The Area Development Commissioner-Cum-Chairman,Gandak v. The State of Bihar

( Respondents No. 6 and 7 of the writ petition) ………….. Appellants. Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna.

2. The Development Commissioner, Government of Bihar, Old Secretariat, Patna.

3. The Commissioner-Cum-Secretary, Water Resources Department, Government of Bihar.

4. The Director, Command Area Development Directorate, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna.

5. The Under Secretary, Command Area Development Directorate, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna. (Respondents No. 1 to 5) …………….. Respondents Ist Set. 6. Subas Chandra Ghosh Son of late Sahdeo Prasad Ghosh, at Present Resident of Mohalla- Sadpura, New Colony, Near Poharjapir, Post Office-Ramna, Police Station-Kazi Mohammadpur, District- Muzaffarpur presently working on the post of Draughts man Gandak Command Area Development Agency, Muzaffarpur.

7. Rajendra Kumar Mishra son of Late Nand Kumar Mishra, Resident of Village-Chausa,(Narbatpur) Police Station-Chausa, District-Buxar, at preent Steno Typist Gandak Command Area Development Agency Muzaffarpur,at present resident of Mohalla-West Bibi Ganj, Subash Nagar, Road No.5, Police Station-Sadar Bhagwanpur, District-Muzaffarpur.

8. Akil Ahmad, Son of Late Gholam Rasool, Head Assistant, Gandak Command Area Development Agency, Muzaffarpur at present Mohalla- Chak Abdul Wahid, Police Station and District- Muzaffarpur.

9. Lal Mohan Prasad Singh, son of Ugra Mohan Singh, at and post Office- Supour Jamua, District- Monghyer at present posted as Personal Assistant Gandak Command Area Development Agency, Muzaffarpur. (Writ petitioners) ………………Respondents 2nd set. ……………..Respondents. ----------- For the Appellants : Mr. R.B.Mahto, Sr. Advocate, - 2 - Mr. Ishwari Singh, Advocate. For the Respondents No. 1 to 5 : Mr.Ravi Verma J.C. to G.P.-XV For the respondents No. 6 to 9 : Mr. Umesh Prasad Singh, Senior Advocate, Mr. Kumar Madhurendu, Advocate. -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 5th December, 2008. We heard senior counsel for the parties.

2. Controversy in this appeal is concluded by a Division Bench order of this court in the case of Lala Nand Kumar & ors. Vs. The Bihar State Food & Civil Supplies Corporation Ltd. & Ors. 2008 (1) P.L.J.R. 579 wherein the Division Bench considered the matter thus: “ A look at the resolution dated 21st May, 1973 makes it absolutely clear that the Bihar Service Code applicable to the State Government employees was adapted for the employees of the Corporation. This adaptation, no doubt, was made of the Code as was then in existence. The question is whether this adaptation was made of the future changes which may be incorporated in the Code in future or not. The resolution is required to be read as a whole. The Code as applicable the State Government employees until Service Code and Financial Rules as framed by employees of the Corporation. Therefore time until when adaptation will remain in force had been indicated and that is until Service Code and Financial Rules are framed by the Corporation. The true meaning of the resolution, therefore, would be that until Service Code and Financial Rules are framed by the Corporation, the Bihar Service Code as applicable to the State Government employees shall apply to the employees of the Corporation. This resolution dated 21st May, 1973 admittedly had not been withdrawn until 29th July 2006. Much prior thereto on 24th the Corporation were adapted for - 3 - March 2005 the Service Code was atered as regards the age of superannuation. By that time or even thereafter no Service Code or Financial Rules had been framed by the Corporation. While on and from 24th March 2005 in terms of the Service Code as applicable to the State Government employees, the State Government employees became entitled to serve upto the age of 60 years, since by that time no Service Code or Financial Rules had been framed by the Corporation, in terms of the resolution dated 21st May, 1973 the officers and employees of the Corporation became entitle to the same benefit. In Harwindra Kumar Vs. Chief Engineer, Karmik, reported in AIR 2006 SC 365, regulations were framed by a Nigam under the Act and Regulation 31 thereof laid down, amongst others, that the conditions of service of the employees of the Nigam shall be governed by such rules, regulations and orders which are equally applicable to other serving Government servants functioning in the State. While the age of superannuation of the employees of the State Government had been increased, simultaneous increase of the age of superannuation of the employees of the Nigam had not been granted. The employees of the Nigam, who did not get the benefit of enhanced age of superannuation, approached the Supreme Court and the Supreme Court by the judgment referred to above, held that by framing the said regulation a decision had already been taken to equally treat the employees of the Nigam with that of the employees of the Government. In the instant case also, the words “applicable to the State Government employees” have been used in the resolution dated 21st May, 1973 while adapting the provisions contained in the Bihar Service Code until such time the Service Code, Financial Rules etc are not framed by the Corporation. Therefore, on 21st May, 1973 it was decided to make available to the officers and employees of the Corporation the changes that may be effected in the the State Government Service Code applicable employees till such time the Corporation itself frames its Service Code and other Financial Rules.”

3. Similar issue came up before us in L.P.A. No. 931 of 2008 ( The Commissioner-cum-Chairman, K.B.C., CADA, Bhagalpur & anr. Vs. The State of Bihar and ors. ) and in our order dated 27th November, 2008, the matter was considered thus: “3. The order dated 22nd July, 2008 in the case of Anirudh Prasad reads thus: - 4 - “We heard the counsel for the appellant. 2. The Board of Directors of Sone Command Area Development Agency took the decision that the enhanced age of retirement from fifty eight years to sixty years will be effective from 16th April, 2007. The said decision cannot be said to suffer from any legal infirmity nor can it be said to be arbitrary.

3. In this view of the matter, dismissal of the writ petition by the Single Judge cannot be faulted. L.P.A. is dismissed in limine.”

4. From the aforesaid brief order, the facts in the case of Anirudh Prasad are not clear. What appears from the order is that the Board of Directors took a decision that the enhanced age of retirement from 58 years to 60 years will be effective from 16th April, 2007. This decision was not found faulted by us. How could the brief order passed by us in the case of Anirudh Prasad be treated as precedent in the facts and circumstances of the present case.”

4. In view thereof, the order passed by the Single Judge does not call for any interference. Letters Patent Appeal is dismissed in limine. In view of the dismissal of the Letters Patent Appeal, application for interim relief (I.A. No. 6400 of 2008) does not survive and it is also rejected. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/