Patna High Court - Orders
Md.Nijam vs The State Of Bihar & Ors on 7 September, 2009
Author: P. K. Misra
Bench: P. K. Misra
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.492 of 2008
MD.NIJAM son of late Md. Subhan resident of Lodipur, P.s. Kotwali,
District Patna.
Versus
1. THE STATE OF BIHAR
2. The Secretary, Department of Social Welfare, Govt. of Bihar, Patna.
3. The Director, Social Welfare, Govt. of Bihar, Patna.
4. The Deputy Director, Welfare, Patna Division, Patna.
5. The District Welfare Officer, Nalanda, Biharsharif.
6. The District Accounts Officer, Nalanda, Biharsharif.
7. The Child Development Project Officer, Sarmera, District Nalanda.
8. The Child Development Project Officer, Noorsarai, District Nalanda.
9. The Bihar State Construction Corporation through its Managing
Director, Patna.
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LPA No.556 of 2008
1. THE STATE OF BIHAR
2. The Secretary, Department of Welfare, Govt. of Bihar, Patna.
3. The Director Social Welfare, Govt. of Bihar, Patna.
4. The Deputy Director, Welfare, Patna Division, Patna.
5. The District Welfare Officer, Nalanda, Biharsharif.
6. The Child Development Project Officer, Sarmera, District Nalanda.
7. The Child Development Project Officer, Noorsarai, District Nalanda.
Versus
1. MD.NIZAM son of Late Md. Subhan, resident of Lodipur, P.S. Kotwali District
Patna.
2. The Bihar State Construction Corporation through its Managing Director, Patna.
3. The District Accounts Officer, Nalanda, Biharsharif.
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For the Writ Petitioner :- Mr. Dhirendra Kumar Jha.
For the State :- M/S. Nirmal Kumar, G.P. IV &
Vishwambhar Prasad, AC. to G.P. IV
For Respondent Corporation :- Mr. R. K. Shukla
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6 07/09/2009Heard learned counsel appearing for the parties.
These two letters patent appeals have been filed against the order dated 18.3.2008 passed by the learned Single Judge in C.W.J.C. No. 16333 of 2006. The State of Bihar is the appellant in L.P.A. No. -2- 556 of 2008 whereas the writ petitioner, whose writ petition was allowed in part, is the appellant in L.P.A. No. 492 of 2008. The writ petitioner had projected two grievances before the learned Single Judge, the first one was relating to non fixation of the pay scale of the petitioner with effect from July, 2002 which was apparently on the basis of the audit objection contained in Annexures 3 & 4. The second prayer in the writ petition is to treat his age of superannuation as 60 years on the ground that as per decision of the Corporation in the year 1976, the service conditions applicable to the employees of the State Government was applicable to the employees of the Corporation and the age of retirement of the government employees having been raised to 60 years, automatically the age of superannuation of the employees of the Corporation should be 60 years. However, the background in which the writ petitioner had filed the writ petition was slightly different. The petitioner was admittedly an employee of the Bihar State Construction Corporation (respondent no. 9 in the writ petition). He had come to the department of Social Welfare under the State Government in the year 1997. After the government had raised the age of superannuation from 58 to 60 years, the petitioner apprehending that he may be allowed to retire at the age of 58 years since he was an employee of the Corporation, made a representation to the Department that he should be allowed to continue in service till the age of 60 years. The department at that stage thought it prudent to repatriate the petitioner to the respondent Corporation just two days before the petitioner had to attain the age of 58 years. That became -3- the subject matter of the dispute.
However, even though the reliefs claimed were confusing, the learned Single Judge has rightly construed that the main grievance of the petitioner was against the order of his repatriation to the parent Corporation. The learned Single Judge came to the conclusion that the order relating to repatriation of the writ petitioner to the respondent Corporation was unjust and arbitrary inasmuch as the writ petitioner was being sent back to the Corporation just before he was going to attain the age of 58 years. The learned Single Judge by placing reliance on the earlier Division Bench decision of this Court in the case of Lala Nand Kumar Vs. Bihar state Food & Civil Supplies Corporation Limited, reported in 2008(1)PLJR, 579 has observed that to send the petitioner to his parent Corporation would be that he would not get his salary due to financial stringency which was contrary to the earlier decision of the High Court and, therefore, such order was illegal.
In the appeal filed by the State Government it is contended that the writ petitioner had come on deputation and he cannot claim as a matter of right that he should serve the foreign department for all times to come and it was within the discretion of the State government to repatriate the writ petitioner to the respondent Corporation.
Another letters patent appeal has been filed by the writ petitioner on account of the fact that the learned Single Judge has refused to grant relief relating to revision of pay scale of the petitioner. In course of hearing of the present appeal, learned counsel -4- for the appellant in L.P.A. No. 492 of 2008 fairly submitted that he may not press the appeal if he is allowed to continue in the government department till he attains the age of 60 years.
Learned counsel for the State in L. P.A. No. 556 of 2008 however, has vehemently contended that the order of the learned Single Judge quashing the order of repatriation of the writ petitioner is illegal and is liable to be set aside.
Learned counsel for the State is, obviously, correct in his submission that normally it was within the discretion of the State Government in the concerned department to consider as to who should be allowed to continue in the government department and as to who should be repatriated to the parent department or Corporation. But in the present case, however, the order of repatriation was passed only on the ground that the age of retirement of the writ petitioner was 58 years and since he was about to attain the age of 58 years, he should go back to the respondent Corporation.
In the normal course, we would have interfered with the order of the learned Single Judge and would have remanded the matter back to the State Government for fresh consideration as to whether the petitioner should be repatriated or not but since by virtue of the order of the learned Single Judge the writ petitioner has continued in service in the department of Social Welfare and is continuing to draw salary from the said department and it is also apparent that he will be attaining the age of 60 years on 31.12.2009 i.e. about three and half months later, in these circumstances, though we accept the submission -5- made by the learned counsel for the appellant State that it was within the discretion of the department of the State Government to repatriate the person who had come on deputation, we think that it would not serve any purpose if the matter is remitted back to the State Government and, therefore, we dispose of L. P.A. No. 556 of 2008 with the observation that though it was within the discretion of the government to repatriate a person on deputation to his parents department or Corporation, in the peculiar facts and circumstances of the present case, the order of the learned Single Judge need not be interfered with. However, L.P.A. No. 492 of 2008 filed by the writ petitioner is dismissed as not pressed. It is made clear that since this order has been passed in the peculiar facts and circumstances of the case, it is obvious that it should not be treated as a precedent in any other case in future.
(P. K. Misra, CJ.) (Anjana Prakash, J.) A.F.R. AMIN