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2011 DIGILAW 343 (PAT)

Pawan Kumar Srivastava v. State Of Bihar

2011-03-07

J.N.SINGH

body2011
JUDGEMENT 1. Petitioners have filed this writ application for quashing of the order dated 12.01.2010 passed by the Superintending Engineer, Building Construction Department, Saharsa, as contained in Annexure-10, by which, he has rejected the cases of the petitioners for converting their services into regular service from work charge establishment. Prayer has also been made for quashing of his subsequent orders dated 21.01.2010, as contained in Annexure-10/1, and order dated 01.02.2010, as contained in Annexure-10/2. Prayer has also been made for a direction to the respondents to regularize the services of the petitioners with consequential reliefs. 2. Case of the petitioners in a nutshell is that they were appointed in a work charge establishment under the Department sometime in 1985 except petitioner no.16 who was appointed in 1989 on compassionate grounds. It is contended that prior to their appointments under work charge establishment, since 1981 they are working with the Department on daily wages. The details of their appointments in the work charge establishment and on daily wages are given in paragraph 3, 4 and 5 of the writ application. 3. Learned senior counsel for the petitioners submits that the State Government had come out with a policy to regularize the services of the employees in work charge establishment for which initially a cut-off date was fixed as 01.01.1985. However, later on, by different circular, the same was extended to 01.12.1990. Since the petitioners had completed qualifying period for their regularization they approached the respondents for the same, which was not done. Hence, petitioners moved this Court through CWJC No.12775 of 2001. The said writ application was disposed of by order dated 04.05.2006, as contained in Annexure-8. In its order, this Court noticed the submissions made on behalf of the petitioners. However, as by then the Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka V/s. Uma Devi [2006 (2) PLJR (SC) 363] had come, this Court held that any policy of the Government had to remain within the permissible limits set for regularization by the Apex Court and directed the respondents to take a decision in the matter of petitioner one way or other within two months. 4. Accordingly, petitioners represented and their cases were considered and were rejected by the impugned Annexure-10. 4. Accordingly, petitioners represented and their cases were considered and were rejected by the impugned Annexure-10. Ground of rejection in the impugned order is that the petitioners had not completed five years of service on the cut-off date which was 21.10.1984. In the subsequent orders of Superintending Engineer which are also impugned, some doubt has also been expressed with regard to the appointment of the petitioners. But basically the same has also been issued on the same ground that the petitioners do not complete the required period of service till the cut-off date. 5. Learned senior counsel for the petitioners further submits that, as noticed by this Court earlier, the respondents had themselves accepted that the cut-off date for consideration of cases of such employees for being regularized was extended to 11.12.1990. He submits that, admittedly, all the petitioners were appointed prior to such cut-off date and, therefore, they were eligible for being taken into regular establishment. He submits that all the petitioners are still continuing with the respondents under work charge establishment. He also submits that the PWD Code provides that employees working in the work charge establishment have to be taken into regular establishment if the work for which the establishment has been created is likely to continue for long with no fixed time limit for its completion and closure of the establishment. He submits that the provisions of the PWD Code have a force of law and, therefore, the same has to prevail upon any Government circular or resolution issued to the contrary. He refers to a Full Bench judgment of the Jharkhand High Court in the case of Ram Prasad Singh V/s. the State of Jharkhand, reported in 2005(3) JLJR 38 , and submits that the Government resolution dated 20.09.1990, fixing 21.10.1984 as cut-off date for regularization of work charge employees has already been held arbitrary, unreasonable and illegal. He submits that SLP against the said Full Bench judgment of Jharkhand High Court has also been dismissed by the Apex Court. 6. Counter affidavit has been filed in the case and learned counsel for the respondents submits that in the modified order of the Superintending Engineer, as contained in impugned Annexure-10/2, it has been mentioned that appointments of the petitioners also appear to be suspicious because of certain circumstances, as mentioned in the order itself. 6. Counter affidavit has been filed in the case and learned counsel for the respondents submits that in the modified order of the Superintending Engineer, as contained in impugned Annexure-10/2, it has been mentioned that appointments of the petitioners also appear to be suspicious because of certain circumstances, as mentioned in the order itself. He also submits that the extension of cut-off date, as claimed by the petitioner, was only in respect of employees appointed on daily wages, and for employees appointed in work charge establishment, it always remained as 21.10.1984, which was never extended. 7. Learned senior counsel for the petitioner, in reply, submits that while disposing of the earlier writ application of the petitioner, this Court had directed the respondents to consider their cases in the light of the judgment of the Constitution Bench. He submits that Annexure-10 shows that the respondents had still considered the representation of the petitioners only on the basis of cut-off date laid down in the resolution of the Government. While issuing Annexure-10 there was no consideration in respect of validity of their appointment. Therefore, now that the resolution containing cut-off date has already been held arbitrary and illegal by the Jharkhand High Court, the ground for rejecting their cases for regularization on the basis of cut-off date becomes non est. He further submits that the resolution is also of no consequence now because of the reason that the Constitution Bench has clearly laid down that the employees working for 10 years or more have to be considered for their regularization within the parameters laid down in paragraph 44 of the judgment. He submits that the modified order of the Superintending Engineer, as contained in impugned Annexure-10/1 and 10/2, were issued without any notice to the petitioners and without hearing them. Therefore, any observation made by the respondents in the impugned Annexure-10/1 and 10/2, in respect of nature of their appointment, was made behind their backs and for which no opportunity was granted to them. 8. This submission of learned senior counsel for the petitioner is not denied in the counter affidavit. Therefore, any observation made by the respondents in the impugned Annexure-10/1 and 10/2, in respect of nature of their appointment, was made behind their backs and for which no opportunity was granted to them. 8. This submission of learned senior counsel for the petitioner is not denied in the counter affidavit. There is nothing in the counter affidavit to show that the subsequent orders i.e. impugned orders issued by the Superintending Engineer, as contained in Annexure-10/1 and 10/2, were issued upon fresh consideration on facts after giving due opportunity to the petitioners to defend their cases in respect of validity of their appointment. In view of the observations of the Constitution Bench, particularly in paragraph 45, the law laid down by the Constitution Bench now holds the field. The Constitution Bench has made it clear that any decision or direction of any Court, which runs counter to the law laid down therein is denude on its status as precedent. Obviously any circular or resolution of the Government which may run counter to the judgment of the Apex Court shall also be considered as ultra vires and void. After the Constitution Bench judgment any action in the matter of regularization of an employee working in any capacity with the respondents has to be considered only within the parameters laid down by the Constitution Bench in paragraph 44 of the judgment. Hence, any circular or resolution of the Government can be taken into account only if the provisions of the same are in consonance with the law laid down thus and not otherwise. This means that, once the Constitution Bench has held that the employees who are working for 10 years or more as on the date of the judgment i.e. 10.04.2006, their cases have to be considered for regularization if their appointments falls in the category of irregular and not illegal, the same has to be followed strictly. In the circumstances, any cut-off date fixed by any resolution or circular for consideration of cases of regularization of the employees has to be ignored and, if the employees are continuing and have completed 10 years or more on 10.04.2006, their cases have to be considered irrespective of the fact whether they qualified for consideration under any other circular or resolution of the Government or not. 9. 9. This Court finds that the respondent Superintending Engineer, while issuing repeated orders, has failed to consider this aspect of the matter. Apparently, he was swayed away by the earlier Resolution of the Government fixing cut-off date for regularization of work charge employees. The subsequent orders which he has issued by way of correction have been admittedly issued without any notice to the petitioners to satisfy him with regard to validity of their appointment. It may also be observed that for consideration of validity of appointment of any employee, in terms of the observations of the Constitution Bench, the case of each employee has to be considered separately, by taking into account the individual facts. The impugned Annexure- 10/2 shows that only sweeping observations have been made by the Superintending Engineer expressing doubt in respect of appointment of all the petitioners combined. This cannot be an approach while considering the cases of the individual employees in terms of the observations of the Constitution Bench judgment. 10. As a result, the writ application is allowed. The impugned Annexure-10, 10/1 and 10/2 are quashed. The respondents are given liberty to examine the cases of the petitioners for taking them into regular establishment strictly in terms of the observations of the Constitution Bench.