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2006 DIGILAW 1053 (PAT)

Vibhuti Narayan Singh v. State Of Bihar

2006-11-13

CHANDRAMAULI KR.PRASAD

body2006
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order as contained in memo dated 21.2.2004 (Annexure-1), whereby the services of the petitioners have been recognised with effect from 1.4.1981 instead of 29.1.1981. Said order has also directed for recovery of the amount paid to the petitioners taking their date of recognition as 29.1.1981. 2. Short facts giving rise to the present application are that the petitioners were working in Rai Bahadur Tunki Sah Government Homoeopathic Medical College and Hospital. hereinafter referred the as the College. The State Government in exercise of its power u/s. 3(1) of the Bihar Provincialisation of Roads and Hospitals Act, 1947 by notification dated 29.1.1981 took over the College with effect from 1.4.1981. However, 33 employees services, which included the petitioners, were recognised not from the date from which the College was taken over but from the date of notification dated 29.1.1981. Three of the employees, whose services were taken over with effect from 1.4.1981 but were senior to the 33 employees whose services were taken over with, effect from 29.1.1981, filed C.W.J.C. No. 2277 of 1999 (Dr. Deo Charan Sahni and Ors. V/s. State of Bihar and Ors.) before this Court. This Court by order dated 24.7.2000 disposed of the writ application with the following observation: I do not wish to go into the validity or otherwise of the action in granting the scale with effect from 29.1.1981 in case of those 33 persons. As admittedly the petitioners herein are senior to them I am of the view that until the department takes any decision in the case of those 33 persons, the petitioners should be allowed parity of scale with them. Needless to clarify that if the State Government decides to cancel/modify the grant of scale of those 33 persons the same may be made applicable to the petitioners subject to such challenge as may be made by those 33 persons as indeed by these petitioners. This writ petition is accordingly disposed of with a direction to the respondents to give the petitioners the parity of scale with those 33 persons subject to observations as made above. It goes without saying that as a result of grant of scale with effect from 29.1.1981 the petitioners will also be entitled to consequential benefits in accordance with law. 3. It goes without saying that as a result of grant of scale with effect from 29.1.1981 the petitioners will also be entitled to consequential benefits in accordance with law. 3. In view of the observation of this Court, the case of the petitioners and others were considered and it has been decided to take over the services of all the employees from the date of take over of the College i.e. 1.4.1981. Accordingly, the earlier decision to recognise the services of the petitioners with effect from 29.1.1981 has been rescinded and like other employees the petitioners services have been taken over with effect from 1.4.1981. 4. Mr. Shyama Prasad Mukherjee, Senior Advocate, appearing on behalf of the petitioners submits that once the services of the petitioners were taken over with effect from 29.1.1981 there was no justification to rescind the same and take over their services with effect from 1.4.1981. 5. Junior Counsel to Additional Advocate General No. II, however appearing on behalf of the State submits that in view of the observation of this Court dated 24.7.2000 passed in C.W.J.C. No. 2277 of 1999 the case of the petitioners was examined and thereafter the impugned order has been passed. 6. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Mukherjee. There is no dispute that by notification dated 29.1.1981 the College was taken over with effect from 1.4.1981. I wander how employees services can be recognised from a date anterior to the date of its take over. True it is that the petitioners services were recognised with effect from 29.1.1981 earlier but when the matter travelled to this Court, this Court gave liberty to the State Government to examine the matter afresh. As the College in question has been taken over with effect from 1.4.1981, taking over the services of the petitioners prior to that from the date of notification i.e. 29.1.1981 shall be absolutely illegal. 7. Mr. Mukherjee, then submits that the direction contained in the impugned order for refund of the excess amount already paid is illegal. He points out that no fault or misrepresentation having been attributed to the petitioners no recovery can be made. 8. I do not find any substance in the submission of Mr. Mukherjee also. Petitioners are claiming salary for the period during which College was not taken over. He points out that no fault or misrepresentation having been attributed to the petitioners no recovery can be made. 8. I do not find any substance in the submission of Mr. Mukherjee also. Petitioners are claiming salary for the period during which College was not taken over. In view of the notification of the State Government the College was taken over with effect from 1.4.1981 and therefore they were not entitled for any emoluments prior to the said date on account of its take over. In that view of the matter, decision of the State Government to recover the amount paid in excess to the petitioners cannot be faulted. 9. In the result, I do not find any merit in the application and it is dismissed accordingly.