STATE OF BIHAR Vs. PREMA DEVI

JUDGEMENT

(1.) THIS review application has been filed by the State of Bihar seeking review of paragraph nos.10 & 11 of the judgment dated 16.7.91 passed in C.W.J.C. No. 2471/90(R) as also payment of cost. The original writ petitioner, Sheo Saran Prasad, serving as Assistant in the Hazaribagh Collectorate, superannuated in the year 1988. After superannuation when he was not paid the retirement benefits and other dues he filed two writ application being C.W.J.C. No. 2471/90(R) and 2472/90(R). In C.W.J.C. No. 2471/90(R) the petitioner sought for reliefs for fixation of pay and for payment of legal dues and in C.W.J.C. No. 2472/90(R) the petitioner claimed payment of post retirement benefits. C.W.J.C. No. 2471/90(R) was disposed of in terms of judgment dated 16th July, 1991, while C.W.J.C. No. 2472/90(R) was disposed of in terms of judgment and order dated 13.5.92. In the instant application the petitioner sought for review of paragraph nos.10 and 11 of the judgment passed in C.W.J.C. No. 2471/90(R) which reads as under: "10. It is not the case of the respondents that the petitioner was not fully exonerated so as to attract the provisions of Sub -rule 2 of Rule 97 of the Bihar Service Code (assuming the said provision had any application to the facts of this case) and thus, there can not be any doubt that the direction of the Deputy Commissioner, Hazaribagh, as contained in his office order dated 4.7.1991 (contained in Annexure - c to the counter - affidavit) whereby the original petitioner had been directed to get only half salary for the period from 5.7.1966 to 3.7.1966 and the period from 4.7.1966 to 30.9.1966 be treated as extra ordinary leave, must be held to be wholly illegal and without jurisdiction. "11. It is now well known that for the purpose of grant of extraordinary leave, the two pre -conditions as laid down under Rule 236 of the Bihar Service Code must be fulfilled. Such being not the position here, the petitioner is entitled to the full salary during the aforementioned periods."

(2.) ACCORDING to the petitioner the order dated 4.7.91 was passed by the Deputy Commissioner on the basis of the order dated 10.9.69 passed by the Commissioner allowing the appeal of the Opp. Party and set aside the order of removal of the respondent from service on certain conditions enumerated in paragraph no.7 of the review application. According to the petitioner - State, this fact was not brought to the notice of the Court and finding arrived at by the learned Judge in paragraph 10 of the judgment is an error of record.

(3.) FROM perusal of the paragraph no.7 of the judgment it is evident that the main question formulated for consideration and decision was as to whether the respondents were correct in directing in terms of the order dated 4.7.91 that the period from 5.1.66 to 3.7.66 is to be treated on half -pay leave and from 4.7.66 to 30.9.69 to be treated to be a period spent by the petitioner on extraordinary leave. Nothing was brought in the counter -affidavit to the effect that the order of removal of the petitioner from service was set aside by the Commissioner on certain conditions.