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2005 DIGILAW 14 (PAT)

Krishna Mohan Jha v. State Of Bihar

2005-01-06

R.S.GARG

body2005
Judgment R.S.Garg, J. 1. Heard learned counsel for the parties. 2. The petitioner is before this Court with a submission that the alleged break in service for the period between 16.7.1967 to 28.8.1969 be condoned and his appointment be treated to be continuous right from 3.7.1967, the reason for seeking condonation of the break in service obviously is that if the break is condoned and the petitioner is held to be in service with effect from 3.7.1967 till the date of his retirement he would complete more than 33 years of service which is required for full pension. 3. The undisputed facts are that the petitioner was appointed on 3.7.1967 under the orders of the Secretary of the Bihar Legislative Assembly, his tenure was fixed for a particular period, but however, re-appointment orders were issued from time to time. It so happened that after completing the service for the period between 1.9.1968 to 1.3.1969 he was discharged from service and thereafter he was again continued under a fresh order with effect from 1.3.1969 to 16.7.1969. On 16.7.1969 he was again discharged from service, but the counsel for the petitioner says that he was relieved. For the period between 17.7.1969 to 28.8.1969 when the Presidents Rule was in vogue the petitioner remained out of the service. The petitioner is seeking condonation of the break in service for the period between 17.7.1969 to 28.8.1969. 4. Learned counsel for the petitioner submits that as the Presidents Rule was in force in the State and there were no lapses on the part of the petitioner and the situation was beyond his control this period deserves to be condoned in accordance with the Rule 105 of the Bihar Pension Rules, 1950 . Referring to paragraphs 4 and 21 of the Appendix VI it is further submitted that as the petitioner was not removed or terminated from service, this period could be condoned and the break in service could be made even. 5. Learned counsel for the Legislative Assembly submitted that they had referred the matter to the State Government but the Finance Department raised an objection saying that the petitioner was not in service for the period between 17.7.1969 to 28.8.1969, therefore, such break in service could not be condoned. According to him, the Finance Department or the State Government have to justify their stand. 6. According to him, the Finance Department or the State Government have to justify their stand. 6. Learned counsel for the State Government, on the other hand, submitted that Rules 104 and 105 of the Rules and paragraph 4 of Appendix VI do not apply to the present context. He submits that any break in service except occasioned by termination or because of removal discharge or termination or because of taking part in strike, all other breaks in service would stand automatically condoned, but for the break in this case nothing can be done. He submits that for the period between 17.7.1969 to 28.8.1969 the petitioner was not in service and as his tenure came to an end the break cannot be condoned and the petitioner cannot be deemed to be in service continuously right from 3.7.1967. 7. Rules 105 and 106 of the Rules do provide a power in favour of the authority to condone the break, but that is subject to Appendix VI. Paragraph 4 of Appendix VI clearly says that in absence of any adverse entry made in the service records the service rendered under the State Government except the period of resignation the removal or termination by the Government or taking part in strike all other breaks would stand automatically condoned and the service prior to the break would be deemed to be continuous service for purposes of pension. 8. In the present case the moment the tenure of a person who was appointed for a fixed period came to an end, the relationship of master and servant or employer and employee came to an end. In the present matter the relationship of the master and servant came to an end on 16.7.1969 and there was no relationship upto 28.8.1969. In absence of any relationship of master and servant or employer and employee the period between 17.7.1969 to 28.8.1969 obviously would be a period under removal or discharge and the said period cannot be condoned for purposes of making the service continuous. The respondents were absolutely justified in holding so. 9. It was then submitted that in case of one Sheoji Singh, who was similarly situated, the break for the period between 16.7.1969 to 6.8.1969 was condoned, therefore, the petitioner is also entitled to very same treatment. The respondents were absolutely justified in holding so. 9. It was then submitted that in case of one Sheoji Singh, who was similarly situated, the break for the period between 16.7.1969 to 6.8.1969 was condoned, therefore, the petitioner is also entitled to very same treatment. The order dated 9/10.8.2000-contained in Letter No. 1070 (Annexure-6) has been referred to in Annexure-B, appended to the counter affidavit, filed by the State Government. In the said letter-cum-order it has been clearly observed that the earlier observations made by the Department were not justified. The Joint Secretary, Finance Department had even asked the Secretary, Bihar Legislative Assembly to re- consider the case of Sheoji Singh. Be that as it may, the fact remains that the petitioner was not in service for a particular period and if giving a wrong interpretation in case of another person the break was condoned, then the petitioner even if he is similarly situated cannot be allowed to say that step-motherly treatment is being extended to him. In any case the High Court would not issue a direction to another authority to commit a wrong or repeat the same if the Department proposes to become wiser. I do not find any reason to interfere in the matter. The petition is dismissed.