Patna High Court
Md. Moin vs The State Of Bihar And Ors on 20 December, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.260 of 2019
In
Civil Writ Jurisdiction Case No.18435 of 2014
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Md. Moin son of Late Abdul Gaffur A Resident of Village - Sabutter, P.S. -
Kritya Nand Nagar, District- Purnea.
... ... Appellant/s
Versus
1. The State of Bihar and Ors Bihar
2. Principal Secretary, Department of Rural works, Government Of Bihar,
Patna Bihar
3. Under Secretary Department of Rural works, Government of Bihar, Patna
Bihar
4. Superintending Engineer Rural Works Department Work Anchal.
Kishanganj-1
5. Executive engineer Rural works Department, Work Division Kishanganj-1
Bihar
6. District Magistrate, Kishanganj District- Kishanganj Bihar
7. Establishment Deputy Collector,Kishanganj Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Rajni Kant Jha
For the Respondent/s : Mr.Pushkar Narain Shahi (Aag6)
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 20-12-2022
Heard the learned counsels for the parties.
2. The appellant has assailed the order of the
learned Single Judge dated 07.01.2019 passed in C.W.J.C No.
18435 of 2014. The appellant's father was working as an
employee in the Work Charge Establishment, he died while he
was in service. In the result, appellant was appointed on
Patna High Court L.P.A No.260 of 2019 dt.20-12-2022
30.10.1993 to the post of Roller Khalasi in the pay scale of Rs.
775-12-955-14-1025. While he was working as such
respondents were stated to have noticed that appellant is not
entitled to compassionate appointment with reference to service
particulars of his deceased father, that deceased employee was
not regular holder of the post in the department. Such error has
been noticed in the year 2014. Orally services of the appellant
was terminated with effect from 11.09.2014. Feeling aggrieved
by oral termination, appellant filed C.W.J.C No. 18435 of 2014
and it was dismissed on 07.01.2019 hence, the present L.P.A.
3. Learned counsel for the appellant submitted that
he has rendered unblemished services from 30.10.1993 till
11.09.2014. The learned Single Judge has not appreciated dates
and events and also appellant was regularly appointed to hold
the post of Roller Khalasi in the Work Charge Establishment in
the pay scale of Rs. 775-12-955-14-1025. In other words, he is a
permanent employee, before terminating his services, he is
entitled to notice and other formalities like holding of an inquiry
under Bihar Government Service CCA Rules, 2005.
4. Per contra, learned counsel for the respondent
resisted the aforesaid contentions and submitted that appellant
initially appointed on compassionate ground in the post of
Patna High Court L.P.A No.260 of 2019 dt.20-12-2022
Roller Khalasi in the pay scale of Rs. 775-12-955-14-1025 is
contrary to factual aspect to the extent that his late father was
not a permanent employee so as to extend compassionate
appointment to the appellant. The same has been noticed in the
year 2014, therefore, the Superintendent of Engineer proceeded
to ask the appellant to not to attend the work. In other words,
oral termination has been ordered and it is in accordance with
law.
5. Heard learned counsel for the respective parties.
6. Appellant's father was working on ad-hoc basis
in the Work Charge Establishment and he died. In the result, the
then officials were under the impression that deceased employee
was regular hold of the post in the department. Thus, proceeded
to process the appellant's application for compassionate
appointment and it was issued on 30.10.1993 while appointing
him to the post of Roller Khalasi in the Work Charge
Establishment in the pay scale of Rs. 775-12-955-14-1025. It is
to be noted that 30.10.1993 order of compassionate appointment
to a particular post read with pay scale has not been
withdrawn/canceled/modified till today.
7. On the other hand, oral termination has been
ordered on 11.09.2014. When the appellant has rendered service
Patna High Court L.P.A No.260 of 2019 dt.20-12-2022
from 30.10.1993 in the capacity of permanent employee. In such
an event the respondents should have initiated departmental
inquiry under Bihar CCA Rules, 2005. No such action has been
taken even to this day. By virtue of our previous order the
appellant is stated to have been taken back to duty on
13.12.2022.
8. In the light of these facts and circumstances the
appellant is entitled to continue to hold the post pursuant to the
order of appointment dated 30.10.1993. The concerned
respondent is hereby directed to extend all service and monetary
benefits during the period from 11.09.2014 till 13.12.2022 and
further continued to extend all service and monetary benefits
from time to time. The inaction of the respondent in the year
1993 cannot be rectified at this distance of time that too after
decades. The factual material information has not been apprised
by the learned Single Judge, therefore, order of the learned
Single Judge dated 07.01.2019 passed in C.W.J.C No. 18435 of
2014 stands set aside. The appellant is entitled to all monetary
benefits during the intervening period from the date of
termination till reinstatement along with interest @ 8% per
annum.
9. At this stage, learned counsel for the respondent
Patna High Court L.P.A No.260 of 2019 dt.20-12-2022
pointed out from Para 13 of the supplementary counter affidavit
dated 14.12.2022.
10. Para 13 of the supplementary counter affidavit
reads as under:-
"That however even if the
appellant would have not stopped coming
to duty in that case to the petitioner would
have been removed from service in
compliance of resolution no. 10710 dated
17.10.2013 of the Finance Department,
Govt, of Bihar and the Office Order no. 19
dated 31.01.2014 issued by the present
respondent department."
11. The aforesaid action dated 17.10.2013 vide
resolution no. 10710 and the Office Order No. 19 dated
31.01.2014 are without resorting to Bihar CCA Rules, 2005 as
appellant had the permanent status that he was holder of the post
of Roller Khalasi in the pay scale of Rs. 775-12-955-14-1025.
12. Therefore, the aforesaid decisions are hereby
rejected.
(P. B. Bajanthri, J)
shoaib/- (Purnendu Singh, J)
AFR/NAFR
CAV DATE
Uploading Date 23.12.2022.
Transmission Date
