Kumar Rajesh vs The State Of Bihar
2023 Latest Caselaw 5302 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.9776 of 2020
     ======================================================

Satish Kumar Singh, Son of Late Ram Mohan Singh, resident of D- 305, Magestic Janky City, East Gola Road, P.S.- Nizamat Danapur, District - Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar, Patna.

3. The Additional Secretary, Building Construction Department, Bihar, Patna.

4. The Secretary, Bihar Public Service Commission, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 9779 of 2020 ====================================================== Rakesh Kumar Singh, Son of Late Bachcha Singh resident of Flat No. 202, Kaushalaya Enclave Apartment, Rajendra Path, North S.K. Puri, P.S.- S.K. Puri, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar, Patna.

3. The Additional Secretary, Building Construction Department, Bihar, Patna.

4. The Secretary, Bihar Public Service Commission, Patna.

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 3047 of 2021 ====================================================== Kumar Rajesh, Son of Late Raghunath Prasad Sinha Resident of Village- Kashipur, P.S.- Bidhupur, District- Vaishali, at present House No. 67, Road No. 14, Sri Krishna Nagar, P.S.- Buddha Colony, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar, Patna.

3. The Additional Secretary, Building Construction Department, Bihar, Patna.

4. The Secretary, Bihar Public Service Commission, Patna.

... ... Respondent/s ====================================================== Patna High Court CWJC No.9776 of 2020 dt.12-10-2023

with Civil Writ Jurisdiction Case No. 3727 of 2021 ====================================================== Praveen Pandit, Son of Ram Udgar Pandit, Resident of Village - Naulagarh, P.S. Bhagwanpur, District - Begusarai, presently residing at Abhiyanta Nagar, East Ram Krishna Nagar, P.S. Ram Krishna Nagar, District - Patna - 800027.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Building Construction Department, Bihar, Patna.

3. The Additional Secretary, Building Construction Department, Bihar, Patna.

4. The Executive Engineer, Building Construction Division, Darbhanga.

5. The Secretary, Bihar Public Service Commission, Patna.

... ... Respondent/s ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 9776 of 2020) For the Petitioner/s : Mr. Prabhu Nath Pathak, Advocate For the State : Mr. A.K. Dubey (AC to AAG-11) (In Civil Writ Jurisdiction Case No. 9779 of 2020) For the Petitioner/s : Mr. Prabhu Nath Pathak, Advocate For the State : Mr. Sanjay Kumar (AC to GA-13) (In Civil Writ Jurisdiction Case No. 3047 of 2021) For the Petitioner/s : Mr. Prabhu Nath Pathak For the State : Mr. Rakesh Ranjan (AC to GP-22) For BPSC : Mr. Nawal Kishore Singh, Advocate (In Civil Writ Jurisdiction Case No. 3727 of 2021) For the Petitioner/s : Mr. Prabhu Nath Pathak, Advocate For the State : Mr. A.K. Dubey (AC to AAG-11) ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN

ORAL JUDGMENT

Date : 12-10-2023

Learned counsel for the petitioners and learned

counsel for the State in all the cases are present.

2. Learned counsel for the petitioners submits that vide

order dated 22.08.2023, it was directed by this Hon'ble Court to

list all these cases after disposal of CWJC No. 407 of 2021.

3. Learned counsel for the petitioner further submits Patna High Court CWJC No.9776 of 2020 dt.12-10-2023

that the said CWJC No. 407 of 2021 has been disposed of vide

order dated 29.08.2023. The order passed by this Hon'ble Court

has been annexed as Annexure-18 to the present writ petition.

Learned counsel further submits that the petitioners of all the

four writ petitions are aggrieved by notification containing

Memo No. 3604(Bh) dated 18.06.2020 issued by the Additional

Secretary Building Construction Department, Bihar, Patna

(annexed as Annexure-1) whereby, invoking powers under Rule

74 of the Bihar Service Code, 1952, the petitioners have been

compulsorily retired from service.

4. Learned counsel for the petitioners submits that by

the said notification dated 18.06.2020, there are in total six

officials who were compulsorily retired from the service and out

of one namely, Shyam Sundar Sharma preferred CWJC No. 407

of 2021 which was allowed in his favour on 29.08.2023. Rest

four petitioners have preferred different writ petitions who are

petitioners here in the present writ petitions in which order is

being passed.

5. The parties agreed that the issue involved in the

present writ petitions is directly and substantially identical. This

Hon'ble Court at the time of deciding CWJC No. 407 of 2021

has pleased to observe as follows:-

Patna High Court CWJC No.9776 of 2020 dt.12-10-2023

"a) The Court on consideration of rival

submissions finds that the impugned order dated

18.06.2020, purporting to be under Rule 74 of the Bihar

Service Code, 1952 contains statements of the

petitioner's indictment for misconduct's. Relevant extract

of impugned notification reads as follows:-

"...ववचारोपरानत अतयवधक खराब कायर-कलाप /

izn"kZu वाले वै से कुल छः (06) अवभयं ताओं को वचवननत वकया

गया, वजनकी कायर दकता या आचार ऐसा ननीं नै , वजससे उनने

से वा मे बनाये रखना लोकवनत मे उवचत नै । वचवननत वकये गये

उकत अवभयं ताओं को पूवर मे भी औपचावरक एवं अनौपचावरक

रप से कायर-कलाप मे सु धार, पदीय दावयतवो के समु वचत

वनवरनन ने तु बार-बार सचे त वकये जाने एवं उचचावधकावरयो के

आदे शो का अकरश: पालन ने तु funZZs"k वदये जाने के वावजूद भी

उनके कायर-कलाप तथा पदीय दावयतव वनवरनन मे अपे वकत

सु धार पवरलवकत ननीं नो पाया नै । साथ नी इनके दारा वरीय

पदावधकावरयो एवं सरकार के funZZs"k की लगातार अवने लना की

गयी नै । ...."

b) The impugned notification as is, apparent

from bare reading of the same is not based on

consideration in terms of Rule 74 of the Bihar Service

Code, 1952. The same casts aspersions, and alleges Patna High Court CWJC No.9776 of 2020 dt.12-10-2023

misconduct, which is clearly beyond the purview of Rule

74 (a) of the Bihar Service Code, 1952, quoted above.

c) The notification, therefore, leaves the

petitioner with stigma, and is apparently, as a

consequence of the various alleged acts of omission and

commission, as per the impugned order, extracted above.

The impugned notification, therefore, is apparently

punitive in nature, and beyond the scope of Rule 74 of the

Bihar Service Code. The decision of the Division Bench

in the case of Vidya Nand Sharma (supra) supports such

conclusion of this Court in the instant writ proceedings.

The impugned notification, in the above noted facts and

circumstances, and the settled legal position based on

decision of the Division Bench, noted above, is clearly

unsustainable in the eyes of law.

d) The impugned notification dated 18.06.2020

(Annexure-1) is, therefore, quashed.

e) Accordingly, this writ petition is allowed."

6. In the light of the observations made by the Co-

ordinate Bench of this Hon'ble Court, that the observation

quoted above is basically stigma casted upon consequence of

various alleged acts of omission and commission and therefore, Patna High Court CWJC No.9776 of 2020 dt.12-10-2023

this Court is of this view that the impugned notification is

punitive in nature because the scope of Rule 74 of the Bihar

Service Code, 1952, is absolutely different as mentioned in the

notification.

7. This Court is also of the view that parity should be

maintained and therefore, in the light of the reasons above, all

the writ petitions are hereby allowed and the impugned

notification containing Memo No. 3604(Bh) dated 18.06.2020

issued by the Additional Secretary, Building Construction

Department, Bihar, Patna (annexed as Annexure-1) is hereby

quashed for all the four petitioners of the present writ petitioners

mentioned above.

(Dr. Anshuman, J.) Divyansh/-

AFR/NAFR
CAV DATE
Uploading Date          17.10.2023
Transmission Date