IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.15113 of 2004
SADHU RAI, son of late Prithvi Rai, resident of Mohalla - Club
Road, Mandir Lane, Chitra Gupta Colony, Ara, P.S. Nawada, District
- Bhojpur at Ara, the retired Emergency Divisional Accountant,
Public Health and Engineering Department, Sasaram Division,
Sasaram.
Versus
1. THE STATE OF BIHAR.
2. The Secretary, Public Health and Engineering Department,
Government of Bihar, Patna.
3. The Joint Secretary, Public Health and Engineering Department,
Government of Bihar, Patna.
4. The Finance Secretary, Government of Bihar, Patna.
5. The Superintending Engineer, Road Construction Department,
Road Circle, Hazaribagh.
6. The Executive Engineer, Public Health Division, Sasaram.
7. The Account General, Bihar, Patna.
8. The Accounts Officer (A & E), Office of the Accountant General,
Bihar, Patna.
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For the petitioner: Mr. S B K Manglam.
For the Accountant General: Mr. L P K Rajgrihar.
For the State : Mr. Himanshu Kumar Akela, AC to GA-5.
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07. 18-01-2011 Annexure-2 dated 8.7.1993 issued from the office of the
Principal Accountant General (A & E)-I, Bihar is being challenged
in the present writ application, filed by the petitioner in December,
2004. Petitioner superannuated from the post of Emergency
Divisional Accountant under the office of the Accountant General
on 31.5.1993. Annexure-2 therefore came to be issued by
respondent No.8 to facilitate fixation of his pension and other retiral
dues in terms of his entitlement.
2. There are other prayers as well made in the writ
application wherein petitioner wants himself to be treated as State
Government employee and be given the benefit of the post which he
would have held as such irrespective of the fact that he was deputed
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as an Emergency Divisional Accountant and worked on that post
till his superannuation under the office of the Accountant General,
Bihar.
3. Before getting into facts and so-called law which
has been urged at the bar, the Court must record its reservation on
the prayer made by the petitioner at the very outset in the
background that the impugned annexure contained in Annexure-2
was issued as far back as in 1993 and no serious challenge was ever
thrown to that communication till the filing of the present writ
application in the year 2004, more so when the petitioner had retired
on 31.5.1993 from service. Secondly the so-called bogey being
raised by the petitioner that he never opted for being deputed as an
Emergency Divisional Accountant has to be taken with a pinch of
salt because such an exercise was carried out way back in the year
1979 and petitioner worked under the office of the Accountant
General till he superannuated in 1993. No person can be compelled
to work in an organization for more than 20 years without his
willingness, consent and acceptance of the position as to this status
and post on which he was working. In the opinion of this Court, the
writ application therefore has to be viewed whether it is a bonafide
claim having been raised by the petitioner or motivated by other
extraneous consideration.
4. The brief facts are that the petitioner entered service
under the Public Works Department (PWD) as a Junior Accounts
Clerk in the year 1957. He got promotion as a Senior Accounts
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Clerk and his services were confirmed with effect from 1.3.1969.
5. There was dearth of officers at the level of
Divisional Accountant in the office of Accountant General, Bihar.
Letters thereof were circulated to all the departments of the State
Government to recommend names of senior account clerks having
more than 5 years experience and good service record, to fill up the
vacancies of Emergency Divisional Accountants. Name of the
petitioner was forwarded to the office of the Accountant General
and he joined the office of Accountant General as Emergency
Divisional Accountant in the year 1979, a fact not in dispute.
Thereafter he worked in that capacity and retired from the said post.
Post retirement, it seems, petitioner was not happy with the kind of
benefits which he could have drawn or the pension which he was
entitled to by virtue of being Emergency Divisional Accountant. He
started raising a bogey that since he never opted for the post of
Emergency Divisional Accountant, his so-called deputation or
deployment under the Accountant General should be annulled and
he should be continued to be treated as a employee of the State
Government. If it is done, then his pension etc. should be fixed on
the basis of entitlement of a State Government employee instead of
an employee of the Accountant General.
6. The Court directed the Accountant General to file
counter affidavit for proper appreciation of the issue as well as
adjudication whether the petitioner is entitled to the reliefs which he
is seeking in the background under which a dispute was sought to be
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raised.
7. The stand of the respondent Accountant General is
that it is too late in the day to state that the petitioner was forced out
of service of the State Government and that he was compelled to
serve the office of the Accountant General for more than two
decades before his superannuation. Fact is that many a persons
working under the various departments of the State Government had
opted to work as Emergency Divisional Accountant under the
Accountant General as the pay and perks at the relevant time was
more attractive. The fact that the petitioner continued on the post
till the time of his superannuation is a circumstance to show that
there was no ifs and buts on his deployment and functioning as such
on the post in question. Petitioner faced problems in matter of
confirmation or promotion under the respondent Accountant
General because he never passed the Divisional Accountant Grade
Examination which was mandatory for his absorption under the
cadre of Divisional Accountant and promotions thereafter. Since the
petitioner could not achieve such benefits and the State
Government Employees over the years had ended up with better
pay-scale and retiral benefits, the bogey is now being raised by the
petitioner that he should be treated as a State Government
employee and be given the presumptive pay of the State
Government by presuming his continuance as an employee of the
State despite his deployment under the respondent Accountant
General.
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8. The counter affidavit further rebuts most of the
positions which have been taken in the writ application. It also
indicates the various pay-scales to which petitioner was entitled
from time to time and the settlement of the retiral dues of the
petitioner and other benefits as an employee of the Accountant
General. All this adds up to only one position that claim of the
petitioner lacks bonafide and has no legal basis. The reason for the
petitioner to embark on a litigation of the kind is available from the
pleadings and the assertions made in the counter affidavit on behalf
of the respondents No.7 and 8.
9. Obviously the present writ application has been
filed with oblique motive to derive uncalled for benefit and re-open
an issue which was settled years ago by the acceptance of the
petitioner to join the office of the respondent Accountant General
and having superannuated in the year 1993. In fact, any indulgence
shown to the petitioner would open a flood gate of litigations and
will encourage many similarly situated persons to demand similar
kind of relief, which is not otherwise available to them after having
worked in the capacity as Emergency Divisional Accountant, for
more than two decades on the request and acceptance of the
employees who were deployed or deputed under the Accountant
General and came to be permanently engaged and utilized, till they
superannuated.
10. The Court therefore will not go by the bald
assertions that all these actions were taken against the petitioner
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without his consent or his willingness to join the post of
Emergency Divisional Accountant under the respondent
Accountant General.
11. Such a writ application does not deserve any
indulgence in absence of any factual or legal infirmity having
emerged in the above stated background.
12. The writ application is dismissed as being devoid
of merit.
rkp ( Ajay Kumar Tripathi, J.)