IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.650 of 1998 1. Krishna Kumar Pandey, son of Sri B.D. Pandey, resident of New Jakkanpur, B.K. Dutta Lane, Patna, P.S. Jakkanpur, District- Patna. 2. Haldhar Singh, son of late Muneshwar Singh, resident of Ora Bagicha, P.S. Dharhara, District- Munger. ……Petitioners. Versus 1. The State of Bihar. 2. The Special Secretary, Irrigation Department, Govt. of Bihar, Patna. 3. The Engineer-in-Chief (Estt.), Irrigation Department, Government of Bihar, Patna, 3rd Secretariat, Patna. ….Respondents. ---------------------------------- 03- 9.12.2011 Heard learned counsel for the petitioners. Nobody appears on behalf of the State when the case is called out. Even yesterday the case was heard at length but nobody appeared on behalf of the State. However, a counter affidavit on behalf of the respondents is on record. 2. The writ petition has been filed for a direction to the respondents to grant the petitioners the consequential benefits treating them appointed on the post of Assistant Engineer with effect from the date they have been promoted as SDO and further to give all benefits of the promotional post of SDO since 1.11.1982 and 14.5.1982 respectively. 3. The sheet anchor of the arguments advanced on behalf of the petitioners in support of the writ petition is the order dated 23.1.1996 passed by the Hon’ble Apex 2 Court in Civil Appeal No.5301 of 1983 and its analogous cases. The said order is quoted hereinbelow: “Heard the counsel for the parties. It is now not in dispute that except two of the appellants, all other have retired from service. The controversy is only one of Inter-Se seniority. This Court by order dated October 7, 1983 protected the parties with the following order: “After hearing the counsel for the parties, we modify order under review to this extent that the following eight appellants at present working as SDOs shall not be reverted subject to the condition that their continuance will not jeopardise or effect the promotion chance of the respondent or any of them, the names of eight appellants have been mentioned in the order.” In view of the fact that the appellants, except two, have already retired from service, this order is made final. Whatever position the respective appellants have held at the time of retirement, they must be deemed to have retired according to rules with all consequential benefits and this order will not have any effect on the chance of respondents continuing in the respective posts or their entitlement to any promotional post in accordance with law. It is made clear that the order of the High Court should not be understood to have been set aside. The appeals and the writ petitions are accordingly disposed of. No costs.” 3 4. According to learned counsel for the petitioners, the order of the Hon’ble Apex Court had made the earlier interim order dated 7.10.1983 final and had clarified that the persons who had retired in the interregnum would be deemed to have retired according to rules with all consequential benefits. By the earlier order dated 7.10.1983 the Hon’ble Apex Court had directed that the petitioners who were eight in number, including the present writ petitioners, and were working as S.D.O. shall not be reverted but with the condition that their continuance will not jeopardise or effect the promotion chance of the respondents or any of them. Learned counsel for the petitioners submits that as per the order, the petitioners continued to remain on the post of SDO but in view of the final order of the Hon’ble Apex Court dated 23.1.1996 as well as the fact that they have also superannuated during the pendency of the present writ petition, they should also be granted the post-retirement benefits treating them to be SDOs, for which calculations should be made on the basis of the pay-scale for the post of SDO. Learned counsel submits that till their date of retirement the petitioners were only getting the officiating 4 allowance for the post of SDO, which was additional allowance for discharging the duties of the post of SDO. According to him, by the final order of the Hon’ble Apex Court dated 23.1.1996 the respondents were obliged to treat the petitioners as having retired from the post of SDO, meaning thereby that the post-retirement benefits ought to have calculated and paid on the basis of the scales of the post of SDO and the same should not be calculated on the basis of their having remained on substantive post which is junior to that of the SDO. Learned counsel submits that as per the initial interim order of the Hon’ble Apex Court by which the respondents were prevented from reverting them from the post of SDO, the obvious import was that the petitioners had to be paid all emoluments which were admissible for the post of SDO. 5. From the counter affidavit filed on behalf of the respondents, it appears that the respondents have interpreted the order of the Hon’ble Apex Court to mean that the petitioners shall not be reverted and would be allowed to continue on the post of SDO but the same would not amount to the Hon’ble Apex Court having accepted the position that the petitioners were entitled for 5 the regular scale of the post of SDO which could have been admissible only upon the petitioners satisfying the eligibility criteria for such promotion. It is the further stand of the respondents that the Hon’ble Apex Court had itself clarified that the order of the High Court which was under challenge in the said proceedings had not been set aside which in effect means that the ratio of the High Court order, which had held that the petitioners cannot claim seniority to be counted from the date they were made to discharge the duties of the higher post but the same is only to be counted from the actual date of promotion, has been upheld. It is also contended that the Hon’ble Apex Court has clarified this aspect also where it has been stated that with regard to six persons who had already retired before 23.1.1996, they would deem to have retired according to rules, meaning thereby that the Hon’ble Apex Court had not given a categorical finding in their favour that they would be deemed to have retired as SDO, rather the words used are that they must be deemed to have retired according to rules which, in effect, means that all consequential benefits as per the rules governing the service conditions including the fact that the persons 6 concerned were only getting extra officiating allowance. 6. Considering the rival contentions, this Court is of the view that the order on which the petitioners are basing their claim cannot be interpreted as it has been sought to be interpreted by learned counsel for the petitioners. This would be obvious from the fact that the initial interim order of the Apex Court dated 7.10.1983 clearly stipulates that the appellants, which included the petitioners, who were at that time working as SDO shall not be reverted. This order was confirmed in the final order dated 23.1.1996. It is an admitted position that even after passing of the order dated 7.10.1983 the petitioners were only paid the extra officiating allowance and not the scale of the substantive post of SDO. They never challenged the same anywhere and thus it is obvious that as per the order of the Hon’ble Apex Court they had accepted the position that the said order was only with regard to their continuance on the post of SDO and not being reverted but in what substantive capacity has not been spelt out by the Hon’ble Apex Court. Since the initial interim order was made final on 23.1.1996 it was further observed that the High Court’s order should not be understood to have been set aside. The 7 obvious conclusion which this Court arrives at from the conjoint reading of the two orders is that the Hon’ble Apex Court had not accepted the position as canvassed by the petitioners that their continuance on the post of SDO would amount to their entitlement of the regular post of SDO. Moreso, when the High Court’s order which goes against them has not been set aside. The petitioners have also not approached the Hon’ble Apex Court either for any clarification or alleging violation or non-compliance of the order dated 7.10.1983, in as much as they were not being paid the scale of the post of SDO, also goes to show that the Hon’ble Apex Court’s order as is being sought to be interpreted is not the correct interpretation. 7. In view of the discussions made hereinabove, this Court does not find that the petitioners have been able to make out any case warranting interference by this Court. Accordingly the writ petition stands dismissed. 8. However, dismissal of the writ petition shall not come in the way of the petitioners being granted the benefits to which they are entitled including such promotion which was due to them from the post of Overseer in the normal circumstances. If the petitioners are 8 entitled to such promotion on the basis of seniority as well as time spent on the post and in accordance with the order of the High Court, the same should be granted with all consequential benefits including payment of due arrears and the fact that the petitioners have retired shall not come in the way of such consideration. It is hoped that the respondents shall consider the cases of the petitioners for such due entitlement preferably within a period of six months from the date of production/receipt of a copy of this order. (Ahsanuddin Amanullah, J.) S.K.Pathak/