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2011 DIGILAW 477 (PAT)

Vikash Kumar v. State Of Bihar

2011-03-31

J.N.SINGH

body2011
JUDGEMENT 1. Petitioner had initially filed this writ application for two reliefs, namely, (i) to direct the Building Construction Department to accept his joining pursuant to an order passed by this Court, as contained in Annexure-14 and (ii) to direct the respondents to pay his salary of the period 1.7.2009 till date. 2. It appears that after filing of the writ application, the joining of the petitioner has been accepted by the Building Construction Department with effect from 14.09.2010. Therefore, his first prayer becomes infructuous. The prayer of the petitioner is now confined to payment of his salary of the period 1.7.2009 to 13.09.2010 during which period his joining was not accepted by the Department. 3. From the order passed by this Court earlier in the writ application of the petitioner, as contained in Annexure-14, it appears that petitioner was aggrieved by non- implementation of an order dated 28.07.2009. Therefore, he had filed writ application. The order of this Court shows that it was accepted on behalf of State that if there was an order the same had to be implemented. Hence, the writ application was disposed of with a direction to the respondents to ensure implementation of the same forthwith. Inspite of the said orders of this Court, the Building Construction Department delayed acceptance of joining of the petitioner which necessitated filing of the present writ application. 4. Counter affidavit has been filed in this case by the authorities of the Building Construction Department. 5. From the reading of the counter affidavit, this Court does not find any justification for not accepting the joining of the petitioner in the Building Construction Department inspite of the orders of this Court. The only averment made in paragraph 14 of the counter affidavit on which learned counsel for the respondents relies is as follows:- Though the petitioner represented for allowing him to take charge of the post of the EO, Garden Division, BCD, Patna but in strict technical sense he never reported joining to the BCD pursuant to letter no.3633, dated 28.07.2009. Therefore, even if it is assumed, purely for the sake of argument, that the returning back of the services of the petitioner was not in consonance with the law, even then the petitioner does not appear to be entitled to pay for the period between 30.06.2009 to 13.09.2010 as he has not discharged any work during that period. 6. Therefore, even if it is assumed, purely for the sake of argument, that the returning back of the services of the petitioner was not in consonance with the law, even then the petitioner does not appear to be entitled to pay for the period between 30.06.2009 to 13.09.2010 as he has not discharged any work during that period. 6. From the expression used by the respondents in the affidavit to the effect that "in strict technical sense he never reported joining to the BCD pursuant to letter no.3633, dated 28.07.2009" it is apparent that they do not claim that the petitioner never approached the Building Construction Department for allowing him to join. In the earlier part of the paragraph, as reproduced above, they do accept that "petitioner represented for allowing him to take charge of the post of the EO, Garden Division, BCD, Patna" this shows that the petitioner had made attempt to submit his joining in the Department pursuant to said letter dated 28.07.2009 which this Court had directed to be implemented forthwith, but the Department did not accept his joining and put resistance to the same for quite some time till his joining was accepted on 14.09.2010 after filing of this writ application. 7. In the circumstances, this Court finds that there can be no justification for the respondents to deny petitioners salary of the period. From the wordings of the paragraph, as quoted above, it is clear that the authorities of the Building Construction Department have accepted that the earlier order, returning back his services to the Agricultural Department, was not in consonance with law. Still they claim that petitioner is not entitled for salary of the period. The ground taken in the counter affidavit for the same is, therefore, unjustified. 8. The writ application is, therefore, allowed. The respondents are directed to release salary of the petitioner of the period 01.07.2009 to 13.09.2010 forthwith and in any case not later than one month from the date of receipt/production of a copy of this order.