RAJENDRA MEHTAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This letters patent appeal has been filed by the petitioner appellant Rajendra Mehtar against the order of 12 September 2002 on CWJC. No. 12122 of 2000; Rajendra Mehtar v. The State of Bihar and others. The petitioner appellant Rajendra Mehtar is the son of Smt. Sanichari Devi. She died in 1996. She worked as a Sweeperess in the Block Office, Dhamdaha, District Purnea. She was initially employed as a daily wager in 1978. She was put on a scale pay in 1981 and continued to draw this scale pay until 1996. When notice was issued on the writ petition, the counter affidavit did not reply to the petition paragraph by paragraph. The counter affidavit conveniently evaded the submissions made in the writ petition. For instance, in paragraph 5 the petitioner stated that his mother received salary from the regular establishment till her death. This submission was not challenged nor contradicted. Sanichari Devi died leaving behind the petitionerand two minor daughters along with a minor son as heirs. The father of these children had pre-deceased the mother, tn the circumstances, these children laid a claim seeking death-cum-retirement benefits.

(2.) Avoiding the reply to the petition after her death argumentative submissions were made in the counter affidavit to the effect that there is a legal requirement that appointment has to be made by the competent authority; the mother of the petitioner appellation was "never formally appointed"; "her so-called appointment was not legal and proper"; "as contingent menial she could never have been legally appointed by the Block Development Officer". In the same breath, it is also acknowledged that a Block Devolopment Officer, Dhamdaha as well as a, Sub-divisional Officer, Dhamdaha had requested the District Development Officer and Nazarat Deputy Collector to regularise "the said unauthorised appointment post facto."

(3.) The counter affidavit which answers the petition is a bundle of contradictions. After the petitioner appellant's mother died, the State respondents were generating records and attempting to pass a resolution by the establishment committee that the petitioner's mother's appointment was "ab initio illegal". It is further submitted in paragraph-7 of the counter affidavit that "the claim of the petitioner appellant for payment of legal dues and other benefits on account of death of his mother while in service is misconstrued, illegal and without any justification; wrong and illegal appointment does not entitle anybody to claim legal benefits which could only be admissible in case appointment is made by a competent authority following the established procedure therefore. As if truer words were never spoken. But, in this case neither facts have been given nor pleaded in the counter affidavit. Subsequently in a supplementary counter affidavit in the letters patent appeal, the Court is being told that since the appointment was illegal, an action is being taken against those who made it. Sanichari Devi, the Class IV Sweeper is dead.