Secretary, Department of Animal Husbandry and Fisheries, Government v. of Bihar, New Secretariat, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15828 of 2006 ====================================================== 1. Pushpa Sinha, W/o-Late Dr.Vikash Kumar Srivastava. 2. Vaibhav Vishal, S/o-Late Dr. Vikash Kumar Srivastava. Both resident of Qr. No.44/84, Officer’s Flat, New Punaichak, Patna-23. .... .... Petitioners. 1. The State of Bihar. 2. Secretary, Department of Animal Husbandry and Fisheries, Government Versus of Bihar, New Secretariat, Patna. 3. Director, Department of Animal Husbandry and Fisheries, Government of Bihar, New Secretariat, Patna. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Adv. Mr. Mukesh Kumar Singh, Adv. For the Respondent/s : Mr. Madhuresh Prasad, GP-12. Mr. Prabhat Ranjan, AC to GP-12. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 03 17-09-2013
Legal Reasoning
The original petitioner, Dr. Vikash Kumar Srivastava died on 25.09.2008 during pendency of the writ petition and by virtue of order passed by this Court in I.A. No.897 of 2009, has been substituted by his widow, Pushpa Sinha and then a minor son, Vaibhav Vishal. This order was passed on 02.03.2009. Counter affidavit and rejoinder thereto are on record, with consent of parties, this writ petition has been heard for its final disposal at this stage itself. The writ petitioner’s grievance was that his service in between the period 10thSeptember, 1987 to 25thOctober, 1989 be counted for the purposes of grant of A.C.P. and other consequential benefits. By reason of original writ petitioner’s Patna High Court CWJC No.15828 of 2006 (03) dt.17-09-2013 2/6 death, during pendency of the writ petition, the consequential reliefs would now include computation of retiral dues taking into account the aforesaid period towards the pensionable service. On behalf of the original writ petitioner, the contention is that the petitioner who was qualified Veterinary Doctor along with others was appointed as Veterinary Doctor in the service of the State Government originally on 10thSeptember, 1987, though for a period of three months, to meet the urgency caused by floods. This was then extended by Annexure-3 dated 05th December, 1987 by the Director, Animal Husbandry. A reference to that order would show that this letter clearly indicated that the period was being extended in a limited manner awaiting recommendations from the Bihar Public Service Commission (hereinafter in short “B.P.S.C.”) with regard to their regular appointment. This way it was extended and, ultimately, by a notification dated 17.01.1989, State Government acknowledging that the petitioner had been appointed on 28.08.1987, which appointment was extended from time to time and the same was being extended up to 31.12.1988, in anticipation of approval from the B.P.S.C., which would be the last extension. The cut off date would be 31.12.1988. Here, it may be noted that if Annexure-9 is read carefully, as submitted on behalf of the petitioner, it would Patna High Court CWJC No.15828 of 2006 (03) dt.17-09-2013 3/6 appear that the date 31.12.1988 referred therein as the cut off date should in fact be 31.12.1989 otherwise the letter makes little sense. This argument appears to be correct. But, this Court would not proceed on that assumption, as the same has not been admitted by the State. No sooner the aforesaid Annexure-9 dated 17.01.1989 issued, which had the effect of virtually terminating the services of petitioner, petitioner and others filed a writ petition, being C.W.J.C. No.1305 of 1989, challenging the correctness of Annexure-9 and by order dated 02.02.1989 status quo was granted. Petitioner and others continued to work which is also certified by the Regional Director, Animal Husbandry as per Annexure-11. Ultimately, by Anneuxre-12 the concurrence of B.P.S.C. having been received on 24.10.1989, petitioner was formally appointed in the cadre of Bihar Animal Husbandry Service, Class-II with effect from date of taking charge. He, as noted above, died on 25.09.2008. Under the aforesaid facts, Sri Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioner submits that this temporary service of the original writ petitioner as between the period 10thof September, 1987 to 25thof October, 1989 be counted for the purposes of reckoning the service tenure for the grant of A.C.P. as well as the death-cum-retiral dues. Patna High Court CWJC No.15828 of 2006 (03) dt.17-09-2013 4/6 On the other hand, learned counsel for the State submits that the service of the petitioner was purely temporary and cannot be reckoned as regular service. Having heard the parties and considered the matter, in my view, to ascertain the nature of service prior to petitioner being substantively appointed, if we refer to the appointment letter of the petitioner and others, who were appointed temporarily for a fixed period awaiting recommendation of the B.P.S.C., it seems that B.P.S.C. was delaying the matter and, therefore, from time to time the same has to be extended. Mr. Singh, learned Senior Counsel further submitted that Annexure-9 obviously intended to extend the service of the petitioner up to 31stof December, 1989 because this letter itself was issued on 17thof January, 1989 and reading as extended for a period only up to 31.12.1988 would be misnomer because that would make no sense. The effect of that if so read, the effect of 31.12.1988 would be letter of termination and thus, the reference to recommendation of B.P.S.C. etc. would be of no relevance. In other words, he submits that it is merely a typographical error as the letter was being typed in early January, 1988 and because of typographical error it was typed as 31.12.1988 and escape attention. Be that as it may, it appears to be correct but this Court Patna High Court CWJC No.15828 of 2006 (03) dt.17-09-2013 5/6 will not proceed on the basis because this letter was challenged in a writ petition before this Court and this Court granted status quo, as noted earlier. While status quo operating, petitioner was permanently appointed in the cadre recommendation of B.P.S.C., which is Annexure-12 to the writ petition. Thus, there was a continuity maintained from the very initial temporary appointment to the permanent appointment. In my view, Rules-63 of the Bihar Pension Rules and Government decisions thereunder clearly in fact states that where a person has worked or has been appointed in temporary capacity in Government service, which service is then made permanent, the period served under temporary service would be counted towards service tenure and, consequently, would be counted for the purposes of calculating retiral dues. In my view, the communication of the Government is clear and stands substantiated by the facts of this case. The temporary appointment was made awaiting recommendation from B.P.S.C. It was extended from time to time awaiting recommendation of B.P.S.C. Once recommendation was received, it was made permanent and, thus, there was a continuity intended. That being so, the service tenure of petitioner would be counted from the date of initial temporary appointment. There being no break whatsoever in regard to the initial period of the year 1989, which Patna High Court CWJC No.15828 of 2006 (03) dt.17-09-2013 6/6 is sought to be covered by typographical mistake. All I can say is that the Court having been granted status quo, in the period of status quo petitioner was permanently appointed that period would also be treated as period in service as has been duly certified by the Regional Director vide Annexure-11. That being so, the two years period prior to petitioner’s appointment in regular basis accordingly, grant of A.C.P. has to be recalculated. As petitioner died in harness and his death-cum-retiral dues including gratuity has to be counted taking into account the period aforesaid. As the writ petition is now being pursued by his widow wife, it is expected that the Department would take a sympathetic view of the matter and work out the consequences of this judgment at an early date but not later than two months from the date of production of a copy of this order before the Director, Animal Husbandry, Government of Bihar, Patna. With these observations and directions, this writ petition
Decision
stands disposed of. Trivedi/- (Navaniti Prasad Singh, J.)