation of their employment and even their confirmation under the said scheme could be effective only during the continuation of the scheme and not beyond that. Hence it was observed that after the scheme lapsed the services of petitioners could be terminated, but the government took a lenient view and decided to absorb/adjust them elsewhere taking into Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 4 consideration their long service and hence their adjustment and posting vide order dated 01.02.1999 was held to be valid and justified. 7. It is also not in dispute that thereafter the petitioners gave their joining on the post concerned on 06.02.2001, whereafter show-cause notice was issued by the department on 07.02.2001 (Annexure-6), whereafter the petitioners submitted their reply on 09.02.2001 (Annexure-7) and finally the impugned order dated 17.02.2001 (Annexure-8) was passed by the Inspector General-cum-Additional Director (Prosecution), Bihar directing the period between 26.11.1999 and 06.02.2001 to be treated as break in their service. 8. Against the said order petitioners filed CWJC No.3144 of 2001 for granting continuity in service to the petitioners for the
Decision
aforesaid period, which was disposed of by a bench of this court vide order dated 06.07.2007 (Annexure-12 series) with the following observations:- “………the petitioner should be well advised to move the Directorate of Prosecution to at least grant the petitioners the continuity in service for the said period without payment of salary for the said period as pursuant to the transfer/deputation order the petitioners had moved this Court and this Court in the earlier writ petition had issued an interim order and petitioners under the impression that once the interim order is issued the consequential benefits shall be allowed, had not joined the Directorate. Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 5 Let the Directorate of Prosecution consider the request aforesaid of the petitioners in accordance with law but with sympathy.” 9. Thereafter the petitioners filed a representation before the Director (Prosecution) against the order of authorities dated 17.02.2001, but the same was rejected vide order dated 05.02.2008 (Annexure-11), whereafter the petitioners moved before the Directorate of Prosecution, but there also the petitioners’ claim was rejected vide order dated 03.09.2008 (Annexure-13). Hence against the aforesaid orders of the authorities concerned the instant writ petition has been filed claiming that the said period between 26.11.1999 and 06.02.2001 be not treated as break in service of the petitioners. 10. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and states that the service of petitioners was merely temporary and it ended with the cessation of the scheme and the government taking a sympathetic view directed the petitioners to be absorbed elsewhere and the said decision of the authorities concerned was also affirmed by this court. 11. Learned counsel for the respondents also submits that in compliance of order of the department dated 01.02.1999 the petitioners were relieved on 26.11.1999, but in spite of that they Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 6 did not join on the post where they were adjusted/posted and only after their writ petition was dismissed they submitted their joining on 06.02.2001 and hence the authorities concerned were quite justified in passing the impugned orders. 12. Considering the averments made by learned counsel for the parties and the materials on record, it cannot be disputed that earlier appointment of petitioners was on temporary basis and their confirmation on the said post was also made during the pendency of the scheme under which they were appointed and hence their services ended with the cessation of the scheme. 13. It also cannot be disputed that the government took a sympathetic view in the matter and directed the petitioners and other similarly situated persons to be absorbed/adjusted in other departments and the said order and the order of department dated 01.02.1999 have been affirmed by this court. 14. The claim of respondents is that in view of the aforesaid order dated 01.02.1999 the authorities concerned relieved the petitioners on 26.11.1999, but there is no material at all to show that the order of relieving was ever served on the petitioners. In this respect petitioners have specifically stated in paragraph-10 of the writ petition claiming that no such letter was ever communicated to the petitioners and the petitioners under Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 7 the said confusion could not join the new post. In reply to the aforesaid paragraph-10 of the writ petition, the respondents in paragraph-8 of their counter affidavit had stated that the statements made in the said paragraph of the writ petition required no comment as these were matters of record. Hence the said statement of the petitioners on oath is not denied. 15. Thus it is quite apparent that the petitioners not being aware of the order of relieving filed CWJC No.11766 of 1999 in which an interim order dated 21.12.1999 was passed directing that until further order, the petitioners be not relieved, if not yet relieved in pursuance of order dated 01.02.1999. Thus it transpires that during the pendency of the writ petition also, the petitioners had no knowledge or information of their order of relieving and finally the said writ petition was dismissed on 31.01.2001 and immediately thereafter the petitioners submitted their joining on 06.02.2001. 16. It also transpires from the records that petitioners learnt about the order of their relieving dated 26.11.1999 only when the show-cause notice was issued to them and hence they contested the same before the authorities concerned and also before this court in CWJC No.3144 of 2001. In the said circumstances it is quite apparent that the absence of petitioners Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 8 was not due to any bad intention or misconduct, rather it was only because of lack of notice or information about the order of their relieving dated 26.11.1999. 17. It may be noted that only in these circumstances a bench of this court while deciding CWJC No.3144 of 2001 vide order dated 06.07.2007 (Annexure-9) specifically observed that the petitioners should be well advised to move Directorate of Prosecution to at least grant the petitioners continuity in service for the said period without payment of salary for the said period and also asked the Directorate of Prosecution to consider the aforesaid request of the petitioners in accordance with law but with sympathy. 18. This aspect of the matter has been completely ignored by the authorities concerned in their impugned orders mentioned above, although they were duty bound to consider the same particularly in view of the specific direction of a bench of this court as mentioned above. 19. Accordingly, the aforesaid three impugned orders dated 17.02.2001, 05.02.2008 and 03.09.2008 are hereby quashed and this writ petition is allowed with a direction to the respondents-authorities to treat the petitioners as in continuous service for the said period i.e. between 26.11.1999 and Patna High Court CWJC No.14195 of 2008 (4) dt.16-04-2013 9 06.02.2001 because that is the period of pendency of CWJC No.11766 of 1999, which was filed by the petitioners without having any knowledge of order of their relieving passed by the authorities. However, the said continuity in service for the said period would be without payment of any salary or financial benefit to the petitioners. Harish/- (S.N. Hussain, J)