IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4872 of 2002 PRABHU NATH SINGH, SON OF LATE GOPALJEE SINGH, RESIDENT OF VILLAGE- ZALALPUR, POLICE STATION- CHAPRA MOFASSIL, DISTRICT- CHAPRA (SARAN). ... PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR (SECONDARY EDUCATION), BIHAR, PATNA. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN DIVISION, CHAPRA. 4. THE AREA EDUCATION OFFICER, CHAPRA SADAR, CHAPRA. ..RESPONDENTS. For the Petitioner:M/s. Dilip Kumar Tiwari, Krishna Kant Tiwary and Mohini Kumari, Advocates. For the State: M/s. Sunil Kumar Mandal, SC-24 and Bipin Kumar, A.C. to SC-24. ----------- 7. 06.04.2011 Heard learned counsel for the petitioner and the State. 2. This is the third round of litigation for which petitioner has been compelled by the respondents on account of their arbitrariness. Petitioner was appointed as a peon vide order contained in memo no. 736 dated 6.4.1991 on recommendation of the District Administration. He was posted in the office of Sub-divisional Education Office,Chapra and he was terminated from his service in the light of direction issued by the Director Secondary Education contained in merm no. 1367 dated 30.11.1998 2 and the termination order issued against the petitioner contained in memo no.42 dated 30.1.1999. The termination order was challenged by the petitioner in C.W.J.C. No. 2040 of 1999 which was allowed. The termination order was quashed and the respondent no.2 was directed to re-consider the matter relating to legality of petitioner’s appointment after giving him an opportunity of hearing. As per the direction of the High Court the show-cause notice was issued to the petitioner. He appeared before the respondent no.2, produced all the relevant documents relating to his appointment. Respondent No.2 called for a report from the District Magistrate, Chapra. Since the report was not reached within the time and a reminder was sent but thereafter without waiting for the report again order of termination was passed vide memo no. 768 dated 4.7.2000. After issuance of termination order the report of the District Magistrate, Chapra was received confirming the validity of petitioner’s appointment. Left with no option. Petitioner again has to move before this Court in C.W.J.C. No.6410 of 2000. The writ application was allowed vide order dated 4.7.2001 and the termination order was quashed. 3 Petitioner thereafter submitted his joining but the same was not accepted and M.J.C.No. 2384 of 2001 was filed and during the pendency of the contempt application petitioner’s joining was accepted with effect from the date of the joining and not with effect from the date of his termination. However, this was corrected and modified. Petitioner’s joining was accepted with effect from the second order of termination in the year 2000. He was given continuity in service with effect from the date of termination in the year 2000 but so far arrears of salary is concerned that was not paid. Petitioner was paid his current salary. The contempt application was disposed of in the light of the letter of correction. It was mentioned by the respondents that the appointment of the petitioner will be finally decided subject to the final order passed in the SLP. The SLP preferred by respondents was pending before the Apex Court. It was subsequently dismissed in the year 2006. 3. Initially, this writ application had been filed by the petitioner for a direction to the respondents to accept his joining with effect from the date of termination and making payment of entire dues of salary. The date of 4 termination has not dislosed in the main writ application. The actual date of termination was brought on records during the pendency of the writ application. 4. Interlocutory Application No. 6108 of 2004 has been filed with a prayer of amendment in the relief. The amended relief is for quashing of the order contained in memo no. 635 dated 02/-.7.2004 as well as in memo no. 783 dated 10.8.2004 whereby the petitioner has been denied salary for the period of termination and also for giving continuity in service with effect from his first date of termination i.e. 30.01.1999. The Interlocutory Application is allowed amended relief will form the part of writ application. 5. Present writ application has been filed by the petitioner for a direction to the respondents for making payment of his arrears of salary and other monitory benefits with effect from the date of termination till the date of re-instatement. 6. Counter affidavit filed on behalf of State shows that respondents are adament not to make payment of arrears of salary to the petitioner. Example of Rabindra Tiwary has ben cited to show that in his case also arrears 5 of salary was not paid for the reason that during the period of termination, he had not worked. It has also been stated by the counsel appearing for the State that once the contempt application was disposed of considering the show cause filed by the respondents, now the petitioner cannot re-open this issue. 7. I failed to understand that how such statement can be made in the counter affidavit of the State, when admittedly petitioner was restrained from discharging his duty on the account of illegal order of termination. This is not the case of the respondent that petitioner himself absented and was not inclined to discharge his duty on both the occasions i.e. in the year 1999 and 2000. Termination orders had been issued by respondent no.2, without examining the legality of petitioner’s appointment. On the second occasion the respondent no.2 did not wait for the inquiry report of the District Magistrate. The inquiry report of the District Magistrate, subsequently submitted before the respondent no.2 was in favour of the petitioner’s appointment, showing that it was legal. It seems that the respondent no.2 and other respondents were adament not to allow the petitioner to continue in the 6 service but only on account of the direction of the High Court, they were left with no option and Respondents had to accept the joining. The petitioner was allowed to continue in his service and paid his current salary. The explanation furnished for non-payment of arrears of salary is not acceptable as it is completely illegal. The Government employee in case of illegal termination is entitled for his arrears of salary for the period in between the termination and reinstatement, otherwise simply giving continuity in service has no meaning. 8. For all these reasons, I find that the orders passed by the respondents contained in memo no. 635 dated 2.7.2004 as well as memo no. 783 dated 10.8.2004 are fit to be quashed as petitioner has not been given continuity in service with effect from the first date of termination i.e. 30.1.1999. This will reduce the length of the petitioner’s service and also result into reduction of his pension and pensionary benefits. There being no order for payment of arrears of salary accept the continuity in service with effect from 2000 is also illegal for the reason that petitioner has not remained absent from his duty for laches on his part rather he was restrained from discharge 7 his duties on account of illegal orders passed by the resondents, which were subsequently quashed by the High Court. The respondents are, accordingly, directed to pass order regarding continuity of petitioner in service will be with effect from 31.1.1999 i.e. the first date of his termination. He will also be entitled for his arrears of salary for all these period in between the period of termination as well as order of reinstatement. Petitioner will also be entitled for allowances and other consequential monitoring benefits for all these period. Respondents are directed to make payment of entire dues to the petitioner within 12 weeks from the date of production/communication of this order. 9. This application is allowed. Ibrar/- ( Mridula Mishra, J.)