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2012 DIGILAW 116 (PAT)

NAND KISHORE VERMA v. STATE OF BIHAR

2012-01-19

V.N.SINHA

body2012
ORDER (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Heard learned counsel for the petitioners and the State. 2. Petitioners in these two writ petitions were engaged to serve as Gaze Reader and Survey Khalasi on 19.9.1973 and 23.9.1972 in the Work Charge Establishment of the Water Resources Department. In the light of the circular of the State Government dated 19.2.1981 they were regularized on the post of Accounts Clerk and Correspondence Clerk respectively under order dated 22.5.1981 and 14.7.1981. By the impugned order dated 17.12.1999, Annexure-1 in both the petitions their regularization on the post of Accounts Clerk and Correspondence Clerk has been cancelled and they have been reverted to the post of Gaze Reader and Survey Khalasi. Perusal of the impugned order indicates that the same proceeds on the basis of the instructions of the State Government contained in Letter No. 3875 dated 19.8.1995, 6326 dated 27.12.1995 and 994 dated 1.7.1998 directing the subordinate authorities to revert those who were regularized contrary to the instructions of the Government contained in circular no.941 dated 19.2.1981 on the higher Class-III post/grade. Perusal of Circular Letter No. 3875 dated 19.8.1995, Annexure-A/2 indicates that the same was issued in continuation of the departmental instruction contained in Letter No. 517 dated 2.4.1983, whereunder authorities of the Government having noticed the irregularities made in compliance of the instructions of the State Government contained in letter no.941 dated 19.2.1981 to regularize the Work Charge Employees appointed in the Work Charge Establishment prior to 21.8.1975 in the post/ grade in which they were serving in the Work Charge Establishment regularizations were made in the higher Class-III post/grade, instructions contained in letter no.517 dated 2.4.1983 was issued to take corrective measures by reverting the employee regularized on the Class-IV post/grade in which he was working prior to his regularization. Later, the same instruction was reiterated under Letter No. 379 dated 13.1.1989 and subsequently under Letter No. 6326 dated 27.12.1995 and 994 dated 1.7.1998. 3. In compliance of the aforesaid circular letters the Executive Engineer has passed the impugned office order dated 17.12.1999 reverting the two petitioners on the post of Gaze Reader and Survey Khalasi respectively. Later, the same instruction was reiterated under Letter No. 379 dated 13.1.1989 and subsequently under Letter No. 6326 dated 27.12.1995 and 994 dated 1.7.1998. 3. In compliance of the aforesaid circular letters the Executive Engineer has passed the impugned office order dated 17.12.1999 reverting the two petitioners on the post of Gaze Reader and Survey Khalasi respectively. The reversion orders were challenged in these two writ cases which was taken up for admission on 7.2.2001 by S.N. Jha, J.(as his Lordship then was) and having noticed the submission of the counsel for the parties his Lordship observed under order dated 7.2.2001 that similar dispute, as is raised in the two writ petitions, is also involved in C.W.J.C. No. 4177 of 1995(Durga Nand Jha Vs. State) which has been referred to the Full Bench in view of conflicting decisions reported in 1993(1) PLJR 99, 1994(2) BLJ 499 and directed the two writ petitions be considered after disposal of the matter by the Full Bench. 4. Learned counsel for the petitioners assailed the reversion order both on merit as also on the ground of delay in passing the reversion order. He submitted that petitioners were recruited in the work charge establishment on the post of Gaze Reader, Survey Khalasi on 19.9.1973 and 23.9.1972 i.e. prior to the ban imposed on appointment in the Work Charge Establishment under circular letter no.8954 dated 21.8.1975. In appreciation of the fact that petitioners and others were recruited in the Work Charge Establishment before imposing ban on such appointment, the State Government issued circular letter no.941 dated 19.02.1981 constituting a Committee to examine the case of the work charge employees recruited prior to 21.08.1975 for regularization, provided the work charge employee possessed qualification of the post on which the employee was to be regularized. It is submitted on behalf of the petitioners that in the light of the instruction of the Government dated 19.02.1981 the case of the two petitioners was examined by the Committee, the Committee having found the petitioners qualified for the post on which they were to be regularized, recommended their case for regularization and in the light of the recommendations of the Committee petitioners were regularized as Accounts, Correspondence Clerk under order dated 22.05.1981 and 14.07.1981, Annexure-11 in C.W.J.C. No.761 of 2000. In this connection, it is specifically urged on behalf of the petitioners that regularization of the services of the petitioners were made in the light of the specific instruction of the Government contained in paragraph-2 “kha” of the circular letter dated 19.02.1981 that regularization of the work charge employee recruited prior to 21.08.1975 be made keeping in view his qualification for the post on which he is to be regularized. It is submitted that petitioners, though appointed in the Work Charge Establishment on the post of Gaze Reader, Survey Khalasi were regularized against the post of Accounts, Correspondence Clerk as they possessed the qualification required for Accounts, Correspondence Clerk. Learned counsel for the petitioners further submitted that if the authorities were of the opinion that regularization of the petitioners was contrary to the instruction contained in circular letter dated 19.2.1981 as clarified under circular letter no.517 dated 2.4.1983 and the subsequent circulars dated 13.1.1989, 19.8.1995, 27.12.1995, 1.7.1998 issued reiterating the contents of circular letter dated 2.4.1983, the authorities should have taken steps to revert the petitioners within reasonable time of issue of circular letter dated 2.4.1983 and not after 18 years of the regularization of the petitioners on the higher post of Accounts, Correspondence Clerk. 5. Learned counsel for the petitioner further submitted that case of Durga Nand Jha(supra) impugning the reversion order was referred to the Larger Bench under order dated 10.07.1995 by Hon?ble Mr. Justice S.J. Mukhopadhyay (as his Lordship then was) to decide whether employer State can reopen the question of legality of initial appointment of the employees after more than 10 years as also to resolve the conflict between the two Division Bench judgment of this Court in the case of Ashok Kumar and others Vs. The State of Bihar and others, reported in 1994(2) BLJ 499 and in the case of Vijay Kumar Vs. State of Bihar and others, reported in 1993(1) PLJR 99. He further submitted that the Full Bench judgment in the case of Durga Nand Jha & Ors. Versus The State of Bihar, 2007(4) PLJR 259 without taking note of the fact that Durga Nand Jha and other similarly situate work charge employees including the petitioners herein were recruited in the Work Charge Establishment prior to the ban imposed on such appointment on 21.08.1975 and were regularized in compliance of the specific instructions of the State Government in paragraph-2 „kha? of circular letter dated 19.02.1981 to regularize the work charge employees recruited prior to the cut off date considering their qualification for the post on which the work charge employee was to be regularized, proceeded on the basis that the work charge employees were promoted/regularized on Class III post by the State authorities de horse the provisions of law, circulars and mandate of Articles 14 and 16 of the Constitution. In this connection, specific reference was made to paragraph-25 of the Full Bench which is quoted herein below for ready reference :- “So far the writ petitioners, who were regularized/promoted on Class-III posts in the regular establishment are concerned, I do not find sufficient materials to hold that their entry in Class IV posts was in accordance with law and the mandates of Articles 14 and 16 of the Constitution. They were engaged on Class IV posts either as casual or daily rated workers for exigency of works and it has not been demonstrated in the writ applications that they were promoted/regularized on Class III posts by the State authorities in accordance with the provisions of law, circulars and mandates of Articles 14 and 16 of the Constitution. This has been prominent view of the Courts of law that appointments made without following the due process or the Rules for appointment did not confer any right on the appointees. 6. Learned counsel for the petitioners further submitted that the Full Bench in Durganand Jha(supra) did not answer the questions which were referred to it for adjudication under order dated 10.07.1995 as it has neither considered the period during which legality of initial appointment can be reopened nor resolved the conflict between two Division Bench Judgment of this Court referred to in the order dated 10.07.1995. 7. Learned counsel for the petitioners further submitted that the Full Bench in Durganand Jha(supra) also did not notice paragraph-32 of the earlier Full Bench judgment of this Court in the case of Braj Kishore Singh and others Versus The State of Bihar and others, reported in 1997(1) PLJR 509 , which is quoted hereinbelow for ready reference :- “32. In the above premises, the judgment of the learned Single Judge rejecting the claim of the appellants on the ground that they were appointed without prior approval of the State Government as contemplated under Section 35 of the Act cannot be sustained. In the above premises, the judgment of the learned Single Judge rejecting the claim of the appellants on the ground that they were appointed without prior approval of the State Government as contemplated under Section 35 of the Act cannot be sustained. In the ordinary course, in view of my conclusion that it is open to the State Government to consider the validity of appointments already made for the purpose of granting or refusing post facto approval, I would have considered asking the State Government to look into the claim of the appellants afresh. However, having regard to the fact that the appellants have continued in service for more than 17 years, I do not think it would be appropriate exercise of discretion to re-open the matter after such a long lapse of time. In direct recruit Class-II Engineering Officers Association V. The State of Maharashtra, AIR 1990 Supreme Court 1607 a Constitution Bench of the Apex Court has held that where initial appointment is nor made according to the rules but the appointee continues in service uninterruptedly for long period till regularization of his service, the entire period as the period spent in service for the purpose of consequential benefits will be counted. The appellants are accordingly entitled to have their services regularized against the posts within the staffing pattern as applicable to the College.” 8. Learned counsel for the petitioners further submitted that another Division Bench of this Court quorum Chief Justice and Justice Jyoti Saran under order dated 1.10.2010 passed in the case of Anugrah Jha L.P.A. No.1400 of 2010 considered the judgment of the Full Bench in Durga Nand Jha(supra) and observed that before the Full Bench neither the circular dated 19.2.1981 nor its clarification dated 2.4.1983 was the subject matter of interpretation and that the Full Bench has laid down a general principle with which there cannot be any dispute. Having held as above the Division Bench under order dated 1.10.2010 passed in the case of Anugrah Jha(supra) proceeded to hold that regularization of the appellant on Class-III post under order dated 16.7.1981 and 29.8.1981 was pursuant to circular dated 19.2.1981 and was legal and valid and cannot be said to be void ab initio. Having held as above the Division Bench under order dated 1.10.2010 passed in the case of Anugrah Jha(supra) proceeded to hold that regularization of the appellant on Class-III post under order dated 16.7.1981 and 29.8.1981 was pursuant to circular dated 19.2.1981 and was legal and valid and cannot be said to be void ab initio. If at all there was any confusion in respect of interpretation of the circular dated 19.2.1981 the respondents were required to take appropriate action soon after the clarification dated 2.4.1983 was issued, which was not done and the appellants continued on Class-III post until reversion orders were passed in the year 2004 and having held as above the reversion orders were set aside observing that appellants were allowed to continue for more than 20 years, they could not have been legitimately reverted. 9. Learned counsel next submitted that case of the petitioners herein is absolutely similar to that of Anugrah Jha(supra) as petitioners were also appointed in the Work Charge Establishment before the cut off date on 19.9.1973 and 23.9.1972 as Gaze Reader, Survey Khalasi and considering their qualification for Class-III post of Accounts, Correspondence Clerk they were regularized as Accounts, Correspondence Clerk under orders dated 22.5.1981, 14.7.1981 and have served as Accounts, Correspondence Clerk until the issue of the impugned reversion order dated 17.12.1999 and thus were allowed to serve on the higher Class-III post/grade for 18 years and there case is exactly similar to that of Anugrah Jha, except for the number of years as Anugrah Jha served on the higher Class-III post for 20 years and petitioners herein served for 18 years. 10. Counsel for the State opposed the submission with reference to paragraph-2 “kha” of circular letter dated 19.02.1981 and submitted that work charge employees recruited prior to 21.08.1975 were entitled for being regularized on the post/grade which they were holding in the Work Charge Establishment or on a post/grade which was inferior to the post/grade held by them but in no case such regularization could have been made on the higher post/grade. Ignoring the contents of paragraph 2 “kha” of the circular dated 19.02.1981 many work charge employees including the petitioners were regularized against the higher Class-III post/grade and when such irregularity came to light, the Government clarified under circular letter dated 2.4.1983 that in no circumstance regularization of the work charge employee recruited prior to 21.08.1975 could have been made on higher post/grade and asked the subordinate authorities to revert the irregularly regularized persons to the post/grade on which they were working in the Work Charge Establishment. From time to time Government has been reiterating its instructions contained in letter of clarification dated 2.4.1983 for ensuring its compliance under circular letter dated 13.1.1989 and 19.8.1995, 27.12.1995, 1.7.1998 referred to in the impugned order directing the Field Officers to revert the erroneously regularized work charge employees in compliance whereof the impugned order has been passed in the case of the petitioners reverting them to the post of Gaze Reader and Survey Khalasi. It is submitted that petitioner Nand Kishore Verma was appointed in the work charge establishment as Gaze Reader, as such, could not have been regularized on the post of Accounts Clerk with higher scale. Similarly petitioner Basudeo Prasad Sinha appointed in the Work Charge Establishment as Survey Khalasi could not have been regularized on the higher post of Correspondence Clerk. 11. Counsel for the State next submitted that two petitions were awaiting the result of the decision of the Full Bench in the case of Durga Nand Jha(supra), which was dismissed under order dated 28.09.2007 observing as follows in paragraph-14 “ 14- Employees of Work Charge Establishment have separate entity and status than that of the regular establishment. Their regularization/promotion in the regular establishment, therefore, would be wholly without jurisdiction and violative of Articles 14 and 16 of the Constitution.” Having held as above the Court observed that Durga Nand Jha and others had no legal enforceable right to ask for writ of certiorari for quashing the impugned reversion order. 12. Counsel for the State further submitted that Full Bench of this Court in the case of Durga Nand Jha(supra) relied on paragraph-43 of the judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. 12. Counsel for the State further submitted that Full Bench of this Court in the case of Durga Nand Jha(supra) relied on paragraph-43 of the judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and others Vs. Uma Devi(3) and others, reported in (2006) 4 Supreme Court Cases 1, which has subsequently been reiterated by the Hon’ble Supreme Court in the case of Pinaki Chatterjee and others Vs. Union of India, reported in (2009) 5 Supreme Court Cases 193, paragraph-14 and in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and others, reported in (2009) 7 Supreme Court Cases 205, paragraph-25 and this Court following the Full Bench and the aforesaid two judgments of the Hon’ble Supreme Court should dismiss the writ petition(s) as work charge employees have no legal enforceable right to question the reversion order. 13. Learned counsel for the State with reference to order dated 1.10.2010 passed in the case of Anugrah Jha(supra) submitted that the Division Bench in the aforesaid order dated 1.10.2010 has distinguished the judgment of the Full Bench in the case of Durga Nand Jha(supra) by observing as follows :- “ However, before the Full Bench the cases were that of casual workers whose appointments were not in accordance with the relevant rules. That being not the case before us, the decision of the Full Bench shall not apply to the facts of the present case”. 14. It is submitted by the counsel for the State that aforequoted observation of the Division Bench about the judgment of the Full Bench in the case of Durga Nand Jha(supra) is not correct as Durga Nanda Jha and others were also work charge employees recruited prior to the cut off date were regularized on higher Class-III post in compliance of circular dated 19.02.1981 and reverted after about 13 and half years of regularization, which is evident from the reference order dated 10.07.1995 passed in the case of Durganand Jha and the observation of the Division Bench in the case of Anugrah Jha that before the Full Bench(Durganand Jha case) the cases of casual workers appointed de horse the relevant Rules was under consideration is not correct. 15. 15. Counsel for the petitioners in rejoinder submitted that case laws relied upon by the Full Bench in the case of Durganand Jha(supra) as also the other subsequent Supreme Court decisions relied on by the counsel for the State did not consider the validity of the reversion order issued by the employer after 18-20 years of the regularization of the work charge employee on the higher Class-III post/grade. 16. Having heard counsel for the parties and having appreciated the fact that petitioners were initially engaged as Gaze Reader, Survey Khalasi on 19.9.1973, 23.9.1972 in the Work Charge Establishment of the Water Resource Department i.e. before the cut off date 21.08.1975 and considering their satisfactory service on the post of Gaze Reader, Survey Khalasi as also the fact that they possessed necessary qualification for the post of Accounts, Correspondence Clerk petitioners were regularized on the post of Accounts, Correspondence Clerk in the light of the instructions of the Government in circular letter no.941 dated 19.02.1981 under orders dated 22.05.81, 14.07.1981. In case, there was any irregularity in the orders dated 22.05.1981, 14.07.1981 regularizing the services of the petitioners on the post of Accounts, Correspondence Clerk in the light of the subsequent clarificatory circular dated 2.4.1983 appropriate reversion order should have been issued within a reasonable time of the issue of the clarificatory letter dated 2.4.1983 and not after 18 years of regularization of the petitioners. 17. In such view of the matter, I have no option but to fall in line with the dictum of the earlier Full Bench in the case of Braj Kishore Singh(supra) paragraph-32 and the judgment of the Division Bench dated 1.10.2010 passed in the case of Anugrah Jha(supra), whereunder reversion order was quashed as the same was issued after 20 years of regularization of the work charge employee. For the reasons aforementioned, impugned reversion order passed in the case of these petitioners dated 17.12.1999, Annexure-1 in both the writ cases are also quashed and the authorities are directed to pay the petitioners arrears of difference of salary of the post on which they were regularized and reverted with consequential benefit for the period between the date of reversion order till the date of superannuation. Respondents are also directed to revise the pension of the petitioners and pay the arrears of pension in terms of the emoluments payable against higher post from which petitioners were reverted. 18. Respondents are also directed to revise the pension of the petitioners and pay the arrears of pension in terms of the emoluments payable against higher post from which petitioners were reverted. 18. The writ petitions are, accordingly, allowed.