Patna High Court - Orders
Kumar Satyendra Prasad Sinha vs The State Of Bihar & Ors on 22 September, 2014
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23240 of 2013
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Kumar Satyendra Prasad Sinha S/O Sri Shitalpati Sinha Resident Of K-
119, P.C. Colony, P.S- Hanuman Nagar, Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary Department Of Agriculture Government Of
Bihar, New Secretariat, Patna.
3. The Director, Department of Agriculture New Secretariat, Patna.
4. The Bihar State Agriculture Marketing Board Now Repealed Through Its
Administrator Pant Bhawan Bailey Road, Patna.
5. The Administrator Bihar State Agriculture Marketing Board Now
Repealed Pant Bhawan Bailey Road, Patna.
6. The Director, Provident Fund Pant Bhawan Bailey Road, Patna.
7. The Treasury Officer, Patna.
8. The Accountant General Bihar, Bir Chand Patel Marg, Patna.
9. The Principal Secretary Department Of Finance Government of Bihar,
Main Secretariat, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjeev Kumar Mishra
Mr Jitendra Kumar
For the Respondent/s : Mr. Ram Subhas Singh, AC to AAG 15
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
ORAL ORDER
4 22-09-2014Petitioner has filed the present writ application for a direction upon the respondent State authorities to treat his service under the State effective 1.12.1980 till his date of superannuation on 30.6.2013. The reason for filing the writ application is that the respondent authorities by virtue of a notification contained in Annexure-B have treated his service for the purposes of pension only from 28.8.1990. Petitioner looses out the benefit of almost 10 years of service rendered under the State which obviously not Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 2/9 only hurts his financial interest, post retirement but also looses out the advantage of service rendered under the State, initially.
It may be clarified that on the basis of Annexure- B his post retiral dues have been settled but if the Court allows the benefit of service from 1.12.1980 then petitioner may get the advantage of a longer period of service and some benefit in final pension.
The factual aspects cannot be ignored and have relevance on the question raised by the petitioner in the present writ application. There is no dispute that the petitioner was appointed on 1.12.1980 on the post of Plant Protection Supervisor under the orders of respondent no.3, Director, Department of Agriculture. In 1982, he got promotion to the post of Agriculture Inspector and continued to work under the Joint Agriculture Director, Patna. On 19.12.1985, service of the petitioner was placed under the disposal of Bihar State Agriculture Marketing Board (hereinafter referred to as 'the Marketing Board'). The relevant notification in this regard is Annexure- 3 to the writ application. No doubt, Annexure- 3 did indicate that the details of foreign service and the terms thereof will be decided subsequently in due consultation with the Finance Department.
The occasion for finalizing the details and terms and Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 3/9 conditions of foreign service was not required due to an intervening development. The intervening development was on 11.12.1990 when the Managing Director of the Board gave him an opening in the Marketing Board itself by appointing him on the post of Market Secretary. The terms and conditions of such appointment is Annexure- 4. The three significant conditions laid down by the Managing Director for appointment of the petitioner under the Marketing Board was - (1) that he will resign from the Agriculture Department (2) that his appointment in the Board service will be treated from the date his resignation would be accepted by the Agriculture Department and (3) that he will get the same pay-scale which he was deriving on the post under the Agriculture Department.
On 11.12.1990, the Director, Agriculture wrote a letter to the Managing Director, Marketing Board that the resignation of the petitioner was accepted by the Agriculture Department effective 27.8.1990. There is no dispute thereafter that the petitioner became an employee of the erstwhile Marketing Board. The Board, however, came to be dissolved by virtue of a Repealing Act in the year 2006.
Petitioner worked under the Marketing Board and superannuated on 30.6.2013. By virtue of the Repealing Act Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 4/9 service of the petitioner like many other similarly situated employees was taken over by the State. The notification contained in Annexure- B does indicate the list of persons, who were given the benefit of take-over. The date they became employee of the Board was the date from which their services were treated under the State after the take-over. Benefit did accrue to the petitioner by virtue of the gazette notification but now petitioner is looking back on the service from 1.12.1980 till the period of his resignation and employment under the erstwhile Marketing Board.
Counsel for the petitioner submits that the relevant provision, which helps him beget the benefit of past service, is Rule 101 (b) of the Bihar Pension Rules, 1950. On the contrary, the stand of the State is that it is Rule 101 (a) which has applicability in the given facts of the case.
The above provision of Rule 101 (a) and (b) are reproduced herein below for ready reference:-
"101. (a) Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service.
(b) Resignation of an appointment with the approval of the appointing authority to take up Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 5/9 another appointment, service in which counts, is not a resignation of the public service."
Counsel for the petitioner harps on the interpretation to be given to Rule 101 (b). According to him, since his resignation for appointment was with the approval of the appointing authority and he took up another appointment which was also a public service, therefore, his resignation tendered from the Agriculture Department is of no avail and the same will not come in the way of the petitioner demanding benefit of past service. According to him, he was initially sent to the Marketing Board by the State, thereafter, with due permission, he was appointed in the Marketing Board. Marketing Board being a limb of the State, he gave up one public service for another public service. The continuity of service, therefore, remains so shall the benefit.
The submission of the counsel further is that in a similar circumstance in a recent decision rendered in the case of Anil Kumar Srivastava vs. the Bihar State Electricity Board & Ors., reported in 2010 (4) PLJR 498, benefit was granted to the employee under the facts and circumstances dealt by the learned single Judge.
The submission of the counsel does not match with Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 6/9 the factual aspect of the said case. The court has to basically look at two important documents, which are Annexures 4 and 5. There is no ambiguity as to the terms and conditions under which petitioner came to be appointed under the erstwhile Marketing Board. The condition of resignation by the petitioner before he could be appointed under the Marketing Board service is unambiguous. The resignation has also been confirmed by the communication contained in Annexure- 5. In other words, it was a unilateral decision of the petitioner to give up the comfort of a government service and take up a more challenging assignment under the Marketing Board. There was severance of relationship of master and servant between the petitioner and the State by virtue of his resignation and in view of the same, Rule 101 (a) will come into play and not 101 (b).
The Court has also gone through the decision rendered in the case of Anil Kumar Srivastava (supra). The Court has also pointed out the finding rendered by the learned single Judge in paragraphs 23, 24 and 25 therein. That was a case where there was no resignation from the past service and permission was granted to the erstwhile employee of the State to join the Electricity Board. The learned single Judge giving a beneficial interpretation gave the petitioner benefit of past Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 7/9 service. Factually the ratio of the case of Anil Kumar Srivastava, therefore, does not apply to the case of the present petitioner when there is no dispute over the fact that the petitioner tendered his resignation, which was accepted and communicated to the erstwhile Marketing Board, therefore, he could and did become a Market Secretary.
The State Government has very fairly treated his service under the Marketing Board from the date he joined the Board i.e. on 28.8.1990 as a full fledged employee of the Marketing Board even though it was an independent statutory body having its own law and rules governing their service. That being so it cannot be a case of the petitioner that his service under the Marketing Board was continuity of service under the State.
By quirk of fate the erstwhile Marketing Board was dissolved and by virtue of the Repealing Act his service was taken over by the State Government again but for that he has already derived benefit. So far as pension and other dues, post resignation is concerned, the stand of the State has been very fairly stated in paragraph 16 of the counter affidavit filed on behalf of respondents no.2 to 5. Paragraph 16 is reproduced herein below, which is a complete answer to the stand of the State, which seems to be inconsonance with the factual position Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 8/9 and the law.
"16. That the finance department has further stated that the petitioner was absorbed/ appointed in the Board on his own volition and prior to absorption his service in the Government was less than 10 years as such he will not be covered by circular no.5190 dated 30.4.1976. It has further been stated by the finance department that under resolution no.768 dated 03.07.2007 of finance department there is provision that those government servant who remained working under state Government till 31.08.2005 and was being guided by Bihar Pension Rules, 1950 and later on took charge of the work till 31.08.2005 is relieved w.e.f. 01.09.2005 and he tenders his resignation then in that situation also he would be entitled to the benefit under the provision of Rule 101 (B). Therefore, in view of the aforementioned facts and provision it is manifest that if the old pension scheme would be in existence in the duly constituted body in that situation the old pension scheme is applicable. Where as in the marketing Board there was a provision of pension as such in the case of petitioner the resolution no.768 dated 03.07.2007 is not applicable."
In view of the above, the writ application has no Patna High Court CWJC No.23240 of 2013 (4) dt.22-09-2014 9/9 merit. It is dismissed. Petitioner cannot get the benefit of past service rendered by him under the State since his voluntary resignation amounted to forfeiture of past service.
If there are any other claim, which are left on the basis of gazette notification contained in Annexure- B, the respondent State authorities surely have an obligation to settle within a period of three months from the date of production of a copy of this order but petitioner cannot beget anything more by way of add-on from 1.12.1980 till his new engagement and appointment by the erstwhile Marketing Board on 21.8.1990.
(Ajay Kumar Tripathi, J) sk U