AMARESHWAR SAHAY, J. - (1.) THE prayer of the petitioner in this writ application is for a direction to the respondents to treat the petitioner in continuous service from 26.12.1962 to 31.5.1996, the date on which he superannuated and to pay the retirement dues to the petitioner after computing pensionary benefits, accordingly.
(2.) THE case of the petitioner is that being appointed as Upper Division Clerk (Accounts), he joined on 26.12.1962 as Accounts Officer (Mechanical), Koshi Project, Birpur. Thereafter by Wireless message dated 24.9.1965 he was transferred for being posted In the Office of Accounts Officer, Tenughat Project, Tenughat and for the purpose of joining the said post, he was being relieved on 30.9.1965 with a direction to join by 11.10.1965. The further case of the petitioner is that due to illness and other unavoidable circumstances, he could not join his place of posting and he was compelled to continue on leave till January, 1979 and then in February, 1979 he made a request in writing for sanction of extraordinary leave for the period during which he remained absent. Thereafter by issue of Annexure -2, the office order dated 6.2.1979, the absence of the petitioner from 11.10.1965, till the date of his Joining was treated to be leave without pay and by the said order, the petitioner was appointed temporarily against the vacant post of Upper Division Clerk (Accounts) and it was directed that he would be given the pay -scale of Upper Division Clerk (Accounts) i.e. Rs. 260 -6 -296 -8 -408/ - with other allowances. Further he was directed to join the said post in the Accounts Office of North Koyal Project, Daltonganj. Subsequently by office order No. 3446 dated 17.12.1979, he was placed on deputation to Bihar State Electricity Board and was posted in the Office of Electrical Superintending Engineer, Deoghar Electricity circle, Deoghar, where he joined the service under the Bihar State Electricity Board on 17.1.1980. By order dated 3.12.1982, the services of the petitioner was returned back to his parent department i.e. the Irrigation Department and he was relieved from the service of the Electricity Board on 10.12.1982. He was placed under Chief Engineer, Water Resources, Deoghar and consequently the Chief Engineer posted him in the Irrigation Department, Mechanical Division, Deoghar. It is said that the petitioner was going to superannuate with effect from 31.6.1996 and he came to know that the Department is treating him to be a fresh appointee on the basis of office order dated 6.2.1979 (Annexure 2) wherein it was mentioned that the petitioner was 'appointed', which according to him was a misnomer and in place of the word 'posted', it was mentioned as 'appointed' and, therefore, he represented the matter by his representation dated 15.4.1996, which was forwarded by the covering letter of the Executive Engineer as contained in Annexure -3 to the writ application. By filing the said representation, the petitioner prayed for substituting the word 'posted' in place of the word 'appointment' by modifying the order dated 6.2.1979. No order was passed on the representation of the petitioner and ultimately the petitioner retired from service on 31.5.1996. The petitioner states that since no action was taken on his representation and, as such, he gave a notice on 6.7.1976, in response to which the Accounts Officer (Administration) posted in the Office of the Financial Advisor -cum -Chief Accounts Officer, Water Resources Department, Government of Bihar, Patna sent a reply letter dated 29.8.1996, mentioning therein that under the provisions of Rule 236 of the Bihar Civil Services Code and Article 198 of the Civil Services Regulation, the petitioner would be deemed to be out of employment and, as such, the use of the word 'appointment' in the order dated 6.2.1979 was perfectly Justified.
(3.) ACCORDING to, the petitioner by order dated 6.2.1979, he was granted leave from 11.10.1965 to 14.2.1979 for all purposes and, therefore, he got continuity of service from 26.12.1962. It is further asserted that the petitioner was never terminated from service prior to 6.2.1979 and since his leave was sanctioned from 11.10.1965 to 14.2.1979 and, therefore, the respondents had no option but to treat the continuity of the service of the petitioner from 26.12.1965 till the date of his retirement.;