Patna High Court
Krishna Kumar vs The State Of Bihar And Ors on 28 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1292 of 2017
In
Civil Writ Jurisdiction Case No.15460 of 2015
======================================================
Surendra Narayan Jha "Suman", son of Late Harideo Jha, Resident of Quarter
No. F 4/1, M.T.P.S. Colony, Kanti, P.S. Kanti, District- Muzaffarpur.
... ... Appellant.
Versus
1. The State of Bihar through the Principal Secretary, Energy Department,
Government of Bihar, Patna.
2. The Additional Secretary, Energy Department, Government of Bihar, Patna.
3. The Bihar State Power Holding Company Ltd. (previously known as Bihar
State Electricity Board), Patna through the Chairman-cum-Managing
Director.
4. The Chairman-cum-Managing Director, Bihar State Power Holding
Company Ltd., Patna.
5. The Secretary, Bihar State Power Holding Company Ltd., Patna.
6. The Bihar State North Power Holding Company Ltd., Muzaffarpur through
the Managing Director.
7. The General Manager-cum-Chief Engineer, the Bihar State Power
Transmission Company Ltd., Transmission Zone-II, Muzaffarpur.
8. The Electrical Executive Engineer, Muzaffarpur Thermal Power Station,
Kanti, Muzaffarpur.
9. The Director Accounts, Muzaffarpur Thermal Power Station, Kanti,
Muzaffarpur.
10. The Chief Executive Officer, Kanti Power Generating Company Ltd.
(previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
11. The Additional General Manager (HR), Kanti Power Generating Company
Ltd. (previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
... ... Respondents.
======================================================
with
Letters Patent Appeal No. 1293 of 2017
In
Civil Writ Jurisdiction Case No.14896 of 2015
======================================================
Krishna Kumar, Son of Late Markandey Nath, Resident of Mohalla -
Pirmohani, Opposite Hotel Jaipur, P.S. Kadam Kuan, District - Patna,
presently residing at Flat No. 201, Anand Sri Apartment, Road No.1, Ravi
Chowk, Patel Nagar, P.S. Shastri Nagar, District - Patna.
... ... Appellant.
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
2/7
Versus
1. The State of Bihar through the Principal Secretary, Energy Department,
Government of Bihar, Patna.
2. The Additional Secretary, Energy Department, Government of Bihar, Patna.
3. The Bihar State Power Holding Company Ltd. (previously known as Bihar
State Electricity Board), Patna through the Chairman-cum-Managing
Director.
4. The Chairman - Cum- Managing Director, Bihar State Power Holding
Company Ltd., Patna.
5. The Secretary, Bihar State Power Holding Company Ltd., Patna.
6. The Bihar State North Power Holding Company Ltd., Muzaffarpur through
the Managing Director.
7. The General Manager - Cum - Chief Engineer, the Bihar State Power
Transmission Company Ltd, Transmission Zone-II, Muzaffarpur.
8. The Electrical Executive Engineer, Muzaffarpur Thermal Power Station,
Kanti, Muzaffarpur.
9. The Director Accounts, Muzaffarpur Thermal Power Station, Kanti,
Muzaffarpur.
10. The Chief Executive Officer, Kanti Power Generating Company Ltd.
(previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
11. The Additional General Manager (HR), Kanti Power Generating Company
Ltd. (previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
... ... Respondents.
======================================================
with
Letters Patent Appeal No. 1294 of 2017
In
Civil Writ Jurisdiction Case No.14975 of 2015
======================================================
Jai Mangal Singh, Son of Late Ram Barai Singh, Resident of Village- Adarsh
Gram- 1, Kolhua Paigambarpur, P.S. Kanti, District- Muzaffarpur.
... ... Appellant.
Versus
1. The State of Bihar through the Principal Secretary, Energy Department,
Government of Bihar, Patna.
2. The Additional Secretary, Energy Department, Government of Bihar, Patna.
3. The Bihar State Power Holding Company Ltd. (previously known as Bihar
State Electricity Board), Patna through the Chairman-cum-Managing
Director.
4. The Chairman-cum-Managing Director, Bihar State Power Holding
Company Ltd., Patna.
5. The Secretary, Bihar State Power Holding Company Ltd., Patna.
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
3/7
6. The Bihar State North Power Holding Company Ltd., Muzaffarpur through
the Managing Director.
7. The General Manager - Cum - Chief Engineer, the Bihar State Power
Transmission Company Ltd, Transmission Zone-II, Muzaffarpur.
8. The Electrical Executive Engineer, Muzaffarpur Thermal Power Station,
Kanti, Muzaffarpur.
9. The Director Accounts, Muzaffarpur Thermal Power Station, Kanti,
Muzaffarpur.
10. The Chief Executive Officer, Kanti Power Generating Company Ltd.
(previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
11. The Additional General Manager (HR), Kanti Power Generating Company
Ltd. (previously known as Vaishali Power Generating Company Ltd.),
Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur.
... ... Respondents.
======================================================
Appearance :
(In Letters Patent Appeal No. 1292 of 2017)
For the Appellant : Mr. Vijay Kumar Singh, Advocate.
For the State : Mr. Yogendra Prasad Sinha, AAG-7.
For the Respondent Nos.3 to 7 : Mr. Umesh Prasad Singh, Senior Advocate.
Mr. Ajay Kumar Gautam, Advocate.
Mr. Vaibhav Ven Shankar, Advocate.
For the Respondent Nos.10 and 11: Mr. Tuhin Shankar, Advocate.
(In Letters Patent Appeal No. 1293 of 2017)
For the Appellant : Mr. Vijay Kumar Singh, Advocate.
For the State : Mr. Yogendra Prasad Sinha, AAG-7.
For Respondent Nos.3 to 7 : Mr. Umesh Prasad Singh, Senior Advocate.
Mr. Ajay Kumar Gautam, Advocate.
Mr. Vaibhav Ven Shankar, Advocate.
For the Respondent Nos.10 and 11: Mr. Tuhin Shankar, Advocate.
(In Letters Patent Appeal No. 1294 of 2017)
For the Appellant : Mr. Vijay Kumar Singh, Advocate.
For the State : Mr.Yogendra Prasad Sinha, AAG-7.
For Respondent Nos.3 to 7 : Mr. Umesh Prasad Singh, Senior Advocate.
: Mr. Ajay Kumar Gautam, Advocate.
: Mr. Vaibhav Ven Shankar, Advocate.
For the Respondent Nos.10 to 11 : Mr. Tuhin Shankar, 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 : 28-01-2025
Matters were heard from time to time. Various orders
have been passed. Later order is dated 14.11.2024 and it reads
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
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as under:
"Respondent Nos.10 and 11 are hereby
directed to file their personal affidavit as to why the
appellants are not entitled to pension during the
period from the year 2007 to 2014 for which period
appellants were serving the office of the respondent
Nos.10 and 11.
2. Respondent Nos.10 and 11 are hereby
directed to take note of Clause 5(e) of the
Notification dated 08.09.2006, it relates to Bihar
State Electricity Reforms (Transfer of Muzaffarpur
Thermal Power Station) Scheme, 2006 in the
absence of framing of any Regulation relating to
service conditions in the office of Respondent
No.10.
3. Relist this matter on 12.12.2024."
2. Thereafter, at the instance of Respondent Nos.10
and 11 matters were adjourned on four occasions. Respondent
Nos.10 and 11 have filed supplementary to the affidavit dated
11.12.2024
along with Annexures-R/4 to R/8.
3. Perusal of documents-Annexures-R/4 to R/8, there
is no iota of material that they have framed Rules of their own
while overcoming Clause 5(e) of the Notification dated
08.09.2006. Clause 5(e) of the Notification dated 08.09.2006
reads as under:
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
"The Transferee may frame regulations
governing the conditions of service of
Specified Personnel transferred to the
Transferee.
Provided that such conditions shall not
in any way be less favourable or inferior
to those applicable to them immediately
before the Date of the Transfer and till
such time new regulations are framed,
the existing service conditions of the
Transferor shall mutatis mutandis
apply."
4. On the other hand, what has been placed on record
along with the supplementary to the affidavit dated 11.12.2024
filed on 21.01.2025 relating to pay and benefits structures of 9
specified personnel who have joined KBUNL from BSEB and it
was internal note sheet dated 23.10.2013 followed by
Resolution dated 29.11.2013. These two documents are not in
compliance to Clause 5(e) of the Notification dated 08.09.2006.
In other words, even to this day, they have not complied
alternative service conditions in the light of Clause 5(e) of the
Notification dated 08.09.2006. On the other hand, Respondent
nos.10 and 11 have taken certain undertaking from the
appellants. Those undertakings are contrary to the statutory
Notification dated 08.09.2006, in particularly, Clause 5(e). By
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
merely taking certain undertakings from the appellants, that
does not take away their right vested under Clause 5(e) of the
Notification dated 08.09.2006. Respondent nos.10 and 11 have
only two options in terms of Clause 5(e) of the Notification
dated 08.09.2006 to the extent that they have to frame their own
statutory Rules governing their employees like appellants or in
the alternative to adhere to Clause 5(e) of the Notification dated
08.09.2006. Such undertaking by the Respondent nos.10 and 11
may also attract certain provisions of the Contract Act to the
extent that such undertaking is contrary to law. According to the
Indian Contract Act, 1872, an undertaking is considered void
under Section 2(g), which defines a 'void agreement' as an
agreement that cannot be enforced by law; essentially meaning
any agreement that is not legally binding is considered void.
Estoppel principle is not applicable when arbitrariness affects
fundamental rights under Articles 14 and 16 of the Constitution.
The Hon'ble Supreme Court in the case of Olga Tellis and
Others Versus Bombay Municipal Corporation and Others,
(1985) 3 SCC 545, it is held that no estoppel can be claimed
against enforcement of fundamental rights. Similar view has
been taken note of in the case of Krishna Rai (Dead) Through
Legal Representatives and Others Vs. Banaras Hindu
Patna High Court L.P.A No.1292 of 2017 dt.28-01-2025
University Through Registrar and Others, reported in (2022)
8 SCC 713.
5. Taking note of these material information,
respondent nos.10 and 11 are hereby directed to settle the
appellants' grievance insofar as considering their services from
the year 2007 to 2014 for the purpose of fixation of pension and
redress the same after due calculation as on the date of
payments are made. Arrears of pension shall be calculated and
disbursed to the appellants within a period of three months from
the date of receipt of this order, failing which appellants are
entitled to interest on belated settlement of pensionary benefits
at the rate of 8% per annum.
6. With the above observations, the present L.P.As.
stand disposed of while modifying the Judgment of the learned
Single Judge dated 19.08.2017 passed in C.W.J.C. No.15460 of
2015 (Surendra Narayan Jha 'Suman' Versus The State of Bihar
and others) and other connected matters.
(P. B. Bajanthri, J)
( Sunil Dutta Mishra, J)
P.S./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 04.02.2025.
Transmission Date NA
