IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.629 of 2006 GOPAL JHA, son of Late Pandit Bhola Dutta Jha, resident of village Behari Bankatwa, PS Sikta, District West Champaran. Versus 1 THE STATE OF BIHAR 2 The Director, Secondary Education, Bihar, Patna 3. The District Education Officer, East Champaran ----------- For the Appellant: Mr.Krishna Murari, Advocate Mr. Harish Kumar, Advocate For the State: Mr Manoj Kumar Jha, JC to GA I ----------- 10 12-01-2009 Heard learned counsel for the appellant and learned counsel for the State. The writ petition filed by the appellant was dismissed by order dated 12.7.2006. As a result his prayer to count his services for the purpose of pension and other retirement benefits from 1.1.1965 till the date of his superannuation on 31.7.2003 stands rejected. On facts there is no dispute, as is evident from the order of the Director, Secondary Education, Bihar, Patna (annexure-3 to the writ petition) that petitioner was in service as an Assistant Teacher in High School, Mathura, West Champaran from 1.1.1965 to 3.6.1975. After leaving that service, from 4.6.1975 to 30.11.1981 he remained in service in Primary School, Samuapur, West Champaran. Thereafter he left that service and joined proposed Pahwari Yadav High School, Jagnathpur, West Champaran. This school was taken over on 2.9.1982 and petitioner was recognized as Assistant Teacher of that school w.e.f. 2.9.1982. Petitioner prayed for condoning the break in his service between 30.11.1981 to 2.9.1982 so that he may be qualified - 2 - for pensionable service and may be paid pension and other retirement benefits after counting his earlier services noticed above. On behalf of the petitioner it has been submitted that the Hon’ble Single Judge failed to consider circular no. 581 dated 15.1.1982 read with circular no. 3014 dated 31.7.1980 which permits condonation of break in service rendered under the State Government in other cases except in case of dismissal or removal or break on account of participating in strike. It was pointed out that earlier under the circular dated 31.7.1980 resignation also disqualified condonation of break in service but this ground was subsequently deleted by circular dated 15.1.1982. A copy of aforesaid circular was annexed as annexure-4 to the writ petition. Learned counsel for the appellant has further submitted that the Director, Secondary Education vide annexure-3 rejected petitioner’s prayer on the basis of a subsequent circular issued on 18.7.1992 which cannot have application to the claim of the petitioner because the break in service of the petitioner was of a much earlier period governed by then existing policy decision of the State Government and the circular of 1992 could not have retrospective application. It was also submitted on behalf of the appellant that in similar circumstance break in service was permitted to be condoned by a judgement of this court dated 10.1.2007 passed in CWJC no. 10607/1999 (Dhrub Roy Vs the State of Bihar & Ors) and one analogous case. A copy whereof has been annexed to a supplementary affidavit filed in this LPA. - 3 - Considering the submissions advanced on behalf of the appellant, particularly the provisions in the circular no. 581 dated 15.1.1982 we find that break in two services rendered by the petitioner under the State Government could have been condoned in view of policy decision of the State Government contained in circular dated 15.1.1982 and the case of the petitioner is well supported by the judgement contained in annexure-1 to the supplementary affidavit. The case of petitioner is also supported by a Division Bench judgement of this court in the case of Shyam Kishore Singh Vs the State of Bihar & Ors reported in 2007 (2) PLJR, 239. In view of aforesaid discussions and findings the judgment and order under appeal is set aside and the Letters Patent Appeal is allowed. The break in service of the petitioner noticed above, as prayed, will stand condoned. The concerned authorities must now decide and pay the post retirement benefits of the writ petitioner in accordance with law within a period of three months from today. BKS/ (Shiva Kirti Singh,J.) (Shyam Kishore Sharma, J.)