IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13823 of 2002 1. MAHENDRA PRASAD YADAV son of Sri Rasolal Yadav, resident of Mohalla Madhubani P. O. and P.S. Purnea District Purnea. 2. Awadhesh Kumar son of Sri Bhuneshwar Pd. Sharma, resident of Mohalla Madhubani, P.O. and P. S. Purnea, District Purnea. ….Petitioners. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum- Secretary, Department of Revenue and Land Reforms, Government of Bihar, Patna. 3. The Deputy Secretary, Department of Revenue and Land Reforms Government of Bihar, Patna. 4. Additional Secretary, Department of Revenue and Land Reforms, Government of Bihar, Patna. 5. The District Magistrate, Purnea. 6. The Deputy Director, Chakbandi, Katihar. 7. The Additional Collector, Purnea. 8. The Deputy Collector, District Establishment, Purnea. …. Respondents. ----------- 3. 08.07.2009. Heard counsel for the petitioners and counsel for the State. Prayer made in this writ petition reads as follows:- (1). That this writ petition is being filed for issuance of an appropriate writ, order or direction in the nature of mandamus commanding the respondents authorities to enforce the letter no. 857 (Ras) dated 5.9.2002 sent by respondent no. 4 to respondent no. 5 by which the sanction has been granted to adjust the petitioner as per Vikalp No. 2 and thereafter to pay the petitioner regular monthly payment of salary and also to pay the arrears of salary. Counsel for the petitioners would submit that Government had taken a conscious decision for absorbing the petitioners, the surplus employees of the Consolidation Scheme, on the post of Rajaswa Karmchari and thus the delay in implementation of the said decision of the State Government by the Collector of Purnea in fact is not only prejudicial to the interest of the petitioners but would also amount to defiance of the binding direction of State Government by its subordinate officials which cannot be countenanced in law. - 2 - Counsel for the petitioners, however, in course of submission would point out that the petitioner no. 2 has already been given the relief as prayed in this writ application and therefore she would confine her case only for the petitioner no. 1 who still is continuing as Amin and that too without payment of salary due to lack of funds. The writ application, therefore, is not pressed as against petitioner no. 2. Counsel for the State on the other hand would submit that the counter affidavit was prepared (could not be filed) on instruction given in the year 2002 itself and therefore he is not in a position to apprise this Court of the current position. In such instruction and proposed counter-affidavit, the Collector of Punea District had taken a plea of non availability of the post of Rajaswa Karmachari to be only the reason for delay in implementation of the government decision of absorption of the petitioners. As with regard to payment of their salary, an explanation had been furnished that the State Government had not released the necessary fund to the district administration. In the opinion of this Court, keeping this writ petition now pending especially when relief as prayed in the writ application has already been given to petitioner no. 2, would be of no avail. It has to be noted that government had taken a decision way back in the year 1997-98 to absorb the petitioner on the post of Rajaswa karmchari but when the vacancies were not found by the Collector of Purnea District he had made a reference to State Government by his letter dated 31.5.2002 . The proposals submitted by the office of Collector had - 3 - two alternative proposals and the State Government for the time being had accepted proposal no. 2. Thus no error can be found in the action taken by the Collector of Purnea District in absorbing the petitioners in the year 2002 against post of Amin as that was based on a government decision. Counsel for the petitioner however is correct in making a complaint that since now vacancies on the post of Rajaswa Karmachari has become avilable both the respondent –Collector as also the State Government would be under obligation to honour its earlier commitment for absorption of the petitioner no. 1 on the post of revenue karmchari as has been already implemented in case of petitioner no. 2. Counsel for the State would submit that for the time being he is not in a position to say whether the vacancies are there or not. He would also submit that he has no instruction as to whether the funds has been released for payment of salary of petitioner no. 1 after filing of this writ application. In the opinion of this court, this aspect of the matter can be gone into by the competent authority namely the Collector of Purnea District who in keeping with the instructions issued by the Revenue department will take a final decision keeping into account that the earlier decision of the Government was for absorption of the petitioner against the post of Rakaswa karmchari and that was sought to be deferred for the time being by order dated 5.9.2002. By the said order dated 5.9.2002 the government it was never meant that earlier decision - 4 - of the government dated 30.11.1998 for absorbing the petitioner on the post of Rajaswa karmchari had been superseded for all the time to come. The Collector of Purnuea district therefore is directed to reconsider this issue and if there are vacancies on which the absorption of the petitioner no. 1 can be made, an appropriate order should be passed within a period of four months from the date of receipt of a copy of this order along with a copy of the representation to be filed by petitioner no. 1 explaining his case. It is made clear that in case such grievance of the petitioner for absorption will not be redressed for any justifiable reason, the same will have to be disclosed in the order to be passed by the Collector. As with regard to payment of salary for the period the petitioner remained out of service, the same will also be paid to the petitioner no. 1, if it has been paid to others including petitioner no. 2 and if there is no such impediment except release of fund by the State Government. In case, release of fund is the reason for non-payment of salary to the petitioner no. 1, the concerned officer of the Collectorate will make a demand for release of fund from the Revenue department and the same on verification of such claim would be released. Such a decision for payment of salary to the petitioner no. 1 should also be taken within the aforesaid period by the office of Collector, Purnea. With the aforementioned observations and directions, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)