JUDGMENT : Sujit Narayan Prasad, J. I.A. No.3550 of 2019 :- 1. The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 427 days in preferring the instant appeal. 2. This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay in filing the appeal is condoned. 3. In the result, the instant interlocutory application is disposed of. L.P.A. No.745 of 2018:- 4. The instant intra-court appeal is directed against the judgment dated 13.09.2017 passed in W.P.(S) No.3701 of 2005 by learned Single Judge of this Court declining to interfere with the decision of the authority as taken vide order dated 09.12.1998 by which the name of the appellant/writ-petitioner was struck off from the list by the respondents on the ground that the appellant/writ petitioner was working on honorarium basis and as per the order passed by the writ court in C.W.J.C. No.5036 of 1992 and analogous cases only the cases of such retrenched persons were to be considered who were working on pay scale basis. 5. The brief facts of the case which require to be enumerated herein for proper adjudication of the lis are as under: The appellant/writ petitioner was appointed vide Memo No.2 dated 02.01.1987 issued by respondent No.10 under the Adult Education Programme, temporarily for a period of three months under the pay scale of Rs.785-1210, which was extended vide Memo No.1253 dated 01.05.1987. The services of the appellant/writ petitioner was terminated on 08.06.1987 but was restored vide order as contained in Memo No.470 dated 27.02.1988. The services of appellant/writ petitioner along with some others were again terminated vide order No.529 dated 13.03.1989 in pursuance to the order passed by Patna High Court dated 03.08.1988 in C.W.J.C. No.3222 of 1988. The appellant/writ petitioner was again posted on 15.06.1990 in the said project in the light of the direction contained in the Letter No.1024 dated 28.05.1990 and started getting salary as earlier that is prior to her termination. The appellant/writ petitioner was again posted on 15.06.1990 in the said project in the light of the direction contained in the Letter No.1024 dated 28.05.1990 and started getting salary as earlier that is prior to her termination. The erstwhile State of Bihar came out with a decision as contained in Memo No.955 dated 15.06.1992 terminating the services of the appellant/writ petitioner since the post of pay scale supervisor was no more in existence in pursuance of the Government Order No.43 dated 01.06.1993. Against the aforesaid retrenchment, several retrenched employees moved before the Patna High Court as also the association, namely, Bihar State Adult & Non-Formal Education Employees Association to which the appellant/writ petitioner was also one of the members being C.W.J.C. No.5036 of 1992 which was disposed of along with other analogous cases vide order dated 24.05.1996 directing the erstwhile State of Bihar to adjust/absorb the retrenched supervisor according to their seniority. The authority came out with a list of retrenched supervisor as contained in Memo No.1454 dated 17.08.1994 wherein the name of the appellant/writ petitioner is figured at Serial No.1059 and in pursuance to the direction passed by the Patna High Court, the respondent-authorities started taking steps for adjustment/absorption of the retrenched supervisors and in pursuance thereto, a process was decided to be initiated by asking one or the other candidates to appear before the interview board in which the appellant/writ petitioner also participated. The authority, on the basis of the performance of one or the other candidates in the interview, had prepared provisional seniority list of 1040 supervisors which was published as contained in Memo No.1761 dated 14.12.1997 to adjust/absorb them according to their seniority, in pursuance of the order passed by Patna High Court dated 24.05.1996 passed in C.W.J.C. No.5036 of 1992 and other analogous cases. In the said list, the name of the appellant/writ petitioner figured at Serial No.1034. 6. It is the grievance of the appellant/writ petitioner that junior to him as per the seniority list prepared were absorbed vide order No.710 dated 01.05.1998 leaving the appellant/writ petitioner and therefore, the contempt case was filed being M.J.C. No.1084 of 1998 but during pendency of the aforesaid contempt case, the authorities came out with an order on 09.12.1998 whereby and whereunder name of the appellant/writ petitioner was cancelled from the provisional seniority list. The aforesaid contempt case was disposed of vide order dated 23.12.1998, however, reserving liberty to the appellant/writ petitioner to challenge the order dated 09.12.1998 before the appropriate forum and in terms of the said liberty, the order dated 09.12.1998 has been assailed before this Court by way of writ petition being W.P.(S) No.3701 of 2005 which is the subject matter of the present intra-court appeal. 7. Mrs. Rakhi Rani, learned counsel for the appellant/writ petitioner, has agitated the ground in assailing the order passed by the learned Single Judge by making reference of the order passed by Patna High Court wherein there was a specific direction to absorb the services of the supervisors who have been adjusted in terms of the letter of the concerned department dated 19.12.1990. Such adjustment was directed to be made as per their seniority, hence, the submission has been made that the name of the appellant/writ petitioner was in the list dated 19.12.1990 and taking into consideration the aforesaid aspect of the matter in pursuance to the order passed by the Patna High Court, the services of the appellant/writ petitioner ought to have been absorbed. It has further been agitated that so far as the order dated 28.05.1990 is concerned, the same cannot be a ground to reject the claim of the appellant/writ petitioner since the same is although by virtue of office order allowing the appellant/writ petitioner to discharge duty on adhoc and temporary basis as supervisor having pay scale on making payment of Rs.400/- from the fund available for supervising the centres but according to her, the same cannot be construed to be a decision as would be evident from bare reading of the office order dated 28.05.1990 wherein the reference has been made for taking final decision from the Law department but no such final decision has been brought on record by the successor State of Jharkhand or successor State of Bihar before the writ court but the writ court has considered the order dated 28.05.1990 as an order which cannot be said to proper. 8. So far as deleting the name of the appellant/writ petitioner from the seniority list vide order dated 09.12.1998 merely on the ground of the order dated 28.05.1990 is concerned, the same cannot be said to be a proper exercise since the aforesaid so called office order No.1024 dated 28.05.1990 is not an order. 9. 8. So far as deleting the name of the appellant/writ petitioner from the seniority list vide order dated 09.12.1998 merely on the ground of the order dated 28.05.1990 is concerned, the same cannot be said to be a proper exercise since the aforesaid so called office order No.1024 dated 28.05.1990 is not an order. 9. She, further, submits that even accepting the plea having been taken by the State, then also the State has got no case, it is for the reason that when the Division Bench of the Patna High Court directed for absorption for such candidates whose names are referred in the letter dated 19.12.1990 and by following the seniority list the adjustment was to be made and admittedly the name of the appellant/writ petitioner was in the list dated 19.12.1990, therefore, strucking off the name of the appellant/writ petitioner from the seniority list is not proper. 10. Mrs. Richa Sanchita, learned G.A.-V appearing for the State of Jharkhand as also Mr. S. P. Roy, learned S.C. appearing for the State of Bihar have jointly taken the plea by defending their arguments that the appellant/writ petitioner cannot claim any aid on the basis of the order passed by the Division Bench of the Patna High Court as because according to them the appellant/writ petitioner had already been engaged on honorarium basis and as such, she has made a different class being not in the category of retrenched employees and that is the reason her name was struck off from the seniority list. 11. Learned Single Judge after taking into consideration this aspect of the matter has declined to interfere with the impugned order dated 09.12.1998 by which the name of the appellant/writ petitioner had been struck off from the seniority list merely on the ground that the appellant/writ petitioner was no more under the category of retrenched employees. 12. This Court has heard learned counsel for the parties at length and on appreciation of their rival submissions, has found the fact which is not in dispute that the appellant/writ petitioner was appointed on 02.01.1987 as supervisor under the Adult Education Programme in the pay scale of Rs.785-1210 on adhoc basis for a period of three months. The appellant/writ petitioner had started discharging her duty. The service book was also prepared. The appellant/writ petitioner had started discharging her duty. The service book was also prepared. The question about the appointment under the Adult Education Scheme had been raised before the Patna High Court by filing writ petition being C.W.J.C. No.5165 of 1987 wherein the order has been passed for dispensing with the services of the Adult Education Programme with an observation upon the authority to make regular appointment. In pursuance to the said direction, the appellant/writ petitioner and one Shri Jawahar Lal Jha have made their representations for their appointment which was sent before the Law Department but the opinion was given that the judgment rendered by the Patna High Court in C.W.J.C. No.5165 of 1987 pertains only to the District of Patna but the case of the appellant/writ petitioner and Shri Jawahar Lal Jha since pertains to the Santhal Pargana Area, hence, the said judgment is not applicable but the aforesaid opinion has not been accepted by the competent authority by making a recommendation about regularization of their services and as such the decision has been taken to give the appellant/writ petitioner the status which she was holding prior to retrenchment and accordingly she has been allowed to perform her duty by reinstating them in service on adhoc, purely on temporary basis as “pay scale supervisor” with a further decision to make payment of Rs.400/- from the fund available for supervision of the centres but subject to the final decision to be taken by the Law Department. 13. The appellant/writ petitioner thereafter, has again been removed from services vide office order dated 15.06.1992 on the ground that there was no requirement of the services of the appellant/writ petitioner since the post of supervisor was no more in existence. The retrenchment order has been questioned before the Patna High court in C.W.J.C. No.5036 of 1992 along with other analogous cases wherein apart from different issues, issues of the candidates who were allowed to work on honorarium basis has also been raised by the State authority and the Division Bench of the Patna High Court after giving conscious consideration of entire aspect of the matter, passed a detailed reasoned order with a direction which requires to be referred herein, which reads hereunder as: “32. There is no doubt that petitioners’ initial appointments were made to a scheme which was purely temporary, therefore, it may not be possible for me to ask the respondent-authorities to regularise their services. But I have already noticed that their appointments were made as per the prescribed norms of the Government after proper advertisement etc. I have also noticed that having regard to their past services rendered continuously for ten to forteen years, the State-authorities had themselves absorbed at least 771 of such Supervisors and for rest steps were under contemplation. Petitioners have also been able to establish successfully that the decision of the authorities to cancel such adjustments was not only malafide rather shameful. But now a stand is being taken by the respondents that those 771 posts were also temporary hence a decision was taken to terminate the petitioners. Therefore, in these backgrounds, it would not be proper to quash the order of petitioners’ termination. 33. But it can not be ignored that having regard to the long services rendered by the petitioners, administrative authorities had also suggested steps for their absorption even in another departments. Therefore, having taken into consideration entire facts and circumstances of the cases, I dispose of the writ petitions with the following direction to the respondent-authorities: (a) to allow the petitioners and interveners to continue against those 771 posts, against which they were adjusted in terms of the letter of the concerned department, dated 19th December, 1990. But such an adjustment is to be made as per their seniority OR (b) in case those posts have also been abolished, take steps to absorb/adjust the petitioners along with the interveners in a similar manner, the employees of Consolidation Department were adjusted OR (c) if for any justified reason condition nos.(a) or (b) are not possible, take a decision similar to the State of Uttar Pradesh, which I have already indicated in paragraph nos.18 of this order and adjust/absorb them accordingly. But in the facts and circumstances of the case, I could not persuade myself to quash the impugned orders.” It is evident from the judgment rendered by Patna High Court wherein specific directions have been passed upon the respondent-authorities as would be evident from paragraph-33 thereof as quoted above: (a) to allow the writ-petitioners and interveners to continue against those 771 posts, against which they were adjusted in terms of the letter of the concerned department, dated 19th December, 1990. But such adjustment is to be made as per their seniority, OR; (b) in case those posts have also been abolished, take steps to absorb/adjust the writ-petitioners along with the interveners in a similar manner, the employees of Consolidation Department were adjusted, OR; (c) if for any justified reason, condition Nos.(a) or (b) are not possible, take a decision similar to the State of Uttar Pradesh, which has been indicated at paragraph No.18 of the order and adjust/absorb them accordingly. 14. After going through the directions, we are of the view that the Division Bench of the Patna High Court has passed a specific direction for absorption of services of the retrenched employees from the said scheme and even in case of abolition of the post, to adjust and/or absorb in the like manner as was done with respect to the employees of the Consolidation Department and even if there is any difficulty in taking decision, the principle which has been adopted by the State of Uttar Pradesh is to be followed. 15. We have gone through the observation made at paragraph-18 of the said judgment which also requires to be referred herein, which reads hereunder as: “18. It was pointed out that the State of U.P. also in the year, 1992, had decided to abolish the Adult Education Directorate and all the posts of Adult Education Supervisors, who were in the pay scale of Project Officers, Adult Education and Assistant Project Officer. But subsequently a decision was taken by the concerned department on 27th March, 1992 to absorb/appoint such employees having regard to their educational qualification and also after granting relaxation in age etc., if any. But subsequently a decision was taken by the concerned department on 27th March, 1992 to absorb/appoint such employees having regard to their educational qualification and also after granting relaxation in age etc., if any. Such a relaxation was only applicable to those Project Officer, Assistant Project Officers and Supervisors, who were working in the Adult Education Department and were appointed through direct recruitment basis.” It is evident from the observation made at paragraph-18 by the Division Bench of the Patna High Court wherein reference about decision taken by the State of Uttar Pradesh in the year 1992 with respect to the cases of the retrenched employees of the Adult Education Directorate by virtue of abolition of the scheme, decision was taken by the concerned department of the State of Uttar Pradesh to absorb and adjust such employees having regard to their education qualification and also after granting relaxation in age, if any. Such relaxation was only applicable to those Project Officer, Assistant Project Officers and Supervisors who were working in the Adult Education Department and were appointed through direct recruitment basis. 16. It is the admitted case of the parties that the name of the appellant/writ petitioner was in the list dated 19.12.1990 as also the name figured in the seniority list, however, the name of the appellant/writ petitioner was struck off from the seniority list on the ground that she has been appointed on honorarium basis and therefore, she was no more under the category of retrenched employees as would be evident from the order dated 09.12.1998. 17. The question herein is that the Division Bench of the Patna High Court has passed a specific direction laying down the parameters for absorption as would appear from paragraph-33 of the said judgment wherein the direction Nos.(a) or (b) or (c) have been stipulated. The direction No.(a) or (b) concerns about absorption/adjustment of the writ-petitioners whose names found mentioned in the list dated 19.12.1990, however, in case of difficulty in taking decision in terms of the directions (a) or (b), there is an alternative direction as under (c) as per the process adopted by the State of Uttar Pradesh. The direction No.(a) or (b) concerns about absorption/adjustment of the writ-petitioners whose names found mentioned in the list dated 19.12.1990, however, in case of difficulty in taking decision in terms of the directions (a) or (b), there is an alternative direction as under (c) as per the process adopted by the State of Uttar Pradesh. It is not the case of the State-respondents that due to difficulty they have not resorted to the direction as under (a) or (b) as also it is not the case of the State-respondent that they have resorted to the direction as under (c) of the aforesaid judgment, rather it is the admitted case that in terms of the list dated 19.12.1990, the services of all the retrenched employees have been absorbed leaving the appellant/writ petitioner, it is for the reason that she was subsequently engaged on honorarium basis and that is the reason her name was struck off from the seniority list. 18. The basis of such consideration by the State-respondents is the order dated 28.05.1990 but as we have already observed herein that the office order dated 28.05.1990 cannot take the shape of the order, however, the reflection is made as of office order but as per the content of the said letter dated 28.05.1990, the appellant/writ petitioner was allowed to discharge duty on adhoc basis as supervisor on payment of Rs.400/- from the fund available under the scheme but subject to final decision of the Law Department and when the final decision is awaiting from the Law Department, the said instrument cannot be said to be an office order as because the office order will only be issued if there is a finality in such decision and herein since the issue has been referred before the Law Department as would appear from the said letter wherein it has been stated that for taking final decision and advice by them, has again been sent before the Law Department, therefore, we are no way in confusion by holding it not an office order. However, the appellant/writ petitioner was allowed to continue as supervisor but there is no reference of any word as ‘honorarium’. However, the appellant/writ petitioner was allowed to continue as supervisor but there is no reference of any word as ‘honorarium’. Thereafter, the services of the appellant/writ petitioner was dispensed with vide office order dated 15.06.1992, therefore, this Court is of the view that the respondent-State has failed to demonstrate before us as to how they are treating the services of the appellant/writ petitioner on honorarium basis which is the basis for striking off the name of the appellant/writ petitioner from the seniority list, save and except, the document dated 28.05.1990 which we have come to a conclusive finding that the same is not an order and even accepting that the same is an order, we have got therefrom that the appointment of the appellant/writ petitioner was not on honorarium basis rather it has specifically been stipulated therein that the appellant/writ petitioner was appointed on adhoc and temporary basis as supervisor having pay scale. However, Rs.400/- has been decided to be paid from the fund of the scheme but that does not mean that the services of the appellant/writ petitioner was on honorarium basis, even accepting that, but thereafter the other office order came on 15.06.1992 by which the service of the appellant/writ petitioner was dispensed with. Further question would be that even accepting what has been stated by the State-authority is true but since there is a direction of the Division Bench of the Patna High Court to absorb the services of the retrenched employees under the scheme if there name found mentioned in the list dated 19.12.1990 and reference of the name of the appellant/writ petitioner in the said list is not in dispute, therefore, the appellant/writ petitioner is also entitled for the benefit of the order passed by the Patna High Court subject to the seniority list. 19. It is also not in dispute that the persons in the seniority list below the appellant/writ petitioner have already been absorbed and only on the ground that there is no retrenchment of the appellant/writ petitioner, her name has been struck off from the seniority list that was under challenge before the learned Single Judge. 20. 19. It is also not in dispute that the persons in the seniority list below the appellant/writ petitioner have already been absorbed and only on the ground that there is no retrenchment of the appellant/writ petitioner, her name has been struck off from the seniority list that was under challenge before the learned Single Judge. 20. We have already came to conclusion that in absence of any office order justifying the submission of the learned State counsel that the appellant/writ petitioner was on honorarium basis and the reliance is only on the communication dated 28.05.1990 but the same being not an office order, therefore, strucking off the name of the appellant/writ petitioner from the list is absolutely illegal and improper. 21. Further, the first parameter which was to be looked into by the State authority is the reference of the name of the candidate if found mentioned in the list dated 19.12.1990 and thereafter the absorption as per their seniority is to be looked into and so long as the name of the candidates are in the list dated 19.12.1990, their names cannot be struck off from the seniority list. Even accepting that in the meanwhile, some candidates have been engaged on temporary basis, the proper course would have been available before the competent authority to get modification of the order dated 24.05.1996 passed in C.W.J.C. No.5036 of 1992 along with other analogous cases. On specific query made by us to the learned State counsel that as to whether any modification application has been filed before the Patna High Court for getting the order dated 24.05.1996, more particularly, the direction for consideration of such candidates whose names are mentioned in the list dated 19.12.1990. Learned counsel, with all fairness, submits that no such application has been filed. 22. We, on the critical examination of the factual aspect as discussed in detail hereinabove and after going through the finding recorded by the learned Single Judge, are of the view that the learned Single Judge has not appreciated the fact about the list dated 19.12.1990 and its implication and without considering the aforesaid aspect of the matter, has declined to interfere with the order dated 09.12.1998. 23. 23. It further appears from the impugned judgment that the learned Single Judge has solely gone into the fact that the seniority list since was prepared on the basis of the direction passed by the Patna High Court in C.W.J.C. No.5036 of 1992 from which the name of the appellant/writ petitioner was struck off, but according to our considered view the learned Single Judge ought to have considered the consequence of having the name in the list dated 19.12.1990 which creates a right of the appellant/writ petitioner for consideration subject to seniority list, therefore, merely on account of the fact that the name of the appellant/writ petitioner has been struck off from the seniority list, her right cannot be said to suffer so long her name is appearing in the list dated 19.12.1990. 24. This Court, is of the view that the judgment passed by the learned Single Judge suffers from infirmity, accordingly, the same is held to be not sustainable, as such, quashed and set aside. 25. It goes without saying that if any junior to the petitioner from the seniority list in question has been extended with any benefits, the same shall be required to be considered so far as the petitioner is concerned. 26. In the result, this appeal stands allowed, accordingly, disposed of. 27. In consequence thereof, the writ petition also stands allowed. Ravi Ranjan, J. - I agree