Sukumar Bhattacharya and etc. etc. vs State of Bihar and Others etc.

Navniti Prasad Singh, J.—These seven writ petitions are by the employees, who were in Governor''s Secretariat Service and were dismissed by the Governor but subsequently re-appointed in State service by the State Government. So far as petitioners, Sukumar Bhattacharaya, Lilu Kujur and Mangta Uraon being writ petitioners in 1st, 4th and 7th writ petitions are concerned, after bifurcation of the State, they were allotted State of Jharkhand upon bifurcation of cadre. Ordinarily this Court would have insisted upon the State of Jharkhand being made a party but in the facts and the circumstances as would appear it is not necessary to do so now.

The facts are not in dispute.

Petitioners'' grievance is that upon their re-instatement in State Government Service they ought to be allowed benefit of earlier service as rendered in the Governor''s Secretariat for the purposes of their pensionary benefits. State, on the other hand, takes a stand that the very letters by which they were re-instated in the State service clearly points out that it was a fresh new appointment and as such their past service rendered in Governor''s Secretariat could not be taken into account for grant of pension or pensionary benefits in terms of Bihar Pension Rules.

The first three writ petitions are by Class III employees and the rest four writ petitions are by Class IV employees.

It appears that in 1991 the non gazetted employees of the State, which included the employees of the Governor''s Secretariat gave notice to go on indefinite strike raising various demands. The petitioners who were in the Governor''s Secretariat service, which is an independent cadre, also gave similar notice to the Governor. Some of them were immediately suspended and departmental proceedings were initiated against them. Some of them, who were not suspended, went on strike joining other members who were non gazetted in Governor Secretariat service. Ultimately about 105 employees of the Governor''s Secretariat, who were non gazetted employees, were dismissed by the order of the Governor after departmental enquiry. This happened in 1992. It is not in dispute that a large number of such dismissed employees then approached the Governor, who, apparently, reconsidered the matter, in individual cases and upon undertaking given by those non gazetted employees of good conduct and obedience, Governor agreed to reinstate them, but with condition that for the period they had been not worked i.e. being either on strike or after dismissal till their reinstatement, they were not to be paid anything but that period was not to be taken as break in service for the purposes of pensionary benefits. These petitioners apparently for some reason or the other were not taken back by the Governor in-spite of request by the Chief Minister. An agreement, in 1993, between a faction of non gazetted employees and the State Government was entered into, which is Annexure A to the counter affidavit of the State. As per said agreement and in particular clause 10 thereof, the State Government agreed to re-employ those employees of the Governor''s Secretariat, who had not been taken back in service by the Governor. In 1995, the State Government took a policy decision apparently pursuant to this agreement that those employees, who have been left out by the Governor and have not been reinstated by the Governor, would be offered re-employment in the State cadre. They would not claim seniority on basis of past service nor would they claim pay fixation on basis of their past service and that this employment would a fresh new re-employment altogether. Upon this policy decision, on different times these petitioners, with these clear stipulations, were issued fresh employment letters relaxing rules of procedure for appointments. The petitioners joined their designated post under the State Government in different cadre of the State Secretariat Service. They represented to the State Government that at least for the purposes of pensionary benefits they be granted continuity of service i.e. the service rendered in the cadre of Governor Secretariat be taken into account but the State Government having refused to accede to the said request, the writ petitions were filed.

Mr. Gayanand Roy, learned Counsel appearing in support of writ petitions, submits that disability attached to the re-employment of the petitioners have been categorically stated in their letters of appointment i.e. they would not claim seniority on basis of their earlier service, they would not claim fixation of pay on basis of their earlier service but in this letter no where it is mentioned that they would not claim continuity of service or benefit of past service for the purposes of pensionary benefit and thus he relied to the maxim of expressio unius est exclusio alterius of conditions impliedly excludes of others. In other words, he submits that if the State Government wanted to deprive the petitioners of their past service for the purposes of pensionary benefits also they ought to have so mentioned in the letter of re-employment as they had mentioned other conditions in respect of pay fixation and seniority.

On the other hand Mr. S. Raza Ahmadm learned A.A.G. IX submits that the letter of reappointment itself clearly mentioned that it was a fresh new appointment altogether. That should have settled the matter in all aspects but only as abundant caution it is stated that for the purpose of seniority and pay scale, the past service would not be taken into account. That does not mean that even though the employment was a fresh new appointment in a new cadre after a long break in service benefit of past service would be given. He further submitted that so far as dismissal order is concerned, that had attained finality. That has neither been reviewed nor recalled nor had been set aside. In that view of the matter dismissal order having attained finality, benefit of service prior to dismissal cannot be given for the purpose of pensionary benefit as that would run contrary to Rule 103 of the Bihar Pension Rules, 1950.

Mr. Gyanand Roy then points out that several of the employees who were dismissed by the Governor were permitted to re-join in -the Governor''s Secretariat and it was specifically mentioned that they would get benefit of continuity of service for the purposes of pension and pensionary benefit, depriving these petitioners of that benefit would be unfair and unreasonable.

Having considered the matter, in my view, the writ petitions cannot succeed.

One has to consider the manner in which others and the petitioners have been brought back in service.

So far as others, who were brought back in service by the Governor, the legal position is quite different from that of the petitioners. The Governor had passed the dismissal order. He must have reconsidered the matter because after a gap of long period, those persons, who were dismissed by the Governor, were permitted to rejoin. Those orders are on record. In those orders, it is clearly mentioned that they were being permitted to rejoin and not re-appointed. It was further clearly mentioned that for the period they were not in service that period would be treated as extra ordinary leave without pay and they would be treated in continuous service for the purpose of pensionary benefit.

So far as petitioners are concerned, their dismissal order attained finality. It was never reviewed, recalled or set aside by any authority at any point of time. Thus, the master servant relationship permanently came to an end. Apparently, the Governor did not accede to the request of the Chief Minister with regard to taking them back in service. As noted above, the employees of the Governor''s Secretariat formed a cadre by themselves and the Governor is the cadre controlling authority. The order of dismissal having attained finality, the relationships of master and servant have been broken. When the State Government took a decision to give re-employment to them, with clear stipulation that it would be a fresh new employment, the Government could not grant them continuity of service for the simple reason that the order of dismissal had attained finality. It is because of that the very appointment letter which the petitioner accepted and pursuant to which they joined stipulated that it was a fresh new appointment. In this connection I may refer to Rules 102 and 103 of the Bihar Pension Rules, 1950:--

Any authority who, on revision or appeal, reverses an order dismissing or removing a Government servant, may declare that his past service counts.

Sub-section (3)--Forfeiture of past service on account of interruptions.

An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:--

(a) Authorized leave of absence.

(b) Unauthorized absence in continuation of authorized leave of absence so long as the post of the absentee is not substantively filled; if his post is substantively filled, the past service of the absentee is forfeited.

(c) Suspension, where it is immediately followed by reinstatement whether to the same or to a different post, or where the Government servant dies or is permitted to retire or is retired while under suspension.

(d) Abolition of the post or loss of appointment owing to reduction of establishment.

(e) Transfer to non-qualifying service in an establishment under Government control. The transfer must be made by a competent authority; a Government servant who voluntarily resigns qualifying service cannot claim the benefit of his exception. Transfer to a grant-in-aid school entails forfeiture.

(f) Time occupied in transit from one appointment to another provided that the Government servant is transferred under the orders of competent authority, or, if he is a non-gazetted Government servant with the consent of the head of his old office.

From the aforesaid two rules it would be seen that so far as people who were employed in Governor''s Secretariat it would be Rule 102 that would apply as the order of dismissal stood revoked by the Governor upon taking them back in service but so far as petitioners are concerned to them Rule 103 would apply as their services were interrupted by a dismissal order, which had attained finality. They would forfeit their past service there being a break.

In my view, the stipulation in the fresh re-employment letter of petitioners that they would not claim benefit of past service for the purpose of pay or seniority was made by way of abundant caution i.e. ex abundans cautela. The principle of expressio unius est exclusio is altrius would not apply because the very nature of appointment is a fresh new appointment. It was only so stated to make it explicit what was implication in the nature of fresh employment.

This can be seen from other angle. The petitioners were dismissed from the cadre employees of the Governor Secretariat they were being brought in service in Secretariat cadre after a long gap after relaxing the recruitment rules. This would have led a lot of complications in matters of fixation of pay scale and seniority inter se existing employees in the said cadre. Thus, to obviate any such difficulty the stipulation was made. It was never the intention of the Government to deny them the seniority and the pay scale on basis of past service but to give them pensionary benefit taking into account past service. The very nature of appointment was a fresh new appointment. It was not re-instatement because the order of dismissal had attained finality. If one appreciates this distinction between two classes it would be found that there is no unreasonableness or discrimination. They are two different classes. (1) where Governor revoked his earlier order of dismissal and took them back in service and the other class is that of the petitioners where the dismissal order became final and the Government took an independent decision to re-employ them. Thus, in my view, the writ petitions merit no consideration and are dismissed as such.