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2002 DIGILAW 944 (PAT)

Ram Narayan Singh v. State Of Bihar

2002-08-29

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This writ application has been filed for issuance of a writ in the nature of mandamus commanding the respondents to regularise the services of the petitioner as English Stenographer in the office of the Advocate General, Bihar from 7.8.1991. 2. Shorn of unnecessary details, facts giving rise to the present application are that the State Government by its letter dated 8.5.1991 sanctioned four posts of Personal Assistants in the pay scale of Rs. 1,500/- to Rs. 2,700/- for the office of the Advocate General of the State. By letter dated 17.7.1991 the Advocate General was authorised to make appointment against the four sanctioned posts on contract basis, while authorising the Advocate General to make appointment, various conditions were laid, relevant whereof are that the appointment shall be on contract basis for a period of one year at the minimum of the time scale, persons appointed on contract basis shall not belong to the cadre of Personal Assistants of the Personnel Department and shall not be considered for regularisation. 3. Petitioner, on his own without there being advertisement for appointment to the post of Personal Assistant, submitted an application dated 30th of July, 1991 to as Stenographer. The Advocate General directed for placing the said application before the Additional Advocate General No.1. Ultimately the application of the petitioner for appointment as Stenographer was placed before the Additional Advocate General No.1 on 31.7.1991 and by minute dated 6.8.1991 he observed as follows:- "I have taken the test. He is not upto the mark but since this office is in need of stenographer, he may be appointed on trial basis for a period of 6 months". 4. The minute of the Additional Advocate General-I was thereafter placed before the Advocate General and he by his minute dated 6.8.1991 directed that the petitioner be appointed on contract basis for six months. Accordingly by order dated 7.8.1991 (Annexure-3) petitioner was appointed as Stenographer on contract basis for a period of six months. It was further directed that the petitioner shall be paid fixed wages for the work done by him and in case his work is not found satisfactory, same shall be terminated after giving a months notice. Accordingly by order dated 7.8.1991 (Annexure-3) petitioner was appointed as Stenographer on contract basis for a period of six months. It was further directed that the petitioner shall be paid fixed wages for the work done by him and in case his work is not found satisfactory, same shall be terminated after giving a months notice. The Personnel and Administrative Reforms Department was informed about the appointment of the petitioner and another person as Stenographers on contract basis and the latter by its communication dated 4th of November, 1991 approved the appointment of the petitioner on contract basis. The appointment of the petitioner on contract basis was extended from time to time and the last extension was made by order dated 8.7.1998 for a period of one year from 1.3.1998 to 29.2.1999. 5. Petitioner was asked to appear in a selection test for appointment on the post of Stenographer on contract basis by order dated 26.2.1999. Petitioner objected for appearing in the test and ultimately by order dated 23.3.1999 his appointment on service was terminated. Petitioner challenged the same by filing C.W.J.C. No 3401 of 1991 before this Court. A learned single Judge of this Court by order dated 21.4.2000 set aside the order terminating the service of the petitioner and not extending the contract, appointment and 4 rected for reinstatement of the petitioner in service forthwith. 6. It is the grievance of the petitioner that sanctioned posts of stenographer are available in the office of the Advocate General and there is need of such post, the respondents instead of filling up those posts by regularising the service of the petitioner, who is working continuously since 1991, issued advertisement on 16.2.2001 (Annexure-13) for filling up seven posts of stenographer on contract basis for a period of one year from amongst the retired stenographers of the High Court or the State Government on fixed pay. It has also been averred that earlier the Advocate General had made several recommendations for regularising the service of the petitioner. 7. Counter affidavit has been filed on behalf of respondent no.6 in which it has been stated that initial entry to the post ol stenographer was made without observing the formalities and procedure of appointment and the same was in breach of1 Articles 14 and 16 of the Constitution of India. 7. Counter affidavit has been filed on behalf of respondent no.6 in which it has been stated that initial entry to the post ol stenographer was made without observing the formalities and procedure of appointment and the same was in breach of1 Articles 14 and 16 of the Constitution of India. It has been averred that the petitioner was appointed on contract basis and by memo no.446 dated 17.7.1991 (Annexure-2) it was absolutely made clear that appointment made on contract basis shall not be deemed to be a regular appointment and the appointee shall not be given the benefit of regularisation of service. Accordingly, the stand of the respondents is that service of the petitioner is not fit to be regularised. submits that since he is working continuously since 1991, his service is fit to be regularised. It is emphasised that because of the passage of time petitioner has become over age and as such shall not be eligible for getting any public employment, hence, equity demands that his services be regularised. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of State of Haryana and others V/s. Piara Singh and others ( AIR 1992 S.C. 2130 ) and my attention has been drawn to the following passage of the said judgment: "So far as the work-charged employees and casual labour are concerned, the effort must be to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell say two or three years a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour." 8. As has been repeatedly stressed by this Court, security of tenure is necessary for an employee to give his best to the job. In this behalf, we do commend the orders of the Government of Haryana (contained in its letter dated 6.4.90 referred to hereinbefore) both in relation to work-charged employees as well as casual labour." 8. Petitioner further points out that as back as in the year 1991 he was appointed on contract basis and the same is being continued after a lapse of ten years. He submits that appointment on contract basis should not be replaced by another appointment on contract basis. In support following passage from paragraph 25 of the case of Piara Singh (supra) : "Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority." 9. Mr. Ashok Kumar Singh, S.C.III however appearing on behalf of the respondents submits that the petitioner be- ing a back door entrant, any direction by this Court for regularising his service will tantamount to giving premium to corruption. He also points out that while making appointment of the petitioner on contract basis it was made clear that the petitioner shall not be given the benefit of regularisation and hence this is not a fit case in which this Court would be justified in giving direction for regularising the service of the petitioner. 10. Having appreciated the rival submission, I do not find any force in the submission of the petitioner. It is well settled that regularisation is not a mode of appointment and to meet a contingency the employer may come out with a scheme providing for regularisation of service. No scheme has been brought to my notice covering the case of the petitioner for regularisation. The authority of the Supreme Court in Piara Singhs case (supra), in my opinion, instead of supporting the case of the petitioner goes against him. In Piara Singhs case the Supreme Court was considering the scheme framed by the State Government for regularisation of service. No such scheme has been brought to my notice governing the case of the petitioner. The authority of the Supreme Court in Piara Singhs case (supra), in my opinion, instead of supporting the case of the petitioner goes against him. In Piara Singhs case the Supreme Court was considering the scheme framed by the State Government for regularisation of service. No such scheme has been brought to my notice governing the case of the petitioner. In this case Supreme Court further observed that proper course would be that each State prepares a scheme if one is vation policy. In the said case, the Supreme Court in paragraph 12(e) in emphatic term observed that directions to regularise the services of those employees which have been made irregularly would result in encouragement to unhealthy practices. Said paragraph reads as follows: "12(e). Many appointments may have been made irregularly as in this case in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices." 12.1 do not have the slightest hesitation in accepting the broad submission of the petitioner that an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee and must be replaced only by regularly selected employee. Petitioner has brought to my notice the advertisement published in the daily Hindustan dated 16.9.2001 (Annexure-13) in which the office of the Advocate General had invited applications for filling up seven posts of English Stenographer. According to the advertisement the post shall be filled up for a maximum period of one year on contract basis from amongst the retired Stenographers of the High Court or of the State Government. Thus in the present case to meet its need the Advocate Generals choice has fallen on the retired stenographers of the High Court and the State Government. In view of the peculiar and specialised nature of work in the office of the Advocate General, the decision to appoint retired stenographers on contract basis cannot be said to be unreasonable. Further the decision has been taken to appoint such persons on the financial constraints of the State Government. In view of the peculiar and specialised nature of work in the office of the Advocate General, the decision to appoint retired stenographers on contract basis cannot be said to be unreasonable. Further the decision has been taken to appoint such persons on the financial constraints of the State Government. It is not the case of the petitoners that steps have been taken for filling up the posts by contract from the general people Hence, I do not find any force in the grievance of the petitioner and the authority relied on is clearly distinguishable fact a Division Bench of this Court in the case of The State of Bihar and others V/s. Vijay Kumar Jha and others [ 2001(3) P.L.J.R. 297 ] while setting aside the order of the learned single Judge directing to regularising the service had observed paragraph 7 of the judgment as follows: "The State Government is not able to pay salary to its existing employees and is taking loans/over-drafts to meet this obligation. The Supreme Court in its judgment in the case of Gujrat Agricultural University V/s. R. L. Bechar [A.I.R 2000 (1) 706] (Para 22) has clearly stated that financial constraints are to be kept in mind when any scheme is prepared for regularisation at a particular time. In such circumstances, this Court finds it nearly impossible to issue a mandamus to the State Governmen to regularise the services of the three writ petitioners." 11. Petitioner then pleads regularisation on equity. Question of regularisation ot an employee is vexing this Court for long time. One of the thoughts in this regard is that a person who had worked for a long period, if his service is not regularised, he is thrown on the road and thus suffers irreparable injury Thus equity demands that service of such employee be regular ised. The other line of thought is that ersons appointed illegally in breach of Articles 14 and 16 of the Constitution of India have been appointed in place of more meritorious and needy who do not have the support of those persons, having role in such appointments, are not fit to be regularised in service. consideration to the points in issue, I am of the opinion that this is not a fit case in which direction sought for regularisation of the service is fit to be granted. consideration to the points in issue, I am of the opinion that this is not a fit case in which direction sought for regularisation of the service is fit to be granted. It has to be borne in mind that regularisation is not a mode of appointment. Appointment has to be made in accordance with the statutory rule governing such appointment or in the absence thereof in accordance with the executive instructions. No rule or instruction has been brought to my notice providing for appointment on daily wages. Still a contingency may arise when appointment on daily wages is called for. Such a case should normally be few and far between. For instance when a particular place is ravaged by flood or epidemic, to meet such contingency appointment on daily wages till the subsistence of the problem may continue but the appointment on daily wages, which can be conceived in extra ordinary circumstances cannot be permitted to be made a mode of appointment itself. The State Government had emphasised times without number not to make appointment on daily wages but this decision is being followed more in breach than in its obedience. Here in the present case petitioner volunteered to enter in the office of the Advocate General, with an application in his hand. The Advocate General directed for placing the application before the Additional Advocate General No.l. Additional Advocate General No. I takes his test and although found him not upto the mark but taking into consideration the need of stenographer, made proposal for his appointment for a period of six months. Petitioner thus was not selected by following any procedure known to law and semblance of requirement of Articles 14 and 16 of the Constitution of India was not adhered to. Applications were not invited and in any view of the matter, inter se merits of the candidates were not considered. His test was taken individually and although he was not found upto the mark but provided with appointment for a period of six months. Had the respondents made advertisement may be better persons would have offered their candidature but in absence of any advertisement the choice fell on the petitioner. His test was taken individually and although he was not found upto the mark but provided with appointment for a period of six months. Had the respondents made advertisement may be better persons would have offered their candidature but in absence of any advertisement the choice fell on the petitioner. I am of the opinion that direction for regularising the service of such employee whose initial entry is in the teeth of Articles 14 and 16 of the Constitution of India would tantamount to directing the authorities to act in disobedience of law which would be destructive to the rule of law itself. 12. The abstract theory that employees appointed on daily wages, if their services are not regularised after they have put in several years of service, causes immence miseries to them, does not appeal to me at all. Such persons on account of their engagement enjoys better quality of life and get status for the period in engagement than those who were more needy and more meritorious but did not had any say in manipulating appointment on daily wages. Any direction by this Court for regularisation of the services of the employee appointed illegally and in breach of Articles 14 and 16 of the Constitution of India would amount to unknowingly perpetuating miseries for all those needy and meritorious persons who have no voice. This Court would refrain from doing any such act. 13. For the reasons stated above I do not find it to be a fit case in which mandamus prayed for by the petitioner is fit to be granted. However, circumstances permitting, the State Government may formulate a scheme as and when it deems fit for regularisation of service of its employees of the category of the petitioner, in which case the petitioner shall be entitled to compete along with the persons from the open market in response to the advertisement and bar of age shah not come in his way. 14. In the result, I do not find any merit in the application and it stands dismissed with the aforesaid observation.