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2007 DIGILAW 326 (PAT)

Parma Nand Singh v. State Of Bihar

2007-02-12

J.N.BHATT

body2007
Judgment J.N.Bhatt, J. 1. In this group of 34 writ petitions under Article 226 of the Constitution of India, the main question which is placed in focus, has been absorption or permanency or regularisation and/or payment of salary. Since all these petitions raise common questions of law and fact, upon joint request, they have been heard together finally, at the admission stage, and are being disposed of simultaneously by this common judgment. 2. Undoubtedly, public employment, as per the Constitutional mandate in the Government or its instrumentalities has been based on due process of rule established in that behalf. It could not be questioned that the public employment as per the constitutional scheme entails equality of opportunities. 3. In the public employment, obviously, there are special provisions incorporated in the Constitution of India under Articles 14 and 16. The Constitutional protection is also afforded to the public employment in terms of the provisions of Article 311 of the Constitution of India. The hallmark of the conjoint reading of the Constitutional provisions with regard to public employment is the equality and due process for recruitment. It is, therefore, settled proposition of law that recruitment or appointment in public employment ought to conform and ought to be in consonance with the Constitutional provisions and other relevant statutory provisions pertaining to the recruitment and appointment in public employment. 4. It is matter of common knowledge that at times the Government or its instrumentalities on certain occasions and in certain cases may have to employ persons on posts which are temporary or ad hoc or on daily wages or casual in nature or on contractual basis and some times employees are recruited as additional hands without following the established practice of recruitment rules and Constitutional scheme in the public employment. 5. It cannot be questioned that as a matter of fact as regards the regular process of recruitment, rules have to be resorted to and in absence of recruitment rules, a policy or guidelines framed in that behalf are to be followed. Ordinarily, any deviation or infraction or encroachment on established recruitment rules cannot be countenanced. It is very well expounded proposition by various authoritative pronouncements. It is, therefore, clear that any appointment or filling up of the regular vacancies could not be done in haphazard manner or on the basis of patronage, or for any irrelevant considerations without following the established procedures. 6. It is very well expounded proposition by various authoritative pronouncements. It is, therefore, clear that any appointment or filling up of the regular vacancies could not be done in haphazard manner or on the basis of patronage, or for any irrelevant considerations without following the established procedures. 6. Regular appointment has to be made under the recruitment rules. This proposition of law has been recently elucidated and expounded in the latest Constitutional Bench decision of the Hon ble the Apex Court in the case of Secretary, State of Karnataka and Others vs. Uma Devi (3) and Others, (2006)4 SCC 1 [: 2006(2) PLJR (SC)363]. Undoubtedly, it is a landmark decision relatable to service conditions and recruitment of public employment. 7. In almost all the cases in this group, the recruitment, employment or selection in public employment are either irregular or illegal as contended on behalf of the respondent State. 8. However, it may be noted that following common defences have been raised on behalf of the petitioners in this group of petitions :- (i) That the. petitioners are employed on temporary basis or on ad hoc basis or on daily wages for long spell of time and in some cases for more than two decades and the Government has accepted the stand and, therefore, they should not suffer; (ii) That some of the petitioners after long employment have been terminated without following due process of law; (iii) That some of the employees have been retrenched unceremoniously; (iv) That some of the employees even after termination or retrenchment or retirement have not been paid their due and payable salary and allowances. Therefore, the respondent State should be directed to absorb them or regularise them or accord them permanency in service, as they have already become obsolete on account of being overage and other factors. (v) that in some of the matters earlier directions and orders of the Courts have been given and they have become final. Obviously, this aspect has to be examined by the Committee which is constituted by this judgment; (vi) that in some of the cases juniors have been regularised and seniors have suffered for no fault of their own; (vii) that in some of the cases equal pay is not paid on the ground of contractual appointment or fixed salary. 9. Obviously, this aspect has to be examined by the Committee which is constituted by this judgment; (vi) that in some of the cases juniors have been regularised and seniors have suffered for no fault of their own; (vii) that in some of the cases equal pay is not paid on the ground of contractual appointment or fixed salary. 9. Since, virtually, common questions are involved individual factual profile is not required to be articulated and it is rightly submitted by the learned counsel appearing for the parties. 10. Attention of this Court has also been invited by the learned counsel for the parties that the observations made in the case of Secretary, State of Karnataka and Others V/s. Uma Devi (3) (supra) in paragraphs 45 and 53* are relevant and pertinent. Great emphasis has been laid by the learned counsel for the petitioners on those observations. It would, therefore, be expedient to reproduce the observations made in the said paragraphs. 11. In paragraph 45 the observation made reads thus:- "While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the facts 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 nature, 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 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 service 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 Constitution." 12. So far as observation made in paragraph 53* are concerned, they read as under:- "One aspect needs to be clarified. So far as observation made in paragraph 53* are concerned, they read as under:- "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa R. N. Nanjundappa and B. N. Nagarajan 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 the intervention of orders of the courts or of tribunals. The question of regulari-zation 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 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." 13. There is no dispute about the fact that most of the employees have been working and some of them have worked in past for a long span of time ranging from 10 to 25 years. Obviously, therefore, it is contended that they would become overaged in the employment market. It is, therefore, emphasis is laid on the observations quoted hereinabove. 14. The exposition of the legal proposition and law laid down in the case of Secretary, State of Karnataka and Others (supra) ought to be considered for the purpose of appreciating merits and for adjudication of the common dispute raised in this group of petitions. 15. It is, therefore, emphasis is laid on the observations quoted hereinabove. 14. The exposition of the legal proposition and law laid down in the case of Secretary, State of Karnataka and Others (supra) ought to be considered for the purpose of appreciating merits and for adjudication of the common dispute raised in this group of petitions. 15. If recruitment or appointment or selection of the petitioners is not based as per the established practice or in terms of the recruitment rules or regular vacancy or sanctioned post, the Constitutional protection is hardly obtainable. However, observations made in paragraphs 45 and 53* carve out some exposition in some cases. 16. It is in these context, the reliance has been placed on the following five decisions rendered by this Court in the recent past viz. :- (i) L.P.A. No. 946 of 2003 (The State of Bihar & Ors. vs. Purendra Sulan Kit) and analogous cases, delivered on 26.6.2006 (ii) L.P.A. No., 1211 of 2005 (The State of Bihar & Ors. vs. Bipin Prasad Singh) and analogous cases, decided on 22nd .November, 2006 (iii) CWJC No. 7539 of 2000 (Chandeshwar Rai vs. The State of Bihar & Ors.) and analogous cases, decided on 4th December, 2006; (iv) CWJC No. 12794 of 2000 (Md. Manzoor Alam and other vs. The State of Bihar & Ors.) and analogous cases decided on 22nd January, 2007, and (V) CWJC No. 6504 of 2000 (Shailendra Kumar Verma @ Shailendra Prasad vs. The State of Bihar & Ors.) and analogous cases decided on 30th November, 2006$. 17. Virtually, in those decisions similar issues of irregularity and illegality in the process of their appointment or recruitment had been raised and adjudicated in the light of the law laid down in the case of Secretary, State of Karnataka and Others (supra). 18. Since the matter involves question of absorption or permanency or regu-larisation of employees appointed in public employment temporarily or on ad hoc basis or daily wages or as work charge or on fixed salary, or on contract terms for a particular project or scheme where they are irregularly appointed or illegally appointed, the respondents shall consider the factual profile of each case on the individual basis. 19. 19. Considering the overall factual profile and picture emerging from the present group of petitions, catalogue of events and circumstances, and common issues being involved in this group of cases, obviously there would be requirement of investigation of facts of each case to reach to a conclusion whether the appointments are legal or regular or not and whether such appointments which are questioned in this group of cases in which directions are sought for regularisation, absorption or permanency in this group of matters would fall within the amplitude and altitude in terms of the observations made in paragraphs 45 and 53* of the judgment rendered in the case of Secretary, State of Karnataka and Others (supra). 20. 20. It is in these context upon consensus, this Court is inclined to dispose of this group of petitions by giving the following directions to the respondent State of Bihar:- (1) The Chief Secretary, Government of Bihar shall constitute a Committee of three Secretaries within a period of two months from today to examine the manner and mode and the type of appointment and whether such appointments are in consonance with the Recruitment Rules on regular posts, irregularly made or illegally made or not; (2) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, the procedure for which the Committee will evolve its own 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 others V/s. Uma Devi (3) (supra); (3) 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 Secretary, State of Karnataka (supra) and in particular in the light of the observations which are quoted hereinabove; (4) It shall, also, be remembered that the exercise of regularisation, if required, shall be a one time measure; (5) 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; (6) The contention that in some of the cases out of the present group in earlier round of litigation finality has been attained and achieved shall, also, be examined by the Committee; and (7) Until the Committee concludes its process and exercise as directed heareinabove, status quo in respect of the petitioners obtainable as on today, is directed to be maintained. 21. In view of the foregoing discussions and the propositions of law, this group of cases shall, accordingly, stand disposed of with no order as to costs. 22. Let a copy of this judgment be given to the learned counsel for the State for compliance of the order.