IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5711 of 2002 UMESH THAKUR, son of Late Mangar Thakur, resident of village and P. O. Maldihah, District- Purnea.... Petitioner. Versus 1. THE STATE OF BIHAR 2. the Director, Health Service, Bihar at Patna. 3. the Civil Surgeon-cum- Chief Medical Officer, Purnea. .... Respondents. ----------- 5. 16.07.2010 Heard Mr. Ajit Kumar Ojha, , learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “1. That this writ application is being filed for issuance of appropriate writ/writs, direction/directions to the respondent authorities to adjust the petitioner break in service and pay the entire salary and other consequential dues and further to grant him seniority in consonance with the other persons of his batch and also to regularize his services and also for any other consequential benefits in that regard.” With reference to the aforementioned prayer, Mr. Ojha, learned counsel for the petitioner would submit that the petitioner was appointed on the post of vaccinator way back on 6.7.1962 and therefore if the petitioner was made an accused in a criminal case in the year 1965 in which also the police had submitted final form in the year 1967, he could 2 not have been kept out of service even without being suspended or a specific order of termination. Learned counsel for the petitioner would in this regard point out that eventually, the order of reappointment of the petitioner under the orders of the Director of Health Services dated 7.9.79 cannot take away the length of service of the petitioner for the period 6.7.1962 to 6.9.1979. In this context, the reliance has also been placed by him on the judgment of the Apex Court in the case of Brahma Chandra Gupta vs. Union of India, reported in (1984) 2 SCC 433. The respondents have filed a counter affidavit and have taken a plea that the petitioner was appointed on contractual basis and when he was made an accused in a criminal case for offence under Section 302 and other allied offences under Indian Penal Code in the year 1965 and he had eloped and became absent from duty without any information, his such temporary service had itself been brought to a end. It is the case of the respondents that the petitioner thereafter appeared for the first time only in the year 1979 and on his prayer he was appointed afresh by 3 relaxing the maximum age prescribed for entry in government service. It is, therefore, contended that the prayer of the petitioner for condonation of break in service for a period of 14 years i.e. 1965 to 1979 is not permissible in terms of Rule 103 of the Bihar Pension Rules and circulars issued thereunder as the maximum period of condonation of break in service can be only upto two years. Counsel for the State has also distinguished the judgment of the Apex Court in the case of Brahma Chandra Gupta (supra) by stating that whatever has been laid down as a law in that case relates to reinstatement and not reappointment. In the considered opinion of this Court, this writ petition must be dismissed on the ground of delay and laches alone. It is not in dispute that the petitioner‟s alleged right or cause of action on account of the order of his reappointment emerged way back on 7.9.1979, which reads as follows; ^^la[;k 11@,3&126@772950¼11½Lok0A izs"kd] Mk0 ¼lqJh½ ,l0 fVdhZ] funs'kd] LokLF; lsok,a] fcgkjA lsok esa] flfoy ltZu] iwf.kZ;kA iVuk] fnukad 7&9&79 fo"k;% Jh mes'k Bkdqj] Vksdkdkj dk iquZfu;kstuA egksn~;] Jh mesa'k Bkdqj] xzke ,oa i=ky; eyMksgk] ftyk iwf.kZ;k ds budks mez lhek ls vf/kd djhc lk<+s N% o"kksZ dh mez 4 dks funs'kd] LoLF; lsok,a] fcgkj n~okjk {kkar djrs gq, ;ksxnku frfFk ls pspd mUewyu dk;Zdze ds v/khu Vhdkdkj ds in ij iquZfu;qfDr djus dk LokLF; funs'kky; n~okjk fy;k x;k gSA 2& d`I;k fu;qfDr i= fuxZr dj ;ksxnku frfFk ds lkFk vuqikyu izfrosnu 'kh?kz bl funs'kky; esa HkstsaA iwoZ ds fu;qfDr ij jksd ds vkns'k dks mijksDr lhek rd la'kksf/kr fd;k tkrk gSA 3& Jh Bkdqj dh lsok iqLr okil dh tkrh gSA fo'oklHkktu] g0 ,l0 fVdhZ] funs'kd] LokLF; lsok,a] fcgkj] iVukA** From such order of reappointment it would therefore be clear that it was actually a fresh appointment of the petitioner and not reinstatement in service by recognizing his earlier service. There is infact a lot of confusion as with regard to the previous service of the petitioner inasmuch as the petitioner has not produced his order of appointment and the service book entries relied by him cannot be accepted because they contain several cutting interpolation at the relevant places. The expression „vaccinator‟ in the column for post of appointment is in different ink and handwriting and even the entry in column meant for nature of appointment has been completely erased. All these will go to show that the order of alleged his earlier appointment had given him no right to continuation in service specially when he had already been made accused in a criminal case for offence under Section 302 I.P.C. 5 The petitioner also cannot take advantage of his own wrong inasmuch as it appears that the petitioner for the first time had appeared some time in the year 1979 before the Civil Surgeon who had asked the petitioner to produce the relevant papers including his being exonerated from the criminal case. If the petitioner from the year 1967 when the police had submitted final form, had remained underground for next 11 years and had claimed for being taken back in service in the year 1978, he cannot ask either for condonation in break of service for the period of his unauthorized absence. The communication as contained in Annexure A and B therefore are sufficient to show that the petitioner had asked for his being reappointed and that is how the Director of Health Services by his order dated 7.7.1979 had condoned the maximum age limit by a period of six years for facilitating his reappointment. Therefore, the said order dated 7.9.1979 would bind the petitioner as he had accepted his reemployment under this order and had continued till the year 2000 before his superannuation. Therefore, if the petitioner after his retirement in the year 2000 had filed this writ petition on 6.5.2002 6 agitating a cause of action either of the year 1967 or of the year 1979 that itself cannot be entertained on account of unexplained delay of more than two decades. In that view of the matter, when the petitioner had remained out of service on his own from 1967 to 1979, it would be difficult for this Court to accept the plea that after submission of the final form, the petitioner kept on knocking the doors of Civil Surgeon, Purnea and when nothing was done by him he had to file this writ application. In the considered opinion of this Court when the petitioner did not object to his reappointment in the year 1979 and accepted the terms and conditions of his fresh appointment he will be deemed to have acquiesced his alleged right of being the benefit of re-instatement in service. Counsel for the State is correct that in the case of Brahma Chandra Gupta (supra) the issue of reappointment was not involved. The expression 'reinstatement' and 'reappointment' in service jurisprudence have got two meanings in law. Reinstatement by itself can notes the concept restoring the previous service but the reappointment does not bestow the benefit of past service. In the aforesaid 7 case before the Apex Court Brahma Chandra Gupta, the petitioner was a permanent upper division clerk. The present petitioner however was in fact holding a different temporary post of 'Enumerator' which has been penned through and changed as Vaccinator in the previous service book. In that view of the matter, the ratio of judgment of Brahma Chandra Gupta’ case (supra) cannot be made applicable to the facts of present case. It is also not correct on the past of the petitioner to say that he is not receiving the pension of the post of his reappointment inasmuch as the respondents have brought on record Annexure- C to the counter affidavit showing sanction and payment of monthly pension. Qualifying service under the Bihar Pension Rule clearly requires continuous service and the petitioner after his reappointment had continued from 1979 till his retirement in the year 2000 and therefore the petitioner has rightly been given said proportionate pension for his actual length of service. In the opinion of this Court, the prayer of the petitioner in effect seeks to question the terms of his reappointment by converting it to reinstatement and that 8 cannot be allowed after 22 years of such order passed by the authorities. In that view of the matter, this writ petition, being devoid of any merit, is accordingly dismissed. kanchan. (Mihir Kumar Jha, J.)