IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.549 of 2005 Anil Kumar S/o Sri Yugeshwar Prasad Singh, R/o village- Hajipur Bilour, P.S. Barh Distt.- Patna------Petitioner Versus 1. The State Of Bihar 2. The Secretary, Urban Development Department, Bihar Patna 3. The Joint secretary, Urban Development Deptt. Bihar, Patna 4. The Under Secretary Urban Development Deptt. Bihar, Patna 5. The Commissioner, Patna Division, Patna 6. The Secretary to the Commissioner, Patna Division, Patna 7. The Chief Executive Officer, Nagar Panchayat, Rajgir Nalanda---------------------------------------Respondents. ---------------------------------- 15 21.10.2011 Heard learned counsel for the parties. A body known as Town Planning Authority, Rajgir was in existence under Bihar Town Planning & Improvement Trust Act 1951. It had a regular establishment and there was a need for appointment of a person on the post of clerk which was filled up by the Divisional Commissioner of Patna, who also happened to be the Chairman of the body under the Act. Annexure-1 is the letter of appointment dated 21.6.1986. Petitioner’s appointment was on temporary basis on a particular pay scale indicated in the said order. Petitioner discharged his duty and may be satisfied with his performance, the Divisional Commissioner vide order dated 6.6.1987 (annexure-2) regularised the service of petitioner on the post. Petitioner was getting his regular salary from Rajgir Town Planning Authority till the year 1995. Thereafter, he has been facing difficulty in payment of his regular salary in the circumstances which has been pleaded in the writ petition. It is evident from perusal of annexures-3 that a letter was written by the Divisional Commissioner to the Urban Development Department seeking approval of the appointment of the petitioner in the circumstances on which petitioner came to be appointed and regularised. 2 There is a communication (annexure-4) to show that Urban Development Department informed the Divisional Commissioner that in terms of the provision of sections 26 and 28 of the Bihar Town Planning & Improvement Trust Act the Divisional Commissioner was competent authority to make such appointment and no approval as such was required at the level of the department. Despite such clear stand taken in the communication the predicament which the petitioner was continued. Certain developments in the meanwhile have taken place in the sense that Town Planning Improvement Trust Act was repealed by virtue of section 93 of the Bihar Urban Development Act 1981. Thereafter Bihar Municipal Act 2007 was notified and all other Acts stood repealed and a new body came into existence. Petitioner’s service stood transferred under what is known as Rajgir Nagar Panchayat and he still continues to work under Nagar Panchayat Rajgir by virtue of the new law in place. Due to the said development the Executive Officer was impleaded as a party respondent no.7. Notice was issued and served on him, in terms of the report of process server. There is neither any representation nor any counter affidavit filed on his behalf. Stand of the State is more or less in the similar term as is reflected from the earlier communication made in annexure-4 because in paragraph-11 of the counter affidavit a statement has been made that Bihar Town Planning & Improvement Trust Act has now been repealed but even otherwise the power was vested in the Divisional Commissioner to take an independent decision. However it is also indicated in the counter affidavit that in terms of certain circular of the State, appointment on a post carrying salary of Rs. 300/- but not exceeding Rs. 3 1000/- can be made by the concerned authority but anything over and above the said salary would be required to be taken through the process of Bihar Public Service Commission. The Court fails to appreciate the stand of the State or its relevance in the present case since the petitioner was appointed on a pay scale of Rs. 535 – Rs. 765 which is surely more than Rs. 300/- but less than Rs. 1000. In addition to that the respondent State authority time and again had taken a stand as well as communicated to the Divisional Commissioner that he was competent authority to take a decision on such issue and nothing is required to be done by way of approval at the level of the State. The stand of the State contained in letter dated 18th October, 1996 (annexure-4) as also the stand in paragraph-11 of the counter affidavit filed in the year 2011 are identical. If this is what transpires from the pleadings and averments of the writ application, it is evident that Divisional Commissioner had requisite power to appoint the petitioner and even an order of regularisation came to be passed as far back as on 6.6.1987 with effect from 4.6.1987. Petitioner has drawn salary till November, 1995 without any hindrance. If by certain legislative enactment or circular or restructuring of the body duly took place the status or the right of the petitioner does not vanish. All successors-in-interest of the erstwhile Town Planning Authority, Rajgir have an obligation to honour. Since it is not the stand of the State that appointment of the petitioner suffers from any infirmity as such and Chief Executive Officer, Rajgir Nagar Panchayat has also chosen to remain silent on the issue, a case in favour of the petitioner is made out for a direction that the petitioner is entitled to benefit of his pay on the post of a clerk, under 4 respondent no.7, which is the body the petitioner has been serving now. Respondent no. 7 is successor-in-interest of the earlier body and therefore all rights as well as liabilities accrue and get vested in them. This writ petition is allowed with a clear direction upon respondent no.7 that they have to work out the liabilities of payment of salary of the petitioner on the post of clerk based on the appointment letter issued in annexure-1 and his regularisation letter contained in annexure-2 on the pay scale given to him at the relevant time. He may also be entitled to further revisions which may have been made in this regard from time to time based on the recommendations of pay revision committees. The obligation would be upon respondent no.7 to work out the outstanding dues for payment of salary from November, 1995 till date and whatever is required to be done will have to be done within a reasonable time frame. This writ petition is allowed with the above direction. RPS (Ajay Kumar Tripathi, J.)