Pramod Kumar v. State of Bihar — 1991 DIGILAW 355 (PAT)

Judgment U.P. Singh, J. These petitioners have challenged the validity of the order dated 23.9.1989 contained in annexure-1 issued by the Chairman-cum-Managing Director, Bihar Rajya Jal Parshad (respondent no. 3), terminating the services of the petitioners. The petitioners have prayed for a direction to the respondents to reinstate them on the post of Assistant Engineer from which they were illegally terminated. 2. In the year 1980, the Governor of Bihar promulgated an ordinance called Bihar State Water and Sewrage Ordinance (Ordinance no. 3 of 1980) and formed a statutory Board called "Bihar State Water and Sewrage Board" of which respondent no. 3 is the Chairman-cum-Managing Director. The Bihar State Water and Sewrage Board (now called Bihar Rajya Jal Parshad) is a full fledged Works Department. It is responsible for construction of all works relating to Urban Water Supply and drainage system in the capital town of Patna and all important towns of the State of Bihar. Proviso (i) to section 7 of the said Ordinance empowers the Managing Director of the Board to temporarily appoint such officers whose monthly salary does not exceed Rs.2,000/-per month. 3. On 22.10.86 by an order issued by the Superintending Engineer, the first petitioner was appointed as Assistant Engineer on Daily Muster Roll. In February 1988 the then Chief Minister of Bihar', being impressed by the services of the first petitioner, directed the Chairman-cum-Managing Director of the Board to regularise his services. The Superintending Engineer, under whom the first petitioner was posted, recommended for regularising the services of the petitioner vide his letter dated 15.3.88 contained in annexure-4. Meanwhile, the Government changed and the direction of the then Chief Minister was ignored. 4. The second petitioner was also appointed as Assistant Engineer on Daily Wages vide order of the Superintending Engineer issued on 18.12.1986. Similarly petitioner no.3 was also appointed by order dated 17.5.86 (annexures 5 and 6). 5. In December 1988, a joint representation was filed on behalf of the petitioners before respondent no-3 for regularising their services. In view of the policy decision of the Government for regularising services of Degree holders, Engineers working on Daily Wages as Junior Engineers under National Rural Employment Programme as full fledged Assistant Engineers vide notification dated 27.6.1987 the petitioners were all the time expecting a favourable decision but the said representation was neither rejected nor allowed. 6. In view of the policy decision of the Government for regularising services of Degree holders, Engineers working on Daily Wages as Junior Engineers under National Rural Employment Programme as full fledged Assistant Engineers vide notification dated 27.6.1987 the petitioners were all the time expecting a favourable decision but the said representation was neither rejected nor allowed. 6. In the month of November 1986, when all the engineers right from the rank of Chief Engineer to Assistant Engineers went on a lightening strike, a crisis was created in the respondent Board. At that point of time these petitioners saved the prestige of the Board and the essential services were not paralysed and their services were appreciated and satisfied with the work and conduct of the petitioners, they were entrusted with more important works viz. monitoring and quality control in the projects under execution, maintenance and desilting of drains, preparation and checking of estimates, survey and investigation etc. Impressed by their hard work rendered with full satisfaction the daily remuneration of the petitioners was increased from Rs.30/- per day to Rs.55/- per day vide order no. 161 dated 23.5.89 (annexure-10). 7. It may be pointed out that the work load of' the Bihar Rajya Jal Parshad has increased many fold in recent days due to enlargement of its activities and its area of operation has also been extended to all major cities of the State. Just two days before the termination order was passed, the Superintending Engineer had requested respondent no. 3, the Chairman-cum-Managing Director, requesting for deputation of the petitioners for checking estimates of works pending in his office. 8. While contending that the order of termination was irrational, unwarranted, arbitrary and unconstitutional, it was pointed out that the sole ground stated in the order of termination passed by respondent no. 3 stating that the services of the petitioners are not required, was based on nonest grounds. In fact, there is necessity of Assistant Engineers and the services of the petitioners were to be well utilised for efficient and timely execution of various projects taken up by the Bihar Rajya Jal Parshad and in particular drainage schemes in the captal city of Patna, Chapra, Munger, Mokamah and Semaria connected with the Ganga Action Plan, Just two months prior to the termination of the services of the petitioners, respondent, no. 3 had prepared a statement showing sanctioned posts of Engineering Personnel right from the Chief Engineer down to Junior Engineers, which four posts of Assistant Engineers Civil and two posts of Assistant Engineers (Mech) have been shown vacant against the sanctioned post of 36 Assistant Engineers. It has been pointed out that 25 Assistant Engineers from Public Health Engineering Department (P.H.E.D.) and five Assistant Engineers of Irrigation Department working under Bihar Rajya Jal Parshad are on deputation. The statement prepared by respondent no. 3 regarding the sanctioned and vacant posts has been annexed marked Annexure-12 to the writ application. Thus, it has been contended that the order terminating the services of the petitioner was based on a lame excuse and was most irrational. It was unconstitutional and contrary to the Directive Principles of State Policy enshrined in the Constitution. The petitioners were never afforded any opportunity and no prior notice stating any reason for termination was served upon the petitioners. Reliance was placed on a judgment of the Supreme Court dated 16.12.87 rendered in the case of the General Secretary Bihar State Road Transport Corporation Patna v. The Presiding Officer, Industrial Tribunal, rendered in Civil Appeal No. 150 of 1987. In the said case while considering the question whether it would be justified to make regular those employees who have completed service for 240 days, their Lordships observed :- "Since it is admitted that a large number of people have been working as casual labourers for a long number of years, the question whether they were initially appointed regularly or irregularly becomes immaterial for purposes of the question involved in the case. This court has in a number of decisions already rendered by it directed regularisation of casual labourers wherever it found that such labourers had been working for a number of years vide Daily Rated Casual Labour Employees Union P & T Department through Bhartia Dak Tar Mazdoor Manch v. Union of India and others AIR 1957 SC 2342. Following several other decisions their Lordships directed:- "the respondent - Corporation to prepare a reasonable scheme for regularisation of the casual labourers who have been working for more than one year. The scheme will be prepared within 8 months from today. Following several other decisions their Lordships directed:- "the respondent - Corporation to prepare a reasonable scheme for regularisation of the casual labourers who have been working for more than one year. The scheme will be prepared within 8 months from today. We also direct the respondent-Corporation to pay with effect from 1.1.1981 salary and allowances to the casual labdurers at the rates equal to the minimum pay in the pay scale of regularly employed persons in the corresponding orders of the Corporation." 8. In the counter affidavit, the stand taken on behalf of the respondent no. 3 is that without prior approval of the Governor of Bihar respondent no. 3 could not appoint anyone to hold any post emoluments of which was Rs.2,000/- or above indeed, respondent no. 3 has not made any regular appointment of any person on the posts at par with class II posts of the Government. In view of this it hag been contended that none of the petitioners are entitled to any relief as claimed by them. It is further stated that none of the petitioners were appointed as a result of any general advertisement for recruitment issued by respondent no. 3 and none of them fell for consideration among others equally placed qualified Engineers available for recruitment. They were not appointed as a result of positive act of selection for the post from among many applying and competing for such recruitment. Therefore, they did not acquire any right to hold any post against which they were allowed to work as Daily Rated Muster Roll Casual Employee. As such they could not claim a right to regularisation. Since respondent no. 3 authorised revision of daily emoluments of all graduate Civil Engineers from Rs.30/- per day to Rs.55/- per day of work and the same was payable only for 26 days in concerned month, the emoluments to these petitioners were also increased. By letter dated 11th July 1988 addressed to the Secretary, P.H.E.D. Government of Bihar, respondent no. 3 informed the fact that as against 31 approved posts of Assistant Engineers only 23 such engineers were available on their deputation and the Board stood in need of filling up 8 vacancies in the said post of Assistant Engineers. Accordingly respondent no. 3 requested the Government to depute 8 Assistant Engineers to the services of respondent no. 3 by transfer/deputation from the Government Service. Accordingly respondent no. 3 requested the Government to depute 8 Assistant Engineers to the services of respondent no. 3 by transfer/deputation from the Government Service. It has been accepted in paragraph 25 of the counter affidavit that the request for regularisition of service was not examined departmentally either by respondent no. 3 or by concerned department of the Government and no formal orders were issued in regard to such regularisation. The Board does not have any cadre of Engineers of its own and the posts are filled up by transfer/deputation from the P.H.E.D. or Water Resources Department of the Government. The posts will last only as long as Ganga Action Plan work continues and the same are to be completed by 1990-91. Most of the works are in the last stages of completion. The petitioners were engaged on daily rate basis for specified purposes of checking up estimates in the first phase of Ganga Action Plan which concluded in 1989-90 in the 7th Plan period. Execution of all major schemes are however, over. It is stated that 29 out of 43 schemes have been concluded in the very first phase and remaining 14 schemes are also in progress. These schemes are expected to be completed in the first two years of the 8th plan as spill over work. In the circumstances it is not possible to absorb these petitioners. 9. In reply to the counter affidavit it bas been stated that in accordance with the first proviso to section 7 of the Ordinance, respondent no. 3 is fully empowered to create posts, emoluments of which do not exceed Rs.2,000/- per month. He is also empowered to make appointment and as a matter of fact respondent no. 3 has created several posts and made appointments (annexures-13 and 14). It was contended that the petitioners cannot be permitted to suffer for the lapse of respondent no. 3 in not absorbing the petitioners against the vacant/sanctioned post. It was his duty to observe all the necessary formalities in order to absorb them. They worked as Assistant Engineers on daily wages for a period of about three years and thus acquired legal right to continue on the post and be considered for absorption. Paragraph 23 of the counter affidavit fully supports the case of the petitioners that there are still eight vacant posts of Assistant Engineers in the Board. They worked as Assistant Engineers on daily wages for a period of about three years and thus acquired legal right to continue on the post and be considered for absorption. Paragraph 23 of the counter affidavit fully supports the case of the petitioners that there are still eight vacant posts of Assistant Engineers in the Board. In paragraph 24 of the counter affidavit it has been admitted that the scheme under Ganga Action Plan were expected to be completed by the end of March 1991 then how the services of the petitioners were not required in September 1989 when still they had about two years to continue. It has been firmly denied that the petitioners were engaged for the purposes of checking estimates only of Ganga Action Plan. It would be evident from the various Annexures-9 to 11 that all types of works including supervision of works in the field, quality control etc. was entrusted to the petitioners and the petitioners discharged their duties to the satisfaction of respondent no. 3. 10. Having considered every aspect of the matter and after giving anxious consideration to the avernments made in the petition and the affidavits, filed by the parties and keeping in view the principle laid down by the Supreme Court in the case of Daily Rated Casual Labour Employees Union P & T Department through Bhartia Dak Tar Mazdoor Mauch v. Union of India & others, AIR 1987 SC 2342 and the decision rendered in Civil Appeal No. 150 of 1987 in the case of the General Secretary Bihar State Road Transport Corporation Patna v. the Presiding Officer, Industrial Tribunal Patna and others dated 16th December 1987 I hold that the question whether the petitioners were initially appointed regularly or irregularly becomes immaterial when the petitioners worked as casual labourers for long three years continuously and to the full satisfaction of the respondents. By now, the principle has been well settled in a number of decisions rendered by the Supreme Court wherein it directed regularisation of casual labourers wherever it found that such labourers had been working for a number of years. In the facts of the present case, it appears that the order of termination was passed on non-est ground by merely stating that their services were no more required which was passed in September. In the facts of the present case, it appears that the order of termination was passed on non-est ground by merely stating that their services were no more required which was passed in September. 1989 when in paragraph 24 of the counter-affidavit it has been admitted that the schemes under Ganga Action Plan were expected to be completed by the end of March 1991 at the earliest. The statement in paragraph 23 of the counter-affidavit also supports the case of the petitioners that there are still eight vacant posts of Assistant Engineers. Admittedly, the petitioners were never afforded any resonable opportunity to show cause before terminating their services and as such the impugned order is also violative of the principles of natural justice. 11. In this view, the impugned order contained in Annexure-1 is quashed and the respondents are directed to regularise the services of the petitioners and reinstate them on the posts of Assistant Engineer with all such benefits of service admissible to them in accordance with the conditions of service. This application is, accordingly disposed of. There shall be no order as to cost.