IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5991 of 2009 AJAY SHANKAR, SON OF LATE RAM SAKAL SINHA, RESIDENT OF MOHALLA MOLDIAR TOLA, VILLAGE MOKAMA, POLICE STATION MOKAMA, DISTRICT PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, GOVERNMENT OF BIHAR IN THE DEPARTMENT OF AGRICULTURE, BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY, GOVERNMENT OF BIHAR, IN THE DEPARTMENT OF AGRICULTURE, BIHAR, PATNA. 3. THE ADMINISTRATOR, THE BIHAR STATE AGRICULTURE MARKETING BOARD(REPEALED), BIHAR PATNA. 4. THE BIHAR STATE ELECTRONICS DEVELOPMENT CORPORATION THROUGH ITS MANAGING DIRECTOR, BIHAR STATE ELECTRONIC DEVELOPMENT CORPORATION, PATNA. 5. THE SECRETARY, DEPARTMENT OF INDUSTRIES, GOVT. OF BIHAR, PATNA. For the petitioner : Mr. Siya Ram Sahi, advocate. For the State : Mr. Ranjit Sinha, Advocate. For the Marketing Board : M/s B.K.Singh Chouhan. For the Corporation : Mr. Shivaji Pandey, Sr.Adv., Nalin Vilochan Tiwary, Adv. ----------- 09. 14.07.2010 Heard learned counsel for the petitioner, the State, Bihar State Agriculture Marketing Board(Dissolved)(hereinafter referred to as the Board) and the counsel for the Bihar State Electronic Development Corporation(hereinafter referred to as the Corporation). 2. Petitioner having qualification of MBA was appointed as a Supervisor (Quality Control/Marketing Executive) in the Corporation and at the relevant time served the Board on deputation has challenged the order dated 29.9.2008, Annexure-8 passed by the Administrator of the Board, whereunder request of the petitioner to absorb him in the service of the Board with reference to the resolution of the Board dated 20.10.2001, Annexure-10 has been rejected on the 2 ground that the Board having been dissolved under the provisions of the Bihar Agriculture Produce Market (Repeal) Act, 2008(hereinafter referred to as the Repealing Act) his services cannot be absorbed in the Board. The services of the petitioner was repatriated to his parent organization under instruction dated 15.9.2004, Annexure-7 with direction that he shall be relieved from the service of the Board with effect from 30.10.2004. Perusal of the instruction dated 15.9.2004, Annexure-7 indicates that the same has been issued in the light of the resolution of the Board dated 4.12.1999, whereunder it was resolved to repatriate all the deputationist serving in the Board who have continued in the Board for more than three years. 3. Counsel for the petitioner submitted that the order dated 15.9.2004, Annexure-7 is contrary to the subsequent resolution of the Board dated 20.10.2001, Annexure-10, whereunder it is resolved to continue Market Secretary serving the Board on deputation possessing MBA qualification until regular appointment is made by the Board on the vacant post of Market Secretary. The resolution was communicated to all concerned under memo No.4829 dated 29.10.2001 and highlighting the aforesaid resolution of the Board petitioner challenged the order of the Managing Director 3 of the Board contained in letter dated 15.9.2004, Annexure-7 before the Managing Director itself by filing miscellaneous case on 28.10.2004, copy of the miscellaneous case is contained in Annexure-11 to the supplementary affidavit filed by the petitioner today. It is also submitted on behalf of the petitioner that aforesaid miscellaneous case was kept pending by the Managing Director until the Board was dissolved under the provisions of the Repealing Act, whereafter the Administrator of the Board numbered the miscellaneous case as Appeal Case No.08 of 2006 and disposed of the same under the impugned order dated 29.9.2008, Annexure-8 holding that in view of the provisions of the Repealing Act, the employees of the Board and the Marketing Committee(s) can only be absorbed in the Agriculture Department, petitioner being the employee of the Corporation his case cannot be considered for absorption in the Agriculture Department. 4. In view of the provisions contained in the Repealing Act, I do not find any illegality in the order of the Administrator dated 29.9.2008, Annexure-8 refusing absorption of the petitioner in Agriculture Department. Counsel for the petitioner, however, submitted that petitioner having challenged the repatriation order dated 15.9.2004 by filing miscellaneous case on 28.10.2004 4 and the miscellaneous case having been kept pending until it was treated as Appeal Case No.08 of 2006 and disposed of under order dated 29.9.2008, this Court should direct the authorities of the Board to pay him the salary for the period between 28.10.2004 till the date of disposal of the appeal i.e. 29.9.2008. 5. Aforesaid submission of the counsel for the petitioner is vehemently opposed by the counsel for the Board Sri B.K.Singh Chouhan. He states that under instruction dated 15.9.2004 petitioner was directed to be relieved by 30.10.2004 and in compliance of the said instruction the Managing Director did relieve the petitioner to join his parent organization under office order No.871 dated 18.10.2004 with effect from 30.10.2004 and the said office order was communicated to the petitioner as also to his parent organization under memo No.4558 dated 18.10.2004, in the circumstances, the authorities of the Board cannot be asked by this Court to pay arrears of salary for the period between 28.10.2004 till the disposal of the appeal i.e. 29.9.2008. In this connection, he further pointed out that memo of appeal, which petitioner filed on 28.10.2004, Annexure- 11 does not refer to the order relieving the petitioner dated 18.10.2004 with effect from 30.10.2004, as such, petitioner having not challenged the order relieving him 5 either before the Administrator or before this Court he cannot be permitted to question the validity of the order relieving him at this belated stage. 6. Counsel for the petitioner in rejoinder submitted that petitioner being an MBA challenged the repatriation order dated 15.9.2004, Annexure-7 as violative of the resolution of the Board dated 20.10.2001 to continue the Market Secretaries having MBA qualification serving the Board on deputation until regular appointment is made on the vacant post of Market Secretary in the Board. Relieving order dated 18.9.2004 being consequential was always subject to the result of the appeal filed by the petitioner dated 28.10.2004. Having received the appeal it was incumbent on the Managing Director to have disposed of the same at the earliest, in any case within a reasonable time from the date of its receipt or the date fixed by the Managing Director to relieve the petitioner. It is also submitted that appeal was kept pending by the Managing Director until dissolution of the Board and was disposed of by the Administrator under the impugned order after Repealing Act was enacted, as such, according to learned counsel petitioner was kept in dark about his status in the Board until disposal of the Appeal. 7. Having heard counsel for the parties, I 6 grant liberty to the petitioner to represent before the authorities of the Board to consider his case for payment of salary/emoluments for the period between 28.10.2004 the date on which he filed miscellaneous case before the Managing Director until the date of disposal of the Appeal Case No.08 of 2006 i.e. 29.9.2008 as according to the petitioner the aforesaid miscellaneous case was treated as Appeal Case No.08 of 2006 by the Administrator and disposed of under order dated 29.9.2008. If any representation for payment of salary/emolument for the aforesaid period i.e. 28.10.2004 till 29.9.2008 is filed before the Administrator of the Board the same be considered in view of submission noted in paragraph-6 in accordance with law, as early as possible, in any case within three months from the date of receipt of the representation of the petitioner along with a copy of this order before the Administrator. Petitioner should join his parent Corporation as early as possible, within one week from the date of receipt of a copy of this order and be granted continuity of service with effect from 30.10.2004 till the date of joining in the Corporation. 8. With the observation and direction aforesaid, the writ application is disposed of. Rajesh/ ( V. N. Sinha, J.)