IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7107 of 2001 Ram Chandra Sah, Son of late Bisheshwwar Sah, Resident of Mohalla Ghose Lane, Ward No.7, P.O. & P.S. Samastipur, Distt. Samastipur. ----------- Petitioner Versus 1. The State of Bihar through the Secretary & Commissioner Finance Deptt. Govt. of Bihar, Patna. 2. Director of Industries including the Additional Director of Industries, Bihar, Patna. 3. Deputy Development Commissioner, Gumla. 4. Maha Parbhandak, District Industries Centre, Gumla. 5. Accountant General (A&R), Bihar, Patna-I. --------- Respondents ----------- 7 10.7.2009 Heard counsel for the petitioner, counsel for the State of Bihar as also counsel for the State of Jharkhand. In this writ application, the petitioner, a skilled artisan under the control of Industries Department, has made prayer to the following effect:- “1(i) To quash the order and memo no. 5894, Patna dated 3.9.97 of the respondent no.2 and to count the service of the petitioner with effect from 23.7.1960, the date of his initial appointment in place of 5.10.70, the date of reappointment. (ii) To sanction and accord the Second Time Bound Promotion of the petitioner in accordance with Finance Department Resolution no. 10770 dt. 30.12.81 as order passed in memo dt. 17.5.94 of the respondent no.4. (iii) To direct the respondents to not to 2 deduct the salary paid to the petitioner from the post Retiral benefits in accordance with order and memo dt. 17.5.94 of the respondent no.4 as the petitioner has not received such salary by fraud or misrepresentation.” In nutshell, the relief of the petitioner is that he should not be deprived of the length of service either for the purpose of Time Bound Promotion or for the purpose of payment of retirement benefit as by an order dated 12th September, 1970 he was not appointed as a fresh recruit rather his services were only reinstated with certain conditions. Counsel for the State on the other hand would submit that the period 23.7.1960 to 1.1.1969 would qualify for counting the previous services for calculation of pension but for the period 2.1.1969 to 4.10.1970, there will be a break in the services of the petitioner and as such, he will not be entitled for computing this period towards the length of service for either promotion or payment of pension. In the opinion of this Court, counsel for the petitioner seems to be correct in contending that the order dated 12th September, 1970 is not 3 an order of fresh appointment of the petitioner rather it is an order of reinstatement in service. It is so because Clause-4 & 6 of the said appointment letter to the following effect:- ^^4- bu deZpkfj;ksa dh NaVuh ls iwoZ tks osru ,oa HkRrk izkIr gksrk Fkk] ogha osru ,oa HkRrk bl in ij ;ksxnku nsus dh frfFk ls izkIr gksxkA 6- NaVuh ,oa bl in ij ;ksxnku nsus dh frfFk ds chp ds vof/k dk osru ,oa HkRrk fdlh izdkj ns; ugha gksxkA** would make it clear that on account of the reinstatement, the petitioner was only deprived from the benefit of salary of the interregnum period, while allowing him to retain the benefit of past service including last salary with increment already earned by him. Therefore, the petitioner cannot be denied any benefit to which he would be entitled on the basis of his entry of his service on 23.7.1960. This is literally the prospect of Rule 103 of the Bihar Pension Rules where also, the Government has been vested with power to condone the break in service to a maximum period of two years and accordingly, if the resolution of the State Government itself dated 31.7.1980 simplifying the pension procedure is given 4 effect to, the petitioner would qualify for condonation of such break of service. In that view of the matter, this Court would hold the petitioner entitled for not only Time Bound Promotion on the basis of his original date of appointment on 23.7.1960 but also for payment of his all pension by reckoning his length of service from 23.7.1960 to the date of his retirement. By doing so and even after taking away the period of 2.1.1969 to 4.10.1970, the petitioner will be getting the benefit of 33 years of length of service which is required for earning maximum pension. The petitioner, therefore, would qualify for the maximum pension if only his service break of nearly 21 months is condoned. Accordingly, this Court would quash Annexure-1 and direct the authorities to reconsider the case of the petitioner in the light of the aforementioned observations and direction within a period of six months from the date of receipt/production of a copy of this order. It goes without saying that if any recovery has been made from the salary or 5 retirement benefit of the petitioner towards the alleged excess amount of second Time Bound Promotion, the same shall also abide by the aforementioned decision to be taken by the Department. Rsh (Mihir Kumar Jha, J.)