Patna High Court
Digranjan Kumar vs The State Of Bihar & Ors on 3 March, 2010
Author: S.K.Katriar
Bench: Sudhir Kumar Katriar
1
CIVIL WRIT JURISDICTION CASE No.10356 OF 2001
DIGRANJAN KUMAR, aged 66 years, son of Late Naradhip Thakur,
resident of Village & P.O. Lakhanpur, P S Katra, District - Muzaffarpur
..Petitioner
Versus
1. THE STATE OF BIHAR through the Secretary, Water Resources
Department, Sinchai Bhawan, Patna
2. The Deputy Secretary, Finance Department, Govt. of Bihar, Main
Secretariat, Patna
3. The Chief Engineer, Mechanical, Water Resources Department, Old
Secretariat, Barrack, Patna
4. The Accountant General, Bihar, Birchand Patel Path, Patna
5. The Superintending Engineer, Mechanical Circle, Birpur, District Supaul
6. The Executive Engineer, Mechanical Division, Purnea
...Respondents
******
For the Petitioner : Mr. R N Mukhopadhyay,Advocate
For the State of Bihar : Assistant Counsel to Additional
Advocate General no.9
For the Accountant General : Mr. P K Rajgrihar, Advocate
PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
S K Katriar, J. The petitioner seeks a direction to the respondent authorities to release his
post-retirement benefits admissible to him as permanent employee of the State
Government.
2. According to the writ petition, the petitioner was engaged as an Engine
Driver in the work-charge establishment of an Engineering Department of the Bihar
Government. He was thereafter posted as Shift in-charge in the work-charge
establishment on 18.8.63.He was on authorized medical leave for the period
28.3.1967to 31.3.1967, and was thereafter on unauthorized leave without any information to the department upto 18.6.1986. He reported for duties on 19.6.86. By order dated 22.12.90 (Annexure 4), the Chief Engineer had allowed him to join his duties. He was finally allowed to join on 8.1.91, which was confirmed as would appear from the communication dated 14.1.91 (Annexure 13). It is further stated in the writ petition that his pay was fixed on 19.8.91. He superannuated with effect from 31.12.93, while still in the work-charge establishment of the Bihar Government.
2.1) In the meantime, according to the writ petition, the State Government issued notification dated 20th August 1981 (Annexure 9), wherein it was notified 2 that such persons on the work-charge establishment for a period of five years prior to 1.4.77, shall be confirmed in the regular service of the Bihar Government. It was on application of this notification in the petitioner's case that he was brought into regular cadre with effect from 1.4.77, vide order dated 31.7.77. The Superintending Engineer thereafter issued order dated 29.5.98 (Annexure 10), whereby the period of his absence was regularized. By order dated 8.4.99 (Annexure 7), his leave period was also regularized. The period of his leave was also regularized by order 13.5.99 (Annexure 15). By order dated 23.7.99 (Annexure 21), his leave period was regularized and was confirmed in the services of the Bihar Government. 2.2) Then the question arose about payment of post-retirement benefits. The Accountant General sent his communication dated 2.2.2001 (annexure 13), to the concerned authority, inter alia, raising two-fold queries, (i) the manner in which the period of absence was treated by the authorities, and (ii) the provisions of law under which his services were regularized. The Executive Engineer sent his communication dated 5.5.2001 (Annexure 13/1), whereby the communication of the authorities indicated hereinabove were sought to be justified. Reliance was also placed on various provisions of the Bihar Service Code.
3. In the back-ground of these facts and circumstances, that the petitioner complains before this Court that inspite of the communication dated 5.5.2001 (13/1), from the Executive Engineer to the Accountant General, the post-retirement benefits are not being sanctioned to his detriment. Hence this writ petition.
4. Learned counsel for the petitioner submits in support of the writ petition that the petitioner's services were regularized in the regular establishment of the Bihar Government, may be after he reached his age of superannuation, which has been fully owned by the State Government. Therefore, the Accountant General cannot sit in judgment over the action of the State Government. He relies on the judgment of a learned single Judge of this Court in Usha Verma vs. State of Bihar [2002(4) PLJR 614].
5. Learned Assistant Counsel to Addl. Advocate General no. IX, appearing for the State of Bihar and its functionaries, has sought to justify the action of the 3 State of Bihar in condoning the petitioner's absence, and regularization of his services after his superannuation.
6. Mr. P K Rajgrihar, learned counsel appearing on behalf of the Accountant General submits that the action of the functionaries of the State Government is ultra vires.
7. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner was on long, continuous, and unauthorized absence, perhaps from 23.3.1967 to 7.1.1991, though the petitioner restricts the period 1.4.1967 to 19.6.1986. The second aspect of the matter is that the petitioner claims to have been regularized.The circular dated 20.8.1981 (Annexure 9) provides that persons having completed five years continuously on 1.4.77, will be confirmed in service. On the own showing of the petitioner, he was undoubtedly on unauthorized leave from 1.4.1967 till 19.6.86. He was surely, therefore, not in harness on 1.4.1977. We, therefore, find it quite incomprehensible as to under what circumstances the respondent authorities regularized the services of the petitioner by an order which admittedly took place much after his superannuation on 31.12.1993. By the orders indicated hereinabove, not only his unauthorized absence was regularized, he was also regularized in service. It further appears to us that the reliance placed on various provisions of the Bihar Service Code for these purposes, are applicable to permanent employees of the Bihar Government. We have no manner of doubt that the petitioner had not till 31.12.1993, been favoured with orders of condonation of absence and regularization of service. Was it the result of the personal services rendered by the petitioner to the functionaries who passed those orders?
8. In the facts and circumstances of the case, we are convinced that the entire range of action of the respondent authorities allowing the petitioner to join after he reported for duties after prolonged and unauthorized absence, condonation of the period of absence, and his regularization in service, were high water-mark of arbitrary and unauthorized action. All the orders indicated above, which have had the propensity of conferring any such unjustified and unauthorized benefits on the petitioner, are illegal and void ab-initio, and verges on fraud of the administration. 4 In exercise of our extra-ordinary writ jurisdiction under Article 226 of the Constitution, we set aside all those orders. The petitioner shall not be entitled to any benefit from 8.1.1991, the date on which he was allegedly allowed to join till his superannuation, and thereafter, except the wages that he has already enjoyed as a work-charged employee till 31.12.1993.
9. In the result, the writ petition is dismissed with the aforesaid observations.
( S K Katriar ) Patna High Court, Patna The 3rd of March 2010 NAFR/mrl