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2004 DIGILAW 219 (JHR)

Jogendra Nath Roy v. State Of Bihar

2004-02-27

AMARESHWAR SAHAY

body2004
JUDGMENT Amareshwar Sahay, J. 1. The prayer of the petitioner in this writ application is for a direction to the respondents to treat the petitioner in continuous service from 26.12.1962 to 31.5.1996, the date on which he superannuated and to pay the retirement dues to the petitioner after computing pensionary benefits, accordingly. 2. The case of the petitioner is that being appointed as Upper Division Clerk (Accounts), he joined on 26.12.1962 as Accounts Officer (Mechanical), Koshi Project, Birpur. Thereafter by Wireless message dated 24.9.1965 he was transferred for being posted In the Office of Accounts Officer, Tenughat Project, Tenughat and for the purpose of joining the said post, he was being relieved on 30.9.1965 with a direction to join by 11.10.1965. The further case of the petitioner is that due to illness and other unavoidable circumstances, he could not join his place of posting and he was compelled to continue on leave till January, 1979 and then in February, 1979 he made a request in writing for sanction of extraordinary leave for the period during which he remained absent. Thereafter by issue of Annexure-2, the office order dated 6.2.1979, the absence of the petitioner from 11.10.1965, till the date of his Joining was treated to be leave without pay and by the said order, the petitioner was appointed temporarily against the vacant post of Upper Division Clerk (Accounts) and it was directed that he would be given the pay-scale of Upper Division Clerk (Accounts) i.e. Rs. 260-6-296-8-408/- with other allowances. Further he was directed to join the said post in the Accounts Office of North Koyal Project, Daltonganj. 3. Subsequently by office order No. 3446 dated 17.12.1979, he was placed on deputation to Bihar State Electricity Board and was posted in the Office of Electrical Superintending Engineer, Deoghar Electricity circle, Deoghar, where he joined the service under the Bihar State Electricity Board on 17.1.1980. By order dated 3.12.1982, the services of the petitioner was returned back to his parent department i.e. the Irrigation Department and he was relieved from the service of the Electricity Board on 10.12.1982. He was placed under Chief Engineer, Water Resources, Deoghar and consequently the Chief Engineer posted him in the Irrigation Department, Mechanical Division, Deoghar. By order dated 3.12.1982, the services of the petitioner was returned back to his parent department i.e. the Irrigation Department and he was relieved from the service of the Electricity Board on 10.12.1982. He was placed under Chief Engineer, Water Resources, Deoghar and consequently the Chief Engineer posted him in the Irrigation Department, Mechanical Division, Deoghar. It is said that the petitioner was going to superannuate with effect from 31.6.1996 and he came to know that the Department is treating him to be a fresh appointee on the basis of office order dated 6.2.1979 (Annexure 2) wherein it was mentioned that the petitioner was "appointed", which according to him was a misnomer and in place of the word "posted", it was mentioned as "appointed" and, therefore, he represented the matter by his representation dated 15.4.1996, which was forwarded by the covering letter of the Executive Engineer as contained in Annexure-3 to the writ application. By filing the said representation, the petitioner prayed for substituting the word "posted" in place of the word "appointment" by modifying the order dated 6.2.1979. No order was passed on the representation of the petitioner and ultimately the petitioner retired from service on 31.5.1996. The petitioner states that since no action was taken on his representation and, as such, he gave a notice on 6.7.1976, in response to which the Accounts Officer (Administration) posted in the Office of the Financial Advisor-cum-Chief Accounts Officer, Water Resources Department, Government of Bihar, Patna sent a reply letter dated 29.8.1996, mentioning therein that under the provisions of Rule 236 of the Bihar Civil Services Code and Article 198 of the Civil Services Regulation, the petitioner would be deemed to be out of employment and, as such, the use of the word "appointment" in the order dated 6.2.1979 was perfectly Justified. 4. According to, the petitioner by order dated 6.2.1979, he was granted leave from 11.10.1965 to 14.2.1979 for all purposes and, therefore, he got continuity of service from 26.12.1962. It is further asserted that the petitioner was never terminated from service prior to 6.2.1979 and since his leave was sanctioned from 11.10.1965 to 14.2.1979 and, therefore, the respondents had no option but to treat the continuity of the service of the petitioner from 26.12.1965 till the date of his retirement. 5. Mr. It is further asserted that the petitioner was never terminated from service prior to 6.2.1979 and since his leave was sanctioned from 11.10.1965 to 14.2.1979 and, therefore, the respondents had no option but to treat the continuity of the service of the petitioner from 26.12.1965 till the date of his retirement. 5. Mr. V. Shivnath, learned counsel for the petitioner has submitted that Article 198 of the Civil Services Regulation provides that if a Government servant is continuously absent whether with or without leave would be considered to be out of employment. This regulation is exactly same to Rule 76 of the Bihar Service Code, 1952. It is submitted that since the Rule 76 of the Bihar Service Code has been declared to be ultra vires by the Patna High Court in the case of Sobhana Das Gupta v. The State of Bihar, reported in 1974, PLJR 382 and, therefore. Article 198 of the Civil services Regulation could not have been applied in the case of the petitioner and the said regulation is also invalid. It has further been argued on behalf of the petitioner that even if a Government Servant is un-authorisedly absent from the office for a long period, there cannot be an automatic termination of his service without holding any departmental proceeding and in support of his submission reliance has been placed in the case of Ramanand Singh v. The State of Bihar and Ors., reported in 1991 (2) PLJR 198 and in the case of Sidhnath Upadhaya v. The State of Bihar and Ors., reported in 1992 (2) PLJR 148 and also in the case of Smt. Saraswati Devi v. State of Bihar and Ors., reported in 2001 (1) PLJR 434 . 6. On the other hand basing on the averments made in the counter affidavit filed on behalf of the respondent No. 3, the Financial Advisor-cum-Chief Accounts Of-fleer. Water Resources Department, Bihar, Patna, learned counsel appearing for the respondents has submitted that the petitioner remained absent from the duty for more than 13 years i.e., from 11.10.1965 to 14.2.1979 without taking any permission from the competent authority. However, by office order as contained in Annexure 2 to the writ application dated 6.2.1979, the petitioner was appointed afresh on temporary basis against the vacant post of Upper Division Clerk (Accounts) at the initial pay of Rs. 260/- in the pay-scale of Rs. However, by office order as contained in Annexure 2 to the writ application dated 6.2.1979, the petitioner was appointed afresh on temporary basis against the vacant post of Upper Division Clerk (Accounts) at the initial pay of Rs. 260/- in the pay-scale of Rs. 260-408/- and the petitioner joined the said post without having any objection and continued in service for about 17 years and thereafter at the fag end of his service, he raised the objection with regard to the word used "appointed" in the office order dated 6.2.1979. According to the respondents, the petitioner, lost his previous service because of his own fault, as he absented himself from duty for a long spell of more than 13 years from 1.10.1965 to 14.2.1979 and if he had any grievance regarding the use of the word fresh appointment, he should have raised the matter before the competent authority within a reasonable time but he did not do so rather he accepted the fresh appointment and Joined the service and continued for about 17 years. 7. It is submitted that the word "appointed" was used after due consideration of the Rules and regulations and not by mistake. Under Rule 236 of the Bihar Service Code and Article 198 of the Civil Services Regulation, 1952, there is no provision allowing continuous absence for more than five years either on extraordinary leave or any other kind of leave combined together and according to Article 198 after five years of continuous absence whether with or without leave, an Officer is considered to be out of employment, therefore, the question of continuity of service from 26.12.1965 to 14.2.1979 cannot and does not arise. 8. From perusal of the judgment in the case of Ramanand Singh v. The State of Bihar and Ors., (supra), it appears that in the said case, the writ petitioner went to join his service after 15 years of his absence but was not allowed by the District Magistrate, East Champaran and the District Magistrate, East Champaran has passed an order on 4.7.1988 that on the basis of Rule 76 of the Bihar Service Code, the service of the petitioner stood terminated. Therefore, it appears that, in the said case, the order of the District Magistrate, which was passed on the basis of Rule 76 of the Bihar Service Code, which had been struck down in the case of Sobhana Das Gupta, (supra) was under consideration. 9. From the facts in the case of and in the case of Ramanand Singh v. The State of Bihar and Ors., reported in 1991 (2) PLJR 198, it appears that the Division Bench was considering and testing the orders passed by the authorities who had dismissed the services of those petitioners on the basis of Rule 76 of the Bihar Service Code, whereas in the present case, no such order was passed for dismissal/termination of the service of the petitioner on the basis of Rule 76 of the Bihar Service Code. In the present case the case of the petitioner was dealt with by the authorities under Rule 236 of the Bihar Service Code and Article 198 of the Civil Services Regulation and not under Rule 76 of the Bihar Service Code and, therefore, the aforesaid two decisions i.e. 1991 (2) PLJR 148 and 1991 (2) PLJR 198 are not applicable in the facts and circumstances of the present case and, therefore, are of no help to the petitioners. 10. From perusal of the facts in the case of Smt. Saraswati Devi v. The State of Bihar and Ors., reported in 2001 (1) PLJR 434 , it appears that the facts of the said case was that the petitioner was a wife of ex-Havildar and had prayed for quashing of the order, whereby she was communicated that her husband had been terminated from service as per Rule 76 of the Bihar Service Code and thus she was not entitled for payment of pension and gratuity. Therefore, it appears that the facts of the said case was also quite different to the facts of the present case and, as such, the said decision is of no help to the petitioners. 11. In the present case, admittedly, the petitioner joined the service again pursuant to the order as contained in Annexure 2 dated 6.2.1979 whereby he was appointed afresh as against a vacant post of Upper Division Clerk in the initial scale of Rs. 260-408/- after he absented himself for a long period of 13 years and even thereafter for about 17 years. 260-408/- after he absented himself for a long period of 13 years and even thereafter for about 17 years. The petitioner continued in service without having any objection and, therefore, he cannot be allowed to raise the objection with regard to his fresh appointment at this stage when he was going to retire from the service. Accordingly, I find that no relief can be granted to the petitioner and thus this application is dismissed but no costs.