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2007 DIGILAW 898 (JHR)

Shyam Bahadur Sinha v. State Of Jharkhand

2007-12-05

N.N.TIWARI

body2007
JUDGMENT Narendra Nath Tiwari, J. 1. In this writ petition, the petitioners have prayed for quashing the order, as contained in Memo No. 4236 dated 10 th December, 2001 (Annexure-8), whereby the circular issued by Letter No. 909 dated 28 th August, 1996 giving benefits of Time Bound Promotion, pension, gratuity etc. from the date of their earlier appointment has been cancelled with retrospective effect, making the same effective from the date of their absorption in the Government Service. 2. It has been stated that the petitioners, who are working as Revenue Karamchari at Dhanbad, were earlier appointed as Chowkidar/Tahsildar. Subsequently, the petitioners were absorbed in a regular post of Revenue Karamchari. The Department of Revenue and Land Reforms, Government of Bihar, as then was, issued a circular by Letter No. 1835 dated 4 th September, 1986, communicating the decision of the Government that the Chowkidar/Tahsildar absorbed on the post of Revenue Karamchari would be given the benefits of time bound promotion, pension, gratuity and other benefits from the date of their earlier appointment. It has been stated that the Department of Revenue and Land Reforms, Government of Jharkhand, has issued impugned letter dated 10 th December, 2001, whereby the earlier circular dated 28 th August, 1996 has been cancelled with retrospective effect and to the prejudice of the petitioner (s), decision has been taken to extend the benefits from the date of their absorption in a regular post of Revenue Karamchari. It has been submitted on behalf of the petitioners that the respondents have no authority to cancel the earlier letter of the Government with retrospective effect and, thereby, to nullify the valuable rights accrued to the petitioner. The respondents cannot vary the service condition to their disadvantage except with the approval of the Central Govt., as envisaged under Section 73 of the Bihar Reorganisation Act, 2000. 3. A counter affidavit has been filed on behalf of the respondents, staling, inter alia, that the earlier decision was taken by the Government of Bihar and that after bifurcation of the State, the Government of Jharkhand is at liberty to take its own decision. The Personnel & Administrative Reforms Department, Government of Jharkhand, has clarified that the services of the employees would be taken from the date of the adjustment in the government service and not from the earlier date. Accordingly, the impugned order has been issued. 4. The Personnel & Administrative Reforms Department, Government of Jharkhand, has clarified that the services of the employees would be taken from the date of the adjustment in the government service and not from the earlier date. Accordingly, the impugned order has been issued. 4. It has been stated that the services rendered by the petitioners earlier cannot be counted and the Government of Jharkhand cannot be compelled to stick to the policy decision taken by the erstwhile Government of Bihar. 5. Mr. R. Mukhopadhyay, learned Counsel, appearing on behalf of the petitioners, submitted that the Government of Jharkhand after creation of the new State, cannot take away any right, which has been vested in the employee on the plea of bifurcation of the State. Learned Counsel submitted that the impugned order, depriving the petitioners of their vested right, is arbitrary and wholly without jurisdiction. Learned Counsel further submitted that in similar case, Raj Mani Tiwari v. Stafe of Jharkhand and Ors. 2007 (3) JUR 514, this Court has held that though the Government is empowered to take resh policy decision, but the Government has no authority to take away or deprive the employee of any right already vested. A policy decision, which takes away the valuable right of the petitioners, cannot be implemented with retrospective effect. The impugned letter is also in the teeth of Section 73 of the Bihar Reorganisation Act. 5.1 Learned J.C. to S.C. I appearing on behalf of the respondents contested the petitioners claim, but has not disputed the said contentions of the petitioners. 6. Considering the material appearing on record and submission made by the parties, I find substance in the grievance/submissions made by the petitioners. It is evident from the circular dated 28 th August, 1996 issued by Revenue and Land Reforms Department (Annexure-7) that the Government of Bihar had taken decision to extend the benefits of Government servant to the Revenue Karamchari absorbed from the post of Chowkidar/Tehsildar from the date of their initial appointment. By the impugned letter (Annexure-8), the said circular (Annexure-7) has been sought to be cancelled and said benefits have been allowed only from the date of their absorption as Revenue Karamchari to their great disadvantage. Before issuing the impugned circular, no opportunity of hearing was given to the petitioners. By the impugned letter (Annexure-8), the said circular (Annexure-7) has been sought to be cancelled and said benefits have been allowed only from the date of their absorption as Revenue Karamchari to their great disadvantage. Before issuing the impugned circular, no opportunity of hearing was given to the petitioners. Section 73 of the Bihar Reorganisation Act, 2000, inter alia, does not also permit such variation in the service condition to the disadvantages of the employee, except with previous approval of the Central Government, which admittedly has not been taken before issuing the impugned letter. The respondent cannot also make any such provision effective retrospectively. It is held that the impugned letter dated 10 th December, 2001 (Annexure-8) cannot be made effective retrospectively and the said letter cannot take away any valuable right, which has been vested in the petitioners by virtue of earliar provision/circular. That part which provides for giving effect to the said letter with retrospective effect is quashed. Accordingly, this writ petition is partly allowed in the aforesaid terms.