STATE OF BIHAR Vs. DINESH CHANDRA SINHA

JUDGEMENT

(1.) THE delay in filing the appeal is condoned.

(2.) THIS letters patent appeal has been filed by the State of Bihar challenging the order of 17.2.2003 passed on CWJC No. 13383 of 2002 : Dinesh Chandra Sinha V/s. The State of Bihar & Ors. Regard being had to the circumstances, as such instances are coming to light before the High Court more often, it would be best to reproduce the order of the learned Judge. It runs thus : "In this writ petition, petitioner who retired on 31.3.2000 while working as Correspondence Clerk in the office of District Statistical Officer, Siwan, is aggrieved by the order contained in Annexure -5, whereby the Director, Statistical and Evaluation, Planning and Development Department, Government of Bihar, Patna (Respondent no. 2), has reviewed his earlier order contained in Directorates order no. 139 (memo no. 229) dated 15.1.1989, by which leave for the period mentioned therein were sanctioned. According to the Director, the sanction of the said leave was not in accordance with the Rules and, as such, he has passed the impugned order after about 13 years of sanction of the leave and consequently has pleaded break in service for the period 1.1.1972 to 8.10.1972 and 1.5.1975 to 4.2.1981, which obviously resulted in reduction of pension. According to the learned counsel for the State leave sanctioned to the petitioner earlier were contrary to the Rules and, as such, the present Director has corrected the mistake which is purely administrative decision, and as such, there is no infirmity in the impugned order. I am unable to accept the said submission of the learned counsel for the State. It is not disputed that the leave for the said period was sanctioned to the petitioner as extraordinary leave with half pay for the period 1.1.1972 to 8.10.1972 on account of illness and leave without pay for the same reason for the period 1.5.1975 to 4.2.1981. As such, it is not a case of correction in the calculation made on administrative side. In fact, it is a case where the successor Director in office has reviewed the earlier decision regarding grant of leave and has treated the said period as break in service, which in view of the law settled in the case of Patel Narshi Thakershi V/s. Pradyamunsinghji Arjunsinghji, reported in A.I.R. 1970 Supreme Court 1273 is not permissible. In the result, writ application is allowed. The impugned order, contained in Annexure -5 is quashed. The Respondents are directed to issue fresh sanction order with respect to pension and gratuity accordingly within one week of the receipt/production of a copy of this order. It is needless to say that the Accountant General, Bihar, Patna shall issue necessary authority within one week of the receipt of the sanction order."

(3.) THE order of the learned judge is on a very broad aspect that if any administrative direction may affect the service of a person or for that matter a pensioner to affect his pension adversely, the grant of leave should have been the subject matter of consideration in the normal course during the service of the incumbent. Now that the petitioner has retired on 31 March, 2000, to open up any record after 13 years for reducing the pensionary benefits and recording a note, to the effect, that a certain period of leaves beginning from 1 June, 1970 to 18 December, 1995 (56 items mentioned in Annexure -5) should not be reconsidered behind the back of the petitioner.