The State of Jharkhand v. Saroj Kumar

Judgment

1. BIT Sindri, P.O. & P.S. SIT Sindri, (Gaushala O.P.), District Dhanbad (Jharkhand)

2. Vinay Kumar Chaudhary, son of Late Sheo Prasad Chaudhary, resident of Qr. No.C/22, BIT Sindri, P.O. & P.S. SIT Sindri (Gaushala O.P.), District Dhanbad (Jharkhand) … … Petitioners/Respondents Director, BIT Sindri, P.O. SIT Sindri, P.S. Sindri (Gaushala O.P.),

3. District Dhanbad (Jharkhand) … … Respondent/Proforma Respondent

4. The State of Bihar through the Secretary, Science & Technology Department, Government of Bihar, Techinal (sic Technology) Bhawan, P.O. Punaichak, P.S. Secretariat, Bailey Road, Patna (Bihar)

5. Director, Science & Technology Department, Government of Bihar, Technical (sic Technology) Bhawan, P.O. Punaichak, P.S. Secretariat, Bailey Road, Patna (Bihar) … … Respondents/Respondents With L.P.A. No.92 of 2021 ---- Saroj Kumar, aged about 51 years, son of Jai Naryan Shukla, 1. Resident of Qr. No.C/12, BIT Sindri, P.O. SIT Sindri, P.S. Sindri (Gaushala O.P.), District Dhanbad/Jharkhand

2. Vinay Kumar Chaudhary, aged about 56 years, Son of Late Sheo Prasad Chaudhary, resident of Qr. No.C/22, BIT Sindri, P.O. SIT Sindri, P.S. Sindri (Gaushala O.P.), Dist. Dhanbad/Jharkhand … … Appellants/Petitioners - 2 - Versus State of Jharkhand

1. its Secretary, Higher, Technical Education and Skill Development Department, Techincal Section, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, Dist. Ranchi (Jharkhand) through Director, Higher, Technical Education and Skill Development 2. Department, Government of Jharkhand, Technical Section, having its office at Nepal House, Doranda, P.O. and P.S. Doranda, Dist. Ranchi (Jharkhand) Secretary, Department of Finance, Government of Jharkhand, having 3. its office at Project Building, Dhurwa, P.O.-Dhurwa, P.S. Jagannathpur, Town and District-Ranchi (Jharkhand) Director, BIT Sindri, P.O. SIT Sindri, P.S. Sindri (Gaushala O.P.),

4. District Dhanbad/Jharkhand The State of Bihar through the Secretary, Science & Technology 5. Department, Government of Bihar, Technical Bhawan, P.O. Punaichak, P.S. Secretariat, Bailey Road, Patna (Bihar)

6. Director, Science & Technology Department, Government of Bihar, Technical Bhawan, P.O. Punaichak, P.S. Secretariat, Bailey Road, Patna (Bihar) … … Respondent/Respondents ------- CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ------ For the Appellants-State : Mr. Ashutosh Anand, AAG-III : Mr. Sharad Kaushal, AC to AAG-III For the Resp. Nos.1 & 2 : Mr. Saurav Arun, Advocate For the Appellants For the State (L.P.A. No.278 of 2021) : Mr. Saurav Arun, Advocate : Mr. Ashutosh Anand, AAG-III : Mr. Sharad Kaushal, AC to AAG-III (L.P.A. No.92 of 2021) For the BIT Sindri For the State of Bihar -------- : Mr. M.K. Roy, Advocate : Mr. S.P. Roy, G.A. ORAL JUDGMENT Order No. 07 : Dated 3rd March, 2022 Learned counsel for the parties, at the outset, has submitted that both the appeals have been directed to be heard together vide order dated - 3 -

06.10.2021, therefore, the same may be heard together and may be disposed of by a common judgment.

2. Learned counsel for the parties have submitted that the similar issue has been decided by this Court vide order dated 16.02.2022 passed in L.P.A. No.21 of 2021 (State of Jharkhand & Ors. Vrs. Arun Kumar & Ors.), therefore, both the appeals may be decided on the basis of the said order.

3. The intra-court appeal (L.P.A. No.278 of 2021), preferred by the State of Jharkhand under Clause 10 of the Letters Patent, is directed against the order/judgment dated 13.10.2020 passed by learned Single Judge of this Court in W.P.(S) No.3260 of 2019, whereby and whereunder, the writ petition was allowed with a direction to grant the benefit similar to the writ petitioners of C.W.J.C. No.10680 of 2000. However, the writ petitioners have been granted notional benefit from 31.01.1991 as they failed to approach the Court within a reasonable time and thus, they have waited for the outcome of the aforesaid writ petition and when the favourable order was passed, they approached the High Court for similar benefit. As such, actual monetary benefit has been limited to 3 years prior to the filing of the writ petition only.

Brief facts of the case as per the pleadings made in the writ petition, which are required to be enumerated herein, read as under:- The writ petitioner Nos.1 and 2 were appointed in a private college, namely, Indian College of Engineering, Motihari, Bihar, on the post of Lab Attendant and Mechanic (4th grade employee) respectively on 09.12.1986. The State of Bihar took a decision to acquire all private colleges and Indian College of Engineering, Motihari (Bihar) in the Department of - 4 - Science and Technology, Government of Bihar. The writ petitioners were paid salary from 09.12.1986 to 30.01.1991 and benefit as per the Management Committee of the College but the payment was made by the State of Bihar. The writ petitioners after joining their services in the private engineering college in the State of Bihar, the State of Bihar came with an Ordinance named Bihar Private Engineering College (Taking Over of Ordinance), 1987. On the basis of aforesaid Ordinance, all private colleges were taken over with effect from 09.12.1986 and subsequently the Bihar Private Engineering Colleges (Taking Over) Act, 1991 was passed to give permanent basis to the said action being continued by the series of ordinances issued in continuation of the first ordinance under Section 5 of the said Act. It was provided that from the date of taking over the teaching and other categories of employees would cease to be the employees of the private engineering college but would continue on ad hoc basis in the said colleges until final decision is taken by the State Government under Sub- section (3) of the Section 5 of the said Act. The writ petitioners were declared surplus by the State of Bihar. The writ petitioners including 135 other persons were terminated from their services and after getting terminated from the service, the petitioners and others preferred writ petition before the Hon’ble Patna High Court being C.W.J.C. No.1316 of 1991 and fourteen other analogous cases. The said writ petition was disposed of and orders of termination were quashed and the writ petition was allowed and the respondents were directed to examine the case of the writ petitioners and others within a period of four months and thereafter they were directed to be reinstated in service. It was also observed in the said order that the writ petitioners will - 5 - be entitled to be reinstated in services upon expiry of the aforesaid period of four months. On such reinstatement, the writ petitioners will not be entitled to get payment of back wages but their continuity in service must be maintained, as would appear from Annexure-1 to the writ petition. Being aggrieved by the order dated 06.05.1996, the State of Bihar preferred L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998. These L.P.As. were delayed by 687 days and finally the L.P.As. were heard on merit and were dismissed. No decision was taken by the respondent-State of Bihar on the order passed by the Patna High Court and a contempt case being MJC No.2290 of 1996 was filed and the contempt case was disposed of vide order dated 22.01.1998. In the contempt case, it was observed that the direction of this Court has not been complied with strictly in terms of the direction and in its correct spirit instead of issuing fresh direction for passing the order, it would be fit and proper to observe that the order of reinstatement passed by the opposite parties shall be deemed to have been passed under Sub-section (3) of Section 5 of the said Ordinance and reinstatement shall not be taken as ad hoc. It was observed that so far as the part of judgment and order modified in appeal is concerned, the Additional Advocate General No.III submitted that steps will be taken and payment will be made as expeditiously as possible within a period of three months from today. The State of Bihar preferred S.L.P. before Hon’ble Apex Court against the order passed in L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998 and the Hon’ble Apex Court was pleased to dismiss the Special Leave Petition preferred by the State of Bihar on 05.02.1999, as would appear from Annexure-5 to the writ petition. - 6 - The writ petitioners were provisionally transferred by the order passed by the Director, Science and Technology Department, Government of Bihar, vide order dated 22.10.1999, wherein, the petitioner no.1 was transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.53. The petitioner no.2 was also transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.64. The said letter has been appended as Annexure-6 to the writ petition. Finally, a decision was taken by the Government of Bihar and the services of the writ petitioners were regularized in view of Sub-section (3) of Section 5 of the said Act. Thereafter, the order was passed by the Joint Secretary, Science and Technology Department, Patna (Bihar) dated

19.06.2006, wherein, the services of the writ petitioners were regularized from 31.01.1991. In the said order, the name of the petitioner no.1 stands at Sl. No.25 and the name of petitioner no.2 stands at Sl. No.28. The services of writ petitioners were also regularized by Government of Jharkhand as they were transferred from the State of Bihar to State of Jharkhand vide memo no.206 dated 11.02.2008. By the said letter, the services of petitioners were regularized for the period from 31.01.1991 to 05.09.1996. In C.W.J.C. No.10680 of 2000, which was disposed of vide order dated 08.09.2006 as contained in Annexure-10 to the writ petition, it was observed that the writ petitioners have to be treated under Government service from the date when the college was taken over and all consequential benefits would flow to them and the respondents were directed to give the benefit of annual increment to the writ petitioners from the date of taking over the college from 09.12.1986 as well as their - 7 - continuity in service for all the years including for the period during which they were out of service on account of termination. However, it was restricted that such calculation will be notional from the period 31.01.1991 till 05.09.1996. However, interpreting the Rule 85(a) of Jharkhand Service Code, the respondent no.2-Director, Higher, Technical Education and Skill Development Department, Technical Section had taken a decision that the petitioners will not be entitled for notional increment. Aggrieved with that, the writ petitioners have preferred one writ petition. Based on this fact, this Court has allowed one writ petition being W.P.(S) No.2785 of 2019 by order dated 10.08.2020 in which at paragraph-4, it appears that learned counsel for State has not been able to distinguish the judgment of Hon’ble Patna High Court and based on that order passed by this Court. The writ petitioners made representation on 03.02.2016 before the respondents No.4 requesting therein for making payment of notional increment from 31.01.1991 to 05.09.1996, but the respondents did not take any step in this regard in their favour. The writ petitioners having no option, invoked the jurisdiction conferred to this Court under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No.3260 of 2019, which was allowed vide order dated 13.10.2020 holding the writ petitioners entitled to similar benefit as was extended in favour of the writ petitioners of CWJC No.10680 of 2000. However, the petitioners were held entitled for notional benefit from 31.01.1991 as they were failed to approach the Court within a reasonable time and thus waiting for the outcome of the writ petition and when the favourable order was passed, they approached the High Court for similar benefit and as such actual monetary benefit is limited to 3 years - 8 - prior to the filing of the writ petition, which is the subject matter of the present intra-court appeal.

5. Mr. Ashutosh Anand, learned A.A.G.-III, appearing for the appellant- State of Jharkhand, has submitted that the learned Single Judge has failed to appreciate that the order passed by the Patna High Court is not applicable on or after 15.11.2000 and, therefore, on this ground alone the order passed by the learned Single Judge is not sustainable in the eyes of law. Save and except this ground, the appellant-State of Jharkhand has not agitated any other ground in assailing the order.

6. Per contra, Mr. Saurav Arun, learned counsel appearing for the writ petitioners, has submitted that the ground upon which the present intra- court appeal has been filed, is having no force because the litigation started while there was no bifurcation of the State i.e., prior to enactment of the Bihar Reorganization Act, 2000. According to him, the case started when the undivided State of Bihar came out with Ordinance, 1987 for taking over the private Engineering Colleges. The aforesaid Ordinance contains the provision to treat the employees working as on the date of taking over i.e., with effect from

09.12.1986, to be treated as ad hoc employees. Subsequently, the aforesaid Ordinance, 1987 took the shape of an Act, in the name of Bihar Private Engineering College (Taken Over) Act, 1991. Thereafter, in the case of other similarly situated persons who had preferred writ petition being C.W.J.C. 10680 of 2000 prior to the bifurcation of the State before Patna High Court, it was held that the petitioners were entitled to the benefits of annual increments from the date of take-over of the colleges i.e., with effect - 9 - from 09.12.1986 as well as continuity in service for all the years including for the period during which they were out of service on account of termination holding that calculations, however, would be notional from

31.01.1991 till 05.09.1996, the period during which they were out of service and, therefore, it cannot be now said by the State of Jharkhand that the order passed by the Patna High Court is not applicable merely because their cadre has been allocated to the State of Jharkhand after coming into effect of the Bihar Re-organization Act, 2000. The other submission has been made that if the writ petitioners will be discriminated merely on account of coming into effect of the Bihar Re- organization Act, 2000, it will be discriminatory so far as the cases of the employees who have remained in the State of Bihar and the writ petitioners who have come to the State of Jharkhand after cadre allocation. According to the learned counsel, it is the settled position of law that due to any enactment of bifurcation of the State, the employees concerned whose cadres are being affected due to such re-organization, their service condition cannot be allowed to be altered. According to the learned counsel, learned Single Judge, after taking into consideration this aspect of the matter, is correct in passing the order. Therefore, the order passed by the learned Single Judge requires no interference.

7. The intra-court appeal (L.P.A. No.92 of 2021) preferred by the appellants-writ petitioners, namely, Saroj Kumar and Vinay Kumar Chaudhary, challenging the part of the order passed by the learned Single Judge, by which, the writ petitioners have been directed to be granted notional benefit w.e.f. 31.01.1991, which according to the writ petitioners, - 10 - is absolutely improper order, since, the same has been passed without taking into consideration the fact that the period of limitation for making disbursement of the amount, limited to the period of three years prior to filing of the writ petition, is incorrect conclusion, reason being that the writ petitioners right from the date of termination, were before the court of law and as such, there is no laches lies on the part of the writ petitioners and therefore, the back-wages cannot be denied.

8. The writ petitioners, have raised the grievance by filing the writ petition being W.P.(S) No.3260 of 2019, wherein, the fact has been agitated that the writ petitioners are entitled for the back-wages for the entire period i.e., from the date of termination w.e.f. 31.01.1991, such benefit has been raised, on the basis of the fact that the writ petitioners right from the very beginning i.e., from the date of termination was before the court of law and therefore, it cannot be said in the facts and circumstances of the case that the writ petitioners were sitting idle and waiting for the benefit which was granted in favour of the other similarly situated employees and therefore, the writ petitioners are entitled for the entire back-wages from the date of termination. The learned Single Judge, without appreciating the aforesaid aspect of the matter, since has limited the amount to be paid to the period of three years prior to the filing of the writ petition, which is absolutely improper finding/conclusion. Since, the same has been passed without taking into consideration the fact that the writ petitioners, even though, were before the court of law and as such, it cannot be said that the writ petitioners was waited for the order passed by the High Court which was passed in favour of the similarly situated employees. - 11 -

9. On the other hand, learned counsel appearing for the State of Jharkhand, respondent herein, has submitted that the part of the order which is under challenge in the instant intra-court appeal (L.P.A. No.92 of 2021) is required no interference, for the reason that the whole case of the writ petitioners is for an order to be passed by the writ court in consonance with the order passed in C.W.J.C. No.1316 of 1991 with analogous cases. It has been submitted by referring to paragraph-42 of the aforesaid judgment that in the said writ petition also, there was no direction for making payment of back-wages, save and except, the continuity of service was allowed to be granted in favour of the writ petitioners of the said writ petition, therefore, if the learned Single Judge has passed the order holding the writ petitioners entitled for notional benefit by taking into consideration the direction passed by the Patna High Court in C.W.J.C. No.1316 of 1991 with analogous cases, the same cannot be said to suffer from any infirmity.

10. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge.

11. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer the undisputed facts, which read as under:-

12. The writ petitioner Nos. 1 and 2 were appointed in a private college, namely, Indian College of Engineering, Motihari, Bihar, on the post of Lab Attendant and Mechanic (4th grade employee) respectively on 09.12.1986. The State of Bihar took a decision to acquire all private colleges and Indian College of Engineering, Motihari (Bihar) in the Department of Science and Technology, Government of Bihar. The writ petitioners were - 12 - paid salary from 09.12.1986 to 30.01.1991 and benefit as per the Management Committee of the College but the payment was made by the State of Bihar. The writ petitioners after joining their services in the private engineering college in the State of Bihar, the State of Bihar came with an Ordinance named Bihar Private Engineering College (Taking Over of Ordinance), 1987. On the basis of aforesaid Ordinance, all private colleges were taken over with effect from 09.12.1986 and subsequently the Bihar Private Engineering Colleges (Taking Over) Act, 1991 was passed to give permanent basis to the said action being continued by the series of ordinances issued in continuation of the first ordinance under Section 5 of the said Act. It was provided that from the date of taking over the teaching and other categories of employees would cease to be the employees of the private engineering college but would continue on ad hoc basis in the said colleges until final decision is taken by the State Government under Sub- section 3 of the Section 5 of the said Act. The writ petitioners were declared surplus by the State of Bihar. The writ petitioners including 135 other persons were terminated from their services and after getting terminated from the service, the petitioners and others preferred writ petition before the Hon’ble Patna High Court being C.W.J.C. No.1316 of 1991 and fourteen other analogous cases. The said writ petition was disposed of and orders of termination were quashed and the writ petition was allowed and the respondents were directed to examine the case of the writ petitioners and others within a period of four months and thereafter they were directed to be reinstated in service. It was also observed in the said order that the writ petitioners will - 13 - be entitled to be reinstated in services upon expiry of the aforesaid period of four months. On such reinstatement, the writ petitioners will not be entitled to get payment of back wages but their continuity in service must be maintained, as would appear from Annexure-1 to the writ petition. Being aggrieved by the order dated 06.05.1996, the State of Bihar preferred L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998. These L.P.As. were delayed by 687 days and finally the L.P.As. were heard on merit and were dismissed. No decision was taken by the respondent-State of Bihar on the order passed by the Patna High Court and a contempt case being MJC No.2290 of 1996 was filed and the contempt case was disposed of vide order dated 22.01.1998. In the contempt case, it was observed that the direction of this Court has not been complied with strictly in terms of the direction and in its correct spirit instead of issuing fresh direction for passing the order, it would be fit and proper to observe that the order of reinstatement passed by the opposite parties shall be deemed to have been passed under Sub-section (3) of Section 5 of the said Ordinance and reinstatement shall not be taken as ad hoc. It was observed that so far as the part of judgment and order modified in appeal is concerned, the Additional Advocate General No.III submitted that steps will be taken and payment will be made as expeditiously as possible within a period of three months from today. The said contempt petition was disposed of. The State of Bihar preferred S.L.P. before Hon’ble Apex Court against the order passed in L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998 and the Hon’ble Apex Court was pleased to dismiss the Special Leave Petition preferred by the State of Bihar on 05.02.1999, as would appear from Annexure-5 to the writ petition. - 14 - The writ petitioners were provisionally transferred by the order passed by the Director, Science and Technology Department, Government of Bihar, vide order dated 22.10.1999, wherein, the petitioner no.1 was transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.53. The petitioner no.2 was also transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.64. The said letter has been appended as Annexure-6 to the writ petition. Finally, a decision was taken by the Government of Bihar and the services of the writ petitioners were regularized in view of Sub-section (3) of Section 5 of the said Act. Thereafter, the order was passed by the Joint Secretary, Science and Technology Department, Patna (Bihar) dated

19.06.2006, wherein, the services of the writ petitioners were regularized from 31.01.1991. In the said order, the name of the petitioner no.1 stands at Sl. No.25 and the name of petitioner no.2 stands at Sl. No.28. The services of writ petitioners were also regularized by Government of Jharkhand as they were transferred from the State of Bihar to State of Jharkhand vide memo no.206 dated 11.02.2008. By the said letter, the services of petitioners were regularized for the period from 31.01.1991 to 05.09.1996. In C.W.J.C. No.10680 of 2000, which was disposed of vide order dated 08.09.2006 contained in Annexure-10 to the writ petition, it was observed that the writ petitioners have to be treated under Government service from the date when the college was taken over and all consequential benefits would flow to them and the respondents were directed to give the benefit of annual increment to the writ petitioners from the date of taking over the college from 09.12.1986 as well as their - 15 - continuity in service for all the years including for the period during which they were out of service on account of termination. However, it was restricted that such calculation will be notional from the period 31.01.1991 till 05.09.1996. However, interpreting the Rule 85(a) of Jharkhand Service Code, the respondent no.2-Director, Higher, Technical Education and Skill Development Department, Technical Section had taken a decision that the petitioners will not be entitled for notional increment. Aggrieved with that, the writ petitioners have preferred one writ petition. Based on this fact, this Court has allowed one writ petition being W.P.(S) No.2785 of 2019 by order dated 10.08.2020 in which at paragraph-4, it appears that learned counsel for State has not been able to distinguish the judgment of Hon’ble Patna High Court and based on that order passed by this Court. The writ petitioners made representation on 03.02.2016 before the respondents No.4 requesting therein for making payment of notional increment from 31.01.1991 to 05.09.1996, but the respondents did not take any step in this regard in their favour. The writ petitioners having no option, invoked the jurisdiction conferred to this Court under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No.3260 of 2019, which was allowed vide order dated 13.10.2020 holding the writ petitioners entitled to similar benefit as was extended in favour of the writ petitioners of C.W.J.C. No.10680 of 2000. However, the petitioners were held entitled for notional benefit from 31.01.1991 as they were failed to approach the Court within a reasonable time and thus waiting for the outcome of the writ petition and when the favourable order was passed, they approached the High Court for similar benefit and as such actual monetary benefit is limited to 3 years - 16 - prior to the filing of the writ petition, which is the subject matter of the present intra-court appeals.

13. Thus, it is evident that the claim of the writ petitioners is based upon an order passed by the Patna High Court in C.W.J.C. No.10680 of 2000 which was disposed of vide order dated 08.09.2006 directing the respondents to give the benefits of the annual increments to the petitioners from the date of take-over of the colleges i.e., with effect from 09.12.1986, as well as continuity in service for all the years including for the period during which they were out of service on account of termination. Such calculations, however, would be notional from 31.01.1991 till 05.09.1996. The said calculation and payments were directed to be made within a period of four months from the date of receipt/production of a copy of that order. The relevant paragraph of the aforesaid order reads as under :- “In view of the aforesaid facts and circumstances and the proposition of law as stated above this writ petition is partly allowed and the respondents are directed to give the benefits of annual increments to the petitioners from the date of take over of the colleges, i.e. from 9.12.1986, as well as continuity in service for all the years including for the period during which they were out of service on account of termination. Such calculations, however, will be notional from the period 31.1.1991 till 5.9.1996. The said calculations and payments on account of the increments must be made within a period of four months from the date of receipt/production of a copy of this order. However, in the facts and circumstances of the case, there shall be no order as to cost.” It is evident from the aforesaid order that the learned Single Judge while passing such direction as quoted and referred hereinabove, has taken - 17 - into consideration the order passed by the Patna High Court in C.W.J.C. No.1316 of 1991 with analogous cases. A review petition was filed against the aforesaid order being Review No.61 of 2008 which was dismissed vide order dated 29.01.2014. It is evident from the order passed by the Patna High Court in C.W.J.C. No. 10680 of 2000, decided on 08.09.2006, that reference of consideration of the order passed in C.W.J.C. No.1316 of 1991 along with other analogous cases has been made, wherein, Notification dated

31.01.1991 by which services of the petitioners along with certain other employees were terminated with immediate effect was questioned. The said writ petition was disposed of vide order dated 06.05.1996 by another Co- ordinate Single Judge of the Patna High Court whereby and whereunder following order was passed as under paragraph 42 thereof, which reads as under :- “42. These writ petitions are accordingly allowed. The impugned orders of termination of services of the petitioners are, therefore, set aside. The respondents authorities will now give head of position of the petitioners in opportunity of hearing within a period of four months from the date of receipt/production of a copy of this judgment and there upon take a decision under Sub-section (3) of Section 5 of the said Act. The petitioners, however, are not immediately reinstated in service but their reinstatement in service will depend upon the result of the decision by the governmental authorities which will be taken after giving the employees concerned an opportunity of hearing. If, on hearing being given to them the respondents authorities are of the view that these petitioners should be - 18 - absorbed in service, such decision must follow. It is, however, made clear that if the respondents authorities do not complete the aforesaid exercise of hearing within the period aforesaid, in that case the petitioners will be entitled to be reinstated in service upon the expiry of the aforesaid period of four months. On such reinstatement the petitioners will not however, be entitled to the payment of back wages but their continuity in services must be maintained.”

14. Thereafter, another writ petition was filed before Patna High Court being C.W.J.C. No.17739 of 2014. The Patna High Court (learned Single Judge) has allowed the writ petition in terms of the order passed in C.W.J.C. No. 10680 of 2000.

15. The writ petitioners, in the instant case, have also sought for the similar benefits as was directed to be paid by the Patna High Court in favour of the petitioners of C.W.J.C. No.10680 of 2000 and when their grievance has not been redressed, writ petition being W.P.(S) No. 3260 of 2019 has been filed.

16. The learned Single Judge has appreciated the factual aspect involved in C.W.J.C. No. 10680 of 2000 and while considering so, the conclusion has been arrived at holding therein that the case of the writ petitioners is similar to that of the writ petitioners of C.W.J.C. No. 10680 of 2000. The learned Single Judge has considered the fact that the order passed by the Patna High Court in C.W.J.C. No.10680 of 2000 has attained finality, therefore, the learned Single Judge came to the conclusive finding holding that the writ petitioners are also entitled to get the similar benefit as was directed to be granted in favour of the writ petitioners of C.W.J.C. No. 10680 of 2000. - 19 -

17. The issue of having no binding precedence of an order passed by the Patna High Court has been taken by the learned counsel appearing for the appellant-State of Jharkhand in L.P.A. No.21 of 2021. The said issue has been considered by this Court while delving upon the issue in L.P.A. No.21 of 2021.

18. There is no dispute that the order passed by the different High Courts is not having binding precedence upon another High Court. Even though the order passed by different High Court is having no binding effect, but order passed by the different High Courts is having the persuasive value for coming to a conclusion, taking into consideration the facts of the case. Reference in this regard be made to the judgment rendered in Pradip J. Mehta v. Commissioner of Income Tax, Ahmedabad [(2008) 14 SCC 283], wherein at paragraph 23, it has been held which reads as under:- “23. Although, the judgments referred to above were cited at the Bar in the High Court, which were taken note of by the learned Judges of the Bench of the High Court, but without either recording its agreement or dissent, it answered the two questions referred to it in favour of the Revenue. Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the aforesaid judgments of the different High Courts and recorded its own reasons for its contra view. We quite see the fact that the judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Courts, though not binding, have - 20 - persuasive value which should be taken note of and dissented from by recording its own reasons.”

19. In the given facts of the instant case, the litigation starts from the day when the undivided State brought the Ordinance, 1987 for taking over private Engineering Colleges which contains a provision to take over the private Engineering Colleges. The aforesaid Ordinance, 1987 stipulates about treating the employees working in the said private Engineering Colleges to be treated as ad hoc employees. Subsequently, the said Ordinance took the shape of an Act i.e., Bihar Private Engineering College (Taken Over) Act, 1991. When no decision was taken by the State of Bihar for regularizing the services of the employees and services of some of the employees were terminated vide notification dated 31.01.1991, writ petitions were filed being C.W.J.C. No.1316 of 1991 with analogous cases, whereby and whereunder, the aforesaid notification of termination of services of the employees was quashed with a directions to the respondents to give the petitioners opportunity of hearing within a period of four months from the date of receipt/production of a copy of the judgment and there upon take a decision under Sub-section (3) of Section 5 of the said Act. The petitioners, however, are not immediately reinstated in service but their reinstatement in service will depend upon the result of the decision by the governmental authorities which will be taken after giving the employees concerned an opportunity of hearing. If, on hearing being given to them the respondents authorities are of the view that these petitioners should be absorbed in service, such decision must follow. If the respondents’ authorities do not complete the aforesaid exercise of hearing within the period aforesaid, in that case, the petitioners will be entitled to - 21 - be reinstated in service upon the expiry of the aforesaid period of four months. On such reinstatement the petitioners will not however, be entitled to the payment of back wages but their continuity in services must be maintained. Another set of employees, when they were not given similar treatment, preferred writ petition being C.W.J.C. No.10680 of 2000 wherein direction was passed, as quoted and referred hereinabove. Subsequent thereto, another writ petition was filed being C.W.J.C. No.17739/2014 which was disposed of in terms of order passed in C.W.J.C. No.10680 of 2000. Therefore, the fact is not in dispute that the case of the writ petitioners of the instant case is similar to that of the writ petitioners of C.W.J.C. No.10680 of 2000 and C.W.J.C. No.17739/2014. The writ petitioners, due to effect of the Bihar Re-organization Act, 2000, have been allocated the cadre of State of Jharkhand but merely because the cadre of the writ petitioners have been allocated to the State of Jharkhand, that does not mean that they will be given different treatment to that of the co-employees who remained in the successor State of Bihar. If the argument of the learned counsel for the appellant is taken to be correct then the effect would be that the employees who have taken birth in a State which was undivided during the relevant time and due to the effect of the statute i.e., the Bihar Re-organization Act, 2000 the employees who have been allocated the cadre to the other successor State, will be given different treatment which will be unreasonable. The Bihar Re-organization Act, 2000 since has been enacted by the Parliament, therefore, by virtue of enactment, the concerned employees who are being allocated the cadre of successor State, cannot be allowed to - 22 - suffer. Further, it requires to refer herein, after coming into effect of the Bihar Re-organization Act, 2000, on or after15.11.2000 there will be two successor States after bifurcation of the undivided State of Bihar i.e., successor State of Bihar and successor State of Jharkhand. As such, the status which has been given to one successor State i.e., successor State of Bihar, the said benefit cannot be disallowed in favour of the employees who are coming to the another successor State i.e., successor State of Jharkhand.

20. Therefore, according to our considered view, the argument which has been advanced by the learned counsel for the appellants that the order passed by the learned Single Judge since is based upon the orders passed in C.W.J.C. No.10680 of 2000 and C.W.J.C. No.17739/2014, are not applicable to the employees who have come to the State of Jharkhand due to bifurcation of the State, is having no force.

21. The other reason is that Section 72/73 of the Bihar Re-organization Act, 2000 provides that there will be no alteration in the service conditions of one or the other employee who will be subjected to the provision of the Bihar Re-organization Act, 2000, in detriment to their interest. The writ petitioners, in the instant case, who have come to the jurisdiction of the successor State of Jharkhand, after coming into effect of the Bihar Re-organization Act, 2000, are having same cause of action which were with the employees whose cadre has been finally allocated to the successor State of Bihar by virtue of the Ordinance, 1987 by which the private Engineering Colleges namely, Indian College of Engineering, Motihari, JMIT, Darbhanga and Magadh Engineering College, Gaya, have - 23 - been taken over. The aforesaid statute also contains a provision with respect to the status of the employees. Further, some of the employees had earlier moved to the Patna High Court in the year 1991 by filing writ petition being C.W.J.C. No.1316 of 1991 with other analogous cases and subsequent thereto in the year 2000 and 2014 by filing C.W.J.C. No.10680 of 2000 and C.W.J.C. No.17739/2014 respectively. Therefore, the grievance of the writ petitioners who have come to the territorial jurisdiction of the State of Jharkhand due to the effect of the Bihar Re-organization Act, 2000, is also similar to that of the employees working in the successor State of Bihar before coming into effect of the Bihar Re-organization Act, 2000 and as such, if the writ petitioners will be given different treatment, it will amount to alteration in the service condition of the employee merely because they have come to the successor State of Jharkhand.

22. This Court, on the basis of the issue as has been settled in L.P.A. No.21 of 2021, is of the view that the ground which has been agitated by the learned counsel appearing for the appellant-State of Jharkhand (L.P.A. No.278 of 2021) is having no force, therefore, the aforesaid ground is hereby, rejected.

23. This Court, on the basis of the consideration of the fact in entirety as also taking into consideration the fact that the similar issue has already been decided in L.P.A. No.21 of 2021 which was disposed of on

16.02.2022, is of the considered view that the order passed by the learned Single Judge suffers from no error.

24. Accordingly, intra-court appeal being L.P.A. No.278 of 2021 is dismissed. - 24 -

25. So far as the L.P.A. No.92 of 2021, preferred by the appellants-writ petitioners is concerned, wherein, the plea for grant of back-wages has been prayed to be allowed on behalf of the writ petitioners, namely, Saroj Kumar and Vinay Kumar Chaudhary, on the ground that there is no fault lies on the part of the writ petitioners, which led the learned Single Judge to confine the disbursement of the monetary benefit for the period of three years from the date of filing of the writ petition.

26. According to the learned counsel for the writ petitioners that since the writ petitioners were before the court of law from the very beginning i.e., from the date of termination, therefore, it is incorrect on the part of the learned Single Judge to make an observation against the writ petitioners that the writ petition has been filed only after the order having been passed by the Patna High Court in C.W.J.C. No.10680 of 2000.

27. While, on the other hand, the learned counsel appearing for the State of Jharkhand has vehemently opposed such submission by taking the plea that since the case of the writ petitioners before the writ court was for holding the writ petitioners entitled in terms of the order passed by the Patna High Court in C.W.J.C. No.1316 of 1991 with other analogous cases, wherein, the Patna High Court has passed the order holding therein that the writ petitioners of the aforesaid case will not be entitled for the back- wages, save and except the services will be treated to be counted as a continuity in service for the purpose of pensionery benefit, as would appear from paragraph-42 of the aforesaid judgment. Learned counsel appearing for the respondent State further submits by referring to paragraph-42 of the aforesaid judgment and from its perusal, it is evident that the back-wages has been denied in the said case, therefore, - 25 - the ground of challenge as has been made out by the writ petitioners in assailing the part of the order, wherein, the back-wages has been denied is having no force, accordingly, the same is rejected without showing any interference in the order passed by the learned Single Judge.

28. We have appreciated the aforesaid submission and deem it fit and proper to refer herein by taking into consideration the prayer/pleading made by the writ petitioners in the writ petition that they have sought for a direction for notional benefit w.e.f. 1991 to 1996 i.e., in consonance with the order passed by the Patna High Court in C.W.J.C. No.10680 of 2000. It further requires to refer herein that the Patna High Court while disposing of the C.W.J.C. No.1316 of 1991 with analogous cases, has passed the order, as would appear from paragraph-42 thereof denying the back-wages and directing to count the past services for the purpose of continuity in service to be counted for the pensionery benefit.

29. Therefore, according to the considered view of this Court, since the case of the writ petitioners before the writ Court was not for the back- wages rather it is for grant of notional benefit i.e., in terms of the direction passed by the Patna High Court in C.W.J.C. No.1316 of 1991 with analogous cases, as under paragraph-42 thereof.

30. Learned Single Judge after considering the prayer/pleading made by the writ petitioners taking consideration observation/direction made at paragraph-42 of the judgment passed in C.W.J.C. No.1316 of 1991 with analogous cases, since has passed the order denying the back-wages right from the date of termination rather limiting it for the period of three years prior to the filing of the writ petition, which according to the considered view of this Court, cannot be said to suffer - 26 - from an error. Such finding is being recorded by this Court taking into consideration the fact that it is the case of the writ petitioners for grant of relief which was based solely upon the order passed by the Patna High Court in C.W.J.C. No.10680 of 2000. Since the Patna High Court has passed an order denying the back-wages and counting the period for the purpose of pensionery benefit and as such, the writ petitioners cannot be allowed to take different stand contrary to prayer/pleading made in the writ petition.

31. Therefore, according to the considered view of this Court, no such direction can be passed taking the contrary view of the order passed in C.W.J.C. No.10680 of 2000.

32. In the result, the intra-court appeal being L.P.A.No.92 of 2021 fails and it is dismissed.

33. Accordingly, both the appeals stand dismissed.

34. Pending Interlocutory Application(s), if any, stand disposed of. (Dr. Ravi Ranjan, C.J.) Rohit/ A.F.R. (Sujit Narayan Prasad, J.)