BHUBNESHWAR DHARI SINGH Vs. THE STATE OF BIHAR AND ANOTHER

JUDGEMENT

(1.) Whether an unconditional re -employment necessarily implies an identity of emoluments with the former employment is the surviving significant question in this writ petition. After a distinguished tenure of nearly one decade, the petitioner retired from the Bench of the High Courts of Patna on the 31st of October, 1977. Admittedly on the date of his retirement, he was drawing Rs. 3,500/ -as salary, Rs. 437.50 as house rent allowance and Rs. 300/ - as car allowance. On the 1st of August, 1978 (vide notification, annexure 1) the petitioner was unconditionally re -employed as the Presiding Officer of the Industrial Tribunal, Patna, for one year with effect from the date of assuming charge. Later, the petitioner's re -employment -was continued by another similar notification, and he continued to serve in the said post till the 31st of October, 1980. Inevitably , the petitioner, soon after allowance at the same rate which the petitioner was enjoying prior to his retirement but was given pay slip only for the salary minus the pension equivalent gratuity. The petitioner represented to the Chief Minister of the respondent State of Bihar highlighting therein that Shri Durga Prasad Sinha and Shri Jitendra Narain, former Judges of the High Court, on re -employment, had been allowed to draw the amount of house rent and car allowance in similar circumstances. However, this representation was rejected (vide annexure 3 dated the 3rd of January 1980) without assigning any meaningful reasons. The petitioner thereafter represented afresh but no reply was vouchsafed.

(2.) By another representation dated the 25th November, 1981 (vide annexure B) the petitioner also claimed cash equivalent of 49 days' leave salary in respect of earned leave due to his credit on the date of his retirement but equally no response thereto was made by the respondent either Aggrieved thereby, the present writ petition was filed on 12th of July, 1982.

(3.) The respondent State of Bihar has been somewhat half -hearted and negligent in the defence of this writ petition. Despite repeated opportunities given, no counter affidavit was filed on its behalf. At the close of the hearing -on the 9th of April, 1985 -a last ditch prayer was made for allowing the counter affidavit to be filed, which was permitted. Thereafter the present counter affidavit has been placed on record on 8th of May, 1985. Therein the factual position averred on behalf of the petitioner is not controverted and the stand taken is that according to the Department of Finance in the past no retired Judge of the High Court serving in the State of Bihar on reemployment as Presiding Officer of Labour Tribunal has been allowed house rent and car allowance, and it is stated that the facility given to a High Court Judge has got no bearing on the present case. Reliance has been placed on rule 16(b) of the Bihar Pension Rules, and it is, inter alia, averred that the payment of house rent allowance, car allowance and cash equivalent to earned leave to the petitioner would have repercussion on the salary and allowances of all Presiding Officers on re -employment. It is admitted that Mr. Justice D.P. Sinha and Mr. Justice Jitendra Narain on re -employment were allowed these benefits but it is claimed that their terms of re -employment were settled through negotiation. Reference is also made to the Finance Department Circular no. PC -2 -9 -8/81 -2020 dated 21st of August, 1982, whereby it has been decided that a Government servant on re -employment will not be entitled to cash equivalent in lieu of leave earned during the period of his re -employment, and on that basis the petitioner is sought to be denied the same relief.