IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20780 of 2010 With CWJC No. 20801 of 2010 *** In the matter of applications under Article 226 of the Constitution of India. *** In CWJC No. 20780 of 2010 1. Baliram Singh, son of Sri Sudama Singh, Resident of village Paharpur, P.S. Kuchaikot, District Gopalganj. 2. Md. Moin Ansari, son of Late Karimul Hoda Ansari, Resident of Village Mogalpura, P.O. Mehsi, District East Champaran. 3. Anand Singh Choudhary, son of Late Bal Bhadra Singh Choudhary, Resident of Village Kharani-1, P.O. Kharani- 1, District Dhanbad. 4. Narendra Dev, son of Sri Vijendra Dev, Resident of village Hilsa, P.O. Hilsa, District Nalanda. 5. Subhash Baitha, son of Sri Ram Lohan Baitha, Resident of Mangara Bazar, P.O. Ahiyapur, District Gopalganj. 6. Chathu Mahto, Son of Sri Bandhan Mahto, Resident of village Moh Nura, P.O. Moh Nura, District Hazaribagh. 7. Ram Gati Baitha, son of Sri Saryu Baitha. Resident of village Rezi, P.O. Bana, District Garhwa. 8. Suresh Pandey, son of Sri Rameshwar Pandey, Resident of village Kharahuyan, P.O. Kharahuyan, District Hazaribagh. 9. Md. Galib Khan, son of Md. Sorab Khan, Resident of village Piru, P.O. Piru, District Aurangabad. 10. Kailash Prasad, son of Late Dwarika Prasad, Resident of Near Vidya Mandir, P.O. Chatra, District Chatra. 11. Vinod Kumar, son of Late Fakir Chand Sharma, resident of village Yadavpur, P.O. Yadavpur, District Dhanbad. 12. Gangadhar Mandal, son of Sri Gayaram Mandal, Resident of Ashanbani, P.O. Bhitiyan, District Dhanbad. 13. Dineshwar Pathak, son of Sri Setubandh Pathak, Resident of village Bargo, P.O. Jodia, District West Champaran. 14. Smt. Meena Jha, wife of Sri Naresh Mohan Mishra, Resident of Murliganj, P.S. Kumarkhand, District Khagaria. 15. Smt. Shashi Verma, wife of Sri Basant Kumar, Resident of village & P.O. Sonholi, District Khagaria…………………………………………………………………………………… Petitioners Versus 1. The State Of Bihar through the Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 3. The Principal Secretary, General Administrative Department, Government of Bihar, Old Secretariat, Patna. 2 4. The Principal Secretary, Finance Department, Government of Bihar, Patna. 5. The Director, Directorate of Mass Education, Department of Secondary, Primary & Adult Education, Government of Bihar, Vikas Bhawan, New Secretariat, Patna…………………………………………………………………………………………………..Respondents *** In CWJC No.20801 of 2010 Shobha Verma, Wife of Sri Birendra Prasad Srivastava, Resident of South Gandhi Maidan, Post Office- Siwan, Police Station- Siwan Town, District Siwan……………………………………………………………………………………...………Petitioner Versus 1. The State Of Bihar. 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, Patna. 3. The Director, Mass Education Department, Government of Bihar, Patna. 4. The District Mass Education Officer, Siwan, District Siwan. 5. The Accountant General, Bihar, Patna……………………………………………….………………………………..…….Respondents *** P R E S E N T HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R J.N. Singh, J. In 1978 Adult Education Programme was introduced by the Central Government in the States including the State of Bihar. Different posts were created to run the Programme in the States which included posts of Supervisors. The State Governments were made responsible for proper running of the Programme and for making appointment on the duly created posts under the Programme. Accordingly, in this State, under the Chairmanship of the Divisional Commissioner, a Selection Committee was constituted by the State Government and Supervisors and other functionaries of the Programme were appointed. Scheme continued for ten years in that manner. In 1988 3 Central Government made some changes in the Programme in which post of Supervisors was abolished. 2. It appears that in view of abolition of post of Supervisors by the Central Government from the scheme, the State Government issued Memo dated 19.12.1990 abolishing the post of 771 Supervisors and simultaneously absorbing them against different posts under the State Government. The remaining 367 posts of Supervisors however could not be absorbed and they continued to work till 1991 when those posts were finally abolished. However, the absorption of the said 771 Supervisors was also cancelled as a result of which they also came on road. 3. Accordingly, a number of writ petitions were filed in this Court and were considered by different Benches. By order passed by the Division Bench in batch of cases, (led by a writ application filed by Association of such Supervisors in 1992) in the case of Bihar State Adult & Non-formal Educational Employees Association Vs. The State of Bihar reported in 1996 (2) PLJR 394, this Court made observations in paragraph 33 of the said judgment as follows :- “But it can not be ignored that having regard to the long services rendered by the petitioners, administrative authorities had suggested steps for their absorption even in other departments. Therefore, having taken into consideration entire facts and circumstances of the case, I dispose of the writ petitions with the following direction to the respondent-authorities :- (a) to allow the petitioners and interveners to continue against these 771 posts, against 4 which they were adjusted in terms of the letter of the concerned department, dated 19th December, 1990. But such adjustment is to be made as per their seniority OR (b) in case those posts have also been abolished, take steps to absorb/adjust the petitioners along with the interveners in a similar manner, the employees of Consolidation Department were adjusted OR (c) if for any justified reason condition nos. (a) or (b) are not possible, take a decision similar to the State of Uttar Pradesh, which I have already indicated in paragraph no.18 of this order and adjust/absorb them accordingly. But in the facts and circumstances of the case, I could not persuade myself to quash the impugned order.” 4. However, it appears that in spite of the said direction of the Division Bench, no orders were passed. Hence, contempt application was filed in this Court. After filing of the contempt application, respondents took steps to comply the said order / direction and finally absorbed the services of such Supervisors in 1998 against different posts equivalent to posts of Supervisors in the Department. 5. Learned counsel for the petitioners submitted that initially the Supervisors were absorbed against lower posts on account of which writ applications were filed in this Court, namely, CWJC No. 7074 of 2000 and CWJC No. 13639 of 2000. The said writ applications were disposed of by a Bench of this Court by order dated 03.07.2009 (Annexure-3). While writ applications were pending, respondents filed counter affidavit in the case in which they took the following stands:- 5 “4. That in furtherance to the Statements made in the Counter affidavit bearing oath no.5342 dated 18.12.2000, the Current position in the matter is as follows:- A. Following the decision of the State Cabinet on 5.10.2006, 300 employees including Petitioners have been adjusted as per their valid demand on the post of Supervisors Vide different letters against the vacant Posts of the Subordinate Education Service and Vacancies available in Panchayati Raj Department and Food and Supply Department. Photo copies of the above referred letters are annexed herewith and marked as Annexure-A series to this petition. B. That regarding benefit of the Past Service rendered by the Petitioners, the matter was referred to the Personnel Department of the State for opinion in the light of Bihar Pension Rules 1950. The Personnel Department while giving approval to the proposal advised the Deppt. to send the matter for approval to the Finance Department. Accordingly the matter has been referred to the department for necessary action. 5. That in the light of the above stated development the deponent states and submits that six months time to be granted to the Department to resolve the matter.” 6. In view of the said stand of the respondents in the counter affidavit on oath, this Court found that the controversy in the writ application had narrowed down to only with regard to continuity of service of the period between 1992 to 1998 during which they were terminated and subsequently reinstated. Since respondents had taken stand that the matter in regard to continuity of service had already been approved by the Personnel Department and had been referred to the Finance Department for concurrence, this Court directed the respondents to 6 take final decision of terms of said paragraph nos. 4(B) and 5 of the supplementary counter affidavit. 7. In the light of the said direction of this Court, the matter has been considered by the respondents and disposed of by a speaking order, as contained in Annexure-5. While disposing of the matter, the respondents have held that services of the petitioners prior to 1992 i.e. services rendered under the Adult Education Programme and their services, after 1998 when they were reinstated in service, shall be counted separately for the purpose of pension. However, by this order, period between 1992 to 1998 has been wiped out from their service relying upon Rule 103 (d) of the Bihar Pension Rules. This order is under challenge in these writ applications. 8. Learned counsel for the petitioners submits that the order of this Court was passed in 1992 and the respondents took six years to implement the same which they did only after contempt application was filed in this Court. As such, these six years could not be wiped out from their services and period should be counted for the purpose of continuity of service for consequential monetary benefits. He submits that once the period prior to 1992 had been taken into account by the respondents, there was no reason for them not to take into account period 7 subsequent to that for continuity of service specially when delay was on the part of the respondents in compliance of the orders which they ultimately complied only after six years. He submits that the order has been passed by the Special Secretary to deny the claim of the petitioners for counting period of six years in the service, relying upon Rule 103 (d) of the Bihar Pension Rules which in fact supports the claim of petitioners. He fairly submits that petitioners did not claim any salary or actual monetary benefits for the period and they also did not claim any seniority on that account as the same may disturb seniority of large number of employees already in the Government service. He submits that claim of the petitioners is confined only to grant of consequential pre and post retiral benefits counting these six years into their services. 9. Counter affidavits have been filed in both these cases. Learned counsel for the respondents in the first case has simply placed reliance upon some paragraphs of the counter affidavit. However, learned counsel appearing for the respondents in the second case has referred to order dated 22.01.1998 by which, in compliance to the orders of this Court passed in CWJC Nos. 5036 of 1992 and other analogous cases, and in the light of pendency of the M.J.C application, 8 services of the petitioners and others were absorbed. He submits that while absorbing services of petitioners and others under this order, it was made clear that this absorption/appointment was to be treated as fresh appointment and their past services were also held not to be counted for pension, monetary benefits, time bound promotion etc. He submits that since petitioners accepted their appointment/ absorption on the basis of this order, they were stopped from claiming any benefit of past services. 10. After considering the facts of the case as appearing from the record and after hearing learned counsels for the parties, this Court is of the view that rights of the petitioners, accrued on the basis of the order passed by the Division Bench in CWJC No. 5036 of 1992 and other analogous cases, cannot be wiped out on the basis of merely some executive decision. In the light of the said judgment, ultimately, respondents have absorbed/ appointed the petitioners in regular service. 11. From reading of the judgment it appears that respondents were all the time in favour of absorbing the said Supervisors in Government service after abolition of the posts from the said Programme. But only on account of financial involvement they had deprived petitioners from such absorption. In fact, 9 the Division Bench of this Court found that absorption of 771 Supervisors by Memo No.19.12.1990 was cancelled only on account of financial involvement. The observations of the Division Bench made in paragraphs 24 and 25 of the judgment, in this context, are fit to be reproduced here:- “24. From the facts, noticed above, there is no doubt that initial appointment of the petitioners to the posts of Adult Education Supervisors were made by the competent authorities after observing all the required formalities, including advertisement etc. This has also been established that at the relevant time, while abolishing the post of 771 Supervisors, the Government had by Memo dated 19th December, 1990, absorbed all of them against different posts, including Assistant Project Officers, Non-formal. But remaining 367 Supervisors who could not be absorbed continued to work only till the year, 1991 when those posts were also finally abolished. 25. Besides the aforesaid, from copies of different correspondences of the concerned authorities as well as notings of their files there appears no doubt that previously having regard to the long service rendered by the petitioners, as also since their appointments were made in accordance with the prescribed norms, a decision was taken to absorb them against different posts. But ultimately, when it was brought to the notice of the authorities that claim of the Supervisors, working under Non-formal scheme, for equal pay at par to these Supervisors was being considered by this Court, the respondent authorities being apprehensive that in case of success of those writ application additional amount of Rs.12/13 crores would be necessary to make their payment, took a decision to abolish all the posts of Supervisors including those 771 Supervisors, who were adjusted against different posts only with a view to defeat the claim of Non-formal Supervisors.” 10 12. Thus, it is apparent that the Division Bench found that cancellation of absorption of the Supervisors effected by Memo dated 19.12.1990 itself was bad. 13. Respondents appointed / absorbed petitioners again by the said order dated 22.01.1998 that they shall be treated as fresh appointees and past services of the petitioners and others shall not be counted for pension, promotion, and time bound promotion etc. But by the present impugned order, they have counted past services of petitioners rendered under the scheme prior to 1992 and also their service from 1998 onwards. They have only deprived them benefits of period 1992 to 1998 for being counted in their services relying upon the provisions of Rule 103 (d) of the Bihar Pension Rules, 1950. For easy reference, Rule 103 of the Bihar Pension Rules is appropriate to be reproduced hereinbelow :- “103. An interruption in the service of a Government servant entails forfeiture of his past service, except in the following case :- (a) Authorised leave of absence. (b) Unauthorized absence in continuation of authorized leave of absence so long as the post of the absentee is not substantively filled; if his post is substantively filled, the past service of the absentee is forfeited. (c) Suspension, where it is immediately followed by reinstatement whether to the same or to a different post, or where the Government servant dies or is permitted to retire or is retired while under suspension. 11 (d) Abolition of the post or loss of appointment owing to reduction of establishment. (e) Transfer or non-qualifying service in an establishment under Government control. The transfer must be made by a competent authority; a Government servant who voluntarily resigns qualifying service cannot claim the benefit of this exception. Transfer to a grand-in-aid school entails forfeiture. (f)Time occupied in transit from one appointment to another provided that the Government servant is transferred under the orders of competent authority, or, if he is a non-gazetted Government servant with the consent of the head of his old office.” (Emphasis supplied) 14. From reading of Rule 103 of the Bihar Pension Rules, it appears that any Government servant is deprived of benefits of past service on account of interruption in the service with certain exception. Sub-rule (d) of Rule 103 is one of the exceptions which lays down that if interruption is on account of abolition of post or loss of appointment owing to reduction of establishment, interruption shall not entail forfeiture of past service of a Government servant. 15. Admittedly, in the present case, posts of Supervisors were abolished consequent to decision of the Central Government in 1998, on account of which petitioners and other Supervisors came on road, which situation, in the opinion of this Court, is clearly covered by the expression „Abolition of post or loss of appointment owing to reduction of establishment‟. Hence, this Court finds that the said sub-rule (d) of 12 Rule 103 clearly comes to the aid of petitioners and others and not to aid of the respondents, as claimed by them, to deny them benefits of the period. 16. In the circumstances, the impugned order of the Principal Secretary dated 29.03.2010, as contained in Annexure-5, is unsustainable in law and the same is quashed. Respondents are directed to consider petitioners as continuing in service between 1992 to 1998 on notional basis only for the purpose of grant of monetary benefits from 1998 onwards and post retiral monetary benefits. 17. It is made clear that petitioners and other Supervisors shall not be entitled for salary of the period in any manner and shall not also claim any seniority over other Government servants. The period shall be counted in the service only for personal monetary benefits of the petitioners and nothing more. 18. These writ applications are allowed in the manner, as indicated above. Patna High Court, Patna The 19th April, 2011 N.A.F.R. (B.T.) (Jayanandan Singh, J.)