Patna High Court - Orders
The State Of Bihar & Ors vs Bishnu Shankar Pandey on 31 July, 2012
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1096 of 2012
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1. The State Of Bihar
2. The District Magistrate - Cum - Chairman, District Compassionate
Appointment Committee, Bhojpur at Ara
3. Circle Office, Agion, District - Bhojpur at Ara
4. Block Development Officer, Agion Block, District - Bhojpur at Ara
.... .... Appellants
Versus
1. Bishnu Shankar Pandey S/O Late Banwari Pandey R/O Village -
Niranpur, Police Station - Bihiyan, District - Bhojpur
.... .... Respondent
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Appearance :
For the Appellants : Mr. Lalit Kishore, AAG I
For the Respondent : Mr. K. N. Choubey, Sr. advocate
Mr. Abhinay Raj, advocate
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CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH)
3 31-07-2012Heard learned counsel for the appellants and learned counsel for the respondent. With consent of the parties this appeal is being disposed of at the present stage because the appeal is directed against an interim order dated 24-03-2011 passed in pending writ petition bearing CWJC No. 5197/2011.
Considering the explanation for delay, the prayer to condone the delay of one year and 92 days is allowed.
There is no dispute that earlier the writ petitioner/ sole respondent was appointed on class- IV post on compassionate ground due to death of his father in service. On account of his efforts and representation the writ petitioner was ultimately recommended by the concerned committee for a class-III post resulting into an order for appointment on a class-III post on 03-07-2010. He gave joining immediately but there is dispute 2 Patna High Court LPA No.1096 of 2012 (3) dt.31-07-2012 2/3 whether the joining was accepted or not and while the file was in process for the purpose of either to except the joining or for posting, the District Magistrate did not find the decision of the concerned committee acceptable and hence, stayed the joining of the writ petitioner by order passed on 07-08-2010. In the aforesaid circumstances, since August 2010 the writ petitioner is not getting any salary and it appears that he is neither working on class- IV post nor on class-III post on account of afore noticed dispute.
By the order under appeal dated 24-03-2011 the writ court directed for release of payment of due salary of the petitioner and continued payment of his salary on month to month basis on class- III post. This order, as per submission advanced by learned AAG I, was passed on the first date when the writ petition was taken up and no instruction had been received nor any counter affidavit was filed. According to him the State counsel at that stage was not aware of the order of the District Magistrate staying the joining of the writ petitioner nor such order of the District Magistrate was brought before the court by the writ petitioner. According to him if State is forced to accept joining and pay the writ petitioner salary for class-III post then this may prejudice the defence of the State at the time of final hearing of the writ petition.
Learned counsel for the writ petitioner/respondent, on the other hand, has submitted that such situation is creation of the State authorities and writ petitioner cannot be made to suffer and go without salary for such long period specially when he was appointed on compassionate basis and has to take care of his family.
In reply, learned AAG I has submitted that writ petitioner is always at liberty to continue his work on class IV post 3 Patna High Court LPA No.1096 of 2012 (3) dt.31-07-2012 3/3 and for that due payment shall be made by the State.
Considering that writ petition is still pending for final decision and a contempt petition is filed by the writ petitioner seeking enforcement of the direction to pay salary for class- III post, in the larger interest of justice, we modify the order dated 24th March, 2011 only to the extent that liability to pay the salary and dues by the State will be sufficiently met if they make the payment of such dues as per entitlement of the writ petitioner on class- IV post. This should be done without any delay and, in any case, within six weeks. It is made clear that this order shall not prejudice the case of either of the parties. The issue that the writ petitioner should be permitted to work on class-III post or class- IV post should also be considered and decided by the writ court on the basis of counter affidavit and materials available on record of the writ case.
This appeal is disposed of accordingly.
(Shiva Kirti Singh, J)
BKS/- (Vikash Jain, J)