06/ 28th June 2011 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.72 of 2004 Badshah Prasad S/O late Ram Lagan Prasad, R/O Village- Bideshi Tola Thawe, P.S. Thawe, Distt- Gopalganj. Retired working as Co-operative Extension officer of the office of Assistant Registrar, Co-operative Societies Circle, Gopalganj…………………………… Petitioner/Appellant. Versus 1. The State Of Bihar 2. The Secretary, Co-operative Societies, Bihar, New Secretariat, Patna. 3. The Registrar, Co-operative Societies, Bihar, New Secretariat, Patna. 4. The Secretary, Finance Department, Government of Bihar, Old Secretariat, Patna. 5. The Account General, Bihar, Beerchand Patel Marg, Patna. 6. The Accounts Officer, Office of the Accountant General, Bihar, Beerchand Patel Marg, Patna…….Respondents/Respondents. ----------- Heard Mr. Umesh Kumar Mishra, learned counsel for the appellant and Mr. Ray Shivaji Nath, AAG- 3. This Letters Patent Appeal has been filed by the appellant against the judgment of the learned single Judge dated 14.10.2003 passed in CWJC No. 7011 of 2003. The appellant-petitioner filed earlier a writ petition bearing CWJC No. 5144/2002 seeking a writ of mandamus to the State Government to add the service of the petitioner during which he was out of service on 2 account of his termination from service. The learned single Judge while disposing of the representation has quoted the appellate order and perusal whereof reveals that the appeal of the petitioner was allowed for re-appointment and the learned single Judge has in the bottom noted “emphasis added”. However, the learned single Judge while disposing the writ gave a direction in paragraph-4 which goes as follows:- “ Keeping in view the facts and circumstances of the case, I hereby direct the appropriate authority to dispose of the petitioner’s representation in terms of rule 105 of the Bihar Pension rules on merits, if already filed. This Court will be pleased if the representation is disposed of by the appropriate authority within a period of three months from today. It goes without saying that this Court has not applied itself to facts and circumstances of the present case and, therefore, this order should not be taken to be an expression of the views of this Court. The writ petition is accordingly disposed of.” The Government has passed the order on 27th of March 2003 disposing of the representation holding that the case of the petitioner was not covered under Rule 105 of the Bihar Pension Rules, 1950 as the petitioner was removed from service on account of misconduct (by not 3 complying the order to attend the meeting) which termination order elaborately dealt with in the appeal filed by the petitioner and taking a lenient view the appellate authority directed to re-appoint the petitioner. Rule 105 of Bihar Pension Rules including further notifications issued by the State Government with regard to the Rule 105 which is reproduced hereunder:- “ 105. Subject to any rules which the Provincial Government may prescribe and upon such conditions as it may think fit in each case to impose the authority competent to fill the appointment held by a Government servant at the time condonation is applied for, where he, to vacate the appointment, may condone all interruptions in his service. * State Government decisions:- 1. It is to refer to Rule 105 of the Bihar Pension Rules and to say that State Government have been pleased to lay down the following broad criteria for condoning the breakage in service:- (a) The interruption should have been caused by reasons beyond the control of the Government servant concerned, in other words, it should not have been as a result of voluntary resignation or dismissal etc. (b) The service rendered prior to break should not be for less than two years. (c) The period of break should not exceed one year at a time. In case where there are two or more interruptions the total period of the breaks should not exceed two years. However, in such cases the period of service rendered prior to break would count if condition at (b) above is satisfied. [* Vide Memo No. Pen-1040/69/8990 dated 13-11- 4 1969.].” The claim of the petitioner is liable to be rejected as it is not covered in any of the Clauses quoted above. Rather it was liable to be rejected in Clause-A as the service of the petitioner was terminated on account of termination of service. The Rule 101 of the Bihar Pension Rules reads as under:- “101. (a) Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service. (b) Resignation of an appointment [ with the approval of the appointing authority ] to take up another appointment, service in which counts, is not a resignation of the public service.” The perusal of above Rule-101 clearly shows that the breakage of service stood forfeited and could not be counted for the purpose of pension. Learned counsel for the appellant invited attention of this Court at Annexure-17 which is a direction to consider the gap of the service of the petitioner for counting pensionary benefits. This is nothing but an executive order and cannot override the Rules. 5 The appellant has taken benefit of the judgment of the appellate authority by which he was directed for re- appointment now, he cannot go back and say that re- appointment should be read as reinstatement. For the reasons recorded above, the appeal fails and is hereby dismissed. perwez (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)