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2005 DIGILAW 217 (JHR)

Maheshwari Singh v. State Of Jharkhand

2005-03-15

N.N.TIWARI

body2005
ORDER N.N. Tiwari, J. 1. In this Writ Application the petitioner has prayed for quashing the Memo No. 1827, dated 30.4.2003 (Annexure- 9) issued by the respondent No. 3 and Office Order No. 50, dated 8.5.2003 (Annexure-10) issued by the respondent No. 7 whereby the petitioners services have been terminated. 2. The petitioners case is that he was working as Work Inspector under the Work Charge Establishment in the office of the Executive Engineer, Drinking Water and Sanitation Division, Jhumritilaya when the said impugned orders were issued. The petitioner was initially appointed as Work Inspector in Jharia Sub- Division, by office order dated 16.9.1969 issued by the Executive Engineer, Public Health Division, Dhanbad. After about a year, he was terminated from the service on the ground of non- availability of the post by Officer Order No. 795, dated 25.12.1970. The petitioner being a retrenched employee was given appointment on that ground on the vacant post of Work Inspector in the office of the Executive Engineer, Gumla Division by Office Order No. 217, dated 8.10.1980. But after about one year he was terminated from service w.e.f. 20.10.1981 by Office Order No. 1263, dated 16.10.1981 issued by the Superintending Engineer, Public Health and Engineering Circle, Ranchi. The Engineer -in- Chief-cum- Special Secretary, Public Health and Engineering Department, Bihar issued a general direction to all Superintending Engineers and Executive Engineers of the Department vide Memo No. 838, dated 25.8.1986 clearly instructing them not to retrench any employee working under regular, Work Charge Establishment, Daily Wages, Hand Receipt before 1.4.1982 without written order from the Department. The Engineer-in-Chief- cum- Special Secretary, PHED, Bihar, on the basis of settlement with the Public Health Engineering Employee Association, Bihar issued a circular by Memo No. 3857, dated 23.9.1987 (Annexure-8) directing, inter alia, to absorb the petitioner on the vacant post of the Work Inspector in the said Circle with immediate effect. The petitioners case is that in spite of the said order, his joining was delayed by the Sub-ordinate Officers. Ultimately, by Order No. 8, dated 30.1.1988 the petitioner was appointed to the post of Work Inspector in Public Health Section, Barhi. The grievance of the petitioner is that despite the clear provision for regularization and specific order issued by the office of the Engineer-in-Chief and Superintending Engineer dated 23.9.1987 and 11.1.1988 respectively the petitioner was appointed on temporary basis. Ultimately, by Order No. 8, dated 30.1.1988 the petitioner was appointed to the post of Work Inspector in Public Health Section, Barhi. The grievance of the petitioner is that despite the clear provision for regularization and specific order issued by the office of the Engineer-in-Chief and Superintending Engineer dated 23.9.1987 and 11.1.1988 respectively the petitioner was appointed on temporary basis. However, the petitioner joined pursuant to the said order dated 30.1.1988. By Memo No. 1827, dated 30.4.2003, the Joint Secretary, Department of Drinking Water and Sanitation issued letters to all the Executive Engineers of the Department to terminate the services of all the employees who have been appointed in irregular manner after 31.12.1987. The Executive Engineer, Drinking Water and Sanitation, on the basis of the said letter, terminated the services of the petitioner w.e.f. 8.5.2003. According to the petitioner his case was to be considered long ago for regularization but instead of regularizing and placing his services on permanent basis, he has been terminated from service by the impugned order arbitrarily and illegally. 3. The State-respondents have filed a counter affidavit, supporting the impugned termination order. The main plea for justifying the said termination order is that the date of joining of the petitioner is 30.1.1988 whereas 31.12.1987 has been fixed as a cut off date for consideration of regularization. It has been stated that since the date of joining is after the said cut-off date, the petitioner has no right to continue in service and as such he has been rightly terminated. However, in paragraph No. 6 of the counter affidavit, the respondents have admitted that the Engineer-in-Chief-cum-Special Secretary had given a direction by letter No. 3857, dated 23.9.1987 to re-instate the petitioner on the post of Work Inspector with immediate effect. The Superintending Engineer had also directed the Executive Engineer, Hazaribagh to re-instate the petitioner and only thereafter, his joining was accepted on 30.1.1988. 4. Mr. Rajesh Shankar, learned counsel appearing for the petitioner, submitted that admittedly the petitioners initial appointment was on 16.9.1969, the said appointment was under the Work Charge Establishment. On the basis of a scheme: for the retrenched employee, the petitioner was also further engaged on that basis, the Chief Engineer-cum-Special Secretary, PHED, Bihar had issued the said letter (Annexure-6) for his absorption by letter No. 3857/87. On the basis of a scheme: for the retrenched employee, the petitioner was also further engaged on that basis, the Chief Engineer-cum-Special Secretary, PHED, Bihar had issued the said letter (Annexure-6) for his absorption by letter No. 3857/87. Learned Counsel submitted that the petitioner was appointed in Work Charge Establishment of a permanent nature and his post is permanent in nature as the petitioners services are required by the department since last about more than 30 years. 5. Under the provision of Finance Departments Memo No. 1344, dated 4.2.1949, which is a Rule framed under proviso to Article 309 of the Constitution of India, the petitioner is entitled to be absorbed as permanent employee. Learned counsel submitted that the Department is not free to fix a cut-off date contrary to the provision of the said Rule of 1949. Learned counsel relied on a decision of this Court Arjun Sharma v. State of Bihar and others, reported in 2001 (3) JCR 569 (Jhr) : 2001 (2) JLJR 203 , and submitted that this Court has occasion to consider the said Rule of 1949 in the said case. This Court has held that the said rule has been framed under proviso to Article 309 of the Constitution of India and that no arbitrary cut off date can be fixed by the Department. It has been provided in the said rule that if a Work Charge Establishment is of permanent nature, required for 12 months in a year for long and indefinite period, the incumbent having more than one year approved service is entitled to be included as the permanent employee. 6. Admittedly, the post under which the petitioner has been working is of permanent nature and the petitioner was initially engaged as far as back on 16.9.1969. Further orders were issued for his appointment pursuant to the policy decision applicable in the case of the retrenched employee of the Department. The Department has also examined the case of the petitioner and a detailed report was forwarded by the Superintending Engineer, Drinking Water and Sanitation Circle, Hazaribagh addressed to the Deputy Secretary, Drinking Water and Sanitation Department, Government, of Jharkhand wherein he has explained the petitioners case and recommended for his absorption in accordance with the policy decision of the Government. 7. 7. In view of the above, termination of services of the petitioner is contrary to the policy decision of the Government and is wholly without any legal basis. The impugned Officer Order No. 50 dated 8.5.2003 issued by the Executive Engineer, Drinking Water and Sanitation Division, Jhumritilaya is thus arbitrary and not sustainable in law and is hereby quashed. 8. It goes without saying that if the petitioner is otherwise eligible, his case shall be considered for regularization along with other similarly situated persons. 9. This Writ Petition is, thus allowed, but without any, cost.