STATE OF BIHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned counsel for the petitioners who are the State of Bihar, and the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar and also learned counsel for respondent no. 2 who had preferred O.A. No. 75 of 2003 before the Central Administrative Tribunal, Patna Bench, Patna which has been allowed in part by the impugned order dated 15.1.2008. Nobody appeared on behalf of the Union of India.

(2.) The relevant facts are not in dispute and in brief they may be summarized as follows: The applicant is a member of Indian Administrative Service belonging to 1974 Batch, Bihar Cadre. He received promotion in the Super Time Scale of pay corresponding to Commissioner rank in October,1990. In December, 2000 he was posted in a cadre post of Excise Commissioner-Cum-Secretary and thereafter on 10.2.2001 he was posted as the State Editor Gazetteer, Department of Revenue and Land Reforms, Government of Bihar. But he did not join that post on the ground that he found the post to be virtually non-existent post and against said transfer the applicant filed O.A. No. 105 of 2001 before the Central Administrative Tribunal, Patna Bench, Patna which was dismissed on 27.3.2001. His writ petition bearing C.W.J.C. No. 7101 of 2001 against the said order of the Tribunal was disposed of vide order dated 17.10.2005. This date has been wrongly mentioned in the writ petition as 19.10.2005 as apparent from a copy of the order available as Annexure-E to I.A. No. 4827 of 2009 filed by the applicant for vacating the order of stay dated 16.7.2008 passed in the present proceeding. During the pendency of the aforesaid writ petition the applicant filed another application bearing O.A. No. 75 of 2003 before the Central Administrative Tribunal, Patna Bench, Patna for a direction for payment of his salary since February,2000. By an order dated 23.8.2004 the learned Tribunal considered the fact that till then the applicant had not joined his post or submitted joining before the Chief Secretary and therefore the Tribunal directed the applicant to submit his joining report before the Chief Secretary, Govt. of Bihar within one week which should be accepted and thereafter appropriate order would be passed for payment of his salary as per law. The applicant submitted his joining report on 25.8.2004 but actually joined on the post on 9.10.2004 which was made available in the main Secretariat Building. By an order dated 30-10-2004 the State Government regularized the period from 25.8.2004 to 8.10.2004 and the applicant was paid salary for this period. In this order/letter dated 30.10.2004 addressed to the Accountant General of Bihar, Patna, it is mentioned that decision about regularization of period prior to 25.8.2004 would be taken separately. Pursuant to a direction of the learned Tribunal, the State Government by order dated 20th September, 2006 contained in notification no. 9487 took a decision to treat the period from 1.3.2001 to 24.8.2004 as extra-ordinary leave. Under Rule 15 of All India Services (Leave) Rules, 1955 (hereinafter referred to as the Rules) such leave does not entitle the applicant to any leave salary. This decision was assailed by the applicant in pending O.A. No. 75 of 2003 which was finally decided partly in favour of the applicant by order dated 15.1.2008 which is under challenge.

(3.) By the impugned order the Tribunal considered the question as to whether the applicant can be allowed salary from 1.3.2001 to 24.8.2004, the period when he had not joined the post nor had given any joining report nor had done any work. For deciding this question the learned Tribunal considered paragraph-5 of the written statement of the Union of India which is extracted in paragraph-12 of the impugned order. As per that statement the State Government had declared the post in question as Ex-cadre post in the year 1997-98 and further on 10th February, 2001 when the applicant was posted against this post, no further proposal for continuation of that post beyond the period of two years had been received by the Central Government till then. The State Government's quinquennial Cadre Review proposal which was under consideration had also not proposed encadrement of any such post and therefore the continued posting of the applicant was not under the provisions of I.A.S.(Cadre) Rules. The Tribunal on consideration of second proviso to Rule 4 of the Cadre Rules found that the State Government may add, for a period not exceeding one year, and with the approval of the Central Government for a further period not exceeding two years, one or more posts carrying duties and responsibilities of a like nature to the cadre posts.