Patna High Court
The State Of Bihar And Ors vs Brij Kishore Singh on 23 February, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1793 of 2011
In
Civil Writ Jurisdiction Case No.6892 of 2003
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1. The State Of Bihar
2. Commissioner-cum-Secretary, Water Resources Department, Govt. of Bihar,
Sichai Bhawan, Patna.
3. The Director Land Acquisition and Rehabilitation, Water Resources Deptt.,
Govt. Of Bihar, Patna
... ... Appellant/s
Versus
Brij Kishore Singh S/O Late Sri Kamla Singh R/O Village- Amleri, P.S.-
Siwan, Distt.- Siwan
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sanjay Kumarac-AAG10
For the Respondent/s : Mr. Ravindra Nath Dubey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 23-02-2023
The present LPA is filed by the State of Bihar assailing the
order of the learned Single Judge dated 12.01.2011 passed in
CWJC No. 6892 of 2003.
2. Brief facts of the case are that respondent was appointed
in the year 1983 as a Chainman by the Special Land Acquisition
Officer on daily wage basis, his services were ratified by the
Director and he continued. In the year 1989, he was further
appointed to the post of Accounts Clerk and continued as such
till his services were terminated on 17.03.2003 vide (Annexure
Patna High Court L.P.A No.1793 of 2011 dt.23-02-2023
6) of the writ-petition he was dismissed from service. It was
subject matter of C.W.J.C. No. 6892 of 2003. Learned Single
Judge has allowed the writ-petition. Extract of the order is
reproduced here under:-
"This writ petition is disposed of with the
direction that the petitioner's reversion from
Accounts Clerk was bad. Petitioner, accordingly,
be reinstated as Accounts Clerk and dismissal of
petitioner by virtue of Annexure-6 has to be
quashed. It is, however, made clear that petitioner
would get remuneration either as Chainman or as
Accounts Clerk only for the period where he has
so worked. In other words, for the period when he
was reverted as Chainman and worked as
Chainman notwithstanding entitlement of
Accounts Clerk he would get remuneration of
Chainman but from the time he is reinstated as
Accounts Clerk he would be entitled to full
remuneration of the Accounts Clerk keeping in
view notional continuity in service as Accounts
Clerk. The decision in this regard and payment in
this regard must be made to the petitioner within
three months by the Director, Land Acquisition
and Rehabilitation, Water Resources Department,
Government of Bihar, Patna.
With the aforesaid observations and
directions, the writ petition stands disposed of."
3. Feeling aggrieved and dissatisfied with the order of the
learned Single Judge, State preferred present LPA on the sole
ground that initial appointment of the respondent was by an
Patna High Court L.P.A No.1793 of 2011 dt.23-02-2023
incompetent authority, therefore, further service conditions of
the respondent is to be nullified. Accordingly, the State has
taken a decision to dismiss him from service with reference to
the post of Accounts Clerk.
4. In this regard learned counsel for the State relied on
decision in the case of LPA No. 675 of 2000 and connected
matter insofar as The State of Bihar vs. Siya Ram Choudhary
and Ors. in LPA No. 681 of 2000. The Siya Ram Choudhary and
Ors. filed Civil Appeal No. 5682-5684 of 2004 and it was
decided against Siya Ram Choudhary and Ors. In the Siya Ram
Choudhary case also the initial appointment was by an
incompetent authority hence, the order of the learned Single
Judge is liable to be dismissed in the light of decision in the case
of Siya Ram Choudhary and Ors.
5. Per-Contra learned counsel for the respondent cited
decision in the case of Bhola Rawat Vs. State of Bihar passed in
CWJC No. 8063 of 2003 decided on 08.02.2008 further, LPA
No. 392 of 2008 was decided on 12.07.2011 (State of Bihar
Appeal) and further State of Bihar preferred petition before the
Apex Court which is numbered as CC 13413/2012 State of
Bihar and Ors. Vs. Bhola Rawat in which State appeal was
dismissed. Therefore, the cited decision on behalf of the State
Patna High Court L.P.A No.1793 of 2011 dt.23-02-2023
has no assistance for the State. It is also submitted that facts of
the case of Siya Ram Choudhary is different from that of Brij
Kishore Singh case. On the other hand, Brij Kishore Singh case
is identical to that of Bhola Rawat.
6. Heard learned counsel for the respective parties.
7. Respondent was appointed as a Chainman in the year
1983 by the Special Land Acquisition Officer on daily wage
basis. His services were ratified by the Director and he
continued as such, thereafter, he was appointed as an Accounts
Clerk. In this backdrop whether dismissing Respondent-Brij
Kishore Singh in the year 2003 is in order or not?
8. No doubt it is true that initial appointment to the post of
Chainman was by an incompetent Authority. At the same time it
is to be noted that respondent was appointed to the post of
Accounts Clerk and there are no defects insofar as appointment
to the post of Accounts Clerk. In the guise of initial appointment
to the post of Chainman was not in order and thereafter,
Appellant's Department cannot take away the service benefits
which was assigned to the respondent like appointing him to the
post of Accounts Clerk. Further it is to be noticed that
respondent is serving the concerned Department from the year
1983. He had a permanent status in the year 1989 as and when
Patna High Court L.P.A No.1793 of 2011 dt.23-02-2023
he was appointed to the post of Accounts Clerk that cannot be
disturbed after more than a decade in the year 2003. In fact
Apex Court in the case of Secy., State of Karnataka and Ors.
vs. Uma Devi reported in (2006) 4 SCC 1, has made an
observation that concerned authorities shall not reopen the
already regularized or such of those employees who have
attained the permanent status. In this case, action of dismissal of
respondent's services would amount to reopening the permanent
status granted to the respondent.
9. It is further noticed that Siya Ram Choudhary case is not
assisting the State with reference to factual aspects of the matter.
Siya Ram Choudhary as on the date of filing writ-petition he
was still ad-hoc employee on the other hand, Brij Kishore
Singh-respondent had a permanent status in the post of
Accounts Clerk in the concerned Department, therefore, the
cited decision on behalf of the Appellant-State is hereby
distinguished. Further counsel for the respondent relied on
Bhola Rawat case. Bhola Rawat case is almost identical to that
of Brij Kishore Singh case, the one and only difference is that
Brij Kishore Singh was initially appointed as a Chainman and
thereafter, he was appointed to the post of Accounts Clerk. In
Bhola Rawat case, he was also initially appointed as a
Patna High Court L.P.A No.1793 of 2011 dt.23-02-2023
Chainman and thereafter, he was appointed to the post of Typist
and further he has earned promotion to the post of Amin.
10. In the light of these facts and circumstances the
Respondent-Brij Kishore Singh's case is covered by Bhola
Rawat case as well as observation made by the Apex Court in
the case of Uma Devi.
11. Accordingly, State has not made out a prima-facie case
so as to interfere with the order of the learned Single Judge
dated 12.01.2011 passed in CWJC No. 6892 of 2003.
12. The LPA stands rejected.
(P. B. Bajanthri, J)
( Arun Kumar Jha, J)
Himanshu/-
Daya
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.02.2023
Transmission Date NA
