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Patna High Court · body

2011 DIGILAW 2541 (PAT)

Most. Baby Devi v. State of Bihar

2011-12-22

V.N.SINHA

body2011
Order It appears under Order Nos. 8, 10 passed in C.W.J.C. No. 4517 of 2007 the name of the original writ petitioner has been printed as petitioner though he stood substituted under order dated 25.8.2010. Accordingly, both the orders passed in the said writ case are modified to indicate the name of Baby Devi and others as petitioners. 2. Heard learned counsel for the petitioners and the State. 3. Original writ petitioner of C.W.J.C. No. 4517 of 2007 was appointed as Watchman-cum-Peon in the scale of Rs. 155-190/- under office order bearing memo no.553 dated 23.8.1980 by the Executive Engineer, Planning and Investigation Division, Public Works Department, Patna. Perusal of the said office order indicates that the aforesaid appointment of the original writ petitioner of C.W.J.C. No. 4517 of 2007 was in the Work Charge Establishment. After securing the aforesaid appointment original writ petitioner continued to discharge the duties of the Watchman-cum-Peon and in appreciation of the satisfactory service rendered by him his service-book was also opened on 27.3.1987, extract whereof is annexed with the writ petition as Annexure-2. There was also deduction from his salary as contribution towards Provident Fund. 4. Petitioner of C.W.J.C. No. 4600 of 2007 was appointed as a Roller Khalasi in the scale of Rs. 155-190/- in Work Charge Establishment under Office Order No. 1910 dated 30.8.1973 issued by the Executive Engineer, Rural Engineering Organization, Sahabad Division, Arrah i.e. even before any ban was imposed on such appointment in the Work Charge Establishment under Circular Letter No. 8954 dated 23.7.1975 communicated to all concerned under Memo No. 2893 dated 30.7.1975. . 5. State Government issued circular bearing Memo No. 3058 dated 22.10.1984 providing for reduction of the length of satisfactory service rendered by the Work Charge Employee in the Work Charge Establishment from ten to five years for regularization in the Regular Establishment. Clause (ka) of the aforesaid circular dated 22.10.1984 provided for conversion of the post of the Work Charge Establishment into Regular Establishment as and when the Work Charge Employee is regularized in the Regular Establishment. Clause (kha) of the said circular provided that only such Work Charge Employees shall be considered for regularization in the Regular Establishment against whom there is neither civil nor criminal proceeding is pending. Clause (kha) of the said circular provided that only such Work Charge Employees shall be considered for regularization in the Regular Establishment against whom there is neither civil nor criminal proceeding is pending. Clause (ga) of the said circular provided that the amount allocated for payment of salary to the Work Charge Employee shall also be transferred in the appropriate budget head for payment of salary to the regularized worker. Clause (gha) of the said circular reiterated the contents of the Circular Letter No. 8954 dated 23.7.1975 that in future neither any post shall be created in the Work Charge Establishment nor any appointment shall be made against the vacancy created in the Work Charge Establishment with further resolve to ensure strict compliance of circular dated 23.7.1975 and those found violating the same, appropriate action be taken against them. After issue of circular dated 22.10.1984 the Government issued Resolution No. 6394(2) dated 23.10.1987 providing for regularization of the Work Charge Employees recruited after 23.7.1975. 1st Paragraph of the resolution dated 23.10.1987 referred to the contents of circular letter dated 22.10.1984 reducing the length of satisfactory service rendered by the Work Charge Employee for regularization in Regular Establishment from 10 to 5 years as also the fact that there has been complete ban over appointment and creation of post in the Work Charge Establishment under circular dated 23.7.1975. Paragraph-2 of the resolution dated 23.10.1987 accepted the position that notwithstanding the ban imposed on appointment in the Work Charge Establishment under circular dated 23.7.1975 different works department have made appointment in the Work Charge Establishment even after 23.7.1975 and those Work Charge Employees have rendered satisfactory service for long in the Work Charge Establishment. It is also stated in paragraph-2 of the resolution dated 23.10.1987 that Work Charge Employees of Road and Building Construction Department appointed after 23.7.1975 completing five years of satisfactory service have already been regularized under order dated 5.4.1984. Paragraph 3 of the resolution dated 23.10.1987 indicates that the said resolution is being issued to resolve the ambiguity about the cut-off date for regularization of the employees recruited in the Work Charge Establishment prior to issue of circular dated 22.10.1984. In paragraph-4 of resolution dated 23.10.1987 Government resolved to regularize all the Work Charge Employees completing five years of satisfactory service till 21.10.1984, one day prior to issue of the earlier circular dated 22.10.1984. In paragraph-4 of resolution dated 23.10.1987 Government resolved to regularize all the Work Charge Employees completing five years of satisfactory service till 21.10.1984, one day prior to issue of the earlier circular dated 22.10.1984. The decision to regularize Work Charge Employees who completed five years of satisfactory service in the Work Charge Establishment until 21.10.1984 was also subject to the same conditions which were incorporated in circular letter dated 22.10.1984 i.e. after regularization of the Work Charge Employee in the Regular Establishment the post of the Work Charge Establishment shall be converted into Regular Es1ablishment. Regularization was to be allowed to only those Work Charge Employee who completed five years of satisfactory service in the Work Charge Establishment until 21.10.1984 provided there was no civil or criminal proceeding pending against the employee. It was also stated in the resolution dated 23.10.1987 that after regularization of the Work Charge Employee in Regular Establishment the amount allocated for payment to the Work Charge Employee shall also be transferred from Work Charge head to the appropriate budget head for payment to regular employee. Paragraph 6 of the resolution dated 23.10.1987 provided that in future under no circumstance any appointment shall be made in the Work Charge Establishment. In Paragraph-7 of the resolution dated 23.10.1987 Clause (gha) of the earlier circular dated 22.10.1984 was modified to enable the authorities of the Works Department to regularize the Work Charge Employee appointed until 22.10.1984 provided they have rendered five years of satisfactory service in the Work Charge Establishment. Original writ petitioner of C.W.J.C. No. 4517 of 2007 did not complete five years of service in the Work Charge Establishment until 21.10.1984 his services could not be regularized in the light of the resolution dated 23.10.1987 but it is not known as to why the services of petitioner of C.W.J.C. No. 4600 of 2007 who had completed more than five years of satisfactory service in the Work Charge Establishment on 21.10.1984 was not regularized in compliance of resolution dated 23.10.1987. 6. Another decision taken by the State Government in the chain of decisions for regularization of Work Charge Employees is resolution no. 6. Another decision taken by the State Government in the chain of decisions for regularization of Work Charge Employees is resolution no. 5074(2) dated 20.9.1990, whereunder a Committee was constituted to consider the regularization of Work Charge Employees appointed prior to 21.10.1984 but did not complete five years of service till 22.10.1984 as is required under resolution dated 23.10.1987 which provided for regularization of Work Charge Employees who completed five years of satisfactory service until 21.10.1984. Paragraph 5 of the resolution dated 20.9.1990 provided for regularization of Work Charge Employees appointed prior to 21.10.1984 but made it clear that York Charge Employees appointed after 21.10.1984 shall not be regularized. Paragraph-6 of the resolution dated 20.9.1990 required the Committee constituted for regularization of the Work Charge Employee to consider regularization in the light of the contents of Resolution No. 6394 dated 23.10.1987 as also qualification of the Work Charge Employee for the post on which he is to be regularized. Paragraph 8 of the resolution dated 20.9.1990 provided for amendment in P.W.D. Code stopping future appointment in Muster Roll, Work Charge Establishment. 7. Original writ petitioner of C.W.J.C. No. 4517 of 2007 relying on the contents of the circular dated 22.10.1984, resolution dated 23.10.1987, 20.9.1990 requested the authorities to consider his case for regularization as having been appointed on 23.8.1980 he had rendered much more than five years of satisfactory service and his case was fit for regularization. The authorities did not consider the aforesaid request of the original writ petitioner of C.W.J.C. No. 4517 of 2007 and he moved this Court in C.W.J.C. No. 6217 of 2003 which was disposed of under orders dated 15.3.2004, Annexure-8 and this Court with reference to the contents of the resolution dated 23.10.1987 observed that original petitioner having not completed five years of service on 21.10.1984 could not be regularized earlier but directed the State authorities to consider his case for regularization on Class-IV post as original petitioner in C.W.J.C. No. 4517 of 2007 had rendered satisfactory service for more than five years which is required for regularization on a Class-IV post under circular dated 22.10.1984. Commissioner-cum-Secretary of the Road Construction Department considered the request of the original petitioner for regularization in compliance of the aforesaid order dated 15.3.2004 and passed reasoned order rejecting his case for regularization under Memo No. 3472(S) dated 29.3.2006, Annexure-9 on the ground that original writ petitioner having not completed five years of satisfactory service until 21.10.1984 his case cannot be considered for regularization. In the concluding paragraph of the said reasoned order the Commissioner-cum-Secretary of the Department also observed that if services of original writ petitioner is regularized in the Regular Establishment, the case of 26 others, senior to him in the Work Charge Establishment is also required to be considered for regularization. 8. Writ Petition No. 4517 of 2007 was filed on 9.4.2007 by the original writ petitioner challenging the aforesaid order dated 29.3.2006. During the pendency of the writ petition original writ petitioner left for heavenly abode on 2.8.2008, whereafter his widow filed interlocutory application for expunging the name of the original writ petitioner and to substitute the widow and other legal heirs as petitioners. Request of the widow of the original writ petitioner was allowed under orders dated 25.8.2010 and she and other heirs of the original petitioner have been substituted as petitioners in C.W.J.C. No. 4517 of 2007. 9. Counsel for the petitioners submitted that in the light of the contents of the circular of the Government dated 22.10.1984 Work Charge Employees who have completed satisfactory service on one post for a continuous period of five years their services are required to be regularized by converting the post of the Work Charge Establishment into Regular Establishment, as has been provided in Clause (Ka) of resolution dated 22.10.1984 and there shall be no extra burden on the exchequer and in appreciation of the contents of the circular dated 22.10.1984 Work Charge Employees who completed five 'years of satisfactory service until 21.10.1984 were regularized earlier but original writ petitioner in C.W.J.C No. 4517 of 2007 having not completed five years of satisfactory service until 21.10.1984 his services could not be regularized in the light of the contents of the circular dated 22.10.1984 and resolution dated 23.10.1987 although Clause (gha) of circular dated 22.10.1984 stood modified under Paragraph-7 of resolution dated 23.10.1987. Original writ petitioner completed five years of satisfactory service in the Work Charge Establishment on 23.8.1985 and his case was ripe for being considered for regularization with effect from 23.8.1985 in the light of the contents of Paragraph-(Ka) of the circular letter dated 22.10.1984 and paragraph-5 of resolution dated 20.9.1990 as Clause (gha) of circular dated 22.10.1984 stood modified under paragraph-7 of resolution dated 23.10.1987. In this connection it is further submitted that in appreciation of the fact that original petitioner of C.W.J.C. No.4517 of 2007 had completed five years of satisfactory service in the Work Charge Establishment and was ripe for regularization his service-book was opened by the Sub-Divisional Officer on 27.3.1987 and deductions were made from his salary towards the Provident Fund contribution. Original petitioner was also allowed the benefit of pay revision which is also evident from endorsement made in his service-book on 16.12.1987 reverse of Annexure-2. It is submitted on behalf of the petitioners that had the departmental Secretary while passing the reasoned order dated 29.3.2006, Annexure-9 noticed the contents of Clause (Ka) of the circular dated 22.10.1984 which, inter alia, provided for regularization of all the Work Charge Employees who have completed five years of satisfactory service on one post in Work Charge Establishment together with the contents of paragraph 7 of resolution dated 23.10.1987 modifying the contents of Paragraph (gha) of circular dated 22.10.1984 with paragraph-5 of resolution dated 20.9.1990 issued for expediting regularization of Work Charge Employee appointed prior to 21.10.1984 the Secretary ought to have allowed regularization of not only the original petitioner but also 26 seniors of the original petitioner in the Work Charge Establishment by converting their post of Work Charge Establishment into Regular Establishment as is provided in Clause (Ka) of Circular dated 22.10.1984 and paragraph-4(ka) of resolution dated 23.10.1987 without causing any further burden on the exchequer. 10. Learned counsel for the petitioners also submitted with reference to order of the State Government bearing Memo No. 1344 dated 4.2.1949 read with notification of the Government dated 16th April, 1959 that employee working in the Work Charge Establishment for a period of more than one year is deemed to have become a member of the permanent establishment of the State Government and in support of such proposition relied on the Division Bench judgment of this Court in the case of Koshi Project Worker's Association & Anr. Vs. Vs. The State of Bihar & Ors., Sangam Lal Yadav & Ors. Vs. The State of Bihar & Ors., reported in 2007(1) PLJR 358 Paragraph 10 as also on the order dated 3.5.2007 passed in the case of Subhash Paswan and Ors. Vs. The State of Bihar & Others, C.W.J.C. No. 16060 of 2004 against which L.P.A. No. 459 of 2009 was filed by the State of Bihar which was also dismissed under orders dated 24.7.2009 on the ground of limitation as there was no satisfactory explanation for the inordinate delay in filing the said L.P.A Against the order dated 24.7.2009 petition for Special Leave to Appeal (Civil) No. CC 11188-11189/2010 was filed before the Supreme Court which was also dismissed on the ground of delay as well as on merits. 11. Learned counsel for the petitioners next submitted that the cut-off date for regularization of the Muster Roll Workers has been extended under Resolution No. 489 dated 10.5.2005 from 1.8.1985 to 11.12.1990. Such extension of the cut-off date for regularization of the Work Charge Employees serving in the different Work Charge Establishment of the State Government is also called for to ameliorate their plight as in spite of the ban imposed on appointment under circular letter of the Government dated 23.7.1975 there has been appointment and regularization of the Work Charge Employees from time to time. In this connection reference is made to the order dated 5.4.1984 referred to in paragraph-2 of the resolution dated 23.10.1987 as also to the proceeding taken by the Chief Secretary of the State on 18.8.2011, copy whereof is annexed with the counter affidavit filed in the connected C.W.J.C. No. 4600 of 2007 as also to the order of this Court dated 26.8.2011 passed in C.W.J.C. No. 2608 of 2007, whereunder direction was given to the State-respondents to consider the extension of the cut-off date for regularization of the Work Charge Employees as the cut-off date for regularization of the Muster Roll Workers who stand on inferior footing than the Work Charge Employees has already been extended from 1.8.1985 to 11.12.1990. 12. 12. In the background of the aforesaid submission prayer is to quash the aforesaid order dated 29.3.2006 (in C.W.J.C. No. 4517 of 2007) with direction to the Commissioner-cum-Secretary to regularize the services of the original petitioner of C.W.J.C. No. 4517 of 2007 with effect from 29.3.2006, the date of the impugned order and payment of family pension to the substituted petitioner no.1 with effect from the date of death of the original petitioner i.e. 2.8.2008 as while passing the impugned order learned Commissioner failed to take notice of the contents of the resolution of the Government dated 20.9.1990 which was issued to expedite the regularization of Work Charge Employees appointed in the Work Charge Establishment prior to 21.10.1984 but had not completed five years of satisfactory service on 21.10.1984 and completed required five years of service for regularization after the cut-off date. 13. Learned counsel for the State in opposition submitted that regularization is a right which is personal to the workman and the original writ petitioner of C.W.J.C. No. 4517 of 2007 having left for heavenly abode on 2.8.2008 the right to sue does not survive and the writ petition is fit to be dismissed. In this connection, he relied on the provisions contained in Order 22 Rule 1 of the Code of Civil Procedure. Learned counsel for the State further submitted that reliance placed by the counsel for the petitioners on the judgment of the Division Bench in the case of Sangam Lal Yadav vs. The State of Bihar & Ors. passed in L.P.A. No. 710 of 2004 is also misplaced as in the S.L.P. filed against the said judgment bearing no. 17879 of 2007 under order dated 14.1.2011 leave has been granted by the Hon'ble Supreme Court and operation of the judgment of the High Court passed in the case of Sangam Lal Yadav (supra) has been stayed until further orders. In C.W.J.C. No. 4600 of 2007 counsel for the State did concede that petitioner of C.W.J.C. No. 4600 of 2007 having been appointed as a Roller Khalasi in the Work Charge Establishment under Office Order No. 1910 dated 30.8.1973 even before any ban was imposed on such appointment in the Work Charge Establishment under Circular letter dated 23.7.1975 his case is under active consideration for regularization. 14. 14. Learned counsel for the petitioners in rejoinder submitted that original writ petitioner in C.W.J.C. No. 4517 of 2007 moved this Court in C.W.J.C. No. 6217 of 2003 for compliance of the Government circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 issued for regularization of the Work Charge Employees and this Court under orders dated 15.3.2004, Annexure-8 (in C.W.J.C. No. 4517 of 2007) directed the State-respondents to consider his case for regularization as per the cut-off date for entry in the Work Charge Establishment fixed under Resolution No. 6394 dated 23.10.1987 but the Commissioner-cum-Secretary of the Department ignoring the mandate of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 passed erroneous order dated 29.3.2006 which was assailed by the original writ petitioner of C.W.J.C. No. 4517 of 2007. During the pendency of C.W.J.C. No. 4517 of 2007, on account of ill-luck the original writ petitioner left for heavenly abode on 2.8.2008, as such, even though the right of the original writ petitioner to seek regularization may not be surviving but the widow petitioner no.1 is entitled to enforce her right for grant of family pension. In this connection, learned counsel also relied on the judgment of the another Single Judge in the case of Shambhu Sharan Singh vs. The State of Bihar & Ors., reported in 1998(3) PLJR 908. In the case relied upon the deceased employee was appointed by the competent authority as Choukidar in the Work Charge Establishment. While serving in the Work Charge Establishment for about six years he died on 6.1.80. Relying on the circular of the Government dated 22.10.1984 that Work Charge Employees completing five years of continuous satisfactory service is entitled to be regularized retiral benefits of the deceased Work Charge Employee was directed to be paid to the heirs of the deceased employee who died while serving in the Work Charge Establishment for more than six years. 15. In view of submission of the counsel for the State noted in paragraph 13 reliance placed by the counsel for the petitioners over the judgment of Division Bench in the case of Sangam Lal Yadav (supra) is misplaced, however, considering the submissions noted in paragraphs 9, 11, 12, 14 and the contents of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990, I set aside the order dated 29.3.2006, Annexure-9 in C.W.J.C. No. 4517 of 2007 and direct that the husband of the substituted petitioner no. 1 of C.W.J.C. No. 4517 of 2007 and petitioner of C.W.J.C. No. 4600 of 2007 be regularized on the post of Watchman-cum-Peon and Roller Khalasi respectively with effect from the date they completed five years in Work Charge Establishment and petitioner no. 1 of C.W.J.C. No. 4517 of 2007 be paid family pension with effect from the date of death of her husband i.e. 2.8.2008, as early as possible, in any case within two months of the date of receipt of a copy of this order before the Secretary of the department. Within the same time respondent State should also extend the cut-off date fixed for regularization of the Work Charge Employee from 21.10.1984 to 11.1.1990 as was done in the case of Muster Roll Workers from 1.8.1985 to 11.1.1990 under resolution no.489 dated 10.5.2005 of the Government in appreciation of the fact that Work Charge Employees are superior in status to the Muster Roll Workers who are paid wages for the days on which they are actually engaged whereas the Work Charge Employees are paid salary as per the scale admissible to the post on which they are serving and are also allowed the benefit of pay revision and other service conditions admissible to regular employees. 16. The writ petitions are, accordingly, allowed.