IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2235 of 2006 BIRENDRA KUMAR, son of late Abadh Kishore Prasad, resident of Mohalla Malgodam Nawada, Police Station and post office Nawada, District Nawada. Versus 1. THE STATE OF BIHAR through its Secretary, Water Resources Department, Government of Bihar, Patna. 2. Commissioner-cum-Secretary, Water Resources Department, Government of Bihar, Patna. 3. Director, Revenue Administration, Water Resources Department Government of Bihar, Patna. 4. Accountant General, Bihar, Birchand Patel Path, Patna-1. 5. Chief Engineer Water Resources Department, Bhagalpur. 6. Collector, Munger. 7. Provident Fund Officer, Bhagalpur. 8. Assistant Revenue officer, Revenue Division, Water Resources Department, Tarapur, Munger. 9. Executive Engineer, Water Resources Division, Tarapur, Munger. ----------- 2 23.02.2010 Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the State. The petitioner was appointed as a Seasonal Moharrir on 5.2.1973 and worked in the said capacity until his regular appointment as a permanent Clerk on 28.3.1980 (Annexure-1 to the writ petition). The petitioner superannuated on 31.8.2004. After retirement the retiral benefits were paid by the respondent on the basis of the service rendered by the petitioner from the date of appointment 2 on the post of clerk on 28.3.1980 until his retirement 31.8.2004 but the services rendered by this petitioner prior to 28.3.1980 i.e. the period the petitioner worked as Seasonal Moharrir was not taken into account. The petitioner submits that having worked as a Seasonal Moharrir since 5.2.1973 followed by his appointment as a temporary clerk on 14.11.1979 and regular appointment on 28.3.1980 as a permanent clerk, he was entitled for counting of his services right from his initial appointment on 5.2.1973 until his superannuation on 31.8.2004. He submits that the respondents cannot ignore the continuous service rendered by the petitioner prior to his regular appointment on 28.3.1980. Learned counsel further submits that the petitioner was entitled to the replacement scale of Rs. 4000/- 6000/- with effect from 1.1.1996 on the basis of the 5th Pay revision effective from 1.4.1997 but the same was also denied to him and thus he is entitled to notional benefits with effect from 1.1.1996 and difference of salary w.e.f. 1.4.1997 until his date of retirement on 31.8.2004. He also submits that his retiral benefits should be 3 recalculated and refixed on the basis of the pay scale of Rs. 4000/- 6000/- which was the scale attached to the post of Clerk under the 5th Pay revision and after giving him the benefit under the A.C.P. Scheme. A prayer for payment of the G.P.F. amount has also been made in the writ petition. A counter affidavit has been filed on behalf of the State and its authority and they have admitted the fact that since the petitioner was brought in the regular establishment with effect from 28.3.1980 hence the service rendered by the petitioner with effect from that date i.e. 28.3.1980 until his superannuation, has been taken to be the qualifying service and not the service rendered prior thereto which was in the capacity of the Seasonal Moharrir. In so far as the claim of pay scale and claim of benefits under the A.C.P. Scheme is concerned, it was stated that the same was subject matter of Letters Patent Appeal No. 533 of 1996 and would be governed by the outcome of the said appeal. The amount of G.P.F. was stated to have been drawn and paid to the petitioner on 4.12.2004. 4 I have heard the rival contentions advanced on behalf of the parties and perused the materials on record. So far as the claim of the petitioner for counting of the service rendered by him prior to his regular appointment on 28.3.1980 is concerned, the issue stands concluded by a Bench decision of this Court passed in C.W.J.C. No. 3193 of 2003 (Rajpati Prajapati versus State of Bihar and others) dated 23.5.2003. A Bench of this Court relying upon the judgment of a Division Bench passed in L.P.A. No. 1343 of 1998 disposed of on 5.1.1999 held that petitioners would be entitled for counting of their services rendered as a Seasonal Moharrir. Following the judgment aforesaid, the petitioner would also be entitled to count his service as a Seasonal Moharrir right from the date of his initial appointment on 5.2.1973 until his superannuation on 31.8.2004 after being absorbed against the regular post of clerk on 28.3.1980. So far as the claim of the scale attached to the post of clerk i.e. Rs. 4000/- 6000/- and the benefits arising from A.C.P. scheme is concerned the respondents had kept the same in abeyance, to be decided in the 5 light of the outcome of the proceeding, pending in L.P.A. No. 533 of 1996 and L.P.A. No. 534 of 1996. Learned counsel for the petitioner has placed a copy of the order passed by the Division Bench in the aforesaid appeals dated 10.1.2007 whereby the appeals preferred by the State of Bihar has been dismissed and the order of the learned Single Judge has been upheld meaning thereby that the petitioner would become entitled to the benefits of the pay scale attached to the post of Clerk i.e. Rs. 4000/- 6000/- w.e.f. 1.1.1996 in accordance with law and to the consequential benefits including the benefits under the A.C.P. Scheme. The writ petition is allowed, the respondents are directed to recalculate and refix the retiral benefits of the petitioner in the scale of Rs. 4000/- 6000/- after providing him the A.C.P. benefits and forward the same to the Accountant General for necessary authorization within a period of two months from the date of receipt/production of a copy of this order. Needless to add that the Accountant General would take up the matter and issue authorization without causing unnecessary 6 delay and preferably within four weeks of its receipt, keeping in mind that the petitioner having retired in the year 2004, is still awaiting the settlement of his dues. The entire exercise would be completed expeditiously and preferably within a period of three months from the date of receipt of a copy of this order. Bibhash (Jyoti Saran, J.)