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2008 DIGILAW 440 (PAT)

Bishundeo Tiwari v. State Of Bihar

2008-03-03

MRIDULA MISHRA

body2008
Judgment 1. All eleven petitioners are aggrieved as by Office Order No.T-01 dated 28.4.2003 they have been terminated from service alongwith 16 others with effect from 28.4.2003. Petitioners prayer is for quashing the order of termination so far it relates to them and further to direct their reinstatement on their respective posts with effect from 28.4.2003. 2. Petitioners were working as casual employees in Bihar State Pollution Control Board (hereinafter to be referred as the Board). They were appointed by competent authority as casual employees against sanctioned posts of Class III and Class IV in between 1986-93. The order of termination has been challenged by the petitioner on the ground that it has been issued on the direction of the State Government as such not an independent decision of the Board. The State Government directed for termination of petitioners service only because the petitioners moved before this Court in C.W.J.C. No. 2148 of 2003 for regularization of their service in the Board. While the writ application was still pending they have been removed from their service. Another ground which has been taken by the petitioner for challenging the impugned order is that Rule 8 of the Water (Prevention and Control of Pollution) Rule Act, 1974 empowers the said Board to create such posts in different pay scales as.it considers necessary provided the pay scale is not more than Rs. 2500/- per month. In the event the posts to be created carry pay scale of more than Rs. 2500/- per month prior sanction of the State Government is necessary. Petitioners case is that for regularization of posts held by them there was no need for approval from the State Government as at the time of their entry in service, and before revision of pay, their posts carries pay scale of less than Rs. 2500/- . In spite of that the Board of Directors in its 70th meeting decided to refer it to the State Government for approval which resulted into termination of their service. The petitioners should have been retain in service by the Board on the basis of its own. decision as the basic pay scale of the petitioners at the time of their initial appointment was not more than Rs. 2500/-per month, and prior sanction of the State Government was not necessary. 3. A detail counter affidavit has been filed on behalf of the. Board. 4. decision as the basic pay scale of the petitioners at the time of their initial appointment was not more than Rs. 2500/-per month, and prior sanction of the State Government was not necessary. 3. A detail counter affidavit has been filed on behalf of the. Board. 4. The statements in the writ application as well as in the counter affidavit make it evidently clear that initial engagement of the petitioners in the State Board either on Class III or Class IV posts had been made without following the procedure for appointment in a Government service and in violation of Articles 14 and 16 of the Constitution of India. Petitioners continued on such posts with/without some interruptions and were being paid their wages either on daily wages basis or on basic pay of Class III/IV posts with admissible D.A. and without any increment. The petitioners submitted representation for regularization of their service on the posts they were functioning and the matter was placed in 68th Meeting of the Board of Directors held on 7.7.2001. Five men committee was constituted to consider petitioners case for regularization and to make recommendation in this regard. The committee submitted its report observing that in terms of the Bihar Reorganisation Act, 2000, the State of Jharkhand after its creation has constituted Jharkhand State Pollution Control Board on 9.9.2001 and which has became functional. The committee recommended that unless the assets and liabilities are apportioned the regularization of service of the petitioners and others would not be advisable. The Board of Directors in its 69th Meeting decided to complete the process of regularization by 10.4.2002. The Board further in order to remove doubts referred the matter to the Advocate General for his opinion. The Advocate General gave his opinion which are as follows: "(i) The services of casual/ad hoc employees can be regularized if their initial appointment has been made by an authority competent for the said purpose. (ii) If the appointment has been made against sanctioned vacant post, the employees can be absorbed. (iii) There can be no regularization on non-existing vacancy. (iv) Regularisation of ad hoc employees can be effected only in accordance with rules of direct recruitment. (ii) If the appointment has been made against sanctioned vacant post, the employees can be absorbed. (iii) There can be no regularization on non-existing vacancy. (iv) Regularisation of ad hoc employees can be effected only in accordance with rules of direct recruitment. (v) Rule 8 of the Water (Prevention and Control of Pollution) Rule, 1974, hereinafter referred to as Water Rule, 1974, empowers the State Board to create such posts in different pay scale as it consider necessary which should not be more than 2500/- per month and in the event the posts to be created carry pay scale more than Rs. 2500/-per month, prior sanction of the State Government is necessary." 5. The Board of Directors considered the opinion of Advocate General in its 70th Meeting and it was decided that the matter should be referred to the State Government for seeking approval. The petitioners in the meantime filed C.W.J.C. No. 2148 of 2002 with a prayer that the respondents be directed to regularize their service while writ application was still pending, a specific direction was issued by the State Government through its Forest and Environment Department to terminate petitioners service. The Deputy Secretary, Forest and Environment Department vide its letter no. 248 dated 25.4.2003 directed the Chairman/Member Secretary of the State Board to comply the earlier direction of the State Government or otherwise salary paid to the ad hoc employee shall be recovered from the salary of the Chairman/Member Secretary. This resulted into the issuance of impugned order. 6. Only question which needs consideration is whether the petitioners who are casual/ad hoc employees could have continued in their service without there being any approval of the State Government and whether proviso to Rule 8 of the Water Rules, 1986 framed under section 64 of the Water Act, 1974 is applicable in their cases. 7. This writ application was heard and by order dated 19.5.2003 a direction was issued to place this case after disposal of L.P.A. No. 960 of 1998. 8. I.A. No. 4166 of 2003 was filed by the petitioners for modification of order dated 19.5.2003 passed by the Hon ble Judge. The application was rejected as the I.A. application was filed on the ground that the L.P.A. was filed against the judgment passed in C.W.J.C. No. 11897 of 1995 and analogous cases which related to Class-ll posts which carried pay scale of more than Rs. The application was rejected as the I.A. application was filed on the ground that the L.P.A. was filed against the judgment passed in C.W.J.C. No. 11897 of 1995 and analogous cases which related to Class-ll posts which carried pay scale of more than Rs. 2500/- per month as such decision of L.P.A. will have no bearing in present writ application. In C.W.J.C. No. 11899 of 1995 stand of the Board was that since the pay scale of 1986 has been revised, as such the Board has right to make appointment on such posts which carries pay scale of proportionate revised pay scale of Rs. 2500/-. The writ application was dismissed as no sanction of the Government had been taken before making appointment. The L.P.A. No. 960 of 1998 has been dismissed on 21.2.2007 and the order passed in the writ application reported in 1999 1 PLJR 664 has been affirmed. It has been held that Rule 8 of the Water Rules, 1986 framed under Section 64 of the Water Act, 1974 mandates deep and pervasive control of the State Government over the State Board. It is difficult for the Court to hold that in the matter of selection of candidates for appointment, the Board can deviate proviso to Rule 8 or that it can ignore any direction issued by the State Government to stop the selection when the same is held without complying with the requirement of Rule 8. With regard to pay scale of Rs. 2500/- it was held that it is not unreasonable restriction and cannot be interpreted as variable with the revision of the pay because proviso to the rule empowers the State Board to create post, make appointment, carrying pay more than Rs. 2500/- with prior sanction of the State Government. 9. In view of the reported decision in 1991 1 PLJR 664 affirmed in L.P.A. No. 960 of 1998 I do not find that the order of termination issued on the direction of the Deputy Secretary, Department of Forest and Environment can be held to be illegal. In the matters of appointment, termination creation of posts and abolition of posts, the State Government can put restriction on the State Board. It has already been held that such restriction is not unreasonable restriction. 10. I do not find any merit in this application. This application is dismissed.