Dina Nath Singh v. State of Bihar — 1998 DIGILAW 205 (PAT)

JUDGMENT Nagendra Rai, J. The petitioner has filed the present application for quashing the order dated 17.12.1996, as contained in Annexure 1, passed by respondent no. 4 – the Managing Director of the Bihar State Warehousing Corporation Patna, (here in after referred to as the corporation). By which the appointment of the petitioner as an assistant has been cancelled and for a direction to reinstate the petitioner. 2. The facts, which are not in dispute, are that the Managing Director of the Corporation is competent to appoint employees of class II and Class III categories. The petitioner was holding the post of Assistant which is a class II category post. 3. On 16.12.1982, the Managing Director of the Corporation engaged the petitioner on daily wages, in pursuance of which he joined on 20.12.1982. A copy of the said order has been annexed as Annexure 2. While the petitioner was working in the said capacity, the executive committee of the Corporation on 10.1.1991 took decision to regularize the services of the daily wages workers keeping in view the policy of the Government to provide employment to one lac people. A copy of the said decision of the executive committee has been annexed as Annexure 3. In pursuance of the aforesaid decision, the petitioner, along with other daily wages employees, was appointed as an Assistant on provisional basis after regularization of their services. It was clarified that the regular appointment would be made after roster clearance by the Bureau of Public Enterprises. A copy of the said order has been annexed as Annexure 4. While the petitioner was working in the said capacity, on 13.7.1995, a show cause notice, a copy of which has been annexed as Annexure 5, was issued to the petitioner as to why his appointment be not cancelled in pursuance of the direction of the State Government to cancel the appointment as the same was snot made according to law. The petitioner filed detailed show cause, stating there in that his services were regularized taking into consideration the long services rendered by him. There are other persons also, whose services have been regularized and there was no ground to terminate his service. A copy of the show-cause filed by the petitioner has been appended as Annexure 6. There after, by the impugned order dated 17.12.1996, as contained in Annexure 4, the services of the petitioner have been terminated. There are other persons also, whose services have been regularized and there was no ground to terminate his service. A copy of the show-cause filed by the petitioner has been appended as Annexure 6. There after, by the impugned order dated 17.12.1996, as contained in Annexure 4, the services of the petitioner have been terminated. It further appears that on the basis of certain allegations an enquiry was conducted against the then Managing Director of the Corporation by the Member Board of Revenue and found that the appointments, made by the Managing Director, were irregular, It further appears that a writ application bearing CWJC No. 7505 at 1994 was filed by Binay Kumar and others in this court, where it transpired that an enquiry was already going on against the Managing Director and the writ application was disposed of by order dated 20.4.1995, with a direction to conclude the enquiry and take suitable action. In pursuance of the aforesaid report of the Member, Board of Revenue, the Secretary, co-operative Department, issued a direction to the Corporation to cancel the appointments of such persons, who were appointed irregularly and illegally after following the procedure and, thereafter, after the show-cause, the impugned order has been passed. 4. From the perusal of the impugned order, it appears that two grounds have been given for cancelling the appointment of the petitioner, firstly that his appointment itself was in breach of Article 16 of the Constitution of India; in as much as the appointment was made without inviting applications and without following procedure in consonance with the said Article and secondly that the appointment was contrary to rule-7 of the Bihar State ware Housing Corporation Staff Regulations (here in after referred to as the Regulation), which provides mode of selection of the candidates for appointment in the Corporation, 5. Learned counsel appearing for the petitioner submitted that the Managing Director of the Corporation was the competent authority to appoint the employees of class II and class III categories, and due to exigencies of the work, the petitioner was engaged on daily wages and then the competent body i.e. the Executive Committee after considering that the daily wages workers are working since long. vide Annexure 3, directed for regularisation of their services and in presence of that, vide Annexure 4 the petitioner was appointed as an Assistant on 15.6.1991. vide Annexure 3, directed for regularisation of their services and in presence of that, vide Annexure 4 the petitioner was appointed as an Assistant on 15.6.1991. Similarly, other employees, namely, Sunil Kumar Jha, Dhirendra Kumar Singh and Ravikant Mishra Who were also appointed on temporary basis on daily wages in 1982-83 have been regularized and retained in service, where as the petitioner has been discriminated in the matter. It was further submitted that the petitioner was engaged on vacant and sanctioned post and he continued for about fourteen years and after such along time his service cannot be terminated, specially when the Government has taken a policy decision, which is applicable in the case of the Corporation also, on 15.6.1993 , as contained in Annexure 9, to regulaise the daily wages employees, who are working prior to 1.8.1985 and even according to the said policy decision, the petitioner’s services could not have been terminated. 6. The Respondent – Corporation has not disputed the fact that the Managing Director was the competent authority to make appointment of employees of class II and class III categories nor it is disputed that there was a vacant and sanctioned post at the relevant time. It is also not disputed that the petitioner possesses the requisite qualification. However, their stand is that as the petitioner was engaged on daily wages without making any advertisement or calling for the names from the Employment Exchange, his appointment was illegal from the very inception and, thereafter the same has been cancelled in pursuance of the direction issued by the Secretary, Co-operative department, to cancel such appointment. 7. With regard to the assertion of the petitioner that similarly situated persons, appointed on daily wages or on temporary basis without following the said procedure have been retained. It is admitted in the supplementary counter-affidavit that Sunil Kumar Jha was appointed as an Assistant on 9.9.1982 on temporary basis, Ravi Kant Mishra was appointed on the post of Assistant – 2 on 11.7.1983 on adhoc basis and Dhirendra Kumar Singh was appointed as Routine clerk on daily wages on 19.12.1982 and their services have been regularized by the Managing Director on regular basis and they are working in the Corporation. Thus, it is clear that even the services of person, appointed subsequent to the petitioner, namely, Dhirendra Kumar Singh, have been regularised and retained in the service of the Corporation. 8. Thus, it is clear that even the services of person, appointed subsequent to the petitioner, namely, Dhirendra Kumar Singh, have been regularised and retained in the service of the Corporation. 8. Further stand of the Respondent – Corporation that the Government vide circular dated 10.5.1982 had banned the appointment of persons on daily wages even then the petitioner was engaged on daily wages and when the Member Board of Revenue, enquired into the allegation against the Managing Director, he found that the procedure and Regulations were not followed while making their appointments and on the basis of the same, the Secretary, Department of Co-operation, recommended to terminate the regular appointments done by the Managing Director and there after the service of the petitioner have been terminated by the impugned order. 9. Narration of the facts aforementioned clearly show that the petitioner was working on a sanctioned and vacant post for about fourteen years. It is also an admitted position that the similarly situated• persons, eyen one of them appointed subsequent to the petitioner, have been regularised. It s also evident from Annexure 3 that the Executive Committee of the Corporation took a policy decision to regularise the persons working on daily wages, and pursuant to that, the petitioner was appointee as an Assistant on temporary basis vide Annexure 4 Apart from this, it appears from a perusal of Annexure.7 that in a meeting hold on 22.8.1996, the Board of Director of the Corporation took notice that there is no question of irregular appointment in the Corporation and that no. fresh appointment has been made, on the other hand, the services of the employees on daily wages working from before have beep regularised by the competent authority. 10. It is well settled that the court, while giving directions for regularisation of services, acts with due care and caution. It must take notice of service situations. A general direction to regularise service only because the person has worked for several years will not only tell upon the public exchequer but has also the effect of increasing the cadre strength or particular service class or category. 11. Learned counsel for the Corporation further submitted that it is not a case of regularisation, rather it is a case where the appointment was cancelled on the ground that the same was irregular and illegal from the very inception 12. 11. Learned counsel for the Corporation further submitted that it is not a case of regularisation, rather it is a case where the appointment was cancelled on the ground that the same was irregular and illegal from the very inception 12. No doubt the petitioner was engaged on daily wages without following the procedure. This court cannot ignore the fact that the Managing Director was the competent authority to engage a person on daily wages as well as to make regular appointment and if he, in the exigencies of the situation, bas engaged certain persons, who continued for so., many years, from which it can be rightly inferred that there was need, to engage them on the post and even the Executive Committee took a decision to regularise and as a matter of fact, in-pursuance of that an order has been issued regularizing the service of the petitioner as an Assistant, the cancellation of appointment of the petitioner after such along time, in my view, is not desirable, specially when the learned counsel for the Corporation has admitted that the persons, working on daily wages on temporary basis, have been regularized and retained in service of the Corporation. Even one person, appointed subsequent to the petitioner on daily wages, has been regularized and in that situation, the singling out the petitioner for terminating his service after having worked for such a long time will result in miscarriage of justice. 13. It appears that the main ground for terminating the service of the petitioner is a direction issued by the secretary, Co-operative Department on the basis of an enquiry report of the Member, Board of Revenue. It appears that the Respondent-Managing Director has cancelled the appointment only on the ground that the Secretary, Co-operative Department, wanted that the appointment should be cancelled for the reason that certain observations were made by the Member, Board of Revenue, in his enquiry report against the Managing Director. The management of a person on daily wages is common in this State. It is not a case where the Managing Director has enagaged only a person on daily wages, on the other hand a large number of persons in the Corporation have been engaged and, thereafter, their services have been requiarised. The management of a person on daily wages is common in this State. It is not a case where the Managing Director has enagaged only a person on daily wages, on the other hand a large number of persons in the Corporation have been engaged and, thereafter, their services have been requiarised. There is nothing on the record to show that the petitioner, obtained the appointment by fraud or misrepresentation or even the Managing Director had engaged the petitioner for any other reason, the appointment of the petitioner appears to have been made to meet the exigencies of the situation and for that reason, he continued in service on the post for about fourteen years. 14. In the case of Arun Kumar Rout vs. State of Bihar, reported in 1998 (1) PLJR 17 (SC), the apex court observed that If the intial appointment is illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following due procedure cannot claim as a matter of right to be regularized. The apex court however have looked with sympathy when question of regularization came consideration in case of temporary or ad hoc appointment even made improperly if the incumbent had been allowed to continue for a long time because of the human problem involved in such continued service. 15. In the case before the apex court, the appellants continued for five years and the apex court directed that they should be absorbed to the extent of 50 percent of the vacant posts. In this case also, the Managing Director should have considered the fact that the petitioner has continued for about fourteen yean and similarly situated persons have been regularised in the Corporation as admitted in the counter-affidavit and in that view of the matter even assuming that the, appointment of the petitioner was improperly made, the same should not have been cancelled after such a long time. The stand of the State is that there was a ban put by the State Government in 1982 to not engage daily wages workers and in that view of the matter the Managing Director should not have engaged the petitioner on daily wages. This applies to others also whose service have been regularised. The stand of the State is that there was a ban put by the State Government in 1982 to not engage daily wages workers and in that view of the matter the Managing Director should not have engaged the petitioner on daily wages. This applies to others also whose service have been regularised. Despite the aforesaid ban, later on the State Government came out with a policy decision as contained in Annexure 9, where as a direction was issued to regularise the services of the daily wages employees, who ware engaged before 1.8.1985. The petitioner was admittedly, engaged on daily wages before 1.8.1985. In terms of the aforesaid policy decision of the State Government also, the Managing Director should not have terminated the services of the petitioner. As stated above, the Managing Director had no option, but to terminate, the services of the petitioner as there was direction to that effect by the secretary of the Co-operative Department. It appears that the Managing Director has only carried out the direction of the Secretary, co-operative Department, to terminate the services of the petitioner and the show – cause is only an empty formality. 16. After taking into consideration the fact that the petitioner has been working for about fourteen years and the fact that the similarly situated persons have been retained and their services have been regularized as in the counter affidavit, and also keeping in view the decision of the Board of Directors as mentioned above that other employees, who were working before 1.8.1985, have been regularized, I am of the view that the Managing Director of the Corporation was wholly unjustified in terminating the services of the petitioner. Accordingly, the impugned order is quashed and the petitioner is directed to be reinstated in the service of the Corporation. 17. Learned counsel for the petitioner, during the course of argument, submitted that in case the writ application is allowed, the petitioner will not pray for the salary for the period, during which he bas not worked in pursuance of the order, as contained in Annexure 1. Admittedly, the petitioner has not worked for the period from 17.12.1996 till today and in peculiar facts and circumstances of this case, he is not entitled to the payment of any salary for the period he has been out of employment. Admittedly, the petitioner has not worked for the period from 17.12.1996 till today and in peculiar facts and circumstances of this case, he is not entitled to the payment of any salary for the period he has been out of employment. However, the said period will be counted for granting other consequential benefits to the petitioner. 18. In the result, with the aforementioned observation/direction, this application is allowed and the impugned order, as contained in Annexure 1, is quashed, However, there shall be no order as to costs.