IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No. 202 OF 2009 Uma Shankar Prasad, son of Late Indra Deo Lal, Resident of Village – Balua, P.S. - Krishnagadh, District – Bhojpur. Writ Petitioner ............... Appellant. Versus 1. The State of Bihar. 2. The Secretary, Building Construction Department, Govt. of Bihar, Patna. 3. The Superintending Engineer, Education Cell, Building Construction and Housing Department and presently known as Superintending Engineer, Education Cell, Building Construction Department, Building Circle, Motihari. 4. The State of Jharkhand, through the Secretary, Building Construction Department, State of Jharkhand, Ranchi. 5. Executive Engineer, Education Cell, Building Construction Department, Ranchi, at present Building Division, Chatra. 6. Assistant Engineer, Education Cell, Building Construction Department, Ranchi. -Respondents ................ Respondents. For the Appellant : Mr. Satish Chandra Jha – 3 For the State of Jharkhand : Mr. Dhrub Mukharjee For the State of Bihar : Mr. Satybir Bharti J.C. To A.A.G.3 /7/ 14.09.2009 Heard the counsel appearing for the parties. 2. The present appeal is directed against the order of the learned single Judge dismissing C.W.J.C 2 No.5545 of 2002. The said writ petition was filed by the present appellant seeking for a direction to the respondents to pass final order from the so-called reply dated 31.9.1996 and to accept the joining report of the appellant dated 2.4.1996. In the said writ petition, the State of Bihar and its officials were impleaded as respondents 1 to 3 and the State of Jharkhand and its officials were impleaded as respondents 4 to 6 respectively. The said writ petition was dismissed by the learned single Judge solely on the ground of laches. 3. The undisputed facts, in brief, leading to the filing of the writ petition and the present appeal are as follows: The appellant was initially appointed as a Peon- cum-Chainman as per Office Order No. 215 dated 4.10.1982 and posted in the office of the Junior Engineer, Divisional Branch, Education Department, Bettiah. Subsequently, he was transferred to office of the Junior Engineer, Divisional Branch, Education Department, Sitamarhi as per Office 3 Order No. 87 dated 15.11.1983 and continued to work so. It is alleged by the petitioner-appellant that during the Durga Puja vacation in 1995 he fell ill and proceeded to his native village for treatment and he was advised to take complete bed rest. Subsequently, after recovery, he obtained a fitness certificate from the Civil Surgeon dated 28.3.1996 and submitted his joining report on 2.4.1996. It is claimed that such joining report was received by the then Assistant Engineer and the appellant was allowed to work. At that time, the relevant papers were forwarded to the Superintending Engineer, Education Cell, Building Construction Department, Patna for necessary guideline and direction. The Superintending Engineer, vide Memo No.95 dated 24.4.1996, sought for necessary explanation and vide Memo No.154 dated 27.7.1996, he was asked to show cause. In the compliance with the said direction, the appellant filed his show-cause reply dated 31.9.1996. However, there was 4 no further correspondence from the side of the Government. Under these circumstances, the writ petition was filed for giving direction for accepting the joining report and for a further direction to the respondents to pass orders on the reply of the petitioner pursuant to the show cause notice and also for payment of salary. 4. In the writ petition, a counter affidavit was filed on behalf of Respondent No.5 viz. the Executive Engineer, Education Cell, Building Construction Department, Ranchi (at present Building Division, Chatra). In the said counter, it has been highlighted that during the service career, the petitioner was always irregular and was in the habit of over-staying or remaining absent without proper leave application. It has been further stated that during the year 1996 itself, the department was trying to trace out the petitioner and that the relevant records were lying in the office of the Executive Engineer, Building Division, 5 Hazaribagh. While not disputing that the joining report was filed on 2.4.1996, it has been stated that the writ petitioner again went on leave without any sanction on 13.8.1996. In a supplementary affidavit, the petitioner had stated that no formal departmental proceeding had ever been initiated against him and no final order had been passed. It is to be noted that a separate State of Jharkhand was carved out of the State of Bihar in 2002. In the present appeal, a counter affidavit has been filed on behalf of respondents 2 and 3 viz. the Secretary, Building Construction Department, Govt. of Bihar and the Superintending Engineer, Education Cell, Building Construction and Housing Department, Building Circle, Motihari in Bihar. In the said counter affidavit, it has been stated that as per the Bihar Re-organisation Act, 2000 (hereinafter referred to as the Act), the matter is required to be answered by the State of Jharkhand as all the claims of the petitioner stand allotted to the State of Jharkhand by virtue of 6 Section 72 of the Act. On behalf of respondents 4 and 5 viz. the State of Jharkhand represented by the Secretary, Building Construction Department, Ranchi and the Executive Engineer, Education Cell, Building Construction Department, Ranchi, a counter has been filed in the appeal. In the said counter affidavit, while reiterating about the earlier saga of the appellant remaining on unauthorized leave on many occasions, it has been admitted that the joining report of the appellant dated 2.4.1996 with the medical certificate had been forwarded to the Superintending Engineer, Building Construction Department. The Superintending Engineer, as per Letter No.447 dated 12.6.1996, had called for certain queries from the Executive Engineer. The absence of the appellant from 1.10.1995 to 1.4.1996 has neither been regularised nor sanctioned. It is stated that after rejoining on 2.4.1996, the appellant again remained absent by submitting 7 an application for casual leave on 7.8.1996 and since then, he had not rejoined. 5. From the narration of events and the materials on record, including the averments made in the counter affidavits by the various respondents, it is apparent that neither any disciplinary action was taken against the appellant nor any orders passed either by the Bihar Government or by the Jharkhand Government even though the appellant had been called upon to file reply relating to certain aspects. It is thus apparent that technically the appellant still continues in service. 6. Undisputedly, as per Section 3 of the Act, the State of Jharkhand has been formed by carving out certain territories from the existing State of Bihar and as per Section 4, the State of Bihar comprises territories other than those specified in Section 3. In the above background, it can be said that the appellant still continues as a Government 8 servant in the services of the re-constituted State of Bihar or under the newly constituted State of Jharkhand. The stand of the State of Bihar is that after such re-organisation, it must be taken that the appellant became a Government servant under the State of Jharkhand. In the counter affidavit filed on behalf of the State of Jharkhand, either in the writ petition or in the appeal, no contrary stand is taken or it is not claimed that the appellant should be treated as an employee of the re- constituted State of Bihar. In other words, it is impliedly accepted that the appellant is an employee under the State of Jharkhand. However, we feel that this question is required to be resolved, in the light of the provisions contained in the Act as well as the subsequent guideline issued by the Central Government relating to the re-organisation of the States. In this connection, it is necessary to consider the provisions contained in Sections 72 and 74 of the Act. Section 72 contemplates that any person who immediately before the 9 appointed day is serving in connection with the affairs of the existing State of Bihar shall provisionally continue to serve in connection with the State of Bihar unless he is required, by general or special order of the Central Government, to serve provisionally in connection with the affairs of the State of Jharkhand. Admittedly, no such direction had been issued in respect of the present appellant. However, it is apparent that Section 72 is only relating to continuance of service on provisional basis. As per Section 72(2), final allotment in respect of service is required to be made. It is not in dispute that in such final allotment, the appellant has neither been allotted to Bihar State nor Jharkhand State. This is obviously because after 1996 the matter relating to rejoining of the appellant had not been finalised anywhere. The guidelines for State Government on provisions relating to service matters of State services on account of the re-organisation of the State issued on 13.9.2000 is also consistent with the 10 interpretation. Para 3(a) of the said guideline is to the following effect: “3. ALLOCATION OF PERSONNEL State Cadre personnel should be allocated on the following lines. (a) Those staff serving in village, tehsil, district division or region who are normally liable for transfer within such area and are part of such territorial cadres, shall be deemed to have been appointed to such posts by the successor State of Jharkhand/Chhattisgarh/Uttaranchal on and from the appointed day in whose territory the area has been included.” Section 74 of the Act is apparently more relevant for the purpose of determining the issue is extracted hereunder: 11 “74. Provisions as to continuance of officers in same post:- Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar in any area which on that day falls within any of the successor or States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State : Provided that nothing in this section shall be deemed to prevent a competent authority, on and from the appointed day, from passing in relation to such person any order affecting the continuance in such post or office.” 12 From the aforesaid provision in Section 74, it is apparent that the person holding any post or office in any area which on the appointed day falls within a successor State shall continue to hold the same post or office in the successor State and shall be deemed to have been duly appointed in that successor State. The proviso enables the competent authority to pass any order affecting the continuance in such office. However, it is not in dispute that no such order has been passed. Under such circumstances, we are of the considered opinion that the appellant must be deemed to be continuing in service in the State of Jharkhand inasmuch as Gumla, the place where he was posted in 1995 and was continuing was such till the re-organisation took place, comes within the territories allotted to the newly created State of Jharkhand. It is obvious that because of such legal position, the State of Jharkand in its counter affidavit, either 13 in the writ petition or in the appeal, has not taken any contrary stand. 7. It is of course true that the appellant, after giving his joining report dated 2.4.1996 again went on leave by filing a casual leave application on 13.8.1996. Though the appellant claims that he thereafter came to rejoin duty, he was not allowed by the officers concerned to resume his duty. This aspect is denied in the counter affidavit filed on behalf of the State of Jharkhand. It is obvious that since the matter pertains to the state of affairs in 1996, it would be futile to expect any clinching material to come to any conclusion as to whether the appellant was prevented from rejoining or not. It is not claimed by the State of Bihar or the State of Jharkhand that in fact any disciplinary proceeding has been initiated against the appellant. The only thing highlighted in the counter is regarding the unauthorized absence of the appellant from time to time, including the alleged 14 unauthorized absence after 13.8.1996. In the above background, we have to consider as to whether the appellant is entitled to any relief in the present appeal. As we have already noticed, the only ground on which the writ petition was dismissed was on account of laches. It is, no doubt, true that the jurisdiction under Article 226 of the Constitution being a discretionary relief, the High Court is required to consider all the aspects. It is quite well known that delay defeats equity and a person invoking the extra-ordinary jurisdiction under Article 226 has to come to the Court without any delay or without laches. However, while applying the principles, the Court should try to weigh the prejudices that would be caused to either side. In other words, the Court is required to find out if a writ petition is allowed, even though there has been some laches, what would be the prejudice caused to the respondents and on the other hand, the Court is equally required to find out what would be the 15 prejudice caused to the petitioner if the writ petition is dismissed on the ground of laches. Normally, when an aggrieved party does not come to the High Court in proper time, by virtue of such inaction on the part of the aggrieved party, the other side proceeds on a particular footing and if the court of law decides the matter otherwise, such person would obviously be prejudiced. For example, in matters relating to promotion, if the aggrieved party does not come to the Court within reasonable time and if comes to the Court after much delay, the person who is supposed to have been illegally promoted would naturally have the legitimate expectation of his promotion not being disturbed after long lapse of time occasioned on account of the laches of the person who is not promoted. Similar principle is also applicable to the question of inter se seniority. The basic principle appears to be that by passage of time, the rival has got some legitimate expectation that the status or the right 16 acquired by him is not affected. On the other hand, in matters relating to pension, it is generally felt that the pension being a continuing right, if a person comes to the Court claiming pension, his entire claim need not be dismissed on ground of laches and at least that part of the claim which is within the period of limitation can be entertained. In such a case, the State cannot be said to be prejudiced. Keeping in view the above general principle, it is seen that in the present case, the matter is between the appellant and the State and it cannot be said that the State has acquired any right vis-à-vis the appellant so that the entertainment of the grievance of the appellant would have any prejudicial effect save an except the fact that the State of Jharkhand would be required to take back the appellant in service. If ultimately it is to be decided that the appellant should be taken back into service, the prejudice caused to the State of Jharkhand can be well protected by directing that for the entire period no backwages 17 should be payable. In view of the above, in our opinion, the dismissal of the writ petition solely on the ground of laches was not justified, particularly keeping in view the fact that in law the services of the appellant having not been terminated, he has a continuing right of continuing in service. That apart, it is to be noticed that the writ petition itself, after having been entertained remained pending in the High Court for about seven years. Since the matter was essentially between the appellant and the State and no other individual was at stake, the dismissal on account of the laches was not justified. 8. We have already analysed that the service of the appellant was never terminated and similarly no disciplinary proceeding had been initiated against him. The question of relationship of the State and the Government servant is not merely one of contract, but is also a question of status and a Government servant by virtue of various statutory rules has certain status and the relationship can be 18 severed only in the manner known to law. Since the appellant had never been terminated from service, it is obvious that he deemed to be continuing in service even now. In view of Section 74 of the Act, the appellant shall be deemed to be continuing in service under Jharkhand State. 9. The learned counsel for the State of Jharkhand has submitted that since the matter had remained pending not account of any fault on the part of Jharkhand Government and since the appellant had approached the Court after delay, it would not be appropriate to give any direction for payment of backwages. Similarly, he has submitted that since the appellant had remained absent, the State of Jharkhand should be given the liberty of initiating disciplinary proceeding against the appellant. In this connection, it is also stated by him that in view of the past conduct of the appellant in remaining absent for long period, it would not be in public interest to continue the appellant 19 further in service. The learned counsel for the State of Jharkhand also submitted that appropriate disciplinary proceeding can be initiated against the appellant. 10. The learned counsel for the appellant, on the other hand, submitted that the appellant is now aged about 55 years. Since he has crossed the age of 50 years, he may be permitted to take voluntary retirement from service. He has also submitted that for the past period, no arrear salary need be paid and the past period can be counted as service only for the purpose of calculation of pension. 11. The appellant was a Class IV employee, obviously belonging to the lower strata of the society. As rightly pointed out, he is already aged about 55. Therefore, though technically the counsel for the State of Jharkhand was correct in his submission that the State has got every right to initiate disciplinary proceeding, we do not think it would serve any useful purpose and will be in the interest of justice 20 to start any disciplinary proceeding at this stage as it would inevitably be continued for some time with further possibility of appeal and other challenges in accordance with law. In these circumstances, we feel that the interest of justice would be served by observing that the appellant is deemed to have been compulsorily retired. 12. For the above reasons, we allow the appeal in part and dispose of the matter finally by directing that the appellant shall be deemed to have been compulsorily retired from service under the Jharkhand Government with effect from today ie. 14.9.2009. It is made clear that he shall not be entitled to any arrear of pay for the past period, but such period shall notionally be counted only for the purpose of calculation of his pension. There will be no order as to costs. We place on record our appreciation for the fair manner in which submissions had been made by all the 21 counsel appearing for the parties and particularly, the counsel appearing for the State of Jharkand. (P.K Misra, C.J) Alex PP./AFR. (Anjana Prakash, J)