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2009 DIGILAW 1567 (PAT)

Raj Mohan San v. State Of Bihar

2009-12-18

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the State as also for the Bihar Public Service Commission. 2. The petitioners claim grant of regular pay scale on the post of Statistical Assistant in accordance with law contrary to the lump sum payment of Rs. 7,000/- per month being made to them continuing to treat their appointment as contractual. 3. Advertisement No. 1 of 1990 was published by the Bihar State Subordinate Service Selection Board (hereinafter referred to as as the Board) inviting applications from those eligible for selection in different Grade-Ill posts. The petitioners also applied and competed. 4. The advertisement did not specify the number of vacancies inter alia of Statistical Assistants leading to a series of litigations. This Court in one such case fixed a cut-off date as 31.12.1993 for reckoning of vacancies. 5. In M.J.C. No. 1969/99 filed for non-compliance of orders, the respodents undertook to send a requisition for 75 posts of Statistical Assistants on contract basis. This was obviously in the background of the stand of the State that 198 posts of Statistical Assistants/Block Statistical Supervisors from the third examination shall be filled up in accordance with law. This necessarily included these 75 posts. 6. A requisition was sent to the Commission on 22.4.2000 for contractual appointment of 75 Statistical Assistants for one year, likely to be extended by another year. The petitioners after recommendation came to be appointed on 8.11.2004. 7. It is not in controversy that the petitioners are still continuing to work on contract basis till date. This is conclusively suggestive of the fact that services of Statistical Assistants like the petitioners is permanent. Had it been otherwise, their services would definitely have been terminated on expiry of the original and/ or extended duration of the contract. 8. A supplementary counter-affidavit has been filed on behalf of the respondents on 17.12.2009. It states at paragraphs that there are 560 sanctioned posts of Statistical Assistants against which only 50 are working on regular pay scale and rest 35 are are working on contract basis. 9. 8. A supplementary counter-affidavit has been filed on behalf of the respondents on 17.12.2009. It states at paragraphs that there are 560 sanctioned posts of Statistical Assistants against which only 50 are working on regular pay scale and rest 35 are are working on contract basis. 9. The counter affidavit does not give any reason or explanation why contractual appointments have been made when sanctioned vacacies do exist or as to why a requisition for contractual appointment was sent when the original requisition leading to Advisement No. 1 of 1990 for the posts of Statistical Assistants did not include any contractual appointment. 10. Learned counsel for the State may be right in his submission that it is the privilege of the employer to make appointment on contract. But, if there are sanctioned vacancies existing, there have to be sufficient and cogent reasons for making contractual and not regular appointment. This decision shall become more onerous when conduct of the respondents itself reflects that they require the regular services of those appointed on contract. The fact that the petitioners may have accepted the contractual nature of their appointment, an objection raised on behalf of the State, does not impress the Court. The petitioners were obviously not in an equal bargaining position with the State Authorities. The chaos created in the appointment process with unspecified vacancies is the creation of authorities themselves. The petitioner had little option than to accept the contractual appointment or be on the street. 11. The realities of this State where employment opportunities are extremely limited and the Government is the largest employer, the predicament of the petitioners is very understandable. 12. Had the petitioners been on contract basis simpliciter, the matter may have been different. On the contrary, the petitioners applied in response to a regular advertisement, underwent a regular process of competitive selection, the procedures which are otherwise followed in accordance with Article 14 of the Constitution of India before providing regular employment in a Government service. These basic requirements mandated by the Constitution have been fulfilled by the petitioners. Therefore, in so far as the procedure for selection is concerned, they stand at par with the one selected and appointed on regular basis. 13. These basic requirements mandated by the Constitution have been fulfilled by the petitioners. Therefore, in so far as the procedure for selection is concerned, they stand at par with the one selected and appointed on regular basis. 13. In 1998(2) PLJR (SC)30, (I.K. Sukhija V/s. Union of India) the Supreme Court was considering a claim for determination of seniority by taking into consideration their uninterrupted and continuous ad hoc service. The tribunal after taking into consideration the reasons for ad hoc appointment and the procedure followed, proceedings of the D.P.C. Pursuant to which regular appointments were made and the conduct of the appellants in having voluntarily undergone test for regular promotion held that the appointment was not only ad hoc, but by way of stop gap arrangement and they were not entitled to continue to the benefit of continuous officiation for purpose of considering their seniority. The Supreme Court setting aside the order of the tribunal held at paragraph- 14 as follows: "14. What emerges from the above discussion is that the promotions of the appellants as A.Es. (E) were not contrary to any statutory recruitment rules. Even if we proceed on the basis that in absence of statutory rules the Draft Recruitment Rules of 1969 were applicable, what we find is that the appellants were eligible for promotions and their cases were duly considered by the D.P.C. They were promoted after they were found suitable by the D.P.C. and their promotions were made according to their placement in the merit. list and not according to their seniority. When the appellants were promoted, though on ad hoc basis, clear vacancies were available in the promotion quota. The only reason for making their appointments as temporary and ad hoc was that the Draft Recruitment Rules could not be finalised till 1975. There was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reasons stated above, it is not possible to accept that the appointments of the appellants as A.Es., though temporary and ad hoc, were by way of stop gap arrangements only." 14. There was no unusual spurt in the construction activity between 1970 and 1977 which necessitated giving of urgent temporary promotions. For all the reasons stated above, it is not possible to accept that the appointments of the appellants as A.Es., though temporary and ad hoc, were by way of stop gap arrangements only." 14. Once this Court has held that there is no infirmity in their selection process and which is in accordance with that required for a regular appointment, the fact that the petitioners have continued for now approximately five years is sufficient to satisfy this Court of the need of their continuous services by the respondents. 15. Had it been otherwise and there was no requirement the respondents would centainly have dispensed with their services of the petitioners by now. 16. This Court, therefore, holds that the petitioners shall be deemed to be regular appointees on the post of Statistical Assistants from the date of their recommendations and appointment. However, in the nature of the controversy this Court considers it proper to hold that this benefit of regular employment from the date of their appointment shall be applicable to them for all other purposes except salary. The regular monetary benefits of the pay scale shall be applicable to them from the date of institution of the writ application. 17. The writ application stands allowed.