IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14989 of 2005 Harishankar Prasad, S/O Late Sheogobind Prasad R/o Mohalla- Ratnapur, P.O. Chapra, District-Chapra ------- Petitioner Versus 1. THE STATE OF BIHAR 2. The Accountant General,Bihar,Patna 3. The Secretary, Human Resources Development Department, Bihar,Patna 4. The District Education Officer, Gopalganj 5. The Senior Account Officer, Office of the Accountant General, (A & E), Bihar,Patna ------------------ Respondents. ----------- O R D E R 08 22-12-2010 Heard Sri Rajendra Prasad Singh, learned Senior Counsel appearing on behalf of the petitioner, Sri Prabhakar Tekriwal, learned Counsel appearing on behalf of the State and Sri L.P. Rajgriha, learned counsel appearing on behalf Accountant General,Bihar. The petitioner, who retired from B.N.S. High School Koreyor, Gopalganj as Assistant Teacher with effect from 31.7.2004, has prayed for issuance of appropriate writ a prayer to quash Memo No. Pen-5-1023 dated 8.9.2005 issued by the Senior Account Officer, Accountant General (A & E), Bihar, Patna(Annexure-1). By the said order, the petitioner’s pension has been re-fixed, while calculating his service from 16.3.1977 instead of 13.7.1964. The petitioner has further prayed for quashing of an follow up order contained in Memo No.863 dated 3.11.2005 issued by the District Education Officer, Gopalganj( Annexure-1A), whereby a direction has been issued to adjust Rs.97,605 from the 2 retiral benefits of the petitioner on account of excess payment made to the petitioner while granting pension and gratuity. The petitioner has also prayed to direct the respondents to treat continuity of his service with effect from 13.7.1964 in stead of 16.3.1977. Sri Rajendra Prasad Singh, learned Senior Counsel for the petitioner, while referring to the pleadings of the writ petition, submits that the petitioner was initially appointed as Assistant Teacher in Mahendra High School, Ziradai , Siwan on 13.7.1964 by the Managing Committee of the School. However, subsequently, on certain charges, the petitioner was terminated from service with effect from 16.7.1969 by the Managing Committee of the School. Thereafter, he preferred an appeal against the order of termination before the Secretary, Bihar Secondary Education Board, which was allowed by the appellate authority on 12.3.1977. The appellate authority quashed the termination order by way of accepting the report of the Regional Dy. Director of Education. Sri Singh, learned Senior Counsel for the petitioner submits that the Regional Dy. Director of Education had found the allegations as trivial in nature and punishment as excessive. It was further found that the order of termination was not in accordance with law. Accordingly, the appellate authority quashed the order of termination allowed the appeal and the petitioner was ordered to be reinstated with effect from the date of his joining. It was further directed that the petitioner would not be entitled to get any arrears of salary and he will not be entitled to get any increment till the District Education Officer 3 receives report regarding his satisfactory service. It was also ordered that the petitioner would be kept on vigilance for about one year to see as to whether he discharges his duty satisfactorily or not. The said order has been brought on record as Annexure-2 to the petition. Learned Senior Counsel for the petitioner further submits that subsequently vide letter No.19 dated 7.8.1977, the Managing Committee of the School had treated the period i.e. 16.7.1969 to 15.3.1997 as leave without pay and the petitioner’s service was regularized by the Managing Committee of the School. Thereafter, the petitioner was given trained scale since 9.6.1980. The School in question was subsequently taken over on 2.10.1980 and the petitioner functioned in the School continuously till the date of his superannuation. It was further submitted that the petitioner was given first time bound promotion on 1.4.1986 with effect from 1.4.1981 treating his service with effect from 13.7.1964 and he was also granted Super Selection grade in the year 1994. On 1.1.1996, his pay scale was re-fixed in the Scale of Rs. 7500-12,000/- by the approval of the Finance Department. After superannuation of the petitioner, the Respondent authority vide Memo No.449 dated 1.10.2004 fixed his provisional pension on the basis of pay scale of Rs.7500/- 12,000/- . The petitioner was granted all other retiral dues save and except 10 % gratuity amount as well as remaining amount of pension and, as such, the petitioner approached this Court by filing a writ petition vide C.W.J.C.No.8634 of 2005. In the said writ petition, it was prayed to direct the Respondents to pay 10 % of pension dues and 4 10 % of gratuity due etc. During the pendency of the said writ petition, since Annexure-1 was issued by the Respondent Accountant General, whereby pension was finally fixed treating the service with effect from 16.3.1977, the petitioner filed the present writ petition. Subsequently, C.W.J.C.No.8634 of 2005 was disposed of by this Court vide its order dated 11.7.2006 due to the reason that the Respondent had already issued authority slip directing the Treasury Officer, Chapra to pay the petitioner remaining 10 % pension and 10 % gratuity as well as commuted value of pension. While disposing of the writ petition, i.e. C.W.J.C.No.8634 of 2005, liberty was granted to the petitioner to avail other recourse as he may be advised. By order dated 18.12.2007, it was directed to list the present case along with record of C.W.J.C.No.8634 of 2005. Accordingly, record of said writ petition was placed along with the record of the present case, which was perused by this Court. Sri Rajendra Prasad Singh, learned Senior Counsel for the petitioner submits that once the petitioner was reinstated after allowing the appeal preferred by the petitioner by the order of the appellate authority vide Annexure-2 , it will be deemed that the status of the petitioner was restored with effect from his initial date of appointment i.e. 13.7.1964. It was argued that after reinstatement of the petitioner, he was legally entitled to get his service treated from the date of his initial appointment for the purposes of fixation of post retiral dues. The order, whereby pension of the petitioner has been fixed by Annexure-1 is simply erroneous and illegal , 5 which requires to be quashed and thereafter direction is necessary to be issued to the Respondents for calculating the petitioner’s pension treating his service with effect from 13.7.1964 and revise the same and pay all the arrears dues along with admissible interest. Sri Prabhakar Tekriwal, learned Government Advocate No.1 has vehemently opposed the prayer of the petitioner. It was submitted by Sri Tekriwal, learned counsel for the State that the petitioner was initially terminated from his service by the Managing Committee of the School on 16.7.1969. However, he was finally ordered to be reinstated with effect from the date of his joining by an order which was passed on 17.3.1977. Since the order of reinstatement was specific on the point that he was to be reinstated from the date of joining, the past service of the petitioner had lost its relevance and, as such, treating the service of the petitioner with effect from 12.3.1977, the impugned order was rightly passed for fixation of his pension and recovery of the excess paid amount. It was further contended that once the appellate authority vide its order contained in Annexure-2 has passed an order of reinstatement of the petitioner with effect from the date of his joining, the Managing Committee of the School at subsequent stage was not authorized to pass an order for regularizing the period of his absence as leave without pay. In sum and substance, it has been contended that the order of reinstatement was unequivocal on the specific point that the petitioner was reinstated with effect from the date of his joining and he was also debarred from getting his past salary and, as such, there is no infirmity or illegally in the order, which has been 6 challenged by the petitioner. Learned counsel appearing on behalf of the Accountant General, Bihar has also taken the same stand. Sri Rajgriha has referred to the stand taken in the counter affidavit of Accountant General, particularly paragraph 6 of its counter affidavit. It was submitted that for about 7 years 7 months and 25 days there was a break in service and earlier service of the petitioner was not to be reckoned for qualifying service for pension and gratuity. Earlier the District Education Officer, Gopalganj had reckoned the service of the petitioner from 13.7.1964, which was returned and the same was re-submitted by the District Education Officer, Gopalganj by making correction as treating the service of the petitioner with effect from 16.3.1977 and, accordingly, the authorization was rightly issued by the Respondent Accountant General. In the present case, the main question for its determination is as to whether the petitioner is entitled to get his pension fixed by treating his initial date of appointment i.e. 13.7.1964 or his pension was correctly fixed treating his service with effect from 16.3.1977. On examination of Annexure-2 to the petition, it is evident that the petitioner, whose service was terminated by the Managing Committed of the School in the year 1969, had preferred an appeal, which was finally allowed vide Annexure-2 to the petition on 12.3.1977 and the petitioner was directed to be reinstated. Once the petitioner was ordered to be reinstated, it will be deemed that he was put into the same status, which was prevailing prior to the date of termination of his service. The Dictionary meaning of the word 7 “reinstate” is to restore to a former position. It has been explained in Venkata Ramiah Law Lexicon and Legal Maxim that the reinstatement is a result “in replacing a person in a position there which he resigned or was dismissed” --- it means restoration of the status quo ante, the resignation or dismissal as the case may. The word “re” when used as prefix normally means again or back. Accordingly, reinstatement means putting a person back in the same position as he occupied prior to his termination. In a case reported in 2002 (9) SCC 492 ( Gurpit Singh Vs. State of Punjab & Ors.) to some extent similar to the present case, the appellant’s termination was set aside by the appellate court on appeal preferred against dismissal of the suit, which was held to be illegal and the plaintiff was directed to be reinstated. However, the first appellate court held that the plaintiff was not entitled to arrears of salary for the period for which he had not served. The plaintiff assailed the appellate decree by filing second appeal. The High Court by an order not only confirmed the decree of the lower appellate court that the plaintiff was not entitled to any arrears of salary, but further added that the plaintiff will not get his continuity of his service. The said order was challenged before the Supreme Court in Gurpit Singh’s case (Supra). The Supreme Court while allowing the appeal observed as follows: “We failed to understand how the continuity of service could be denied once the plaintiff was directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment but it is a case of reinstatement.” 8 Accordingly, the Supreme Court was of the view that the direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and the same was set aside. Similarly, in the present case, once the appellate authority had passed the order for reinstatement of the petitioner, the petitioner got his status restored as was prevailing prior to order of his termination and, as such, he is entitled for benefit of continuity of his service with effect from the date of his initial appointment. Merely by way of mentioning that the reinstatement was with the date of his joining would not be sufficient to take away the right of the petitioner to claim his continuity from his initial date of appointment, which has occurred in the year 1964. Accordingly, both the impugned orders i.e. Annexure-1 Annexure-1A are hereby quashed and the Respondents are directed to re-fix the pension of the petitioner treating his service with effect from 13.7.1964. The Respondents are further directed to re-calculate and re-fix the pension of the petitioner within a period of eight weeks from the date of receipt/production of a copy of this order. Accordingly, the writ petition stands allowed. NKS/- A.F.R. ( Rakesh Kumar, J.)