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2006 DIGILAW 93 (PAT)

Nantun Yadav v. State Of Bihar

2006-01-25

RADHA MOHAN PRASAD

body2006
Judgment 1. In this writ petition, the petitioners are aggrieved by denial of their regularisation despite taking work continuously from them for over 20 years in the work charged establishment. One of the petitioners, namely, petitioner no. 3, after filing of the writ petition attained the age of superannuation, but without getting the benefit of regularisation despite rendering service for over 20 years. 2. The Finance Department of the State Government issued various resolutions relating to regularisation of the employees of the work charged establishment. On reading of the said Government decisions, contained in Memo No. 8954 dated 23.7.1975, 3058 dated 22.10.1984 and 6394 dated 23.10.1987, show that the Government decided to regularise all those who have completed five years of satisfactory service in the work charged establishment of the Works Department by conversion of the post itself occupied by such employees. It is true that vide resolution dated 23.10.1987, the Government decided that in future no appointment in the work charged establishment shall be made. 3. Learned counsel for the petitioners has submitted that in more or less similar case but against cancellation of absorption of Triveni Mahto and Jagdish Thakur bearing C.W.J.C. Nos. 7153 and 7559 of 2000 respectively, this Court allowed the said writ petitions and the orders of cancellation of their absorption have been set aside vide order dated 4.9.2001, reported in 2005(4) PLJR 505 . Learned counsel submitted that in the said case, the learned Single Judge has relied upon the order passed earlier in C.W.J.C No. 6212 of 1999, the validity of which has been upheld by a Division Bench of this Court in L.P.A. No. 1573 of 2000. 4. Learned counsel for the State has submitted that this case is not covered by the principle decided in the abovementioned cases or any other case as the appointment of the petitioners was made in the year 1985 i.e., after imposition of ban by the State Government and, further, that on the basis of their said appointment they did not complete five years of service before the cut-off date i.e. 21.10.1984 in the work charged establishment, only whereafter one can claim for regularisation as per the earlier Government decision. In support of this he placed reliance on Finance Departments Resolution No. 3/PAR-01/87 (Part)/6394(2) dated 23rd October, 1987. 5. I am unable to appreciate the said submission of the learned counsel for the State. In support of this he placed reliance on Finance Departments Resolution No. 3/PAR-01/87 (Part)/6394(2) dated 23rd October, 1987. 5. I am unable to appreciate the said submission of the learned counsel for the State. All these aspects have been considered by this Court in the case of Uma Shankar Rai and Ors., V/s. The State of Bihar and Ors., (C.W.J.C. No. 6212 of 1999) and the learned Single Judge on consideration of the Finance Departments Memo No. 1344 dated 4th February, 1949, which has been made as a rule under proviso to Article 309 of the Constitution by the State Governments Notification No. 2555/31-27/50-A dated 15th April, 1950, held that in terms of the said 1949 Rule, a post in the work charged establishment of permanent nature required for 12 months in the year and for long and indefinite period is to be made permanent and to be included in permanent establishment. The learned Single Judge also took notice of the fact that the man employed on such post, having one years approved service is to be included amongst the permanent Government employee as has also been held by this Court in the case of Mahesh Prasad Swarnkar & Ors. V/s. The State of Bihar & Ors., in C.W.J.C. No. 7810 of 1988 and other analogous cases. The Court considered that the petitioners had continued in the work charged establishment for much more than one year and that the posts against which they have been allowed to continue is in existence for much more than ten years and thus they had right to be taken in the regular establishment in the regular scale of pay in terms of 1949 Rule and thus, according to the learned Single Judge, if they had been taken in the regular scale of pay, there was no illegality in the same. The learned Single Judge also held that Resolution No. 6349 dated 23rd October, 1987 and Memo No. 5349 dated 18th June, 1985 are not applicable in the cases of work charged employees appointed prior to October, 1987. 6. I consider it necessary to mention here that it is true that initially as per Finance Departments Memo No. 8954 dated 23rd July, 1975, Government had taken decision to impose complete ban on creation of post in the work charged establishment and also on appointment on such vacant post. 6. I consider it necessary to mention here that it is true that initially as per Finance Departments Memo No. 8954 dated 23rd July, 1975, Government had taken decision to impose complete ban on creation of post in the work charged establishment and also on appointment on such vacant post. Despite the said ban, appointments were continued to be made in different Works Departments and such employees continued to discharge Government work with all sincerity for a long time. Apart from this, the Road and Building Construction Department, vide Memo No. 1468(5) dated 5th April, 1984, decided that all work charged employees appointed after 23rd July, 1975 and have completed five years of continuous service, their services should be regularised after taking concurrence of the Finance Department from the date of the order. 7. The Finance Department, vide its Resolution No. 3 dated 27.3.1987, modified the earlier Government decision for regu-larisation of the employees of work charged establishment on completion of ten years continuous service by reducing it to five years continuous service. 8. The State Government considering all these facts, vide Finance Departments Resolution No. 3/PAR-01/87 (Part)/6394(2) dated 23rd October, 1987, decided that those appointed by the competent authority or otherwise those who are competent employee, who have completed five years of continuous satisfactory service by 21st October, 1984, their services should be regularised with the conditions that after conversion of work charged employee into regular establishment, the said post in the work charged establishment shall stand converted into regular establishment and their pay and allowances will be drawn from the Budget head by treating it as transferred in the regular establishment and, further, that all concerned employees would get the benefits of the same with effect from 22nd October, 1984 only. However, the said benefit of regularisation has not been made available to those against whom the case has been lodged or prima facie charge of corruption is pending. It was also made clear that under no circumstances in future new appointment in work charged establishment shall be made. Thus, it is clear even from the said Finance Departments Resolution No. 6394(2) dated 23rd October, 1987 that ban on future appointment in work charged establishment was made and it did not provide that the benefit of regularisation shall not be made available to those appointed prior to 23rd October, 1987. 9. Thus, it is clear even from the said Finance Departments Resolution No. 6394(2) dated 23rd October, 1987 that ban on future appointment in work charged establishment was made and it did not provide that the benefit of regularisation shall not be made available to those appointed prior to 23rd October, 1987. 9. In fact, 1987 Finance Department resolution has been made effective for concerned employee with effect from 22nd October, 1984. However, the said Government resolution is obviously not a rule framed under Article 309 of the Constitution and as such the Finance Departments Memo No. 1344 dated 4th February, 1949, which has been made as a rule under proviso to Article 309 of the Constitution by the State Governments Notification No. 2555/31-27/50-A dated 15th April, 1950 still holds the field as the same has not been amended by any rule framed under Article 309 of the Constitution. 10. In the present case, admittedly, the petitioners, who have been working on the posts of Path Mazdoor (petitioners no. 1, 2 and 4). Amin (petitioner no. 3) and Chowkidar (petitioner no. 5) in Building Construction Department since 2.8.1985, 1.8.1985, 2.8.1985, 15.3.1980 and 2.8.1985 respectively and later adjusted against the work charged establishment in the year 1985 and have been continuing on the said posts till date, i.e., now for over 20 long years, they have been denied of the benefits of regularisation only on the ground that the Finance Department vide its aforementioned resolution had imposed ban on appointment in the work charged establishment in the year 1985. 11. In the case of Uma Shankar Rai and Ors. V/s. The State of Bihar and Ors. (supra) this Court has already held that after completion of one year in the work charged establishment the petitioners had right to be taken in the regular establishment in the regular scale of pay in terms of the aforementioned 1949 Rule. The validity of the said decision of the learned Single Judge has been challenged in L.P.A. No. 1573 of 2000, which was also dismissed vide order dated 10.1.2001 and the Supreme Court also affirmed the order passed in L.P.A. by dismissal of SLP which has been noticed by the Division Bench in the case of The State of Bihar V/s. Triveni Mahto (L.P.A. No. 1242 of 2001, disposed of on 27.2.2002), reported in 2005(4) PLJR 792 . 12. 12. Apart from this, the Division Bench in the case of Bihar State Co-operative Land Development Bank Ltd. V/s. Anil Kumar Singh, reported in 2003(3) PLJR 77 , held that if a competent authority appoints somebody on ad hoc basis or daily wages basis against clear vacancy and such persons continue from time to time for a long period and their services are otherwise required by the institution, such appointments are not bad and can be regularised. 13. In the present case, it is not the case of the respondents that the appointments of the petitioners were not made by the competent authority. In the counter affidavit it is stated that the petitioners are still continuing on the posts upon which they have been adjusted in the year 1985 under the work charged establishment, which itself goes to show that their services are otherwise required by the Department. As such, in view of the law laid down by the Division Bench in the case of the Bihar State Co-operative Land Development Bank Ltd. V/s. Anil Kumar Singh (supra), their appointments are not bad and can be regularised. It is not the case of the respondent State that the work discharged by these petitioners was not satisfactory. 14. Moreover, as per Road and Building Construction Departments Memo No. 1468(5) dated 5.4.1984, referred to in 1987 Government Resolution, that all work charged employees appointed after 23rd July, 1975, who have completed five years of satisfactory service should be regularised and order for their regularisation with the concurrence of the Finance Department should be issued and by 1987 Government Circular ban has been imposed only after 23rd October, 1987. Under such circumstances also denial of the benefit of regularisation to the petitioners is wholly arbitrary and contrary to the law settled. Besides this, this Court finds no justification to deprive them from the benefit of regularisation in the light of 1949 Rules, referred to above, and that too after taking work from them continuously for almost 20 long years. 15. In the result, the writ application is allowed. The respondents are directed to regularise the services of the petitioners, except petitioner no. 3, who already attained the age of superannuation, by issuing order within two weeks of the receipt/ production of a copy of this order.