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2006 DIGILAW 1170 (PAT)

Chandeshwar Rai v. State Of Bihar

2006-12-04

J.N.BHATT

body2006
Judgment J.N.Bhatt, J. 1. In this group of 68 writ petitions under Article 226 of the Constitution of India, the main prayer has been for absorption, permanency or regularization in respect of employees of the State Government. In most of the cases regularization is sought on Class-IV post and in some of the cases on Class III post also. 2. This Court has heard the learned Counsels appearing for the parties. The factual profiles of the cases have been examined. The relevant proposition of law is, also, considered. 3. Since the common question of regularization is in focus in all the petitions, upon joint request of the learned Counsels appearing for the parties, the matters are heard together and, now, are being disposed of by this common judgment. 4. It will not be necessary, as well as, expedient, as, rightly, jointly submitted by the learned Counsels to articulate the facts of each case as common question of regularization, absorption or permanency in public employment is involved. The following contentions have been raised on behalf of the petitioners: i) That the petitioners have been working since long and, therefore, they should be regularized as, otherwise, it would tantamount to exploitation of labour force. ii) That some of the departments of the State Government have regularized the services of some of the juniors to the petitioners ignoring their claim, which has resulted into great injustice. iii) That the petitioners are entitled to be regularized on the ground of discrimination. iv) That some of the petitioners employees have not been paid salary though they have been working. v) That the similarly situated employees have been regularized in past and, therefore, such petitioners should, also, receive the same benefit of regularization. vi) That in some of the petitions earlier the directions have been given by the Court for regularization and finality has been achieved and despite that they are not being regularized. vii) That if the petitioners were not regularized at this stage, there will be great loss to them as they are out of employment market race because of age bar and they will be put to starvation. viii) That the Government ought to have considered the cases of some of the petitioners as they are governed by the Industrial Disputes Act and as in some cases the petitioners have completed the requisite period of 240 days. viii) That the Government ought to have considered the cases of some of the petitioners as they are governed by the Industrial Disputes Act and as in some cases the petitioners have completed the requisite period of 240 days. ix) That unpaid salary to those who are working should be directed to be paid. x) That, in these context, the State-respondents be directed to regularize the services of the petitioners and/or accord them permanency in service. 5. The learned Counsels appearing for the petitioners have drawn our attention to the latest decision of the Hon ble Apex Court, rendered in Secretary, State of Karnataka and Others V/s. Umadevi (3) and Others, 2006 4 SCC 1 [: 2006(2) PLJR 363 (SC)] and have submitted that the observations made in the said judgment, particularly, in paragraphs 45 & 53* are relevant and pertinent for the purpose of consideration and regularization of the letitioners case Therefore, it would be expedient to reproduce those two observations, which read, here-as-under: "While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in mature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arms length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution." "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (11. State of Mysore V/s. S.V. Narayanappa, 19671 0 SCR 128), R.N. Nanjundappa (12. R.N. Nanjundappa V/s. T. Thimmiah, 1972 1 SCC 409 , and B.N. Nagarajan (8. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (11. State of Mysore V/s. S.V. Narayanappa, 19671 0 SCR 128), R.N. Nanjundappa (12. R.N. Nanjundappa V/s. T. Thimmiah, 1972 1 SCC 409 , and B.N. Nagarajan (8. B.N. Nagaiajan V/s. State of Karnataka, 19794 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without intervention of orders of the courts or of the tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any, already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 6. Ordinarily, the High Court under Article 226 of the Constitution of India cannot issue directions for absorption, permanency or regularization unless the recruitment itself came to be made on regular basis and in terms of the Constitutional Scheme. 7. The learned Counsels appearing for the petitioners have, also, jointly, submitted that the directions given by this Court in the recent two Division Bench judgments recorded in the case of The State of Bihar & Ors. V/s. Purendra Sulan Kit, 2006 3 PLJR 386, and The State of Bihar & Ors. V/s. Bipin Prasad Singh & Ors. 7. The learned Counsels appearing for the petitioners have, also, jointly, submitted that the directions given by this Court in the recent two Division Bench judgments recorded in the case of The State of Bihar & Ors. V/s. Purendra Sulan Kit, 2006 3 PLJR 386, and The State of Bihar & Ors. V/s. Bipin Prasad Singh & Ors. and alalogous cases: LPA No. 1211 of 2005 decided on 22.11.2006, and one judgment recorded by this court sitting singally in the case of Shailendra Kumar Verma @ Shailendra Prasad V/s. The State of Bihar & Ors., CWJC No. 6504 of 2000 recorded on 30th November, 2006 may be followed in this group of petitions also. 8. Thus, there appears to be a consensus that each case is required to be examined by the Committee to be constituted in the light of our directions for the purpose of consideration of absorption, permanency or regularization. For the foregoing grounds, the submissions and the case law propounded in Secretary, State of Karnaka and Ors. (supra) as well as, the merits of all the petitions are required to be examined by the Committee. 9. In view of the factual matrix, submissions and the proposition of law and earlier our two Division Bench decisions and one Single Bench decision of this Court following directions are given: i) The Chief Secretary, Government of Bihar, shalI constitute a Committee of three Secretaries within a period of two months from today to examine the manner and mode and the type of appointments and to see whether such appointments are in consonance with the Recruitment Rules on regular post or have been irregularly or illegally made? ii) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, for which the Committee will evolve on its own the modality and modus operandi so as to reach to a conclusion as to the nature of the appointments of the employees covered in this group of petitions and to ascertain whether their appointments are regular, irregular or illegal and whether they are falling within the ambit of the observations made in paragraphs 45 and 53 of the decision in Secretary, State of Karnataka and Ors. (supra)? (supra)? iii)The Committee shall, undoubtedly, take a decision in the light of the law laid down by the Constitution Bench of the Hon ble Apex Court in the case of Secretary, State of Karnataka (supra) and, particularly, in the light of the observations, which are quoted herein-above. iv) It shall, also, be remembered that the exercise of regularization, if requires, shall be one time measure. v) The exercise by the Committee is directed to be completed within six weeks after the creation thereof and in the event of any necessity it will be open for the concerned party to seek extension of time by taking leave from this Court. vi) The contention that finality in some of the cases, out of the present group in earlier round of litigation, has already attained and achieved, shall, also, be examined by the Committee. vii) Until the Committee concludes it process and exercise as directed here-in-above, the status quo in respect of the petitioners obtainable as on today, is directed to be maintained. 10. With these observations/directions, all these writ petitions shall stand disposed of. Notice is discharged.