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2010 DIGILAW 237 (JHR)

State of Jharkhand v. Subhash Kumar

2010-02-11

AMARESHSWAR SAHAY, RAKESH RANJAN PRASAD

body2010
ORDER : 1. Through this civil review application, the order dated 10.2.2009 passed in I.P.A. No. 169 of 2006 has been ought to be reviewed, whereby and whereunder, the State of Jharkhand has been directed to make payment of salary to the opposite party No. 1 for the period from 8.6.2005 to 31.1.2007 during which period the opposite party No. 1 pursued his higher studies in Veterinary Science. 2. Mr. P.K Prasad learned Advocate General, appearing for the petitioner, submitted that the opposite party No. 1 was granted study leave with full salary for pursuing Post Graduate study for the Sessions 2003-04 and 2004-05 vide Annexure-1 to the review application, but the opposite party No. 1 by making forgery in the said notification represented before the writ Court and also before the appellate Court that he has been granted study leave for the Sessions 2004-05 and 2005-06 and the Court accepting the plea of the opposite party No. 1 passed the order for making payment and as such, the order dated 10.2.2009 is fit to be set aside. 3. Learned Advocate General further submitted that the other ground for seeking review of the order is that the opposite party No. 1 on being allocated to the Bihar cadre was relieved by the State of Jharkhand on 31.5.2005, whereupon opposite party No. 1 joined in the State of Bihar on 19.9.2005 and hence the State of Jharkhand was not obliged to pay salary from 19.9.2005 and onward, but the opposite party No. 1 did represent before this Court that he did join the State of Bihar on 31.1.2007 and on this mistaken fact, the Court passed order for making payment of the salary for the period from 8.6.2005 to 31.1.2007, as opposite party No. 1 had already been paid salary for the period from 20.12.2004 to 7.6.2005 and, therefore, the order passed in L.P.A. No. 169 of 2006 is fit to be recalled. 4. 4. As against this learned Counsel appearing for the opposite party No. 1 submitted that right from the beginning, the State has been agitating the point that the opposite party No. 1 by making forgery had changed the date of Sessions as 2004-05 and 2005-06, but that fact was denied by filing reply to the counter affidavit in W.P. (S) No. 3115 of 2005 and the Court on being satisfied did not think it proper to take cognizance of that fact and proceeded with the matter of hearing of the said writ application granting indulgence to the State to seek instruction on the other point and, therefore, the State at the time of final disposal of the said writ application did not agitate this point and in fact, could not have agitated that point. 5. On the other point, it was submitted that the opposite party No. 1 on being allocated the State of Bihar submitted his joining under protest on 6.6.2005, but it was not accepted nor the opposite party No. 1 was allowed to continue his study at Birsa Agriculture University. However, under order dated 25.8.2005 passed by this Court in the aforesaid writ application, the opposite party No. 1 was allowed to join in the State of Bihar with permission to return Ranchi to attend his study in Birsa Agriculture University and the Court also observed, under that order that the study of opposite party No. 1 in Birsa Agriculture University shall be subjected to the decision of the case. 6. Under that situation, the joining of opposite party No. 1 was accepted and he was allowed to continue his study and as such, the joining given by the opposite party No. 1 in the State of Bihar earlier can easily be said to be a notional one and ultimately, the opposite party No. 1 after completing his study joined in the State of Bihar on 31.1.2007 and under these circumstances, the appellate Court passed the order directing the State of Jharkhand to make payment for the period from 8.6.2005 to 31.1.2007 and therefore, this issue cannot be a subject matter of review. 7. We do find substance in the submission advanced on behalf of the opposite party No. 1. 7. We do find substance in the submission advanced on behalf of the opposite party No. 1. On going through the records of this case and also of the writ application, we do find that the point relating to forgery had earlier been agitated before the writ Court, but that was not accepted by the writ court and hence, that point was never agitated before the appellate court. Therefore, the State cannot be allowed to agitate this point again for seeking review of the impugned order. So far as other point relating to salary for the period from 8.6.2005 to 31.1.2007 is concerned, that order was passed after taking into consideration the entire circumstances relating to the permission granted to opposite party No. 1 for pursuing his study with full salary and then acceptance of the notional joining by the State of Bihar under the order of the Court and then permitting the opposite party No. 1 to continue his study by the State of Bihar and finally the acceptance of joining of opposite party No. 1 on 31.1.2007 after completion of the course by the State of Bihar. Therefore, this matter cannot be allowed to be agitated for seeking review of the order, as once the point was agitated upon and the order was passed after considering the relevant material that cannot be a subject matter for review. 8. Thus, we do not find any apparent error on record. Accordingly, this review application stands dismissed.