IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.253 of 2007 THE STATE OF BIHAR Versus RAMNATH SINGH & ORS ----------- For the appellant : Mr. P.K.Shahi, Advocate General For the respondents 1 to 6 : Mr. R.S. Pandey, P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Kishore K. Mandal --- Dated, the 25th July, 2008 The order passed by the single judge on 27th March, 2003 has been impugned by the State government by filing this intra – court appeal on 13th March, 2007. 2. Since the appeal suffers from delay of three years and ten months, an application (IA. No.1917 of 2007) has been made seeking condonation of delay in filing the appeal. 3. In the application for condonation of delay, it is stated that the writ petition filed by the present respondents came to be disposed of on the basis of the judgment delivered on 20th February, 2003 in CWJC. No.7910 of 2002 and analogous cases. It is stated that six letters patent appeals from the writ petitions CWJC. No.7910 of 2002 and analogous cases were preferred which came to be dismissed on 22nd September, 2003 and the order of the single judge has been set 2 aside. It is the appellant’s case that the order impugned in the present appeal has been passed in terms of the order passed in CWJC. No.7910 of 2002 and analogous cases, and the said judgment has already been set aside by the Division Bench and the impugned order has already merged in terms of the order dated 22nd September, 2003. It is submitted that the contempt application was filed by the present respondent nos. 1 to 6 somewhere in the year 2004 and during the course of the contempt application, the single judge on 1st February, 2007 observed that if the appeal has not been preferred from the impugned order, the office order dated 10th February, 2004 was contemptuous. It was then that the appellant decided to file the appeal; opinion of the Advocate General was taken and then the appeal has been preferred. 4. The application for condonation of delay is opposed by the respondent nos. 1 to 6. 5. Strictly speaking, the averments made in the application for condonation of delay may not explain the long delay of more than three years and ten months. Ordinarily, therefore, the application for condonation of delay was liable to be rejected. However, in view of the fact that in analogous matters, particularly, the letters patent appeals arising out of CWJC. No.7910 of 2002 and other connected matters have been allowed by the Division Bench, in our view, the delay in filing the appeal deserves to be condoned lest it may result in two 3 inconsistent orders for the similarly situated parties. The impugned order itself suggests, rather records that the order passed in CWJC. No.7910 of 2002 and analogous matters be treated as part of the impugned order. 6. When the order passed in CWJC. No.7910 of 2002 has been set aside, interest of justice demands that the impugned order in the present appeal must also go but that stage would only come once the delay in filing the appeal is condoned. 7. In what we have observed above, we are satisfied that the delay in filing the appeal may be condoned. We order accordingly. 8. This disposes of IA. No.1917 of 2007. 9. Since the controversy is covered by the decision of the Division Bench of this court dated 22nd September, 2003, we are satisfied that this appeal deserves to be disposed of in terms thereof. 10, In the impugned order dated 27th March, 2003, the single judge has observed thus: “As it is contended by counsel for the petitioners, a fact which has been verified by the State counsel also that the fact of the aforesaid case entirely covers the facts of the present writ application also, in that view of the matter, the judgment delivered on 20.2.2003 in CWJC. No.7910 of 2002 and analogous cases shall be deemed to be the judgment in the present case also and shall govern the cases of the present writ petitioners.” 11. LPA. No.485 of 2003 was preferred out of CWJC. No.7910 of 2002. The other five appeals are LPA. No. 482 of 2003, 4 LPA. No.483 of 2003, LPA. NO.492 of 2003, LPA. No.502 of 2003 and LPA. No.510 of 2003. All these six appeals were heard together and came to be disposed of by a common order on 22nd September, 2003. In the order dated 22nd September, 2003 the Division Bench observed thus: “Admittedly, as stated above, the writ petitioner – respondents are the employees of the corporation and undertakings and they were on deputation in different departments of the State Government. The question as to whether the employees of other Corporations and public undertaking are to be deputed in the Government Department or not in a policy decision which effects the finance of the State. The State Government (Cabinet) in the light of the report of the Fitment Committee has taken a decision vide notification dated 16.11.1999 that no employees of the autonomous bodies/Corporations/Undertakings would be taken on deputation in the State Service. Thus, the said Policy decision does not suffer from any legal infirmity and as such no individual department has power to depute any person in the State Service after 16.11.1999. However, individual department made deputations even after the said policy decision and the same have been cancelled by issuance of the impugned orders by the State Government. The said decision cannot be said to be either arbitrary or malafide. A policy decision was taken to put the employees of the Corporations/Public undertakings on deputation for three years in terms of the notification dated 7.10.99. As such, any deputation made pursuant to the same prior to 14.11.99 would be valid but after 16.11.1999, no deputation can be made in the Government treasury in view of the subsequent decision of the State Government dated 16.11.1999. Admittedly, deputations in the Government Treasuries were also made after 16.11.1999 and the same were cancelled as being in breach of the aforesaid policy decision. Neither there is any order of the State Government nor any document been produced by the learned counsel for the writ petitioner- respondents to show that at any time any decision was taken by the State Government to absorb them in services. In absence of any such direction/decision, no direction can be given for absorption of their services. The fact that the employees are not getting their salaries because the Corporations/undertakings are sick is a 5 different matter and on that ground the orders of repatriation of the writ petitioner respondents in their parent departments cannot be held to be invalid and impermissible in law nor the repatriation will amount to their dismissal or removal from service. The question of payment of salaries to the employees of the Corporations/Public Undertakings is already pending before the Apex Court in the aforesaid case and directions have been issued and are being issued. Thus, the decision taken by the State Government to repatriate the services of the writ petitioner – respondents, whose deputations have been admittedly, made in breach of its policy decision dated 16.11.1999 cannot be faulted on the ground of lack of power, arbitrariness or malafide.” 12. For the reasons recorded in the judgment on 22nd September, 2003, the impugned order dated 27th March, 2003 is liable to be set aside and we order accordingly. 13. Letters patent appeal is allowed. There shall be no order as to costs. R. M. Lodha, CJ. Kishore K. Mandal, J. Neyaz/-