VINOD KUMAR ROY Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Subodh Kumar Jha, learned counsel for the petitioner assisted by Mr. Karuna Kant Jha and Mr. Arbind Kumar, A.C. to G.A.-9 for the respondent-State. C.W.J.C. No. 12099 of 2012 has been filed for quashing of the order dated 10.05.2012 issued under the signature of the respondent no. 2, the Principal Secretary, Department of Transport, Government of Bihar which according to the petitioner has unilaterally reviewed the earlier order passed by the Hon'ble Minister-cum-Appellate Authority, Transport Department dated 08.02.2012 communicated to the petitioner on 10.02.2012, passed in Appeal Case No. 01 of 2010, challenging as to whether a quasi-judicial order can be superseded by an administrative order unilaterally without notice to the petitioner or affording opportunity of hearing. An additional prayer has been made for entire arrear of salary due since August, 2008 and treating him to be in continuous service in the Department of Transport in view of the order dated 08.02.2012 as contained in Annexure-2. However, during pendency of the present writ application, the petitioner superannuated from service w.e.f. 30.06.2014 and since petitioner was aggrieved by non-payment of salary since August, 2008 and post-retiral benefits, C.W.J.C. No. 5932 of 2015 has been preferred by the petitioner and claim is advanced for ACPs/MACPs benefit and arrears of salary accrued due to ACPs/MACPs calculated on the basis of 6th pay revision, dues of salary from September, 2008 till superannuation and post- retiral benefits from the date of superannuation i.e. 30.06.2014. An additional prayer has been made in C.W.J.C. No. 5932 of 2015 as to fixation of burden of his claim upon either of the two departments i.e. the Water Resources, Minor Irrigation Department where the petitioner was earlier transferred way back in the year 1984 or from the Transport Department, Government of Bihar where he joined as Motor Vehicle Inspector in the year 1996. Thus, for the sake of convenience, the facts of C.W.J.C. No. 12099 of 2012 is taken up which will decide the controversy raised in C.W.J.C. No. 5932 of 2012 as well.

(2.) The brief facts relating to the present controversy is that the petitioner was appointed as a Junior Engineer (Civil) on 12.03.1979 under the Water Resources Irrigation Department. On 17.8.1984, the petitioner was transferred from Water Resources Irrigation Department to Water Resources Minor Irrigation Department, Government of Bihar. The petitioner was sent of deputation on 15.03.1996 in the Transport Department as a Motor Vehicle Inspector with a stipulation that as and when the appointment of Motor Vehicle Inspectors would be made, the petitioner would revert back to his parent department with a further stipulation that the petitioner would be also sent to his parent department at any point of time and would not be entitled to special pay or deputation allowances but payment of his salary would be made on the vacant post of the Motor Vehicle Inspector. Subsequent thereto, petitioner joined as a Motor Vehicle Inspector in the Transport Department, Government of Bihar on 16.03.1996. During his tenure as a deputationist Motor Vehicle Inspector, on account of certain misconduct a charge memo was served on him and departmental proceeding was initiated by the Transport Department, Government of Bihar. A major penalty order was passed vide Memo No. 5624 dated 09.09.2008 imposing penalty of stoppage of four increments with cumulative effect as well as the petitioner was sent back to his parent department with immediate effect (Annexure-2 of C.W.J.C. No. 5932 of 2015). The petitioner challenged the penalty order before the Hon'ble High Court of Patna in C.W.J.C. No. 14123 of 2009 which was withdrawn on 07.11.2009 with a liberty to avail the alternative remedy of appeal. The appeal filed by the petitioner before the Hon'ble Minister Transport on 22.12.2009 having not been disposed, the petitioner again preferred a writ application before this Court being C.W.J.C. No. 16409 of 2011 which was disposed of by order dated 15.11.2011 for disposing of the appeal by the Appellate Authority. The Appellate Authority decided the appeal preferred by the petitioner being Appeal No. 01 of 2010 vide order dated 08.02.2012 (Annexure-2 of C.W.J.C. No. 12099 of 2012) quashing the order dated 09.09.2008 and the major penalty of stoppage of four increments with cumulative effect was substituted by warning. A further stipulation was that the petitioner would be retained as a Motor Vehicle Inspector in the Transport Department and his services would be treated as continuous from August 2008 and salary would be paid from the Transport Department.

(3.) However, the Principal Secretary, Transport Department unilaterally took a decision vide letter no. 1054 dated 06.03.2012 as contained in Annexure-8 stating therein that since the services of the petitioner has been returned back to the Water Resources Department w.e.f. 09.09.2008 hence observed that the petitioner be requisitioned for deputation in the Transport Department from the Water Resources Department and after getting details of the payment of salary made to the petitioner from 09.09.2008 steps be taken for payment of salary to the petitioner. Petitioner filed representation which are Annexures-9 and 10 on 14.09.2012 and 02.06.2012 before the Principal Secretary, Transport Department that his services were never taken back by the Water Resources Department in spite of the punishment order no. 5624 dated 09.09.2008 and neither his joining is being accepted nor any payment of salary is being made. Again an order dated 10.05.2012 was passed by the Principal Secretary, Department of Transport reviewing the order of the Appellate Authority dated 08.02.2012 that till the dispute regarding salary w.e.f. 09.09.2008 till the date of order of the Appellate Authority i.e. 08.02.2012 is resolved by the Water Resources Department and then requisition for deputation of the petitioner be made from the Water Resources Department the petitioner could not be taken in the services of Transport Department.