IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12261 of 2006 AUKHARI PARAS NATH SINHA, Son of Late Jagarnath Prasad, Resident of Mohadevpuri, East of Road No. 6C, Gardabibagh, P.S.- Gardanibagh, Distt. Patna. Versus 1. THE STATE OF BIHAR 2. The Secretary, Science and Technology Department, Govt. of Bihar, Patna. 3. The Joint Secretary, Science and Technology Department, Govt. of Bihar, Patna. 4. The Chairman cum-Managing Director, Bihar. Police Building Construction Corporation, B.M.P.5 Campus, Bihar, Patna. ----------- For the Petitioner :- Mr. Rajendra Prasad Singh, Sr.Adv. For the State :- Mr. Ashutosh Singh, A.C. to G.P.8 For the Corporation :- Mr. Prasun Sinha, Advocate. ******** 10 16.04.2010 Heard learned counsel for the parties. With the consent of the parties the matter has been taken up for disposal at the stage of admission itself. The petitioner is aggrieved by the order bearing memo No.1224 dated 20.6.2006 (Annexure-1) whereby his claim for payment of retiral benefits, as admissible to a State Government employee has been rejected on grounds that he superannuated as employee of the Bihar Police Building construction Corporation (hereinafter referred to as the ‘Corporation’). 2 Brief fact of the case is that the petitioner was appointed on the post of Assistant Professor of Civil Engineering and posted in Government Polytechnic, Dhanbad vide notification bearing memo No. 44 dated 4.1.1969(Annexure-4) issued by the Department of Industries and Technical Education, Govt. of Bihar, Patna. The appointment of the petitioner was confirmed with effect from 8.1.1970 vide notification bearing memo No. 1666 dated 29.4.1970 (Annexure-6) issued by the Department of Industries and Technical Education, Bihar, Patna. On the appointment of the petitioner against the post of Civil Engineer in the Irrigation Department, the petitioner was relieved vide notification bearing memo No. 1569 dated 3.5.1973 (Annexure-7) issued by the Department of Industries and Technical Education, Govt. of Bihar, Patna. However, it was categorically mentioned that he would retain his lien in the Department of Industries and Technical Education. By notification bearing memo No. 309 dated 31.1.1975 (Annexure- D), the services of the petitioner was assigned for appointment, to the Bihar Police Building Construction Corporation, Govt. of Bihar, 3 Patna. The petitioner while posted under the Corporation superannuated with effect from 31.12.2000 and submitted his documents for payment of retiral benefits. The petitioner was paid an amount of Rs. 2,06,220/- as gratuity and a sum of Rs. 6,68,270/- by way of provident fund and an amount of Rs. 615/- is being paid as monthly pension to the petitioner by the Corporation. The petitioner filed a representation before his parent department i.e Department of Industries and Technical Education, Government of Bihar for payment of retiral benefits on 18.10.2005 through the Chairman-cum-Managing Director of the Corporation (Annexure-2). The request made by the petitioner was forwarded by the Secretary of the Corporation to the Secretary, Science and Technology Department, Government of Bihar vide letter dated 21.1.2006(Annexure-3). The claim of the petitioner for payment of retiral benefit was rejected by the Joint Secretary, Government of Bihar, Department of Science and Technology vide memo No.1224 dated 20.6.2006 as contained in Annexure-1 to the writ petition inter alia on the grounds that the petitioner had been 4 appointed by way of direct recruitment in the Corporation on 10.5.1975 and had retired while serving the Corporation. It was further mentioned that the claim of the petitioner with regard to retaining his lien in his parent department could have been valid only if the petitioner would have returned back to his parent department prior to his retirement but as he retired while in service of the Corporation hence the claim for pensionery entitlements was not acceptable and the same was rejected. Learned counsel for the petitioner contends that the services of the petitioner was never confirmed in the Corporation and that he continued to maintain his lien in his parent department of Industries and Technical Education which has subsequently been named as Department of Science and Technology. Learned counsel for the petitioner submits that his services had merely been handed over to the Corporation on deputation and that he had held his lien in his parent department and thus he was fully entitled to draw his retiral benefits in the light of the provisions of the Bihar Pension Rules 1950. Learned counsel submits 5 that the action of the respondent in rejecting the claim of the petitioner on grounds that his appointment in the Corporation was in the nature of fresh appointment and that having retired while serving in the Corporation, he had no legal right to take the plea of holding lien in parent department, is wholly arbitrary. Learned counsel further submits the that reason assigned in the impugned order as contained in Annexure-1 that the petitioner could only exercise his right of retention of lien had he returned back to his parent department, is also arbitrary for the reason that the petitioner could not return back to his parent department on his own volition, in absence of appropriate orders/directions from his parent department. Learned counsel submits that the reasons assigned in the impugned order contained in Annexure-1 are no reasons and are de hors the relevant Rules and that the respondents have no jurisdiction to terminate the lien of the petitioner held in the parent department without observance of due process of law. Learned counsel submits that the case of the petitioner is squarely covered by a Bench decision of this Court reported in 6 2007(2) PLJR 732 (Prabhakar Pandey Vs.State). That was a case in which the petitioner’s services were handed over to the Bihar State Housing Board and he had superannuated while posted in the Board. By the Bench decision rendered on 19.1.2007 it was held that an employee maintains his lien on his permanent post and that it cannot be terminated unless a person is substantively appointed to any other post and acquires lien to that post. With reference to the provisions of Rule 28 of the Bihar Service Code it was held that as the petitioner of the said case was never substantively appointed in the services of the Housing Board hence he continued to maintain his lien in his parent department and thus a direction was issued to the State of Bihar to ensure payment of the post retiral benefit of the petitioner. The facts of the case of the present petitioner is no different. It is an admitted position that the petitioner was permanent employee of the State of Bihar and that his services had been handed over to the Corporation vide notification bearing memo No. 309 dated 31.1.1975 (Annexure-D to the counter 7 affidavit filed on 17.11.2009) for appointment against the post of Assistant Engineer. There is nothing on record of the proceedings to show that the petitioner was formally appointed against the post of Assistant Engineer in the Corporation and that his services were confirmed in the Corporation. On the other hand the notification bearing memo No. 309 dated 31.1.1975 whereby the petitioner is stated to have been appointed in the Corporation, in fact is a memo issued by the Irrigation and Electricity Department of the Government of Bihar mentioning therein that the services of the petitioner and others were being handed over to the Corporation for appointment. As already indicated there is no formal order of appointment issued by the Corporation on the record of the proceedings nor any order has been shown whereby the lien of the petitioner stood terminated in his parent department of Industries and Technical Education. The order placed at Annexure-D to the counter affidavit has been treated to be an order appointing the petitioner in the services of the Corporation and has also been treated as an order impliedly terminating the lien of the 8 petitioner in his parent department. The counter affidavit filed on behalf of the Deputy Secretary on 17.11.2009 simply mentions in paragraph 7 that the services of the petitioner was consigned to the Bihar Police Building Construction Corporation pursuant to the memo No. 309 dated 31.1.1975 and that the petitioner retired while serving the Corporation. This can neither be ground for termination of lien of the petitioner in his parent department nor can be a ground for rejecting his claim for payment of retiral benefits. Reference in this regard is made to a Division Bench judgment of this court reported in 1991(2)PLJR 698. It was held that a mere failure on the part of the deputationist to join his parent department could not result in automatic termination of his lien. On examination of the materials on record the following facts become eloquent :- (1) The petitioner was holding a substantive post in the Department of Industries and Technical Education, Govt. of Bihar, Patna and his services were transferred to the Irrigation Department. 9 (2) By reason of appointment of the petitioner on the post of Assistant Engineer in the Irrigation Department he was relieved by the Department of Industries and Technical Education by memo No. 1569 dated 3.5.1983 (Annexure-C to the counter affidavit). It was nonetheless mentioned that the petitioner would retain his lien in his parent department of Industries and Technical Education. The Department of Irrigation handed over the services of the petitioner to the Bihar Police Building Corporation for his appointment against the post of Assistant Engineer vide memo No. 309 dated 31.1.1975 (Annexure-D). (3) The petitioner retired with effect from 31.12.2000 while posted in the Corporation and was paid his post retiral dues by the Corporation. As noticed, there is no document on record formally appointing the petitioner to the services of the Corporation on substantive post and/or of terminating the lien of the petitioner in his parent department of Industries and Technical Education presently the Department of Science and Technology. The lien held by the petitioner could 10 only have been terminated, had he superannuated from the services of the Corporation after being substantively appointed against a permanent post and/or had been terminated by his parent department in accordance with law. It is indisputed that none of the two principle pre-conditions exist in the case of the petitioner, as neither has he been appointed in the Corporation against any substantive and permanent post nor his parent department has terminated his lien in accordance with law. Thus having regard to the accompanying circumstances it is manifest that the petitioner continued to maintain his lien in his parent department and retired as an employee of the Government of Bihar. Having held as such the petitioner would also be entitled to his post retiral dues as admissible to a State government Employee. The concerned authorities of the State of Bihar are directed to take expeditious steps for refixation and recalculation of the pension and pensionary entitlements to which the petitioner is found entitled as an employee of the State Government of Bihar and after seeking authorization from the Accountant General, 11 Bihar, Patna, make payment of the same after adjusting the amounts which has been drawn by the petitioner by way of retiral benefits from the Corporation. The exercise may be completed within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed with the direction aforesaid. Bibhash (Jyoti Saran, J. )