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2014 DIGILAW 655 (JHR)

Amrendra Kumar Singh v. State of Jharkhand

2014-06-25

APARESH KUMAR SINGH

body2014
Order Heard counsel for the petitioner, State of Jharkhand and State of Bihar. 2. The petitioner has preferred this writ petition seeking the benefits of ACP scheme applicable under the Government of Jharkhand as also the arrears of salary for the period from 8.5.1981 to 12.12.1985. Though, the State of Jharkhand has filed counter affidavit but despite twice time granted earlier, no counter affidavit has been filed on behalf of the State of Bihar even after lapse of more than 4 years. Therefore, the case is being heard and decided on the available materials on record. 3. The little background history of this case needs to be noticed in order to appreciate the controversy raised in the writ petition. The petitioner was initially appointed in Bihar State Dairy Co-operative Ltd. on 3.10.1980 and was terminated on 8.5.1981 along with other persons. The aggrieved persons including the petitioner preferred writ petitions being C.W.J.C. Nos. 2222, 2508, 2509 of 1981 and 1067 of 1982 before the Patna High Court. In the judgment passed in the said writ petitions dated 12.4.1984, which is annexed as Annexure-1, the termination of services of petitioner and others were quashed. At para 19 of the said judgment it was categorically observed:- “It goes without saying that all the consequential benefits arising out of the quashing of the order of termination of the services of the petitioners shall, as a matter of necessary corollary, follows”. The State went in appeal before the Hon'ble Supreme Court of India in Special Leave to Appeal, which however were dismissed on 11.3.1985. The petitioner along with others were reinstated on 17.12.1985 in the Bihar State Dairy Co-operative Ltd. as per Annexure-3. The Bihar State Dairy Co-operative Ltd. however was abolished and vide Annexure-4 dated 21.8.1986, the services of the persons working in the Co-operative including the petitioners were absorbed as Laboratory Assistant in the Central Design Organization, Road Construction Department, Government of Bihar in the prescribed scale of pay of Rs. 350-425. The said office order referred to the letter of the Chief Secretary under which such absorption was made. The said office order indicated that their seniority would be reckoned from the date of joining of their services in the said organization. Thereafter, petitioner has been granted 1st time bound promotion w.e.f. 3.10.1990 by the order of the Chief Engineer, Central Design Organization vide letter no. The said office order indicated that their seniority would be reckoned from the date of joining of their services in the said organization. Thereafter, petitioner has been granted 1st time bound promotion w.e.f. 3.10.1990 by the order of the Chief Engineer, Central Design Organization vide letter no. 911 dated 12.12.1998 and letter no 912 of the same date, which was also approved by the Finance Department. The said fact is evident from letter no. 2309 dated 12.12.2007(Annexure-7) issued by the Executive Engineer of the Road Construction Division, Deoghar. 4. The respondent-State of Jharkhand through their counter affidavit have stated that petitioner has been granted the benefit of first ACP w.e.f. 9.8.1990 as per the order of the Chief Engineer contained in memo no. 773 dated 31.5.2008. However, in respect of the claim of arrears of salary, the respondents have stated that the period between 9.5.1981 to 12.12.1985 has not been verified as per his service book when he was supposedly under the Bihar State Dairy Co-operative Ltd. Admittedly he was reinstated in service w.e.f. 17.12.1985 in view of the judgment rendered by Patna High Court and up held by the Hon'ble Supreme Court which is also accepted by the respondent- State of Jharkhand in their affidavit. 5. The petitioner has however also sought to seek payment of arrears of his salary for the period from 8.5.1981 to 12.12.1985 relying upon the order passed in the writ petitions (Annexure-1) as quoted herein above. Alternatively, learned counsel for the petitioner has submitted that at least the service of the petitioner should be reckoned w.e.f. initial date of appointment i.e. 3.10.1980 since the respondents themselves have granted the benefit of first time bound promotion w.e.f. 3.10.1990 as per Annexure-7 itself. 6. In the wake of aforesaid background of facts, learned counsel for the State of Bihar has taken a plea that the Bihar State Dairy Cooperative Ltd. having been abolished, the service book of the petitioner could not have been verified for the said period when admittedly he was out of service and no payment of salary were made for the said period neither any pay slip was issued. However, learned counsel for the State of Bihar is not able to dispute the contention of the petitioner borne out from Annexure-7 that he has been granted time bound promotion w.e.f. 3.10.1990 treating 10 years of service from the date of his initial appointment. However, learned counsel for the State of Bihar is not able to dispute the contention of the petitioner borne out from Annexure-7 that he has been granted time bound promotion w.e.f. 3.10.1990 treating 10 years of service from the date of his initial appointment. 7. Learned counsel for the State of Jharkhand has resisted the claim of arrears of salary on the ground of absence of verification of service book of the petitioner, however he is not able to dispute that the petitioner was reinstated in service on succeeding in challenge to the termination order and also granted first time bound promotion reckoning his initial date of appointment as October, 1980 itself. 8. I have heard counsel for the parties and gone through the relevant materials on record. In the aforesaid state of fact, therefore, it is evident that the judgment rendered by the Court of record i.e. the Patna High Court and upheld up to the Hon'ble Supreme Court making a clear observation is being overcome on the plea that service book of the petitioner has not been completed for the period in question. Such stand on the part of the respondents cannot be appreciated. However it is also true that the petitioner having succeeded in 1985 and reinstated in December, 1985 itself has chosen to seek payment of arrears of salary for the period from 8.5.1981 to 12.12.1985 by preferring the writ petition in 2008. The latches on the part of the petitioner also is unexplained. In the aforesaid circumstances, keeping into regard the specific observation of the learned Division Bench of the Patna High Court and the fact that petitioner has been granted benefit of first time bound promotion in 1990 reckoning 10 years of service from the initial date of appointment, there is no reason why continuity of service be not conferred to him from the initial date of appointment in the Bihar State Dairy Co-operative Ltd. However, it is true that the petitioner was not serving the Co-operative for the said period and also by his conduct chosen not to press the relief of arrears of salary for almost 23 years of passing of the said judgment. 9. 9. This Court, considering all these facts and circumstances, in exercise of its equitable and discretionary jurisdiction does not find it proper to direct the respondents to pay the arrears of salary for the period from 8.5.1981 to 12.12.1985. However, the respondents would confer the benefit of continuity of service to the petitioner from his intial date of appointment i.e. 3.10.1980 under the Bihar State Dairy Cooperative Ltd. for the purpose of his pensionary dues as also for the purpose of ACP/MACP scheme. However, it is also clarified that the order of absorption contained at Annexure-4 clearly stipulates that seniority of such absorbed persons like the petitioner would be reckoned from the date of their joining at the Central Design Organization, Road Construction Department. By virtue of continuity of service in view of the observation made by the Patna High Court from the initial date of appointment of the petitioner in October, 1980, however the inter-se seniority of the petitioner and other incumbent of his service cadre would not in any manner be disturbed. The writ petition is disposed of in the aforesaid manner. Petition disposed of.