IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3446 of 2007 DHIRENDRA PRASAD JAMUAR, son of Late Bangali Prasad, Permanent resident of Changodih, PS Khaira, District Jamui ….Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of co-operative (Agriculture), Govt. of Bihar, Patna 3. Commissioner-cum-Secretary, Department of Water Resources (Irrigation), Govt. of Bihar, Patna 4. Deputy Secretary, Department of Water Resources (Irrigation), Govt. of Bihar, Patna 5. Koshi Command Area Development Agency Saharsa, through its Secretary 6. Chairman, Koshi Command Area Development Agency-cum- Commissioner, Koshi Division, Saharsa 7. Managing Director, Koshi Command Area Development Agency, Saharsa 8. Secretary, Koshi Command Area Development Agency, Saharsa ….Respondents 02- 20.10.2008 Heard Mr. Rajendra Narayan for the petitioner, Mr. Nirmal Kumar Sinha, learned JC to AAG II, and Mr. Satish Chandra Jha No.III for respondent nos. 5 to 8. The petitioner challenges the validity of the condition mentioned in the office order dated 4.10.2007 (Annexure B), issued by the Koshi Command Area Development Agency (hereinafter referred to as `KADA‟), whereby its employees have been denied salary due to them consequent upon enhancement of age of superannuation on the ground “ dke ugh arks osru ugh a”. KADA has placed on record its counter affidavit. 2. We have perused the materials on record and considered the submissions of learned counsel for the parties. The State of Bihar issued resolution dated 24.3.2005 (Annexure 1), making amendment in rule 73 of the Bihar Service Code, whereby the age of - 2 - superannuation was enhanced from 58 years to 60 years, with immediate effect. KADA followed suit, being an instrumentality of the State Government, and issued office order dated 2.12.2006 (Annexure 7), whereby it adopted the said resolution dt. 24.3.2005 (Annexure 1) and raised the age of superannuation of its employees on the same terms and conditions as Annexure-1 on the ground that the Bihar Service Code was equally applicable to them. KADA proceeded to issue its order dated 27.2.2007 (Annexure 9), whereby operation of the said order dt. 2.12.2006 (Annexure 7) was stayed. This was followed by order dated 4.10.2007 (Annexure B), whereby the order dated 2.12.2006 (Annexure 7) was restored with certain modifications engrafted in the following portion of Annexure-B : mDr fu.kZ; ds QyLo:Ik bl dk;kZy; ds Kkikad 135 fnukad 27-02-2007 dks fu’çHkkoh djrs gq, ,sls dehZ tks 60 o’kZ dh vk;q iwjh ugha fd, gSa ijUrq 58 o’kZ dh vk;q iwjh dj dk;Zjr gSa rFkk ftudk osru Hkqxrku mDr vkns”k ls vo:) gS] ds osru Hkqxrku djus dk vkns”k fn;k tkrk gSA ftUgsa Kkikad 135 fnukad 27-02-2007 ds vkyksd esa lsok fuo`Ÿk dj fn;k x;k gS ijUrq os 60 o’kZ dh vk;q iwjh ugha fd;s gSa] dks lsok esa cjdjkj (deemed employee) ekuk tk,xk ijUrq dk;Z ls vuqifLFkr vof/k ds fy, mUgsa „ dke ugh arks osru ugha ‟ ds fl)kar ij osru vuqekU; ugha gksxkA lkFk gha bl vof/k dks lsok esa VqV ugha ekuk tk,xkA 3. The petitioner was born on 8.5.1947. The State Government‟s resolution dt. 24.3.2005 (Annexure 1) was enforced with effect from the same date. The petitioner completed 58 years of age on 8.5.2005. In view of the subsequent developments including issuance of Annexures 7, 9 and B, the petitioner would be entitled to enhancement of age of retirement from 58 years to 60 years, because he had not completed 58 years of age on 24.3.2005. 4. The only question which now survives for - 3 - consideration is whether or not the aforesaid condition “ dke ugh arks osru ugha ” is applicable to the facts and circumstances of the present case. It appears to me that the principle would be applicable in a given case where the petitioner did not work for reasons not attributable to him. If the petitioner could not work between 58 years to 60 years for reasons attributable to KADA, the petitioner shall not be deprived of the benefit of the enhancement of retirement age. In the facts and circumstances of the present case, inspite of repeated queries, learned counsel for KADA was unable to point out any circumstance attributable to the petitioner could not work for the two years. On the contrary, it is quite clear to us that the petitioner could not work for the delay on the part of KADA in issuing its notification enhancing the retirement age from 58 years to 60 years with effect from the date Annexure 1 was made operative, and also its vacillating approach thereafter. In that view of the matter, we are in no doubt that the principle “ dke ugh ark osru ugha ” is inapplicable to the facts and circumstances of the present case. The petitioner shall, therefore, be entitled to the money benefits admissible to him including superannuation benefits on account of enhancement of age of superannuation. It goes without saying that the petitioner shall be entitled to interest on the contributions of the employees‟ provident fund at the statutory/contracted rate from the dates the amounts became due till the date of payment. 5. Before I conclude, I would like to deal with one more aspect of the matter. The petitioner had earlier approached this Court - 4 - by preferring CWJC No.12196 of 2005 claiming the benefit under Annexure-1 which was dismissed on the ground that the same was inapplicable to KADA. It was obviously preferred before Annexures 7, 9 and B were issued. The same cannot, therefore, come in the way of the petitioner. 6. The writ petition is accordingly allowed. ( S K Katriar ) mrl