IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1765 of 2011 In Civil Writ Jurisdiction Case No. 11823 of 2009 With Interlocutory application No. 8019 of 2011 In Letters Patent Appeal No. 1765 of 2011 ====================================================== Raj Kumar Lal, S/O Late Yadunandan Lal, R/O New Colony, Balughat, Road No.4, Near B.S.N.L. Tower, P.O. Head Post Office, P.S.- Nagar, District- Muzaffarpur. .... .... Petitioner/Appellant Versus 1. The State of Bihar 2. The Commissioner-Cum-Secretary, Irrigation Department, Bihar, Patna 3. The Engineer-In-Chief - Cum - Special Secretary - Cum - Additional Commissioner, Water Resources Department, Bihar, Patna 4. The Chief Engineer, Water Resources Department, Bihar, Patna 5. The Chief Engineer, Water Resources Department, Muzaffarpur 6. The Superintending Engineer, Jal Nissaran Anusandhan Pramandal, Gandak Yojna, Muzaffarpur 7. The Executive Engineer, Jal Nissaran Anusandhan Pramandal, Gandak Yojna, Muzaffarpur 8. The Accountant General, Bihar, Patna .... .... Respondents/Respondents ====================================================== Appearance : For the Appellant/s : Mr. Pradeep Kumar Sinha, Advocate. For the Respondent/s : Mr. Sunil Kr. Mandal, S.C. 24 with Mr. Bipin Kumar, A.C. to S.C. 24. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 24-11-2011 Re. Interlocutory application No. 8019 of 2011: The delay of one day occurred in filing the Letters Patent Appeal is condoned. Interlocutory application stands disposed of. Patna High Court LPA No.1765 of 2011 (2) dt.24-11-2011 2 / 5 2 Re. Letters Patent Appeal No. 1765 of 2011: Feeling aggrieved by the judgment and order dated 18th August 2011 passed by the learned single Judge in above CWJC No. 11823 of 2009, the writ petitioner, a pensioner, has preferred the present Appeal under Clause 10 of the Letters Patent. On perusal of the record it is apparent that the appellant joined the service as Sub-Overseer in 1961. By order dated 19th March 1966 made by the Chief Engineer his service was terminated. After termination of service, the appellant continued to make representations. Pursuant to the representations made by the appellant, the appellant was appointed a fresh on 19th May 1970. He continued to serve the State of Bihar till his superannuation on 31st January 1998. Eleven years after his retirement he approached this Court in CWJC No. 11823 of 2009 filed under Article 226 of the Constitution to claim that the service rendered by him from 29th June 1961 to 30th September 1966 should be counted as pensionable service while computing his pension and other retiral benefits. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. It is not in dispute that during the period from 19th March 1966 to 18th May 1970 the petitioner was not in service of the State of Bihar resulting into break/interruption in service. Rule 103 of the Bihar Pension Rules, 1950 (hereinafter referred as ‘the Pension Rules’), provides for „forfeiture of past service on account of interruption‟. The said Rule 103 provides that an interruption in service of a government servant entails forfeiture of his past service, except the cases mentioned therein. It is not the claim of the appellant that he falls Patna High Court LPA No.1765 of 2011 (2) dt.24-11-2011 3 / 5 3 within any of the exceptions mentioned in Rule 103 of the Pension Rules. Rule 105 of the Pension Rules empowers the State Government to condone the interruptions and deficiencies. The said Rule 105 and Paragraph 4 of Appendix 6 read as under: “Rule 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 Patna High Court LPA No.1765 of 2011 (2) dt.24-11-2011 4 / 5 4 rendered prior to break would count if condition at (b) above is satisfied”. Paragraph 4 of Appendix 6: “4- lsok esas VwV& lsokiqLr@vfHkys[k esa dksbZ [kkl izfrdwy vkns”k dh izfof’V ds vHkko esa] jkT; ljdkj ds v/khu dh xbZ nks lsokvksa ds VwV dh vof/k ¼i½ in R;kx] ¼ii½ ljdkj }kjk lsok ls foeqfDr ;k gVk nsus ls vFkok ¼iii½ gM+rky esa Hkkx ysus ds dkj.k VwV dks NksM+dj vU; lHkh izdkj dh VwV dks Lor% {kkUr le>k tk;xk ,oa VwV ds iwoZ dh igyh lsok isa”ku iznk;h ekuh tk;xhA ijUrq VwV dh vof/k dks isa”ku iznk;h lsok ds :i esa x.kuk ugha dh tk;xhA ;g izfØ;k jktif=r rFkk vjktif=r lsod ds ekeys esa le:i ls ykxw gksxkA” Paragraph 4 of Appendix 6 provides for automatic condonation of break-in-service except when the break-in-service is on account of resignation, dismissal or removal from service or on account of strike. Learned Advocate Mr. Pradeep Kumar Sinha has appeared for the appellant. He has submitted that Paragraph 4 of Appendix 6 in no uncertain terms provides for condoning the break-in-service as a matter of course. The appellant is, therefore, entitled to treat his service from 1961 to March 1966 as pensionable service and for re-computation of pension and other retiral benefits. We are unable to agree with Mr. Sinha. Rule 105 of the Pension Rules clearly stipulates the incidences of break-in- service which can be condoned. Clause (c) thereof imposes a bar in case the break-in-service is longer than one year. Paragraph -4 of Appendix-6 cannot be read in isolation of Rule 105 of the Pension Rules. The conjoint reading of Rule 105 and Paragraph-4 of Appendix-6 would lead to one and only one construction that if a break-in-service is condonable as envisaged by Rule 105 of the Patna High Court LPA No.1765 of 2011 (2) dt.24-11-2011 5 / 5 5 Pension Rules, the same be condoned as a matter of course or may be treated as condoned. In the present case although the appellant had served for more than two years prior to break-in-service, may be the break-in-service was for the reasons beyond his control, but the break was far longer than one year stipulated in Clause (c) of Rule 105 of the Pension Rules. In our view such a long break in service was not condonable under Rule 105 of the Pension Rules. It, therefore, cannot be condoned as a matter of course as envisaged by Paragraph -4 of Appendix-6. One more reason for rejecting the claim of the appellant is undue delay. Though the appellant re-entered the service in 1970 and retired in 1998, for 28 years he was in service, he did not raise the dispute except making some representation. Even after his retirement in 1998, he received the retiral dues without demur and raised the dispute as late as in 2009. The aforesaid delay has not been explained. In our view, the claim made by the appellant is devoid of any merit. The claim also requires to be rejected on the grounds of delay and laches. For the aforesaid reasons, the Appeal is dismissed in limine. Sujit/- A.F.R. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)