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2002 DIGILAW 124 (PAT)

Kamalnath Jha v. State Of Bihar

2002-01-28

AFTAB ALAM

body2002
Judgment Aftab Alam, J. 1. The two petitioners are placed in a position where they truly seem to be neither here nor there. The Government declined to recall their services in pursuance of their exercise of option for reverting back to employment under the Government. In the eyes of law, therefore, they would be deemed to continue in the service of the Rajendra Agricultural University but the University Retired them from service on attaining the age of 58 years (being the age of retirement for Government employees) even though the age of retirement for the University employees is 60 years. 2. The two petitioners were appointed in the year 1962 as Laboratory Assistant in the Soil Survey Scheme of Bihar Agriculture College, Sabaur, Bhagalpur which was at that time under the Department of Agriculture & Animal Husbandry, Government of Bihar. The petitioners were working as temporary Government employees when the Rajendra Agricultural University Ordinance, 1971 (Ordinance No. 6 of 1971)(Replaced by the Rajendra Agricultural University Act, 1971 ) came into force. Under the provisions of the Act, the services of the two petitioners like many other temporary Government employees were transferred to the University constituted under the Act. 3. According to the petitioners, they submitted representations within time, exercising their option for reverting back to Government service as provided under sec. 39(4)(b)(i) of the Act and their representations were duly forwarded by the University in the Government. No decision on their representation was, however, taken by the Government and the matter was allowed to rest at that stage for many years. In the meanwhile, a number of erstwhile temporary Government employees whose services were transferred to the University and who like the petitioners had exercised option for reverting back to Government service and in whose cases also, the Government had not taken any decision came to this Court seeking appropriate reliefs. In some of those cases, this Court directed the Government to take a decision on the issue of recall of their services to the Government on the basis of option exercised by them. In some cases, the Government finally decided to recall the services pursuant to which the employees concerned were taken back in Government employment. In some of those cases, this Court directed the Government to take a decision on the issue of recall of their services to the Government on the basis of option exercised by them. In some cases, the Government finally decided to recall the services pursuant to which the employees concerned were taken back in Government employment. As no decision had been taken by the Government in the case of the two petitioners and in the meanwhile, the University had given direction to the departmental heads to retire all such employees who had exercised their option for reverting to Government service at the age of 58 years, that being the age of retirement in Government service, the two petitioners along with two others came to this Court in C.W.J.C. No. 6145 of 2000. That writ petition was disposed of by order, dated 31.7.2000. The relevant portion of the order is as follows: In this connection, petitioners have relied on bench decision of this Court passed in C.W.J.C. No. 5487/88 wherein this Court vide order, dated 20.2.1989 directed the State to decide the question relating to option exercised by the petitioners of the said case. In the facts and circumstances, I remit the matter to the respondent, State and its authorities of Agriculture Department to determine the question relating to exercise of option as given by one or other petitioner and communicate the decision to the petitioners within a period of two months from the date of receipt/production of a copy of this order. If option of one or other petitioner is accepted, they will stand retired from the service on attaining the age of 58 years, treating them to be State Government employees. On the other hand, if prayer of one or other petitioner is rejected, the respondents will give reason and will state as to what will be their status and age of their retirement. 4. Following the direction given by this Court, the Agriculture Production Commissioner considered the case of the petitioners and by order, dated 6.2.2001 (Annexure-7) rejected their claim for reverting back to Government service. 5. This writ petitioner was filed on 27.6.2001. During the pendency of this case, the University retired the two petitioners on their attaining the age of 58 years on the basis of the option given by them for reverting back to Government service. 5. This writ petitioner was filed on 27.6.2001. During the pendency of this case, the University retired the two petitioners on their attaining the age of 58 years on the basis of the option given by them for reverting back to Government service. In doing so, it was clearly overlooked that the Government had declined to recall them in Government service. The petitioners, thus, find themselves in an awkward position. 6. The Agriculture Prosecution Commissioner rejected the petitioners claim for reversion solely on the basis of an officers order issued by the Vice-Chancellor under his memo No. 1661/RAU, dated 28.7.1986. This office order was purportedly issued in the light of an earlier decision of this Court in C.W.J.C. No. 3782 of 1984 Sheoji Ram V/s. Rajendra Agricultural University Bihar and Ors. It may Denoted that though the office order gives a wrong case number, in an affidavit filed on behalf of the University, it was clarified that it was issued on the basis of decision of this Court in the case of Sheoji Ram C.W.J.C. No. 3782/1984). The office order provides that "all temporary transferred Government servants of Department of Agriculture & Animal Husbandry, whose services were transferred to the Rajendra Agriculture University by an Ordinance and whose services were not recalled by the Government within two years after the publication of the University Statutes in the Bihar Gazette in spite of their option given in favour of Government servant shall become the employees of R.A. U. 7. On the face of it, the impugned Government decision appears to be quite consistent with the officers order issued by the Vice-Chancellor. But Mr. Ojha learned Counsel appearing in support of this writ petition submitted that the office order was issued on a complete misinter pretation of this Courts judgment in the case of Sheoji Ram and it was contrary to the provisions of Sec. 39(4)(b)(i) of the Act. Mr. Ojha further pointed out that in some latter decisions, this Court had disregarded the Vice-Chancellors order and directed the Government to take a decision on the option given by many similarly situated persons after more than a decade and a half of the submission of the option. 8. Mr. Ojha further pointed out that in some latter decisions, this Court had disregarded the Vice-Chancellors order and directed the Government to take a decision on the option given by many similarly situated persons after more than a decade and a half of the submission of the option. 8. The submissions advanced on behalf of the petitioners prima facie do not appear to be entirely without substance but it is not required in this case to make a conclusive pronouncement either on the validity of the Vice-Chancellors order, dated 28.7.1986 or the impugned order, dated 6.2.2001 passed by the Agriculture Production Commissioner on the basis of the Vice-Chancellors order. This is for the reason that in course of submissions, Mr. Ojha submitted that the petitioners no longer wished to challenge the order of the Agriculture Production Commissioner and were willing to accept the Government decision not to recall their services back to the Government. He submitted that the legal position then would be that the petitioners would be deemed to continue as University employees. 9. Mr. Ojha is quite correct in his submission and in this regard, the stand of the University is stated in Para 10 of its counter-affidavit which is reproduced below: (10) That the options of the petitioners for their reversion in the State Government service has been finally disposed of by Agriculture Production Commissioner vide his impugned order dated 1.2.2001 who after hearing the petitioners has been pleased to reject the same placing his reliance on the said office order No. 480 dated 28.7.1986 issued by the office of answering respondents and thus after rejection of the claim of the petitioner, they will be treated as employees of the University of the answering respondents and they will retire from the University service after attaining the age of 60 years. 10. After the above statement which is in type one more sentence is added to that paragraph in hand which reads as follows: However, petitioner No. 2 has been retired on 31.8.2001 at the age of 58 years. 11. In view of the Government decision not to recall the petitioners back in Government service, the action of the University in retiring the two petitioners on attaining the age of 58 years was quite incorrect and cannot be sustained in law. 12. 11. In view of the Government decision not to recall the petitioners back in Government service, the action of the University in retiring the two petitioners on attaining the age of 58 years was quite incorrect and cannot be sustained in law. 12. As a consequence Of the Government decision, the petitioner will be deemed to continue in the employment of the University. They no longer wish to challenge the Government decision. The result will be that they will continue as University employees. The University is accordingly directed to recall the orders retiring the two petitioners from service on attaining the age of 58 years and to allow them to resume their duties. The petitioners will be entitled to their full salary and other benefits, from their respective dates of retirement till the date they resume their duties. The petitioners are held and declared to be employees of the University and their conditions of service, including the age of retirement and the settlement of their retiral benefits will be governed by the provisions of the Act, Rules and the Statutes governing the service conditions of the University employees. 13. The petitioner will be allowed to resume their duties without any delay and noted later than two weeks from the date of receipt/production of a copy of this order in the office of the Registrar of the University. The arrears of their salary and any other lawful dues, in terms of this order, will also be paid to them without any delay and preferably within three months from the date of receipt/production of a copy of this order in the office of the Registrar. 14. This writ petition, thus, stands disposed of with the aforesaid observations and directions.