SHANTI DEVI v. THE STATE OF BIHAR

been challenged in the I.A., I.A. No.271 of 2009 is allowed. The brief matrix of the dispute is that the husband of the petitioner entered the service of the Irrigation Department, in the district of Araria, as a Mate on 22.11.1970. His date of birth recorded at that time was 15.3.1937. By virtue of an order dated

17.5.1996 the petitioner was retired from service with effect from - 2 -

31.3.1995. His date of birth which was changed in the service book, based on the opinion of a medical expert was not accepted by the authorities even though the change was incorporated in the service book in the year 1990. The action of the respondents of retiring the petitioner on 31.3.1995 became the subject matter of challenge in CWJC No. 6479 of 1996. The matter was heard in detail and vide order dated 11.12.1996 the High Court directed the Secretary, Water Resources Department, Government of Bihar, to get a medical board constituted to assess the age of the petitioner. Based on the opinion of the medical board the rest of the issue would have been decided. Based on the opinion of the medical board the Water Resources Department by virtue of an order contained in annexure-2 which is dated 26th August, 1997 accepted the date of birth of the petitioner as 1.7.1943. Petitioner was reinstated/allowed to rejoin as per the decision but the matter did not rest as would be evident from the present litigation. It is also noted that the petitioner died on

21.2.1999 while still in service. When the wife claimed retiral dues and other benefits from the respondents, the Executive Engineer vide communication dated 5.9.1999 contained in annexure-8 for strange reason informed the Accountant General to treat the service of the petitioner only till 31.3.1995 for the purpose of pension. That was the date when husband of the petitioner was earlier made to retire. This had the effect of not only reducing the number of years of qualifying service but may be even last pay drawn by the husband of the petitioner. - 3 - If annexure-8 was not enough recently yet another office order dated 19.8.2008 has been issued by the Executive Engineer, Irrigation Division, Araria wherein various periods starting from

1.8.95 till 22.9.1997 has been sought to be covered up by grant of different leave which had accrued to the husband of the petitioner. Learned counsel for the petitioner submits that this is a totally misplaced kind of order because once the earlier order retiring the petitioner’s husband on 31.3.1995 was set aside by the court and based on the opinion of the medical board husband of the petitioner was given a new date of birth to be 1.7.1943 and was taken back in service then by no stretch of imagination the period he was made to retire and the date he was put back in service, by virtue of High Court’s intervention, can be treated to be break in service. It is further urged that this period can also not be covered by the principle “no pay for no work.” Learned counsel for the State has tried to justify the decisions and explain the circumstances where these orders had to be passed. According to them, there was a time gap between the period when the husband of the petitioner was retired on 31.3.1995 and the time he was put back in service due to High Court’s order . The department in its wisdom had to fill the gap for the period petitioner had not worked. The exercise has only been done for the benefit of the petitioner and lacks no bonafide. The bonafide of the respondents and the decisions taken by them is no issue. The issue is whether such an exercise was required - 4 - at all where the impugned order passed by the respondents retiring the husband of the petitioner from service on 31.3.1995 was interfered with and subsequently the respondents did accept rejoining of the petitioner with a superannuation date, then there is no occasion to treat 31.3.1995 as the date for calculation of the pension of petitioner’s husband. It shall neither be a break in service nor is there any order required to fill up the gap by sanctioning different kind of leave to the husband of the petitioner. Annexure-8 dated 5.9.1999 as well as annexure-9 dated

19.8.2008 are quashed. The writ application stands allowed with a direction upon the respondent State authorities that they shall pass an order and communicate to the Accountant General, Bihar to the effect that husband of the petitioner would be treated in service till

21.2.1999, the day he died in harness. All his retirement dues will be calculated on that basis and nothing will be held out by virtue of the fact that he was made to retire on 31.3.1995. (Ajay Kumar Tripathi, J)