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2004 DIGILAW 768 (PAT)

Sudhir Kumar Jha v. State Of Bihar

2004-08-02

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. This appeal is directed against the order dated 29.8.2003 passed by learned Single Judge dismissing the writ application filed by the appellant challenging the order passed by the Commissioner-Cum-Secretary, Public Health Engineering Department, directing the appellant to join the Jal Parishad. 2. The question involved in this appeal is that whether the appellant is employee of P.H.E.D. where he was appointed or whether he should be treated as employee of the Bihar Rajya Jal and Wahit Mal Board, Patna where he was sent on deputation on 21.7.1986. 3. The admitted fact is that the circle of P.H.E.D. where the appellant was working, was amalgamated with the Jal Parishad in the year 1986, and the services of the petitioner on his own request were on deputation in the Jal Parishad. In view of aforesaid amalgamation, he became the employee of Jal Parishad and lien to the parent department has terminated. However, case of the appellant is that as he was appointed in P.H.E.D. his services should be repatriated to the P.H.E.D. for which Jal Parishad have no objection. 4. The appellant has come to this Court earlier by filing writ petition bearing C.W.J.C. No. 7958 of 2002 which was disposed of on 1.10.2002. This Court observed in the said judgment that in view of aforesaid amalgamation no one can turn back and challenge the said amalgamation of the department into Jal Parishad and object that it was with or within consent. Thus it was held that once amalgamation was there petitioner became the employee of Jal Parishad. However, as it was stated on behalf of the petitioner in that case that one Abhiram Pandey who was also transferred with the petitioner has been repatriated to the P.H.E.D. this Court directed the authority to consider whether the case of the appellant is similar to Abhiram Pandey. The Commissioner-Cum-Secretary of the Department rejected the prayer of the petitioner on the ground that the said Abhiram Pandey was illegally repatriated and such illegal benefit cannot be given to the appellant. The appellant challenged the said order by filing C.W.J.C. No. 2225 of 2003, and the same was dismissed, and the L.P.A. No. 363 of 2003 against that was also dismissed, however, some observations were also made which will be referred at appropriate place. The appellant challenged the said order by filing C.W.J.C. No. 2225 of 2003, and the same was dismissed, and the L.P.A. No. 363 of 2003 against that was also dismissed, however, some observations were also made which will be referred at appropriate place. The appellant taking advantage of certain observations made in the order dated 1.5.2003 passed in L.P.A. No. 363 of 2003 filed an application before the Secretary-Cum-Commissioner, stating therein, that he should be repatriated to his parent department P.H.E.D. which was rejected by him. He challenged the said order in the writ application which was dismissed by the learned Single Judge, against that the present appeal has been filed. 5. Now the fact that the appellant was employee of the P.H.E.D. is not in dispute, and the fact that the circle in which the appellant was employed, was amalgamated with Jal Parishad in the year 1986 is also not in dispute. The fact that the appellant went on deputation in the Jal Parishad on his own request is also not in dispute. Once the amalgamation has been made the appellant became the employee of the Jal Parishad, and this Court has categorically given finding in the writ petition bearing C.W.J.C. No. 7958 of 2002 which was disposed of on 1.10.2002 and the matter was remanded only for the limited purpose which has been decided by the authority as stated above. 6. Learned counsel for the appellant, however, relied upon the observation made in L.P.A. No. 363 of 2003 disposed of on 1.5.2003, whereby the appeal was dismissed and the order of the learned Single Judge passed in C.W.J.C. No. 2225 of 2003 rejecting the prayer of repatriation to the parent department was upheld. It appears that while dismissing the appeal the Division Bench of this Court had made certain observations which were contrary to the earlier finding, and were not required at all while dismissing the appeal. Once the appeal has been dismissed and the order of the learned Single Judge was upheld then any observation which run hundred percent contrary of the order of the learned Single Judge which has attained finality cannot be treated to be a direction or order passed in the aforesaid L.P.A. The appellant cannot be allowed to take benefit of those observations in view of finality of the earlier order passed by this Court, as stated above, which was not challenged. 7. 7. We do not find any merit in this appeal. Accordingly, the same is dismissed.