IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10153 of 2007 GOPAL PRASAD . Versus THE STATE OF BIHAR & ORS . ----------- 2 04.05.2011 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner is going to retire on 30th June, 2011. His prayer in this application is for a direction to the respondents to count his length of service with effect from his initial entry in the Government Department with effect from 1.12.1970 in the work charge establishment on the post of Work Sarkar and to treat his period of service on deputation in the Government Department as continuous service for counting the length of service. Further prayer is for a direction to give all consequential benefits of service, such as, time bound promotion, ACP and increments by counting his length of service with effect from 1.12.1970. Petitioner was initially appointed on the post of Work Sarkar, in the work charge establishment in Bihar State Bridge Construction Division of State Government ( now Road construction Department) on 1.12.1970. In the year 1975 the State Government constituted Bridge Construction Corporation and vide 2 Notification no. 9983 dated 4.6.1975 read with notification No. 11045 dated 20.6.1975, entire Bridge Construction Division of P.W.D. was transferred to the Bridge Construction Corporation along with all posts and incumbents. Notification dated 20.6.1975 indicated that the service condition and inter se seniority of Officers and employees transferred on deputation will remain same as it was in their Parent Department. Petitioner working on the post of Work Sarkar was drawing his salary of Rs. 220-315. On deputation to Bridge Construction Corporation, he was appointed as Junior Accounts Clerk in the same pay scale of Rs. 220- 315/-. He joined on the post of Junior Accounts Clerk vide order contained in memo no. 3 dated 6.1.1979. The post of Junior Accounts Clerk merged in senior Accounts Clerk with effect from 1.5.1980 and the unified pay scale was Rs.260- 408/-. Petitioner also started drawing his pay scale i.e. rs. 260-408/-. He was given promotion in the Junior Selection Grade with effect from 1.4.1984 which was objected by the petitioner. He claimed that his service in the work charge establishment should also have been counted for giving him time bound promotion. Petitioner claimed his time bound 3 promotion with effect from 1.4.1981. A request was made by the petitioner that in case the Building Construction Department has any difficulty in giving promotion to the petitioner, his services should be sent back to the Parent Department. Petitioner’s case was that he is entitled for first time bound promotion with effect from 1.4.1981 as all through his service he remained in unrevised pay scale of Rs. 220-315/- since 1.1.1971 which was later merged in the scale of Rs. 260-408/- with effect from 1.5.1980. Since merger of two posts as per the policy decision of the Government cannot be considered as promotion in scale or post, as such he is entitled for benefits of first time bound promotion with effect from 1..4.1981. Services of the petitioner was returned to his parent Department(Road Construction Department) vide letter no. 192 dated 21.1.1988 as it was not possible for the Road Construction Corporation to give time bound promotion. The Bridge Construction Corporation was not acknowledging petitioner’s service in work charge establishment in his Parent Department prior to his joining as Accounts Clerk on 6.1.1979 in the Corporation. Petitioner’s grievance is that due to wrong computation of length of his 4 service by Bridge Construction Corporation and also by his Parent Department, he has been deprived of first time bound promotion and the benefit of ACPs. His length of service should have been counted treating his entry in service on 1.12.1970, instead of 6.1.1979. The pay scale of work sarkar and Junior Accounts Clerk being the same i.e. Rs. 220-315, his joining on the post of Junior Accounts Clerk cannot be considered as joining a new cadre post, on enhanced scale. Date of joining on the post of Accounts Clerk in the Bridge Construction Corporation i.e. 6.1.1979, cannot be treated as his date of appointment on a higher post in a different cadre. Petitioner’s ten years service rendered in his parent department in work charge establishment cannot be deducted from his length of service. His length of service in work charge establishment must be counted for giving time bound promotion and period in between 1.12.1970 and 6.1.1979 must be treated as continuous service. The Respondents-State in its counter affidavit have stated that though the pay scale of Junior Accounts Clerk and the work Sarkar were same but these were completely two different cadres and establishment. The period spent in work charge 5 establishment by the petitioner, could not have been counted for the purpose of first time bound promotion. Only in case the petitioner would have remained in the same cadre of work sarkar and then absorbed in the regular establishment, his period spent in work charge establishment could have been counted for giving time bound promotion. Since the petitioner was appointed in the cadre of Accounts Clerk by the Bihar State Bridge Construction Corporation in the year 1979, his period spent in the work charge establishment on another posts and different cadre cannot be counted for the purposes of time bound promotion. Counsel for the petitioner submits that admittedly the petitioner was initially appointed on 1.12.1970 in the Bridge Construction Division of PWD, Government of Bihar in the work charge establishment. His services were sent on deputation under a policy decision of the Government with this stipulation that service conditions and seniority of Officers and employees in their Parents Department will not be adversely affected, on joining in the Bridge Construction Corporation. Past service can only remain uncounted in case of change of cadre by way 6 of direct recruitment. If a person holding a post in one cadre is directly appointed to the post on another cadre, then he would be debarred from counting past services rendered prior to his fresh appointment. The case of the petitioner is not of an appointment on any new post in another cadre, rather it is a consequence of the policy decision of the State Government. In this circumstance, the joining on the post of Accounts Clerk on 6.1.1979 in same scale of pay cannot be treated as fresh appointment, in a new cadre. In support of this contention the counsel for the petitioner has placed reliance on a decision report in the case of Shithil Kumar Singh vs. State of Bihar (2010 (3) PLJR 180). In this case also on account of merger the services of the petitioner prior to merger was not being counted for giving time bound promotion but it was held that merger, of Lower Division Clerk and Upper Division Clerk under the Policy decision of the State Government cannot be treated as new appointment in a different cadre for denying benefit of time bound promotion. I find that the date of petitioner’s initial appointment cannot be shifted to 1.6.1979 i.e. the date when he joined on the post of Accounts Clerk 7 due to his deputation under the policy decision of the State Government. The date, when he joined on the post of Accounts Clerk the pay scale was same as the pay scale on the post of work sarkar. Petitioner was on the post of work sarkar in his parent Department in the pay scale of Rs. 220-315/- and the pay scales of Accounts Clerk, on which he joined on deputation was also same. Subsequently on account of merger of the Lower Division Clerk and Upper Division Clerk the pay scale was enhanced to Rs. 260-408. This cannot be considered as fresh appointment of the petitioner on a higher scale, in a different cadre. Petitioner is entitled for counting his length of service with effect from 1.12.1970. On account of deputation he cannot be deprived of his seniority by acknowledging his date of appointment with effect from the date he joined on the post of deputation. Alternative submissions made by the petitioner is that length of petitioner’s service rendered in work charge establishment is to be counted as per the Government Resolution No. 1503 dated 27.3.1987. This resolution provides that the services rendered in the work charge establishment should be counted for granting time bound promotion 8 and the benefits of pension. Since the petitioner’s initial appointment was in the Government on 1.12.1970, and subsequently he was sent on deputation in the Corporation under the policy decision of the Government, his period on deputation in the Bridge Construction Corporation, cannot be deducted for counting the length of service. Only in case, petitioner would not have been absorbed in his parent Department on the post of Accounts Clerk, his service in the work charge establishment could not have been counted as continuous service. Petitioner’s service being absorbed in his parent Department, makes him entitled for counting of his length of service. Petitioner is entitled for counting of his service rendered in the work charge establishment as regular service as provided under Government Resolution dated 27.3.1987. By counting his length of service in this manner, petitioner is entitled for first time bound promotion on completion of ten years of service on 1.4.1981. He will also be entitled for benefits of ACP as well as other consequential benefits. Respondents are directed to pass necessary orders in this regard within a period of twelve weeks from the date of presentation/communication of this 9 order, considering the fact that the petitioner is due to superannuate on 30.6.2011. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)