Dr. Syed Shaukat Hussain vs The State Of Bihar
2021 Latest Caselaw 4423 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.14676 of 2019
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Dr. Syed Shaukat Hussain S/o- Late S. Moinul Hussain R/o- Vill.- Babunia Road New Police Chawki No- 2, P.S. and District- Siwan.

... ... Petitioner Versus

1. The State of Bihar.

2. The Principal Secretary, Animal Husbandry and Fisheries Department, Govt.

of Bihar, Patna.

3. The Director, Animal Husbandry and Fisheries Department, Govt. of Bihar, Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Rajeev Kumar Singh For the Respondent s : Mr.Md. Khurshid Alam, AAG-12 Ms. Nutan Sahay, AC to AAG-12 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 03-09-2021

Heard Mr. Rajeev Kumar Singh, learned counsel

appearing on behalf of the petitioner and Ms. Nutan Sahay, learned

A.C. to AAG-12.

2. Facts of the case are not at all in dispute. The

petitioner was appointed as Touring Veterinary Officer on ad hoc

basis on 01.09.1987 along with 56 others, including one Vikash

Kumar Srivastava (since deceased), by virtue of a notification

dated 28.08.1987 issued by the Animal Husbandry and Fisheries

Department, Government of Bihar, for a term of three years. By a

subsequent order issued by the Department, his service along with Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

others including late Vikash Kumar Srivastava was extended for a

further period of three months awaiting approval of

recommendation from Bihar Public Service Commission for his

regular appointment. His service and that of others including late

Vikash Kumar Srivastava was subsequently extended on ad hoc

basis from time to time. The last such extension was granted to

them by a notification dated 17.01.1989 for a period, up to

31.12.1989.

3. Prior to expiry of the aforesaid period, by a

notification issued by the Animal Husbandry and Fisheries

Department, Government of Bihar, dated 24.10.1989 (Annexure-

4), the petitioner and others, who were appointed initially on ad

hoc basis, were appointed on permanent basis pursuant to a

recommendation made by the Bihar Public Service Commission in

this regard. The petitioner has attained the age of superannuation

and has retired.

4. The petitioner claims in this writ application that the

period during which he had served the department on ad hoc basis

from 01.09.1987 to 16.11.1989 should have been counted for the

purpose of grant of ACP, seniority and pensionary benefits.

5. Admittedly, said Vikash Kumar Srivastava had

approached this Court by filing a writ petition giving rise to Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

C.W.J.C. No. 15828 of 2006 raising claim that the period of

service rendered by him on ad hoc basis should be computed for

the purpose of determination of grant of ACP/MACP and post

retiral benefits. During the pendency of the writ petition, he died

and consequently came to be substituted by his heirs/legal

representatives. The said C.W.J.C. No. 15828 of 2006 was allowed

by a coordinate Bench of this Court by an order dated 17.09.2013

in following terms :

"...... The temporary appointment was made awaiting recommendation from B.P.S.C. It was extended from time to time awaiting recommendation of B.P.S.C. Once recommendation was received, it was made permanent and, thus, there was a continuity intended. That being so, the service tenure of petitioner would be counted from the date of initial temporary appointment. There being no break whatsoever in regard to the initial period of the year 1989, which is sought to be covered by typographical mistake. All I can say is that the Court having been granted status quo, in the period of status quo petitioner was permanently appointed that period would also be treated as period in service as has been duly certified by the Regional Director vide Annexure-11. That being so, the two years period prior to Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

petitioner's appointment in regular basis accordingly, grant of A.C.P. has to be recalculated. As petitioner died in harness and his death-cum-retiral dues including gratuity has to be counted taking into account the period aforesaid. As the writ petition is now being pursued by his widow wife, it is expected that the Department would take a sympathetic view of the matter and work out the consequences of this judgment at an early date but not later than two months from the date of production of a copy of this order before the Director, Animal Husbandry, Government of Bihar, Patna."

6. Aggrieved by the decision of the coordinate Bench of

this Court, the State of Bihar had preferred an appeal under the

Letters Patent of this Court giving rise to L.P.A. No. 1422 of 2014.

The Division Bench, upon examining in detail all the factual

aspects, including an apparent typographical error in the letter of

extension of service on ad hoc basis dated 17.01.1989, held in

paragraph 9 and 10 as under : -

"9. On a bare reading of the notification, dated 17.01.1989, what becomes transparent is that notification was issued on 17.01.1989 and if the contents of the notification, dated 17.01.1989, are Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

literally interpreted, it would appear as if the Government, by the notification, dated 17.01.1989, had extended the services of Dr. Vikash Kumar Srivastava (since deceased) from 27.06.1988 to 31.12.1989, 31.12.1988 being the last cut off date making it clear that thereafter, no further extension would be allowed; whereas the contents of the notification, if read carefully, would clearly disclose that the notification is prospective in nature and, therefore, the learned single Judge was wholly correct in holding that the date '31.12.1988' as the cut off date has been incorrectly typed and what was intended by the notification, dated 17.01.1989, was that the cut off date would be 31.12.1989 or else, the notification carried no meaning. We completely agree with the view so taken by the learned single Judge and see no reason to construe the notification in any other manner. The construction of the notification, dated 17.01.1989, by the learned single Judge, carries the spirit of the notification and it is in this light that one was required to read the notification or else, reading of the notification would be wholly mechanical;

whereas no judicial function can be performed mechanically.

Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

10. Coupled with the above, we also find that the cut off date of 31.12.1988 was prescribed awaiting approval of the Commission and as the notification, dated 17.01.1989, had the effect, virtually, of a letter terminating the services of the deceased writ petitioner and others, they all filed the writ petition, which, as already indicated above, gave rise to CWJC No. 1305 of 1989 and by order, dated 02.02.1989, status quo was directed to be maintained and, eventually, on the concurrence received, on 24.10.1989, from the Commission, the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was formally appointed to the cadre of Bihar Animal Husbandry Services Class-II with effect from assumption of the charge of his services. The writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was, thus, appointed, in accordance with law, in the cadre of Bihar Animal Husbandry Services Class-II."

7. On the question of reckoning the period during which

said late Vikash Kumar Srivastava had worked on ad hoc basis, the

Division Bench held in paragraph 12 to 14 as under : -

"12. The only question, therefore, is as to whether the period of service, which Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), had rendered from 10.09.1987 and 24.10.1989, can be counted for the purpose of reckoning this period to grant Assured Career Progression as well as death -cum- retiral dues. Since this question needs to be answered in the light of the provisions of Rule 63 of Bihar Pension Rules, 1950, Rule 63 is quoted below.

"63. A Government servant transferred from a temporary to a permanent appointment can count his service, in the temporary post, if though at first created experimentally or temporarily, it eventually becomes permanent."

13. On cautious reading of Rule 63 of Bihar Pension Rules, 1950, it becomes clear that a Government servant, when transferred from a temporary to a permanent appointment, the services rendered by him, on temporary appointment, will be counted as the services rendered by him on permanent appointment.

14. In the case at hand, the appointment of the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was in the scale of the Veterinary Doctor and, hence, though the post was not formally Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

created, the fact remains that the nature of his appointment showed that the appointment was against a temporary post; more so, when it has nowhere been so contended in their counter affidavit, by the respondents. Far from this, what was contended by the appellants in the counter affidavit was that the appointment of the writ petitioner, Dr. Vikash Kumar Srivastava (since deceased), was on ad hoc basis till 01.12.1988. The ad hoc appointment made pending approval of the Commission cannot be said to be an appointment against non-

existent post."

8. After having held so, the Division bench declined to

interfere with the order passed by the coordinate Bench dated

17.09.2013 in C.W.J.C. No. 15828 of 2006.

9. Mr. Rajeev Kumar Singh, learned counsel appearing

on behalf of the petitioner has submitted that since his case is

identically situated with that of Vikash Kumar Srivastava, he

should be allowed the same benefits. He has argued that after

decision was rendered in case of Vikash Kumar Srivastava in the

writ proceeding, the petitioner had filed a representation before the

competent authority for grant of same relief as was allowed by this

Court in case of late Vikash Kumar Srivastava, but no action was Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

taken on his representation. He has relied on a Full Bench decision

of this Court in case of Amresh Kumar vs. The State of Bihar and

Others, reported in 2018(2) PLJR 929, wherein taking note of

litigation policy of the State Government, it has been categorically

observed that similarly situated persons should be given similar

treatment even if they do not approach this Court, if in identical

situation matter is decided by this Court in a particular manner.

10. Ms. Nutan Sahay, learned A.C. to AAG-12 appearing

on behalf of the State of Bihar has resisted the petitioner's claim

mainly on the ground that the petitioner has approached this Court

belatedly and he being a fence sitter, cannot be allowed the same

relief, which was granted to the heirs of Vikash Kumar Srivastava,

that too on sympathetic considerations. She has placed reliance on

Supreme Court's decision in case of State of U.P. v. Arvind

Kumar Srivastava, reported in (2015) 1 SCC 347, and has

submitted that those, who want to get the benefit of a judgment,

are required to satisfy that there petition does not suffer either from

latches or delay or acquiescence. She has contended that the

petitioner has not been able to satisfy this Court that he was

vigilant and diligent in raising his claim for grant of benefit as was

granted in case of late Vikash Kumar Srivastava. Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

11. After having gone through the pleadings on record

and the submissions made on behalf of the parties, it is manifest

that there is absolutely no dispute about the fact that the

petitioner's case and that of said late Vikash Kumar Srivastava are

identical inasmuch as they were appointed by the same notification

initially on ad hoc basis and admittedly the extensions were

granted to them by the same notifications and subsequently they

were appointed on regular basis, that too by same notification.

Once, a judgment was rendered by this Court in case of late Vikash

Kumar Srivastava by a coordinate Bench of this Court, which was

subsequently approved by a Division Bench, the Court does not

find any reason why the State ought not to have applied the clear

finding and the law laid down by the Division Bench in case of

State of Bihar Vs. Pushpa Sinha and Another (legal

representatives of the said Vikash Kumar Srivastava) in respect of

persons similarly situated.

12. Considering the discussion as noted above and the

facts and circumstances of the case, this application is allowed

with a direction to the respondents to grant the petitioner same

benefits, which were granted in case of late Vikash Kumar

Srivastava. Consequently, the period from which the petitioner

worked on ad hoc basis will have to be counted for the purpose of Patna High Court CWJC No.14676 of 2019 dt.03-09-2021

grant of Assured Career Progression/Modified Assured Career

Progression. The petitioner shall also be entitled to pensionary

benefits/revised pensionary benefits accordingly. Since the

petitioner has superannuated, the Court is not required to go into

the petitioner's claim for seniority.

13. The respondents are directed to determine and

ensure that petitioner is paid his legal entitlements in terms of the

present order within a period of three months from the date of

receipt/production of a copy of this order.

14. This application is allowed with the above

observation and direction.

15. There shall, however, be no order as to costs.

(Chakradhari Sharan Singh, J) Pawan/-

AFR/NAFR               NAFR
CAV DATE               N/A
Uploading Date         10.09.2021
Transmission Date      N/A