Patna High Court
The State Of Bihar And Ors vs Shiv Kumar Prasad And Ors on 4 February, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1425 of 2017
In
Civil Writ Jurisdiction Case No.17193 of 2011
======================================================
1. The State of Bihar.
2. The Secretary, Food and Consumer Protection Department, Bihar, Patna.
3. The Secretary, Personnel and Administrative Reforms Department, Bihar,
Patna.
4. The Secretary, Finance Department, Bihar, Patna.
5. The Registrar, State Consumer Disputes Redressal Commission, Bihar,
Patna.
... ... Appellant/s
Versus
1. Shiv Kumar Prasad, Son of Hari Mistry, Resident of Village Rajakuan, P.S.
Bihar Sharif, District - Nalanda.
2. Md. Salimuddin, Son of Late Abdul Rahman, Resident of A-110, Ali Nagar
Colony, P.S. Anisabad, District- Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manish Kumar, AC to Ex.AAG-6
For the Respondent/s : Mr. Prashant Sinha, Advocate
Mr. Rishi Raj Raman, Advocate
Mr. Shailendra Kumar Singh, Advocate
Ms. Ruchi Mandal, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 04-02-2025
The Appellants have assailed the order of learned
Single Judge dated 27.10.2016 passed in C.W.J.C. No. 17193 of
2011.
2. Matter was heard at length on 27.01.2025 and
the following order was passed:
Patna High Court L.P.A No.1425 of 2017 dt.04-02-2025
2/6
"I.A. No.8 of 2024:
Heard I.A. No.8 of 2024 for condonation of
delay for substitution of Respondent no.2, namely,
Md. Salimuddin.
2. There is a delay of about 1679 days in
filing I.A. No.8 of 2024.
3. Cause of action accrued to the appellants
insofar as substitution was on 16.09.2019, the date
on which deceased wife-Smt. Mustari Bano
submitted representation on 16.09.2019 as is
evident from paragraph-11 of I.A. No.8 of 2024.
Paragraph-11 of I.A. No.8 of 2024 reads as under:
"11. That it is further submitted that
earlier the wife of Late Md. Salimuddin namely
Mustari Bano has made representation vide
Representation dated 16.09.2019 before the
Hon'ble Secretary (Registrar) State Consumer
Dispute Redressal Commission, Patna and
requested for payment of his family pension and in
this representation she has mentioned that her
husband namely Md. Salimuddin died on
07.09.2019
."
4. Taking note of the enormous delay
and laches on the part of the appellants in not
substituting the respondent no.2 within a
reasonable period of time from the date of cause of
Patna High Court L.P.A No.1425 of 2017 dt.04-02-2025
action accrued resulted in dismissal of present
L.P.A. No.1425 of 2017 as against Respondent
no.2-Md. Salimuddin.
5. Accordingly, the present L.P.A.
No.1425 of 2017 stands abated as against
Respondent no.2-Md. Salimuddin.
6. I.A. No.8 of 2024 stands disposed
of.
7. At this stage, learned counsel for
the appellants to overcome the delay relied on
paragraph-20 of I.A. No.8 of 2024. Paragraph-20
of I.A. No.8 of 2024 reads as under:
"20. That it is humbly submitted that
the department of deponent has taken needful steps
after knowledge of death of Respondent No.2
however 1679 days delay has occurred which is
not deliberate and intentional. If the period of
Covid- 19 is deducted from the total number of
days of the delay the total number of effective date
of delay occurred is 1679-708 (15.03.2020 to
28.02.2022) = 971 days."
8. Assuming that COVID-19 period is
to be excluded to the extent of 971 days, further
cause of action accrued to the appellant on 1 st of
March, 2022, whereas I.A. No.8 of 2024 has been
filed on 25.06.2024, i.e., for more than one year
Patna High Court L.P.A No.1425 of 2017 dt.04-02-2025
and three months. Consequently, Appellants have
not made out a case as against the Respondent
no.2-Md. Salimuddin insofar as substitution is
concerned.
L.P.A. No.1425 of 2017:
9. Learned counsel for the 1st
respondent-Shiv Kumar Prasad is hereby directed
to furnish the copy of the absorption order in the
State like Government Notification/Order on the
next date of hearing in order to ascertain as to
whether his services have been absorbed in the
State Government at his request or in the Public
Interest. At this stage, we have noticed para-2 of
the ACP Scheme dated 25.06.2003 and it relates to
applicability clause. ACP Scheme is applicable
only to Government Servant of the State of Bihar.
The first respondent entered into status of
Government Servant in the State of Bihar only on
08.04.1997. Thereafter, prior to 08.04.1997, he was
not a Government Servant. Be that as it may, it all
depends on the wordings of the absorption order to
the effect that was it in Public Interest or private
Patna High Court L.P.A No.1425 of 2017 dt.04-02-2025
interest.
10. Re-list this matter on 04.02.2025."
3. Today, learned counsel for the 1st Respondent-
Shiv Kumar Prasad has furnished copy of the absorption order
dated 31.03.1997. Certain conditions have been imposed for the
purpose of absorption, it is necessary to re-produce paragraph
Nos. 6, 7 and 9, it reads as under:-
"6- deZpkfj;ksa dh fu;qfDr ds i"pkr~ bu deZpkfj;ksa ij
fcgkj lsok lafgrk rFkk fcgkj ljdkj ds lHkh lsok fu;e izHkkfor
gksxkA
7- dkfeZdksa ds ;ksxnku djus ds Ik"pkr~ ,d o'kZ rd dh
vof/k izkscs"ku&dky gksxkA ,d o'kZ dh larks'kizn lsok ds mijkUr
mUgsa lEiq'V fd;k tk;sxkA
9- fu;qfDr fd;s tkusokys deZpkfj;ksa dh ojh;rk fu;qfDr
inkf/kdkjh }kjk fu/kkZfjr dh tk;sxhA"
4. In the light of aforementioned clauses earlier
service rendered in Bihar State Food & Civil Supplies
Corporation on behalf of the 1st Respondent-Shiv Kumar Prasad
cannot be counted for the purpose of extending ACP benefit. In
other words, for the purpose of extending any service benefits in
the State Government, the petitioner is entitled only with effect
from 31.03.1997 in view of the clauses 6, 7 and 9 (cited supra).
Therefore, the Appellants have not made out a case to the extent
Patna High Court L.P.A No.1425 of 2017 dt.04-02-2025
that learned Single Judge has committed error in extending
relief to the 1st Respondent-Shiv Kumar Prasad, which is the
subject matter of the present L.P.A. The learned Single Judge
has not taken note of the conditions imposed in the order of
absorption (cited supra), resultantly, 1st Respondent has not
made out a case for the purpose of counting past service
rendered in Bihar State Food & Civil Supplies Corporation to
extend ACP benefit after his absorption.
5. Accordingly, C.W.J.C. No. 17193 of 2011 stands
dismissed as against 1st Respondent-Shiv Kumar Prasad and the
present State L.P.A. No. 1425 of 2017 filed by the State is
allowed only against 1st Respondent. Pending I.As, if any, stands
disposed of.
(P. B. Bajanthri, J)
( Sunil Dutta Mishra, J)
manish/-
AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 10.02.2025
Transmission Date N.A
