IN THE MATTER OF AN APPLCIATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA CIVIL WIRT JURIDICTION CASE No.648 of 2002 BINAY KUMAR SINGH S/O SAKAL DEO PRASAD SINGH R/O VILLAGE-PARSAULIKAPOOR, PS-BARURAJPUR, DISTT-MUZAFFARPUR----------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECRETARY TO THE GOVT OF BIHAR, PUBLIC HEALTH ENGINEERING DEPARTMENT, PATNA 3. THE JOINT SECRETARY, PHED, GOVT. OF BIHAR,PATNA 4. CHIEF ENGINEERING (MECHANICAL) PHED VISHVESHARAIYA BHAWAN, PATNA 5. SUPERINTENDING ENGINEER (MECHANICAL) PHED, MUZAFFARPUR CIRCLE 6. EXECUTIVE ENGINEER (MECHANICAL) MUZAFFARPUR DIVISION PHED, MUZAFFARPUR-------------RESPONDENTS ----------- For the Petitioner: Mr. Sandeep Kumar, Advocate Mr. Ajit Kumar, Advocate & Mr. Santosh, Advocate For the Respondents:Mr. Shalini Rout,ACto GA-V ----------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J. The long story needs to be cut short in view of the subsequent development and the order passed by the Hon’ble Supreme Court which has been brought to the notice of this Court. The order of Hon’ble Supreme Court passed in Civil Appeal No. 6297 of 2003 (Abhay Kumar Pandey vrs. The State of Bihar & others) is dated 8th of August, 2003 and has a bearing on the claim made by the present petitioner. Petitioner has been terminated from service vide order dated 2.5.2001 contained in annexure-11. This was not the first order of termination passed against the petitioner and some similarly situated employees because there is indication to show that a kind of flip-flop policy was adopted by the respondent State - 2 - with regard to some of the appointments which came to be made in different circles by the department of PHED, Government of Bihar. Petitioner was initially appointed in the year 1988. His service along with the services of others came to be terminated because in the opinion of the government such appointments made after 1.1.1988, stated to be cut off date was illegal and had to be terminated. That order of termination was unilaterally passed. The order dated 13.4.1989 is annexure-3 to the writ application. The Government reconsidered the matter and issued yet another circular to take back all the terminated employees against the vacant sanctioned post. Annexure-4 indicates the position. Petitioner along with seven others came to be taken back in service and he was confirmed in service with effect from 1.4.91 as would be evident from notification dated 31.12.1996 contained in annexure-7 to the writ application. The second order of termination was challenged by the petitioner in a writ application taking cue from the decision which was rendered by the Division Bench in the case of Abhay Kumar Pandey vs. The State of Bihar & others. Learned Single Judge did not interfere with the order of termination of the petitioner but referred the matter to the authority to consider his case. The order of LPA Bench is contained in annexure-12 to the writ application and the speaking order which came to be passed on the basis of the direction of learned Single Judge is annexure- 17/A. The speaking order has gone against the petitioner and the - 3 - reasons given therein are based on the reason of learned Division Bench. The issue of termination of Abhay Kumar Pandey did not rest at LPA Court. The issue was taken by Abhay Kumar Pandey to Hon’ble Supreme Court and the Hon’ble Supreme Court vide order dated 8.8.2003 passed in Civil Appeal No. 6297 of 2003 set aside the Division Bench decision affirming the initial order of learned Single Judge of that case, who found the order of termination to be bad. Contention of the petitioner is that similarly situated persons have to be taken back in service on the ground of equity and length of service rendered by them. There is no reason as to why same principle cannot be extended to this petitioner and the decision of Hon’ble Supreme Court applied to him as well. Learned counsel for the State obviously has nothing to offer in the face of the order of the Hon’ble Supreme Court. If the very foundation of termination of service which was held to be valid by the Division Bench while sitting in appeal, against the order of learned Single judge, has been knocked out by Hon’ble Supreme Court the benefit of the decision of the Hon’ble Supreme Court must accrue to the petitioner as well. In view of the above both annexures 11 & 17/A dated 2nd May, 2001 and 29th November, 2001 respectively passed against the petitioner stands quashed. Respondents are directed to take back the - 4 - petitioner in service. But taking cue from the decision of the Hon’ble Supreme Court it is categorically recorded that the petitioner would not be entitled to back wages from the period he was terminated the second time over by virtue of annexure-11 till the period of his joining. This period however cannot be treated as a period of break in service. This writ application is allowed with the above direction/observation. However there will be no order as to costs. Patna High Court, Patna Dated the 9th September,2010 NAFR/RPS/Sr. Secy. (Ajay Kumar Tripathi, J.)