Patna High Court - Orders
The Bihar State Food & Civil S vs Mahendra Pratap Singh on 22 February, 2011
Author: T. Meena Kumari
Bench: T. Meena Kumari
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.850 of 2009
1. THE BIHAR STATE FOOD & CIVIL Supplies Corporation Ltd. Sone
Bhawan, 5th Floor, Birchand Patel Path, Patna through its Managing Director.
2. The Chief of Administration, Headquarter The Bihar State Food and Civil
Supplies Corporation Ltd. Sone Bhawan, 5th Floor, Birchand Patel Path, Patna.
3. The District Manager, State Food Corporation Ltd. Nalanda, District Nalanda.
4. The Managing Director, Bihar State Food and Civil Supplies Corporation Ltd.,
Sone Bhanwan, Birchand Patel Path, Patna.
.............................Respondents- Appellants.
Versus
MAHENDRA PRATAP SINGH, sonof Sri Dineshwar Prasad Singh,
Resident of village Taranpur, P.S. Gaurichak, District Patna at present retired
Assistant Manager (Assistant Godown Manager), State Food Corporation
Ltd., Nalanda.
..........................Petitioner- Respondent.
with
LPA No.922 of 2009
1. THE BIHAR STATE FOOD & CIVIL Supplies Corporation Ltd. Sone Bhawan,
5th Floor, Birchand Patel Path, Patna through its Managing Director.
2. The Chief of Administration, The Bihar State Food and Civil Supplies
Corporation Ltd. Sone Bhawan, 5th Floor, Birchand Patel Path, Patna.
..............................Respondents- Appellants.
Versus
1. MAHA SHANKAR PRASADson of Late Bibhuti Bhushan Prasad, Resident of
village Chhateshwar, P.S. Waris Nagar, District Samastipur.
.............................Petitioner- Respondent.
2. The State of Bihar through the Commissioner- Cum- Secretary, Department of
Civil Supplies and Commerce, Government of Bihar, Patna.
3. The Commissioner- Cum- Secretary, Finance Department, Government of
Bihar, Patna.
4. The Chairman, Bureau of Public Enterprises, Department of Finance,
Government of Bihar, Patna.
5. The Board of Directors, Bihar State Food and Civil Supplies Corporation,
Birchand Patel Path, Patna- 1.
6. The District Manager, Bihar State Food and Civil Supplies Corporation,
District Office, Samastipur, District Samastipur.
.......................Respondents- Respondents.
-----------
For the Appellants in both the Appeals:- Mr. R.S. Pradhan, Sr. Advocate
& Mr. A.N. Rai, Advocate.
For the Respondent in L.P.A. 850/09:- Mr. Bishnu Kant Dubey, Adv.
For the Respondent in L.P.A. 922/09:- Mr. Gajendra Kumar Jha, No.2.Adv.
.............
6 22.02.2011Both these L.P.As. arise out of the orders dated 5.5.2009 and 30.4.2009 passed by the learned Single Judge in C.W.J.C. No.5679 of 2009 and C.W.J.C. No.5484 of 2009 2 respectively.
The petitioners, respondents herein had chosen to file the writ petitions seeking retirement benefits after extending the date of retirement up to 60 years as the similarly situated persons of the Bihar State Food and Civil Supplies Corporation who were made to superannuate from service on reaching the age of 58 years between 24.3.2005 to 29.7.2006 approached this Court for implementation of the decision taken by the State Government and the learned Single Judge after hearing the parties disposed of the matter by allowing the writ petitions placing reliance on the judgment rendered by the Division Bench in L.P.A. No.829 of 2006 and other analogous cases in the case of „Lala Nand Kumar & Ors Vs. The Bihar State Food & Civil Supplies Corporation Ltd. & Ors' reported in 2008 (1) PLJR 579.
Learned counsel appearing on behalf of the appellants has contended that the petitioners, respondents herein have chosen to come before this Court after their retirement and the law laid down by the Division Bench in the case of Lala Nand Kumar & Others (Supra) cannot be made applicable to the cases of the respondents herein.
On the other hand, learned counsel appearing on behalf of the respondents submitted that the matter has already been concluded by the Division Bench of this Court in the reported judgment as cited Supra and against the said judgment S.L.P. (Civil) No.10387-10388 of 2008 as also the Review 3 Petition No.2111-2112 of 2009 have also been dismissed.
Learned counsel for the appellants has relied upon the judgment in the case of „U.P. Jal Nigam & Another Vs. Jaswant Singh & Another' reported in (2006) 11 SCC 464. We had also occasion to go through the judgment of the Division Bench in the case of Lala Nand Kumar & Ors (Supra) in which in paragraph nos. 8, 9 and 10 the law laid down as follows:-
"A look at the resolution dated 21st May, 1973 makes it absolutely clear that the Bihar Service Code applicable to the State Government employees was adapted for the employees of the Corporation. This adaptation, no doubt, was made of the Code as was then in existence. The question is whether this adaptation was made of the future changes which may be incorporated in the Code in future or not. The resolution is required to be read as a whole. The Code as applicable to the State Government employees until Service Code and Financial Rules as framed by the Corporation were adapted for the employees of the Corporation. Therefore, time until when adaptation will remain in force had been indicated and that is until Service Code and Financial Rules are framed by the Corporation. The true meaning of the resolution, therefore, would be that until Service Code and Financial Rules are framed by the Corporation, the Bihar Service Code as applicable to the State Government employees shall apply to the employees of the Corporation. This resolution dated 21st May, 1973 admittedly had not been withdrawn until 29th July, 2006. Much prior thereto on 24th March, 2005 the Service Code was altered as regards the age of superannuation. By that time or even thereafter no Service Code or Financial Rules had been framed by the Corporation. While on and from 24th March, 2005 in terms of the Service Code as applicable to the State Government employees, the State Government employees became entitled to serve upto the age of 60 years, since by that time no Service Code or Financial Rules had been framed by the Corporation, in terms of the resolution dated 21st May, 1973 the officers and employees of the Corporation became entitle to the same benefit.
In Harwindra Kumar vs. Chief 4 Enginer, Karmik, reported in AIR 2006 SC 365, regulations were framed by a Nigam under the Act and Regulation 31 thereof laid down, amongst others, that the conditions of service of the employees of the Nigam shall be governed by such rules, regulations and orders which are equally applicable to other serving Government servants functioning in the State. While the age of superannuation of the employees of the State Government had been increased, simultaneous increase of the age of superannuation of the employees of the Nigam had not been granted. The employees of the Nigam, who did not get the benefit of enhanced age of superannuation, approached the Supreme Court and the Supreme Court by the judgment referred to above held that by framing the said regulation a decision had already been taken to equally treat the employees of the Nigam with that of the employees of the Government. In the instant case also, the words "applicable to the State Government employees" have been used in the resolution dated 21st May, 1973 while adapting the provisions contained in the Bihar Service Code until such time the Service Code, Financial Rules etc. are not framed by the Corporation. Therefore, on 21st May, 1973 it was decided to make available to the officers and employees of the Corporation the changes that may be effected in the Service Code applicable to the State Government employees till such time the Corporation itself frames its Service Code and other Financial Rules.
In those circumstances, the appeals are allowed. The orders under the appeals are set aside. The writ petitions filed by the appellants and also other writ petitions considered analogously are allowed and the Corporation is directed to pay the salaries payable to the petitioners treating them to have served until the age of 60 years. It is declared that in view of the resolution of the Corporation dated 21st May, 1973 they were entitled to serve up to the age of 60 years no sooner Rule 73 of the Bihar Service Code altered in the manner as indicated above. In the event, any of these writ petitioners has not yet attained the age of 60 years, they should forthwith be permitted to rejoin their services."
The Division Bench had occasion to deal with the resolution of the Corporation and it is also recorded in paragraph 6 5 of the judgment that "the learned Advocate General of the State on being approached furnished his opinion and thereby expressed that the resolution adapted by the respondent- Corporation on 21st May, 1973 still holds good for the resolution dated 14th April, 1981 did not rescind the resolution dated 21st May, 1973 and accordingly cancellation of the resolution dated 14th April, 1981 by the subsequent resolution dated 13th November, 2001 did not at all affect the resolution of the respondent-Corporation dated 21st May, 1973. Upon the said opinion being received, the respondent Corporation issued a notification on 29th July, 2006 and thereby extended the age of superannuation of its officers and employees from 58 years to 60 years from the date of the said decision, i.e. with effect from 29th July, 2006."
It is not disputed by the appellant‟s counsel that the respondents have retired in between interregnum period of 24.3.2005 to 29.7.2006 and the learned counsel also in support of his contention has relied upon the judgment in the case of U.P. Jal Nigam & Another (Supra) and submitted that the respondents have not approached this Court in time. They have approached this Court merely after three years from the date of their retirement. However, it appears that in paragraph 4 of the said judgment it has been observed that "it appears that during the pendency of the appeals and writ petitions before this Court and after disposal of the same by this Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of 6 the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Numbers of writ petitions were filed in the High Court in 2005 on various dates after the judgment in Harwindra Kumar and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in Harwindra Kumar and relief was given to them for continuing in service up to the age of 60 years. Hence, all these appeals arise against various orders passed by the High Court from time to time."
This Court is of the opinion that merely filing of the writ petition cannot be taken as a ground for denying the relief sought for which has been concluded in the judgment rendered by the Division Bench in the case of Lala Nand Kumar & Ors (Supra) against which S.L.P. and the review petition have already been dismissed.
Learned counsel for the respondents submits that a representation dated 17.4.2006 and in other case two representations dated 28.6.2005 and 27.2.2009 filed by them in this regard are still pending and remained unanswered. Such fact is not denied by the learned counsel for the appellants before this Court as also before the writ Court, in absence of which it has to be construed that the representations have not been considered by the authorities in the manner which should be done in accordance with law.
7
We are of the opinion that as the appellants have failed to act on the representations filed by the petitioners, respondents herein, it cannot be said that there is any delay on the part of the respondents in approaching this Court as they were waiting for disposal of the representations. Therefore the contention raised by the counsel for the appellants that there was delay in approaching this Court for the relief sought for, cannot be accepted and has to be rejected.
In view of law laid down by the Division Bench in the case of Lala Nand Kumar & Ors (Supra) against which S.L.P. as also the review petition have already been dismissed, we are of the opinion that there is no merit in these appeals.
These appeals are accordingly dismissed.
( T. Meena Kumari, J.)
Abhay Kumar (Chandra Mohan Prasad, J.)