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2007 DIGILAW 1064 (PAT)

Vijay Kumar Chaudhary v. State Of Bihar

2007-07-03

V.N.SINHA

body2007
Judgment 1. Heard learned counsel for the petitioner and the State. 2. Petitioner, who earlier served as Superintendent in the Typing Section of the Finance (Commercial Taxes) Department of the State Government, is aggrieved by the office order bearing Memo. No. 2991 dated 18.7.2006, Annexure-1 whereunder he has been directed to superannuate in terms of the power vested in the State Government under sub-rule (ii) of Rule 74(b) of the Bihar Service Code (hereinafter referred to as the Code) with effect from 31.10.2006 on his attaining 50 years of age or 30 years of service, whichever is more. During the pendency of the writ petition, further office order has been issued, bearing Memo No. 4352 dated 31.10.2006, whereunder in compliance of the earlier order dated 18.7.2006. Annexure- 1 petitioner has been superannuated with effect from 31.10.2006. Such order is contained in Annexure-22 to the LA. No. 4676 of 2006. The validity of the aforesaid two orders is assailed on twin grounds, namely, that the order does not disclose the materials on the basis of which the State Gov- ernment has concluded that continuance of the petitioner in the service is not in public interest as also on the ground that the order has been passed by way of punish- ment without resorting to departmental pro- ceeding when the two petitions dated 24.3.2006 and 9.6.2006. Annexures-14and 15 were received alleging overt act consti- tuting misconduct on the part of the peti- tioner. 3. It is submitted that just five days prior to the passing of the impugned order the authorities of the State Government had considered the case of the petitioner for promotion on the post of Superintend- ent in the light of the recommendations of the authorities of the Finance (Commercial Taxes) Department and had granted him promotion with effect from 1.3.2002 until further orders as is evident from the office order bearing Memo. No. 2915 dated 13.7.2006, Annexure-20. Having granted promotion under orders dated 13.7.2006 there was no reason at all to superannuate the petitioner in public interest as in course of intervening five days no overt act was committed by the petitioner which per- suaded the authorities to superannuate him on the ground of public interest. Learned Counsel for the petitioner in support of his submissions has relied on the judgment of the Hon ble Supreme Court in the case of Ram Ekbal Sharma Vs. Learned Counsel for the petitioner in support of his submissions has relied on the judgment of the Hon ble Supreme Court in the case of Ram Ekbal Sharma Vs. State of Bihar and another, reported in AIR 1990 Su- preme Court 1368, paragraph 28. With reference to the said judgment, it is submitted that without there being any material to suggest that the continuance of the petitioner in the Government service is not in public interest he could not have been superannuated only on the basis of receipt of two allegation petitions dated 24.3.2006 and 9.6.2006. Annexure-14 and 15 as provisions of Sub-rule (ii) of Rule 74(b) of the Code mandates the State Government to conclude that further continuance of the government servant is not in public interest before superannuating the government servant in public interest. 4. Learned counsel for the State has opposed the prayer. He submits that the impugned order dated 18.7.2006. Annexure- 1 is innocuos order passed in terms of Sub-rule (ii) of Rule 74(b) of the Code and the State Government is not required to spell out the reasons which pursuaded the government to conclude that further continuance of the petitioner in government service is not in public interest. In this connection, he relied on the judgment of the Hon ble Supreme Court in the case of Tara Singh Vs. State of Rajasthan and others, reported in AIR 1975 Supreme Court 1487, paragraph nos. 14, 17, 23 and 24. 5. Having heard counsel for the parties and having considered the submissions raised by them, I am of the view that while exercising the powers under Sub-rule (ii) of Rule 74(b) of the Code, the State Government is required to be satisfied on the basis of the materials in the service record of the government servant that his further continuance in government, service is not in public interest. Until such opinion is recorded by the State Government on the basis of the relevant materials available in the service record, no order in terms of Sub-rule (ii) of Rule 74(b) of the Code can be passed by the State superannuating a government servant. Neither the impugned orders dated 18.7.2006 and 31.10.2006, Annexures-1 and 22 nor the counter affidavit and supplementary counter affidavit filed on behalf of Respondent no. 2 indicate any material to suggest that further continuance of the petitioner in government service is not in public interest. Neither the impugned orders dated 18.7.2006 and 31.10.2006, Annexures-1 and 22 nor the counter affidavit and supplementary counter affidavit filed on behalf of Respondent no. 2 indicate any material to suggest that further continuance of the petitioner in government service is not in public interest. In the circumstances, I am of the considered opinion that the impugned orders dated 18.7.2006 and 31.10.2006, Annexures-1 and 22 are fit to be set aside, which are, accordingly, set aside, however, with liberty to the State Government to re-evaluate service records of the petitioner and if there are materials in the service record of the petitioner to suggest that his further continuance in the government service is not in public interest then to pass appropriate orders in terms of Sub-rule (ii) of Rule 74 (b) of the Code in accordance with law. 6. This application is, accordingly, allowed to the extent indicated above. No cost.