Shibdas Banerjee v. State of Bihar — 1990 DIGILAW 449 (PAT)

JUDGMENT S.B. Sinha, J. In this writ application, the petitioner has prayed for issuance of a writ of or in the nature of Mandamus directing the respondent to treat him as a government servant and for a further direction upon the respondent to pay the other benefits to him as mentioned in paragraph-1 of the writ application. 2. The fact of the matter lies in a very narrow compass. 3. According to the petitioner, he was initially appointed in the Office of the Accountant General, Bihar, Ranchi. He, thereafter, opted for army service keeping lien of his services in the office of the Accountant General, Bihar, Ranchi. 4. The services of the petitioner was thereafter dispensed with by the army authorities. Admittedly, thereafter, an advertisement was issued by the respondent-State for appointment for the post of Civil Officers under the Local Self Government by the Bihar Public Service Commission. The said advertisement is contained in Annexure-3 to the writ application. The petitioner applied for the said post pursuant to the aforementioned advertisement and was selected by the Bihar Public Service Commission. 5. According to the petitioner, he was thereafter appointed by the State of Bihar and deputed to Hazaribagh Municipality but the said order was cancelled and the petitioner was posted as Assessment Officer, Gaya Municipality on deputation basis by the Department of Local Self Government vide its letter bearing memo no. 4111/LSG dt. 24.6.1969. The said letter is contained in Annexure-4 of the writ application. 6. According to the petitioner, he was also appointed as an Executive Officer of the Gaya Municipality and he worked in that capacity from 6.9.1980 to 6.1.1981. A copy of the said notification dated 10.10.1980 is contained in annexure-5 to the writ application. 7. According to the petitioner, he was transferred from one Municipality to others under the order of the State of Bihar. 8. On the basis of the aforementioned facts, the petitioner contends that he must be held to be a government servant having been appointed by the State and thus is entitled to all benefits admissible to a government servant. 9. It appears that the petitioner has earlier filed a writ application in this court, which was registered as CWJC No. 936 of 1982 (R). 9. It appears that the petitioner has earlier filed a writ application in this court, which was registered as CWJC No. 936 of 1982 (R). The said writ petition was disposed of by this Court, by an order dated 5.8.1987 with a direction that the petitioner should file an additional representation before the Secretary, Urban Development & Housing Department of Govt. of Bihar and the said representation would be disposed of within the period fixed thereby. 10. In this case, a counter affidavit has been filed on behalf of the respondents. The respondents have contended that at all material times, the petitioner was posted with different Municipalities and have been drawing his emoluments from the respective Municipalities. The Respondent-State has further contended that the Local Self Government had merely worked as an agent of the Municipalities in order to rehabilitate the retrenched army officers and only for that purpose the service of the Bihar Public Service Commission was requisitioned. 11. It has further been contended by the State that there is no cadre of Assistant Officer under the Department of Local Self Government of the State of Bihar. 12. It has further been contended that the representation of the petitioner has been disposed of by the State as contained in a letter dated 1.6.1984 addressed to the petitioner, which was marked as Annexere-2 to the counter affidavit. 13. Mr. B.Y. Kishore, the learned counsel appearing on behalf of the petitioner, firstly submitted that in view of the fact that the petitioner never terminated his lien while he joined the army, he would be deemed to be continuing as a Government servant all along. 14. It had further been contended by the learned counsel that in view of the fact that post of Assessment Officer was advertised by the Bihar Public Service Commission for the purpose of appointment under the Department of Local Self Government and consequent thereupon the petitioner was appointed by the State itself shows that he is a government servant. 15. Mr. It had further been contended by the learned counsel that in view of the fact that post of Assessment Officer was advertised by the Bihar Public Service Commission for the purpose of appointment under the Department of Local Self Government and consequent thereupon the petitioner was appointed by the State itself shows that he is a government servant. 15. Mr. B.Y. Kishore, has produced before me an attested copy of the aforementioned letter dated 14th May, 1969 which is contained in Annexure-4 to the writ application and drawn my attention to the fact that a copy thereof was forwarded to various authorities including Special Officer, Gaya Municipality, Commissioner, Patna Division, Chairman Munger Municipality, Chairman, Hazaribagh Municipality, Deputy Commissioner, Hazaribagh and District Magistrate, Munger for information in continuation of the Government's earlier order dated 24.6.1969. 16. My attention has further been drawn to the aforementioned letter dared 24th June, 1969 (Annexure-4), wherein it has been mentioned that the deputation of the three officers named therein were thereby cancelled. On this basis, it was contended that from the said letter, it is clear that the petitioner was earlier posted at Hazaribagh Municipality by the State of Bihar on deputation. 17. Mr. B.Y. Kishore, the learned counsel further submitted that in view of the fact that the petitioner was transferred by the State Government from one authority to another is conclusive proof of the fact that he was treated as a Government servant. 18. It was further contended by the learned counsel that in terms of Section 37A of Bihar and Orissa Municipal Act, only a government servant can be appointed as an Executive Officer, and in view of the fact that the petitioner was appointed in the said post, in terms of Annexure-5 to the writ application is also a pointer to the fact that he had all along been a government servant and continued as such. 19. The learned counsel, in this connection has relied upon a decision of the Supreme Court in (1979) (Vol. II, Service Law Reporter-375) and in The State of Assam and ors. v. Kanak Chandra Dutta (AIR 1967 S.C, Page-884). 20. Mr. 19. The learned counsel, in this connection has relied upon a decision of the Supreme Court in (1979) (Vol. II, Service Law Reporter-375) and in The State of Assam and ors. v. Kanak Chandra Dutta (AIR 1967 S.C, Page-884). 20. Mr. Narayan Roy, the learned Government Advocate, on the other hand, submitted that from a perusal of Annexure-4 to the writ application itself, it would appear that a formal appointment was to be made by the Municipality which goes to show that the employer of the petitioner was the concerned Municipality and not the State of Bihar. 21. The learned counsel further submitted that it is true that the petitioner was transferred from time to time by the State of Bihar but, according to him, this by itself would not change the-status of the petitioner. 22. The learned counsel further drew my attention to the following statements made in counter affidavit for the purpose of showing that the respondents are keen to ameliorate the difficulties of the petitioner : ‘the petitioner has never been under a particular Municipality. But the Government may consider about the payment of arrears according to the revised pay-scale already given to the employees of Local Bodies effected from 1.10.1980 and 1.4.1983. The petitioner was also informed vide the same letter no. 2906 dated 21.6.1979 that he should submit all the documents regarding the pay scale and pay drawn before 30.8.1980 and also about Dearness Allowance." 23. In this case, admittedly, an advertisement was issued by the Bihar Public Service Commission for appointment in the post of Assessment Officer, Urban Local Bodies under the Local Self Government of State of Bihar meant for the Emergency Commissioned Officers. 24. It is well known that such a scheme was formulated by the State of Bihar itself. The petitioner, admittedly applied for appointment in the said post. 25. From a perusal of Annexure-4 to the writ application, it is evident that the Bihar Public Service Commission recommended the names for the appointment of Civil Post. 26. It appears that earlier the petitioner was deputed to be posted to Hazaribagh Municipality but thereafter, his deputation was cancelled and the petitioner was directed to join as Assessment Officer of Gaya Municipality. It is true that in Annexure-4, it has been mentioned that the petitioner alongwith two others were to be formally appointed by the Gaya Municipality. 26. It appears that earlier the petitioner was deputed to be posted to Hazaribagh Municipality but thereafter, his deputation was cancelled and the petitioner was directed to join as Assessment Officer of Gaya Municipality. It is true that in Annexure-4, it has been mentioned that the petitioner alongwith two others were to be formally appointed by the Gaya Municipality. However, it is not a case where the appointment was to be made in terms of Bihar & Orissa Municipal Act, 1922. 27. From a perusal of Annexure-4 to the writ application, it appears that the petitioner was directed to be appointed in the post of Assessment Officer of the Gaya Municipality with three advance increments in the scale of pay of Rs. 325 to 935/-. 28. In terms of Section 37 of the said Act, for the purpose of appointment of the Officer in the Municipality, it is for the Commissioner to determine what officers and servants of the Commissioners are necessary for the Municipality and the salaries and leave allowances to be paid and granted to such officers and servants are to be fixed by the Commissioners themselves, in accordance with any Rule, which may be framed in terms of Section 42 thereof. 29. In this case, it is admitted that not only the petitioner was first directed to join the Hazaribagh Municipality but later on, the same was cancelled and he was directed to join Gaya Municipality, but, also that he was transferred from time to time by the State of Bihar from one Municipality to another Municipality. 30. Evidently, therefore, the petitioner was treated also by the State of Bihar as one of its servants inasmuch as under the provision of the said Act, servant of a Municipality cannot be transferred under the orders of the State of Bihar from one Municipality to another. 31. It is evident from the advertisement, which is contained in Annexure-3 to the writ application, evidently, the Bihar Public Service Commission issued the same for appointment in the post aforementioned which belonged to the Municipal Service-Senior Civil Post of the Local Self Government under the State of Bihar. 32. From Annexure-3, it further appears that cadre of the said service was also fixed by the State Government i.e. 50 temporary posts which may continue indefinitely. 33. 32. From Annexure-3, it further appears that cadre of the said service was also fixed by the State Government i.e. 50 temporary posts which may continue indefinitely. 33. From the notification dated 10.10.1980, as contained in Annexure-5 to the writ application, it is evident that the petitioner was also appointed as an Executive Officer by the State of Bihar, in exercise of its power conferred upon under Section 37A of the said Act. 34. From a perusal of the aforementioned provision, it would be evident that if an Executive Officer is to be appointed in any Municipality, in terms of Sub-Section 2 of Section 37 of the aforementioned Act, it is for the government to create a cadre of Executive Officer and prescribe Rules for appointment, qualification, control, leave, gratuity, pension provident fund, benefits and punishment of Officers borne out of that cadre and other Executive Officers. 35. However, under sub-section 4 of Section 37A of the said Act, the Executive Officer could be a whole-time officer of the Municipality. 36. It is, therefore, clear that an Executive Officer can be appointed only in terms of Section 37A of the said Act. 37. In terms of sub-section 7 of Section 37A of the said Act, an Executive Officer can be transferred from one Municipality to another by the order of the State Government. 38. From the notification dated 10.10.1980 as contained in Annexure-5 to the writ application, it appears that the petitioner was posted in the post of Executive Officer of Gaya Municipality by the State of Bihar, in exercise of its power conferred upon it under Sub-Sections 1 and 7 of Section 37A of the said Act. 39. In this connection, it may be mentioned that Section 39 of the said Act provides that the Commissioners shall contribute to the pension, gratuities, and leave allowances of any servant whose services are lent or transferred by Government to the Commissioners and which may be fixed by the Government. From this provision, it is evident that the Government can lend or transfer any of its servants to the Commissioners of Municipality. 40. Taking thus all facts and circumstances into consideration, there can not be any doubt whatsoever, that the petitioner was a government servant having been appointed in terms of the advertisement aforementioned as contained in Annexure-3 to the writ application. 41. 40. Taking thus all facts and circumstances into consideration, there can not be any doubt whatsoever, that the petitioner was a government servant having been appointed in terms of the advertisement aforementioned as contained in Annexure-3 to the writ application. 41. In this situation, it must be held that the petitioner is entitled to all the benefits of which an employee of the State Government is entitled. 42. However, it goes without saying that any amount, which may become payable by the State of Bihar to the petitioner may be recovered by the State of Bihar, in exercise of its power conferred upon it under the proviso to Section 37 of the said Act. 43. So far as the salary payable to the petitioner in his capacity as an Executive Officer is concerned i.e. for the period, he worked in the post of Executive Officer and in term of Sub-sections 1 and 2 of Section 39 of the said Act with regard to the period when the services of the petitioner was lent or transferred by the Government to the different Municipalities. 44. In the result, this application is allowed with direction, as mentioned hereinbefore. 45. As the petitioner has not been paid his legal dues for a long time, it is expected that the respondent would pay all the legal and just dues at an early date, preferably within a period of three months from the date of receipt of a copy of this order. However, in the facts and circumstances of the case, there will be no order as to costs.