IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1077 of 2005 In Civil Writ Jurisdiction Case No. 6554 of 2000 =================================================== 1. The State Of Bihar through the Secretary Department of Revenue and Land Reforms, Bihar, Patna 2. The Director, Animal Husbandry Department, Govt. of Bihar, Patna 3. The District Magistrate, Jehanabad 4. The District Magistrate, Gaya 5. The Regional Director, Animal Husbandry, Magadh Division, Gaya 6. The Circle Officer, Kako, District, Jehanabad 7. The District Animal Husbandry Officer, Jehanabad .... .... Appellants Versus Birendra Kumar Singh, son of Sri Deo Charan Singh, resident of Village-Dhanawan, P.S.-Bodh Gaya in the District of Gaya .... .... Respondent =================================================== Appearance : For the Appellants: Mr. Piyush Lall, A.C. to A.A.G.-1 For the Respondents : Mr. Ramakant Sharma, Advocate Mr. Rajesh Kumar, Advocate Mr. Narendra Kumar Singh, Advocate =================================================== 7 30-09-2011 The present appeal has been filed by the State of Bihar against the order dated 25.02.2004 passed in C.W.J.C. No.6554 of 2000. Initially, the writ petition was filed by the petitioner with a prayer to pay his salary w.e.f. 01.01.1996 to 05.05.1998 for class IV post subsequently, his services were terminated by the concerned authorities vide order dated 03.11.2001 as contained in annexure-23 to the writ petition and therefore prayer was amended by filing I.A. No.401 of 2002 and this Court has allowed that 2 amendment. Meanwhile, the respondent was appointed on class III post through a competitive examination conducted by the Bihar Public Service Commission. It is contended before us by learned counsel appearing on behalf of the State-appellant that as the respondent-writ petitioner was absent from duty from 14.05.1995 continuously, a show cause was issued to him and thereafter his services were terminated on 23.05.2001. Case of the appellant is that in pursuance to a show cause notice dated 31.12.1999 issued to the respondent- writ petitioner to explain as to how he appeared in the competitive examination held by the Commission, even though, he had not completed five years of his service and his services in class III posts was terminated vide letter no.265 dated 23.05.2001 on the ground that his initial appointment in class IV posts itself was not in accordance with law. The learned Single Judge did not entertain such contention and held that arrears of salary has to be paid to the respondent for the period he has worked in class III posts and payment cannot be cancelled on the reason that his initial appointment in class IV posts is not in 3 accordance with law. But however, an argument was putforth before us by learned counsel appearing on behalf of the State that services of the respondent was terminated on the ground that he was completely absent from duty from 14.05.1996 for which a show cause was issued to him in the year 1999. Learned Sr. counsel appearing on behalf of the respondent has contended that the ground urged by the counsel for the State was not a ground on which the termination letter as contained in Annexure-23 to the writ petition has been passed and the State cannot raise a ground which is not the cause of action for termination of appointment of the respondent in class-IV posts. The reason which emanated before us for issuing the show cause as contained in Annexure-23 to the writ petition seems to be that the respondent has joined in service after the cut off date i.e. 28.10.1991 vide his appointment letter dated 26.10.1991. But however, in view of the argument advanced by the State earlier in the writ petition, the learned Single Judge refused to entertain such argument of the State on the ground that the respondent has joined in service on 07.01.1992 in pursuance to the appointment letter 4 dated 26.10.1991 hence, it cannot be said that the reason assigned for issuance of order of termination is legal. Hence the learned Single Judge directed vide order dated 25.02.2004 for payment of salary to the respondent for the period he has actually worked. More or less same contention has been raised before us by learned counsel for the State stating that the order of termination was passed on the ground that his initial appointment in class IV post was invalid. But however, we have to observe that the show cause was not issued on the reason as stated in Annexure-23 to the writ petition. The show cause was based on a different ground i.e. his absence from duty and therefore it was not a case for passing an order of termination. The order of termination was based only on the ground that appointment on class-IV posts was not valid. The reasons urged by the counsel for the State are very germane (annexure- 23), we are of the opinion that the State have no right not to support the reasons which is completely in violation of principles of natural justice. As reasons did not find place in the order contained in Annexure-23, the argument of the State counsel with regard to issuance of 5 termination letter fails. The learned Sr. counsel appearing on behalf of respondent urged before us that a direction may be issued to the State to pay salary to the respondent. But however, in view of the fact that he worked for sometime in class IV posts, we are of the opinion that the order of learned Single Judge can be modified to the extent that payment of salary including the arrears can be made to the respondents in class-IV posts for the period he worked. We also make it clear that as the State has obtained interim stay against the order of the learned Single Judge, hence the respondent could not be appointed in class III posts even though he was successful in the writ petition. We are also of the opinion that it would suffice, if a direction is issued to the official respondent to effect the payment of salary including the arrears, if already not paid, from the date of order i.e. 25.02.2004 passed by the learned Single Judge. Learned counsel appearing on behalf of the respondent has made a submission before this Court that the leave may be granted to the respondent to apply for extraordinary leave for the period he was absent from duty in class-IV 6 post. Accordingly, such leave is granted. In case, the State takes decision not to grant extraordinary leave then respondent is not entitled for claiming any retiremental benefits for the period he was absent. With the above observation, the appeal is disposed of. ASHWINI /- (T. Meena Kumari, J.) (Vikash Jain, J.)