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Patna High Court · body

2003 DIGILAW 910 (PAT)

Mukesh Kumar Mishra v. State Of Bihar

2003-08-27

S.N.JHA

body2003
Judgment 1. The dispute in this batch of writ petitions relates to appointment on compassionate ground. The persons concerned on whose death the petitioners seek compassionate appointment were initially appointed in work charged establishments. The State Government has taken a decision vide circular no. 5545 dated 27.12.2002 of the Water Resources Department superseding the earlier circular dated 17.2.95 not to extend the benefit of compassionate appointment to the dependents of employees of the work charged establishments except those who were appointed after following due procedure on sanctioned posts. 2. It is not in dispute that the persons in whose place the petitioners seek appointment were employed in work charged establishments of the State Government. It may straightaway be stated that the establishment known as "Work Charged Establishment" is not a term of art. It is a kind of establishment in the Bihar P.W.D. Code. The Code provides for different types of establishments in the works Departments in all its branches including Roads, Building, Irrigation, Electricity and Public Health Engineering Departments. It also provides for mode of recruitment. There are provisions, amongst others, for temporary establishments and work charged establishments. The relevant provisions with respect to work charged establishment are contained in Rules 59 to 62 under Part-Ka of Chapter-I. Under Rule 59 Works establishment includes such establishment as is employed for actual execution, as distinct from general supervision, of a specific work or sub-works of a specific project or subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature, they are said to be "charged to work". Note II appended to the said Rule provides for maximum limit of remuneration payable to the employees of the work charged establishment. Note III provides that posts borne on work-charged establishments which are required throughout the year for maintenance works etc. or tor a long and indefinite period should be made permanent and included in the permanent establishment, with the approval of the Government. Rule 60 empowers the Chief Engineer, Superintending Engineer and Executive Engineer to make appointment up to certain pay limits. Under Rule 61 the cost of establishment is to be shown as a separate sub-head of the project. or tor a long and indefinite period should be made permanent and included in the permanent establishment, with the approval of the Government. Rule 60 empowers the Chief Engineer, Superintending Engineer and Executive Engineer to make appointment up to certain pay limits. Under Rule 61 the cost of establishment is to be shown as a separate sub-head of the project. Section 62 prescribes that the conditions of service of members of work-charged establishment will be same as that of temporary government servant, in the matter of leave, travelling allowance and other allowances etc. except festival holidays which must not exceed 12 days in a year. The other provisions of the P.W.D. Code which may also be noticed are those contained in Rules 241 and 242. Rule 241 contemplates engagement on muster roll for the work done by daily labour. Rule 242 provides that in the muster roll record of the labour employed each day on a work and should be maintained daily. 3. From reference of the above provisions of the P.W.D. Code it is clear that work-charged establishments have separate entity in the scheme of things under the P.W.D. Code. It would be useful to notice the observations of the Supreme Court in State of Rajasthan V/s. Kunji Raman, AIR 1997 Supreme Court 693 as under :- "A work-charged establishment as pointed out by this Court in Jaswant Singh V/s. Union of India (1997)4 SCC 440 : ( AIR 1980 SC 115 ), broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. Thus a work-charged establishment is materially and qualitatively different from a regular establishment... So for as employees engaged on work- charged establishments are concerned not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. Thus a work-charged establishment is materially and qualitatively different from a regular establishment... So for as employees engaged on work- charged establishments are concerned not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged on the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well settled that the Government has the power to frame different rules for different classes of employees." 4. It appears that on 25.5.78 vide resolution no. 5712, the State Government considering the long officiation of the employees in work-charged establishments continuously for years together, took a policy decision to regularise the services of those who had put in 5 years of service prior to 1,4.1977 in accordance with the spirit of Note III appended to Rule 59 referred to above. The employees were thus brought in the regular establishment but along with posts held by them which is evident from the fact that it brought about simultaneous reduction of posts in the work- charged establishment to the extent of the number of posts brought in the regular establishment. 5. The case of the Department is that the regularisation of the employees was to continue till their retirement or death, as the case may be, whereafter the posts were to be treated as abolished. It is on this ground that the respondents contend that appointment on such post cannot be said to be in conformity with Para-1 (Kha) of the relevant circular dated 5.10.91 which provides for compassionate appointment of a dependent of the government servant dying in harness, and under which the petitioners seek such appointment. 6. On behalf of the petitioners it has been submitted that the scheme does not envisage any distinction between appointees on regular sanctioned posts and those whose services are regularised. 6. On behalf of the petitioners it has been submitted that the scheme does not envisage any distinction between appointees on regular sanctioned posts and those whose services are regularised. In any view, the impugned decision contained in circular dated 27.12.2002 (supra) results in discrimination inasmuch as in many cases dependent of similarly situate employees of the work-charged establishments brought in the regular establishment were appointed on compassionate ground before issuance of the circular. In many cases, it was stated, recommendations of the Compassionate Appointment Committee were pending when the circular imposing bar was issued. The decision, according to the petitioners, thus is violative of Article 14 of the Constitution. It has also been submitted that the compassionate appointment is supposed to be made without any delay and therefore if the authorities delayed implementation of the recommendations, the persons concerned should not be made to suffer. Further, it has been submitted that regularisation of services was on the condition that all facilities admissible to the regular government servants will be admissible and therefore there is no justification to deny the benefit of compassionate appointment otherwise admissible to government servants. 7. At one stage of the hearing it occurred that if the employees were absorbed in the regular establishment under a policy decision, the regularisation being a mode of appointment, the petitioner should be treated at par with government servants in the matter of compassionate appointment. It later transpired, as already indicted above, that the posts on which they were regularised were the same very posts which they were holding in the work- charged establishment before being brought to the regular establishment. In fact, as seen above, by reason of the policy decision dated 25.5.78 the regularisation brought about reduction of equal number of posts in the work-charged establishment which means that the post on which they were working itself was brought to the regular establishment. Except the case of Mukesh Kumar Mishra, petitioner in CWJC No. 1229/2003 whose case I shall deal with separately, in all other cases, the regularisation was on the same very posts on which they were working in the work- charged establishment. Except the case of Mukesh Kumar Mishra, petitioner in CWJC No. 1229/2003 whose case I shall deal with separately, in all other cases, the regularisation was on the same very posts on which they were working in the work- charged establishment. If the regularisation was on the same post on which they were working in the work-charged establishment, the tenure of which was to end (read, abolished) on their retirement/death as the case may be, it is obvious that their wards cannot claim any right to compassionate appointment. In the case of Koshi Project Workers Association V/s. State of Bihar, 1997 (2) PLJR 355 , this Court rejected the claim of work charged employees for promotion and grant of selection grade scale of pay. The Court held that resolution no. 5712 dated 25.5.78 (supra) gave the work-charged employees who had put five years or more service prior to 1.4.77 permanence of service (in consonance with Note 3 to Rule 59 of the P.W.D. Code), but did not bring them at par with government servants. They continued to have separate identity. 8. It is to be kept in mind that compassionate appointment basically is an exception to the rule of equality in public employment under Article 16 of the Constitution. It has nevertheless being upheld by Courts as a measure to compensate the loss of income to the family on account of sudden and premature death of the bread earner, in token of service rendered by him, on compassionate ground. As observed by the Supreme Court, it is a mode to mitigate the financial hardship to the bereaved family. The appointment nevertheless has to be made on post for which budgetary provisions are available. In Smt. Sushma Gosai V/s. Union of India, AIR 1989 Supreme Court 1976, the Supreme Court observed that if a post is not available, a supernumerary post should be created to facilitate compassionate appointment but over the years, the said decision stands diluted by subsequent decisions on the point. It may be mentioned that work-charged posts are plan posts while sanctioned posts in the regular establishment are non-plan posts. For both types of posts provisions are made in the budget. However, they cannot be treated at par. It may be mentioned that work-charged posts are plan posts while sanctioned posts in the regular establishment are non-plan posts. For both types of posts provisions are made in the budget. However, they cannot be treated at par. When a government servant dies in harness, a vacancy occurs at some level and therefore there may not be any difficulty in making compassionate appointment without disturbing the budgetary allocations but if the post itself is to be treated as abolished, the situation would be different. 9. Besides, if compassionate appointment is to be made on a sanctioned post, where the post (held by the deceased work charged employee) stands abolished on the retirement/death of the incumbent, as the case may be, it is difficult to appreciate how they can maintain claim for compassionate appointment. It may be that dependents of similarly situate persons in some cases were appointed prior to issuance of circular dated 27.12.2002 but then a cut off date has to be fixed at some point and the decision has to be made effective from that date. I do not find any substance in the contention that the refusal to make compassionate appointment on or after 27.12.2002 has resulted in discrimination and violation of Article 14 of the Constitution. 10. Coming to the case of Mukesh Kumar Mishra, it appears that his father was adjusted on the post of Accounts Clerk in the regular establishment and not on the post of Gauge Reader on which he was working in the work-charged establishment. It was stated by the Government Pleader that regularisation was pursuant to another policy decision dated 19.2.81. As a matter of fact, Government Pleader submitted that he has been instructed to argue that the regularisation was not correct as the person concerned too should have been regularised under resolution dated 25.5.78 (supra). It is difficult to accept this contention as there is no such averment in the counter affidavit. The respondents have filed counter affidavit followed by supplementary counter affidavit, in neither of which such a plea has been taken and therefore, it is not possible to go by this oral submission of the Government Pleader. So far as this petitioner is concerned, the fact is undisputed that his father was regularised on the post of Accounts Clerk, a sanctioned post in the regular establishment and therefore his case has to be treated on different footing. So far as this petitioner is concerned, the fact is undisputed that his father was regularised on the post of Accounts Clerk, a sanctioned post in the regular establishment and therefore his case has to be treated on different footing. He had approached this Court earlier too in CWJC No. 7015/2002 which was disposed of on 3.7.2002 with a direction to the respondents to take a decision within two months. An adverse decision has been taken in the light of the aforesaid circular dated 27.12.2002 which, in my opinion, does not apply in his case. 11. I would accordingly, uphold the claim of Mukesh Kumar Mishra, petitioner in CWJC No. 1229/2003, and direct the respondents to consider his case afresh and issue appropriate order in accordance with law preferably within two months of receipt of copy of the order. The other writ petitions are dismissed.