IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.59 of 2006 SONELAL MANDAL, son of Late Raghubir Mandal, resident of village + P.O. Basaith Champaran, Police Station-Benipatti, district-Madhubani. Versus 1. THE STATE OF BIHAR 2. The Secretary, Science and Technology Department, Government of Bihar, Patna. 3. The Additional Secretary, Science and Technology, Department, Government of Bihar, Patna. 4. The Director, Science & Technology Department, Government of Bihar, Patna. 5. The District Magistrate, Darbhanga. 6. Sri Bhagwan Singh, the Incharge Principal, J.M.I.T. Darbhanga-cum-Principal, Government of Polytechnic, Darbhanga. 7. The Accountant General, Bihar, Patna. ----------- 5 17.03.2010 Heard Mr. Purushottam Jha learned counsel appearing on behalf of the petitioner and Mr. Rana Bhupendra Narain Sinha, learned A.C. to S.C. 10 for the State are present. The petitioner complains of non payment of the post retiral benefits, having superannuated from the services of the respondents with effect from February, 2004. The petitioner was appointed on 2.2.1981 in a Private Engineering College. Subsequently the said College was taken over under the provisions of the Bihar Private Engineering taking over Ordinance 1986 along with other colleges. The Ordinance was subsequently translated into an act of 1987. 2 A Scrutiny Committee was constituted for absorption of the employees of College but on grounds of age the petitioner and some like employees were rejected from absorption on grounds of over age forcing them to move this Court through C.W.J.C. No. 1937 of 1991. A Bench of this Court after considering the rival contentions of the parties was pleased to allow the writ petition vide order dated 19.10.1995 (Annexure-2) setting aside the order of rejection of absorption passed in relation to the petitioner and others with a direction for reinstatement in service. It was further held that the petitioners of the said case including the present petitioner would be entitled to pay and allowance from the date of reinstatement or with effect from 1.11.1995 whichever was earlier but they nevertheless would be granted the benefit of continuity in service with effect from the date of termination of service i.e. 31.1.1991. An order was issued in the light of the judgments passed by this Court contained in memo No. 2796 (Annexure-2A) absorbing the writ petitioners including the present petitioner in service by recalling the order of termination. 3 The name of the petitioner appears at Serial No. 13 of the said order. Following the order of reinstatement another order dated 22.10.1999 (Annexure-3) came to be issued whereby the petitioner was posted at Government Polytechnic, Dhanbad at Rs.775-1025/- . The name of the petitioner appears at serial No. 84 of the said order. In compliance of the said order the petitioner was relieved vide order dated 1.11.1999 (Annexure-4) and gave his joining before the Principal Government Polytechnic Dhanbad on 3.11.1999 (Annexure-5) however the services of the petitioner and some others were returned by the Principal of the Government Polytechnic, Dhanbad on grounds of having surplus staff vide memo No. 449 dated 22.6.2000 (Annexure-6). Following the said order the petitioner returned to the headquarters. Until this time there is no dispute. The dispute arises thereafter as the petitioner claims that soon after the return of services under Annexure-6, he under an order bearing memo No. 1682 dated 25.9.2000 was transferred to Government Polytechnic, Darbhanga where he gave his joining and also superannuated from the said place in February, 4 2004. Although in the writ petition it was contended that the petitioner also drew salary for the period since after his transfer to Dharbhanga on 2.5.2000 until his date of retirement in February, 2004 but in the light of the objections raised in the counter affidavit filed on behalf of the Principal Government Polytechnic, Darbhanga, he has chosen to retract from the same. He submits that in fact since after his posting at Dhanbad vide order dated 3.11.1999 (Annexure-5) he was never paid any salary. A counter affidavit has been filed on behalf of the Principal Government Polytechnic Darbhanga and who very categorically states that the petitioner had at no time was posted at Darbhanga. It is stated that the petitioner has made false statement and the order No. 1682 dated 25.9.2000 under which he claims to have been transferred to Darbhanga does not contain his name. A copy of the said order of transfer has been placed at Annexure-B to the counter affidavit and which does not contain the name of the present petitioner. The aspect of payment of salary has also been denied by the Principal Government Polytechnic, Darbhanga. 5 The very joining and payment of salary has been denied by the Principal of the College. It is thus submitted that neither the petitioner joined at Darbhanga nor superannuated therefrom. Thus the service period of the petitioner since after his return from Dhanbad under the order dated 22.6.2000 (Annexure-6) until his superannuation in February, 2004 remains a mystery as neither the petitioner has been able to substantiate the place on which he served/posted nor the affidavit filed in the present proceeding does indicate on this issue. Admittedly, the service of the petitioner stood returned to the Headquarters under the order of the Principal, Government Polytechnic, Dhanbad as contained in Annexure-6 and pursuant whereto the petitioner gave his joining at headquarters. However, this aspect is seriously controverted by learned counsel for the respondent State who submits that there is no document on record to demonstrate the joining of the petitioner at the headquarters on 26.2.2000. He submits that petitioner has absented all the time and never claimed his salary either from the department or before any other forum and even having superannuated in 6 February, 2004 has chosen to file the writ petition after two years in 2006. Learned counsel further submits that the petitioner has filed another writ petition (C.W.J.C. No. 11863/05) which is pending before this Court on the issue of payment of salary and arrears of salary. It is indisputed that the services of the petitioner since after his absorption under the orders of this Court, was neither dispensed with nor terminated and he superannuated as a State Government Employee. Thus taking into consideration the rival contentions and upon perusal of the materials on record, I deem it fit to direct the respondents to consider the grievance of the petitioner and make payment of the post retiral dues as found admissible to the petitioner, within three months of receipt/production of a copy of this order. Bibhash (Jyoti Saran, J. )