STATE OF BIHAR Vs. SHAH WALIULLAH TARIQUE

JUDGEMENT

(1.) Heard Mr. Vinay Kirti Singh, learned Standing Counsel No. 5 for the appellants, and Mr. Behzad Akhtar for the respondent. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 24.11.2009, passed by a learned Single Judge of this Court in C.W.J.C. No. 14756 of 2009 (Shah Waliullah Tarique v. The State of Bihar & Ors.), whereby the writ petition has been allowed and the prayer of the writ petitioner (respondent herein), to withdraw his application for voluntary retirement in terms of rule 74 (b)(i) of the Bihar Service Code (hereinafter referred to as 'the Code'), may be deemed to have been withdrawn on account of the conduct of the parties, has been upheld.

(2.) A brief statement of facts essential for the disposal of this appeal may be indicated. The respondent was, at the relevant point of time, serving Government of Bihar as assistant translator in Urdu. By order dated 31.12.2002, he was transferred from Mehsi Prakhand to Sitamarhi Collectorate. By order dated 30.6.2008, he was transferred from Sitamarhi Collectorate to Patahi Prakhand which was not to his liking. He, therefore, made attempts to be posted either at Sitamarhi or at Muzaffarpur allegedly on health grounds. It appears that the respondent authorities did not accede to his request. Consequently, the respondent submitted his letter dated 3.7.2008, stating therein that, in view of the aforesaid circumstances, he may be allowed to take voluntary retirement in terms of Rule 74(b)(i) of the Code. Before he could receive a formal communication from the State Government about his letter seeking voluntary retirement, he joined Patahi Prakhand on 4.5.2009. He thereafter came to know about the impugned order dated 25.8.2009, whereby the application for voluntary retirement was accepted, leading to the writ petition. The same (writ petition) has been allowed on the ground that the letter for voluntary retirement was based on his grievance caused by3 the refusal on the part of the authorities to post him at a place of his choice on medical grounds. Learned Single Judge has proceeded to observe that, in view of his fresh thinking, he had joined the Patahi Prakhand and, therefore, the very basis of his application for voluntary retirement came to an end. The writ petition has been allowed, and the impugned order dated 25.8.2009, has been set aside on the ground that the respondent's application for voluntary retirement automatically stood withdrawn because of conduct of the parties.

(3.) We have perused the materials on record and considered the submissions of learned counsel for the parties. We entirely agree with the grievance raised by the learned Standing Counsel that the learned Single Judge did not allow any opportunity to the appellants to file counter affidavit. It appears from the record of the writ proceeding that the writ petition was lodged in this Court on 5.11.2009, and it was for the first time laid before the learned Single Judge on 20.11.2009, on which date the brief order is recorded "Order reserved". The writ petition was allowed by order dated 24.11.2009. It is, therefore, evident on the face of the record of the writ proceeding that the learned Single Judge did not afford the minimum opportunity to the State of Bihar to place on record their counter affidavit. Justice hurried is justice buried.