MD.NIJAM Vs. STATE OF BIHAR WITH

JUDGEMENT

(1.) HEARD learned counsel appearing for the parties.

(2.) THESE two letters patent appeals have been filed against the order dated 18.3.2008 passed by the learned Single Judge in C.W.J.C. No. 16333 of 2006. The State of Bihar is the appellant in L.P. A. No. 556 of 2008 whereas the writ petitioner, whose writ petition was allowed in part, is the appellant in L.P.A. No. 492 of 2008. The writ petitioner had projected two grievances before the learned Single Judge, the first one was relating to non -fixation of the pay scale of the petitioner with effect from July, 2002 which was apparently on the basis of the audit objection contained in Annexures -3 & 4. The second prayer in the writ petition is to treat his age of superannuation as 60 years on the ground that as per decision of the Corporation in the year 1976, the service conditions applicable to the employees of the State Government was applicable to the employees of the Corporation and the age of retirement of the Government employees having been raised to 60. years, automatically the age of superannuation of the employees of the Corporation should be 60. years. However, the background in which the writ petitioner has filed the writ petition was slightly different. The petitioner was admittedly an employee of the Bihar State Construction Corporation (respondent no.9 in the writ petition). He had come to the Department of Social Welfare under the State Government in the year 1997. After the Government had raised the age of superannuation from 58 to 60 years, the petitioner apprehending that he may be allowed to retire at the age of 58 years since he was an employee of the Corporation, made a representation to the Department that he should be allowed to continue in service till the age of 60 years. The department at that stage thought it prudent to repatriate the petitioner to the respondent Corporation just two days before the petitioner had to attain the age of 58 years. That became the subject matter of the dispute. However, even though the reliefs claimed were confusing, the learned Single Judge has rightly construed that the main grievance of the petitioner was against the order of his repatriation to the parent Corporation. The learned Single Judge came to the conclusion that the order relating to repatriation of the writ petitioner to the respondent Corporation was unjust and arbitrary inasmuch as the writ petitioner was being sent back to the Corporation just before he was going to attain the age of 58 years. The learned Single Judge by placing reliance on the earlier Division Bench decision of this Court in the case of Lala Nand Kumar Vs. Bihar State Food & Civil Supplies Corporation Limited, reported in 2008(1) PUR 579 has observed that to send the petitioner to his parent Corporation would be that he would not get his salary due to financial stringency which was comtrary to the earlier decision of the High Court and, therefore, such order was illegal.

(3.) IN the appeal filed by the State Government it is contended that the writ petitioner had come on deputation and he cannot claim as a matter of right that he should serve the foreign department for all times to come and it was within the discretion of the State Government to repatriate the writ petitioner to the respondent -Corporation.