CIVIL WRIT JURISDICTION CASE No.13026 OF 2005 In the matter of an application under Article 226 Of the Constitution of India. -------- MD.LEIAQUAT @ LEIAQUAT ALI S/O DOST MOHAMMAD,R/O VILLAGE NEYAGAON,TOLE GHAT, P.S.-AURAI,DISTT.-MUZAFFARPUR-PETITIONER Versus 1. THE STATE OF BIHAR 2. THE FINANCE SECRETARY, GOVT. OF BIHAR, PATNA 3. THE SECRETARY, DEPARTMENT OF FOOD CIVIL SUPPLY & COMMERCE, GOVT. OF BIHAR, PATNA 4. THE DEPUTY SECRETARY, DEPARTMENT OF FOOD, CIVIL SUPPLY AND COMMERCE, GOVT. OF BIHAR, PATNA 5. THE MANAGING DIRECTOR, FOOD & CIVIL SUPPLY CORPORATION, BIHAR, PATNA. 6. THE CHAIRMAN DISTRICT CONSUMER FORUM, MADHUBANI 7. THE DISTRICT MAGISTRATE-CUM-COLLECTOR, MADHUBANI 8. THE DIRECTOR, CONSUMER PROTECTION DIRECTORATE, BIHAR, PATNA-------------------- RESPONDENTS. --------- For The Petitioner :M/S.PUSHKAR NARAIN SHAHI, ASHUTOSH SINGH NO.2 & NISHANT CHOUDHARY, ADVOCATES For The Respondent(STATE): MR.ARIF, JC TO SC IV FOR RESPONDENT NO.5; MR.R.S.PRADHAN,SR.ADVOCATE MR.S.P.TRIPATHI,ADVOCATE --------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J The irony of the present litigation cannot be lost sight of because the present predicament of the petitioner was a creation of the respondent State authorities. When they themselves were privy to certain directions, which the petitioner faithfully followed. It is now being held out against him because somebody high up in the Secretariat is not willing to apply himself to the facts of the present case in entirety. The issue is very limited and the facts are not disputed. Petitioner joined service of the State Government on a post known as Palladar. The appointment was made way back 11.5.1967 as would be evident from annexure-1. He worked on the post in the block of Aurai till based on wireless communication no. 226 dated 17.4.1973, large - 2 - number of employees of various kind like District Managers, Night Guards and Palladars were directed to join and serve Bihar State Food & Civil Supplies Corporation. Annexure-2 issued under the signature of the District Magistrate, Muzaffarpur certifies that position. Petitioner based on the direction issued to him vide annexure-2 shouldered his responsibility under the Corporation till the Government in its wisdom based on a letter no. 1251 dated 15.3.1987 of the Department of Food & Civil Supply decided to use the service of petitioner in yet another capacity, with some other similarly situated employees. Petitioner was directed to join the office of District Forum, Madhubani. Petitioner after joining the office of the District Forum, Madhubani superannuated on 30th June, 2001. In otherwords he had a substantially long inning under the respondent State and its instrumentality, namely, Food Civil & Supplies Corporation. The problem for the petitioner arose when he demanded his pension and other retiral dues from the respondent State authorities. Somebody felt difficulty in counting the period of service the petitioner had rendered under the Corporation. They had no issue with regard to the petitioner’s work under the State or his subsequent posting with the District Forum. The reason can be well understood by the Court because except for annexure-2, the order of District Magistrate, there was no categorical order for each and every individual setting out the terms of deployment in the Corporation. Quite possible as the petitioner was a lowly paid employee. A command or an office order at the level of District Magistrate was good enough to send the petitioner to join - 3 - and serve the Corporation. An earlier effort by petitioner to beget relief from the High Court did not succeed in its entirety because he was referred back to the District Magistrate Madhubani with liberty to file a representation for an appropriate decision. Petitioner faithfully carried out the direction of the Court and the District Magistrate with due fairness recorded the entire background to the claim of the petitioner. The District Magistrate wanted some light or guidance on the matter. Vide letter dated 15th March, 2003 he wrote a letter to the Secretary, Department of Food & Civil Supply, Government of Bihar which has been brought as annexure-6 to the writ application. But despite such detailed narration of facts and events the Department Food & Civil Supply on a so called advise rendered by the Department of Finance decided to reject the claim of the petitioner in so far as 23 years of service in the Corporation is concerned. This is the reason and communication contained in annexures 10 and 11which has brought the petitioner back to the High Court by way of the present writ application. Counter affidavit has been filed on behalf of the respondents and their primary stand is that since the Finance Department has advised not to treat the service of the petitioner under the Corporation to be in government service, therefore the consequence for the petitioner will flow. It is another issue that neither the provisions of law or rule in this regard or the notification of the Finance Department has been brought on record which could allow the Court to - 4 - examine the legality of the advise. The Court, therefore has now to see as per certain settled law of service jurisprudence and the facts not being in dispute whether the orders impugned can stand scrutiny of law or not. From perusal of the pleadings and the evidence on record there is nothing to show that petitioner’s service under the Corporation was voluntary. There is no denial that at any point of time the petitioner’s service was either confirmed or regularized in the Corporation as an employee of the Corporation. If the State authorities could exercise their power to deploy their employees where ever they wanted then they cannot be allowed to disown the claim of an employee with regard to period and time he was made to serve in a State Corporation. The petitioner was not sent on an assignment to an alien employer. Even though the corporation in question may have had independent legal identity but it is the experience of the Court that the departments concerned have exercised power over such Corporation as if it was a limb of the department if not at its beck and call. Since the petitioner has rendered service under the Corporation before he was pulled out and sent to work in the District Forum, Madhubani then the respondent would not be permitted to wish away 23 long years of service of the petitioner. Learned counsel for the petitioner relies on a decision though not reported which was a case of Vinod Kumar vrs. The State of Bihar & Ors (CWJC No. 6037 of 2004). The order is dated 5.8.2004. In the decision in question in a similar situation though in a reverse kind - 5 - of fact where the petitioner Vinod Kumar had initially served a Government Corporation and was later on taken under the command of the State Government the entire period of service was ordered to be computed for the purpose of pension and other retiral dues. Some of the reasoning assigned in the said order is of assistance to the petitioner in this regard. For the reasons indicated above and holding that the two orders contained in annexures- 10 and 11 are per se arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India specially when an identically situated employee, namely, Nathuni Mian has also walked away with all the retiral benefit. Since the petitioner has retired in the year, 2001, the respondent District Magistrate, Madhubani is hereby directed to take steps for settling the dues of the petitioner expeditiously preferably within a period of three months from the date of communication or production of a copy of this order. This writ application is allowed and annexure 10 dated 1.4.2002 and annexure-11 dated 21.6.2003 are hereby quashed. (Ajay Kumar Tripathi, J.) Patna High Court, Patna Dated the 20th November, 2008 NAFR/RPS/Sr.Secy.