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2007 DIGILAW 152 (PAT)

Prabhakar Pandey v. State Of Bihar

2007-01-19

S.K.KATRIAR

body2007
Judgment 1. This writ petition has been preferred with the prayer to quash the communication bearing letter No. 768, dated 15.9.2000 (Annexure-15), from the Government of Bihar in the Department of Urban Development (Nagar Tatha Kshetriya Niveshan Sangathan), to the Bihar State Housing Board (hereinafter referred to as the Board), wherein it is stated that the petitioner shall be entitled to the post-retirement benefits from the Board. The petitioner seeks the further relief of revision of pay-scales and payment of post-retirement benefits accordingly from the State Government. 2. The petitioner was-temporarily appointed as Draftsman Grade-ll in the pay-scale of Rs. 115-225.00 by the Bihar Government in the Local-Self Government Department, vide Memo No. 8402, dated 24.11.1969 (Annexure-1). He was confirmed on the said post with effect from 16.8.1972, wcte order dated 23.11.1973 (Annexure-2). The State Government placed his services at the disposal of the Board, vide Office Order No. 2303, dated 8.6.1973 (Annexure-3). The petitioner was temporarily appointed by the Board as a Draftsman Grade-I in the then pay-scale of Rs. 296-8-360-EB-9-423/-, vide order No. 4342, dated 20.5.1975 (Annexure-4). The Government of Bihar in the Department of Urban Development issued Office Order dated 20.2.1976 (Annexure-5), indicating therein the seniority list of the Draftsman Grade-ll of the Department. The petitioner figured at Serial no. 2 of the seniority list and his description is that "Bihar Rajya Awas Board Me. Pratiniyukt". The petitioner had in the meanwhile submitted his representation for promotions and grant of replacement pay-scales to the State Government which has till date remained unattended. The petitioner ultimately superannuated from the services of the Board with effect from 31.12.1998 while functioning as Draftsman Grade-I. After the petitioners superannuation, the Board forwarded his service records, to the Bihar Government for payment of his post-retirement benefits vide letter dated 6.7.2000 (Annexure-11). The Boards request has been repelled by the impugned order whereby the service records of the petitioner have been returned by the State Government to the Board stating therein that the petitioners lien on his post in the parent department stood terminated in terms of Rule-68 of the Bihar Service Code (hereinafter referred to as the Code) and, therefore, the post-retirement benefits have to be paid by the Board. Hence this writ petition for the reliefs indicated hereinabove. 3. Hence this writ petition for the reliefs indicated hereinabove. 3. While assailing the validity of the impugned action, learned counsel for the petitioner has relied on the provisions of Rules 28, 68, 70 and 71 of the Code and submits that the services of the petitioner were never confirmed, or he was never substantively appointed, by the Board. He, therefore, continued to maintain his lien with the parent department. The impugned order is, therefore, hit by the provisions of Rules 68 and 71 of the Code. Counsel very fairly submits that it will indeed make no difference to him whether he gets his post-retirement benefits from the Board or the State Government, and he has taken the aforesaid stand in view of the position obtaining in law. He also submits that in a situation where he continued to maintain his lien with the parent department, the question of grant of appropriate pay-scales has to be decided by the parent department and all the money benefits flowing thereto so long he was in service shall have to be paid by the Board. He has relied on the following reported judgments: (i) Satya Narain Pareek V/s. State of Rajasthan & Anr., 1996 8 SCC 654 ; (ii) Shyamta Prasad Sinha V/s. The State of Bihar and Others, 1992 1 PLJR 236; (iii) Syed Mohammad Zeyaul Haque V/s. The State of Bihar & Others., 1991 2 PLJR 698 4. The Board has placed on record its counter affidavit and has entirely supported the petitioners stand. It is submitted on behalf of the Board that the petitioners services were never confirmed, or was never substantively appointed by the Board. He, therefore, continued to maintain his lien with the parent department and the pensionary benefits have to be paid accordingly. The Board further supports the petitioners case regarding re-fixation of pay and payment of arrears of salary. The Counsel relies on the judgment reported in (1976) 2 SC C. 844 (State of Haryana V/s. Shri Des Raj Sangar and another). 5. The State of Bihar has also placed on record its counter affidavit and has opposed the writ petition. It is, inter alia, submitted that the petitioner served the Board even since he was relieved by the department to join the Board till the date of his superannuation. 5. The State of Bihar has also placed on record its counter affidavit and has opposed the writ petition. It is, inter alia, submitted that the petitioner served the Board even since he was relieved by the department to join the Board till the date of his superannuation. It, therefore, follows that re-fixation of pay, payment of arrears of salary, if any, and payment of post-retirement benefits have to be paid by the Board. He relies on Rules-267 and 282 of the Code. He also relies on the Full Bench judgment of this Court reported in 2006 (1) P.L.J.R. 476 , paragraph 11 (State of Bihar and others V/s. Ram Tawakya Singh and others). 6. I have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioners appointment and confirmation as Draftsman Grade-ll in the service in the Bihar Government is not in dispute. Copies of the office order dated 24.11.1969 (Annexure-1), appointing him to the post and his confirmation in service as per the order dated 23.11.1973 (Annexure-2), form part of the writ petition. The State Government has not placed on record the order by which the service of the petitioner was transferred to the Board. His order of appointment dated 8.6.1973 on the post of Draftsman Grade-ll in the Board is marked annexure-3 to the writ petition. It appears that he was thereafter granted promotion to the post of Draftsman Grade-I in the pay-scale of Rs. 296-8-360-EB-9-423.00 with effect from 25.3.1975, in temporary capacity, is marked Annexure-4 to the writ petition. His position in the seniority list of the parent department showing him as "Bihar Rajya Awas Board Me Pratiniyukt" occurring in the gradation list dated 20.2.1976, issued by the parent department is marked Annexure-5 to the writ petition. The letter dated 19.5.1976 (Annexure-6), and 4th April 1977 (Annexure-7), issued by the parent department show that the petitioner had drawn loan from the parent department. He superannuated with effect from 31.12.1998, while functioning as a Draftsman Grade-I in the Board is also not in dispute. In view of absence of any contemporaneous material on record showing that the petitioners services were confirmed in the Board or he was permanently appointed therein, the irresistible conclusion is that he superannuated while serving the Board as a Draftsman Grade-I in a temporary Capacity. 7. In view of absence of any contemporaneous material on record showing that the petitioners services were confirmed in the Board or he was permanently appointed therein, the irresistible conclusion is that he superannuated while serving the Board as a Draftsman Grade-I in a temporary Capacity. 7. Rule-28 of the Code defines lien and is reproduced hereinbelow: "28. Lien means the title of a Government servant to hold substantively either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. 7.1) The right to return to the post is called right of lien. Rule-68 of the Code is reproduced hereinbelow: "68. Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired to any other post." 7.2) It is thus manifest on a plain reading of Rule-28 read with Rule 68 of the Code that the petitioner was never substantively appointed in the services of the Board and, therefore, continued to maintain his lien with the parent department. Rule 71 of the Code is relevant at this stage and is reproduced hereinbelow: "71.(a) A Government servants lien on a post may in no circumstances be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. (b) In a case covered by subclause (2) of clause (a) of rule 70, the suspended Hen may not, except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service." 8. It is thus manifest that, in view of the petitioners temporary* capacity in the Board, he continued to maintain his lien in the parent department. Learned counsel for the petitioner has rightly relied on the aforesaid judgments. Law is well settled that an employee shall be paid his post-retirement benefits in such a situation by the parent department. In that view of the matter, the impugned order dated 15.9.2000 (Annexure-15) is hereby set aside with the direction to the State of Bihar to ensure payment of the post-retirement benefits to the petitioner. 9. The petitioners case for refixation of pay-scales deserves serious consideration. In that view of the matter, the impugned order dated 15.9.2000 (Annexure-15) is hereby set aside with the direction to the State of Bihar to ensure payment of the post-retirement benefits to the petitioner. 9. The petitioners case for refixation of pay-scales deserves serious consideration. The petitioner and two other similarly circumstanced persons have submitted joint representation dated 1.12.1994 (Annexure-8/A) to the Board for grant of the revised pay-scales of Rs.1400-2300/-.The request of two of them was acceded to by the Board, vide Order No. 1838, Patna, dated 6.12.1996 (Annexure-8/B). The consequent order dated 7.4.1997, granting the benefit of pay-scale of Rs. 1400-2300.00 to one of them, namely, Md. Safiruddin Ansari, Draftman Grade-I, in the services of the Board, is marked Annexure-8/C. The petitioners subsequent representations against the refusal on the part of the Board to grant him the pay-scale of Rs. 1400-2300/-, are annexed to the writ petition. The respondents have not in their counter affidavits placed any material on record to satisfy this Court that the petitioner was denied the replacement pay-scale of Rs. 1400-2300.00 for a valid reason. I am informed at the Bar that this has been-substituted by the pay-scale of Rs. 5500-9000.00 before the petitioner retired. 10. In that view of the matter, I am in no doubt that the State of Bihar must re-consider the petitioners case for grant of revised pay scale/replacement pay scale, and dispose of the same by a reasoned order. Let the petitioner submit an exhaustive representation setting out his case to respondent no. 2 (The Chief Town Planner, Urban Development Department, Government of Bihar, Vikas Bhawan, New Secretariat, Patna), who shall afford an opportunity of personal hearing to the petitioner and dispose of the same by a reasoned order. It is made clear that the entire differential amount of salary occasioned by the order of respondent no. 2 shall be payable by the Board. In case the petitioners representation to respondent no. 2 is required to be considered and disposed of by a different authority, then the same shall be placed before him for consideration and disposal. The State Government shall compute his post-retirement benefits accordingly. 11. The writ petition is accordingly allowed, the impugned order dated 15.9.2000 (Annexure-15) is set aside. In case the petitioners representation to respondent no. 2 is required to be considered and disposed of by a different authority, then the same shall be placed before him for consideration and disposal. The State Government shall compute his post-retirement benefits accordingly. 11. The writ petition is accordingly allowed, the impugned order dated 15.9.2000 (Annexure-15) is set aside. This Court will be pleased if the entire process including the release of the monetary benefits to the petitioner are completed within a period of four months of the date of submission of the representation.