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2012 DIGILAW 528 (PAT)

Sahendra Kumar v. State of Bihar

2012-03-27

S.N.HUSSAIN

body2012
ORDER All the aforesaid three writ petitions have been heard together and are being decided by this common order as in all of them parts of Employment Notice No.07 of 2011 issued by the Department of General Administration, Bihar State Electricity Board (hereinafter referred to as ‘the Board’ for the sake of brevity) and published through internet on 30.12.2011 on official website of the Board are under challenge and the points involved in the aforesaid cases are also similar in nature. 2. The petitioners of CWJC No.1454 of 2012 are Assistant Electrical Engineers and their claim is that large number of posts of Assistant Electrical Engineers of General Category had fallen vacant and the Board urgently needed the services of Assistant Electrical Engineers and hence on 27.08.2006 an advertisement was published in the daily newspaper ‘Hindustan’ by the Board vide Notice No.02/2006 regarding job contract for recruitment of Assistant Electrical Engineer (General) and Assistant Electrical Engineers against the sanctioned and vacant posts for a period of six months from the date of joining the office extendable by a further period of six months. The petitioners applied and interviews were held by the Selection Committee on 19.02.2007 and a panel of candidates, including the petitioners, on merits was prepared on 04.04.2007 selecting the petitioners, who filed their required affidavits and certificates on 20.04.2007 at the time of their joining and since then they are continuously working on their respective posts in the Board. It was also averred that subsequently, the Joint Secretary of the Board issued letter dated 03.08.2007 delegating financial powers to the contract appointee Assistant Electrical Engineers after being approved by the Chairman. Thereafter, the Board extended contract period of the petitioners from time to time, whereafter they are continuing on their respective posts till date since their joining without any adverse report against them. 3. Thereafter, the Board extended contract period of the petitioners from time to time, whereafter they are continuing on their respective posts till date since their joining without any adverse report against them. 3. The petitioners of CWJC No.953 of 2012 and CWJC No.2097 of 2012 are Junior Electrical Engineers and their claim is that large number of posts of Junior Electrical Engineers of General Category had fallen vacant and the Board urgently needed the services of Junior Engineers and hence an advertisement was published in the daily newspaper ‘Hindustan’ by the Board vide Notice No.01/2006 regarding job contract for recruitment of Junior Electrical Engineer (General) against the sanctioned and vacant posts for a period of six months from the date of joining the office extendable by a further period of six months. The petitioners applied and interviews were held by the Selection Committee and a panel of candidates, including the petitioners on merits was prepared selecting the petitioners, who filed their required affidavits and certificates at the time of their joining and since then they are continuously working on their respective posts in the Board. It was also averred that subsequently the Joint Secretary of the Board issued letter dated 03.08.2007 delegating financial powers to the contract appointee Junior Electrical Engineers after being approved by the Chairman. Thereafter, the Board extended contract period of the petitioners from time to time, whereafter they are continuing on their respective posts till date since their joining without any adverse report against them. 4. The grounds taken by all the petitioners of all the aforesaid three writ petitions, namely Assistant Electrical Engineers and Junior Electrical Engineers is that Rules of Bihar Service Code as well as Bihar State Electricity Board Civil Engineers’ Cadre Rules, 1976 (hereinafter referred to as ‘the Rules’ for the sake of brevity) and the procedure prescribed therein for regular appointments had been observed while appointing the petitioners as the fitness certificate was required and filed and the affidavits of the petitioners were asked for and filed only at the time of initial appointment, whereafter no such affidavits were required by the authority of the Board from the petitioners. Hence, they stated that even petitioners’ continuance work for much more than five years to the satisfaction of its authorities cannot now be termed as contractual appointment for six months or one year only, especially when all the requirements of regular appointments had been fulfilled and hence their removal would be in clear violation of Article 16 of the Constitution of India. 5. It is further claimed by learned counsel for the petitioners that in the aforesaid facts and circumstances, some of the petitioners filed CWJC No.5654 of 2011 and CWJC No.7411 of 2011 and both the aforesaid cases were disposed of by a common order of a Bench of this Court dated 29.11.2011 in view of the stand taken by learned counsel for the petitioners to permit the petitioners to ventilate their grievances before the appropriate authority of the respondent Board by filing their appropriate representations in that regard which would be decided by the said authority in accordance with law. To this suggestion of learned counsel for the petitioners, learned counsel for the respondents expressed his agreement, hence in the said circumstances, the Court permitted the petitioners to approach the appropriate authority of the respondent-Board by filing appropriate representations ventilating their grievances within a reasonable period of time, whereafter the concerned authority of the Board was to consider and dispose of the same in accordance with law as quickly as possible, preferably within four weeks of the representation. 6. After remand from the High Court, the concerned authority of the Board disposed of the representations filed by the petitioners vide order dated 06.02.2012 which has also been challenged in the writ petition by subsequent amendments in the relief portion by way of interlocutory applications. It is also claimed by learned counsel for the petitioners that before passing the said order, the impugned advertisement was issued by the Board, although there was no occasion for any such advertisement as the petitioners had been regularly working on the posts concerned. 7. The other point raised by learned counsel for the petitioners is that due to continuous service beyond one year up to five years, the petitioners’ services do not remain contractual service, rather it has become temporary appointment against permanent posts. 7. The other point raised by learned counsel for the petitioners is that due to continuous service beyond one year up to five years, the petitioners’ services do not remain contractual service, rather it has become temporary appointment against permanent posts. In the said circumstances, since the initial appointment of the petitioners was legal, it was a fit case for their regularization as has been held by the Apex Court in case of Manoj Kumar Singh Vs. State of Bihar & Others, reported in 2006(2) PLJR (SC) 363. They also relied upon a decision of a Division Bench of this Court dated 15.09.2011 passed in LPA No.322 of 2008 and other analogous cases in which it was held that personnel, who had completed more or less six years of experience, had to be given benefit in order of their seniority followed by the personnel, who had completed less than six years following seniority. The said order of the Division Bench had also been affirmed by the Apex Court in SLA (Civil) No.4178 of 2012 vide order dated 13.02.2012. It is thus claimed that according to the aforesaid decision, a fresh list must be prepared according to their seniority without treating them as contract employees, but whimsically the petitioners have been ignored and the above notices have been published and their representations before the authorities have been rejected. 8. The third point raised by learned counsel for the petitioners is that the respondents had made campus selection also, but the petitioners’ case is much better as campus selection was without any advertisement, test and interview, whereas in petitioners’ case, advertisements were published and interviews were held and selections were made after giving marks on the basis of their performance and all the procedures for permanent appointments were followed by the authorities and only thereafter the petitioners were appointed and they now also have the advantage of five years experience. It is further stated that apart from campus selection, there are still large number of vacant posts of Assistant Electrical Engineers and Junior Electrical Engineers which are sufficient for regularization of the petitioners. 9. It is further stated that apart from campus selection, there are still large number of vacant posts of Assistant Electrical Engineers and Junior Electrical Engineers which are sufficient for regularization of the petitioners. 9. On the other hand, learned counsel for the respondents-Board claimed that all these cases are on behalf of the contract employees, who were selected only on the basis of marks obtained in the interviews for a fixed period and they had filed affidavits that they would not claim regular appointment/employment taking benefit of the contract, hence working of the petitioners was completely different from regular appointment. Learned counsel for the respondents-Board further stated that as a policy matter, the Board cannot absorb or regularize such employees, but in the impugned recent advertisements weightage benefit had been provided for the petitioners in written examination. Hence, proper consideration for their experience had been made by the authorities while making regular appointments also, whereafter the petitioners should not legally have any grievance against the said steps taken by the authorities concerned. 10. Learned counsel for the respondents-Board also stated that the rights of contract employees for regularization/absorption had been raised before this Court vide CWJC No.4797 of 2011 (Birendra Kumar Singh Vs. The State of Bihar & Ors.) on the ground that they had worked for several years (less than 10 years), but their writ petition was dismissed on 29.04.2011 and LPA No.1067 of 2011 filed against the said order was also dismissed on 16.08.2011 holding that the petitioners were not entitled to any relief under the principle of legitimate expectation. 11. Learned counsel for the respondents-Board further averred that the question of campus selection had already been challenged by some aggrieved persons vide CWJC No.7200 of 2011 (Pravin Kumar Vs. The State of Bihar & Ors.), but the said claim was rejected by a Division Bench of this Court vide order date 26.07.2011 which is reported in 2011 (4) PLJR 214. He submitted that campus selection was only a one time measure considering the urgent situation as there was immediate requirement and the said process had already been completed requiring no repetition. 12. He submitted that campus selection was only a one time measure considering the urgent situation as there was immediate requirement and the said process had already been completed requiring no repetition. 12. Learned counsel for the respondents-Board claimed that the petitioners were initially called for contractual appointment on the basis of marks obtained in diploma, but for regular appointment not only the minimum qualification is required, but also it is on the basis of marks obtained in the written examination and cut off marks given therein. Hence, contractual employees cannot be allowed to raise objections for personal aggrandizement on behalf of the public as a whole as they were themselves not fit for regular appointment unless they succeed in the written test or other procedure adopted for regular appointment. 13. Learned counsel for the respondents-Board further claimed that from order dated 29.11.2011 passed in CWJC No.5654 of 2011 and CWJC No.7411 of 2011 it is quite apparent that it was disposed of merely on the request of learned counsel for the petitioners for allowing them to file a representation before the authority concerned and the merit of the petitioners’ claim was not considered. Furthermore, the prayer made in the representation filed by the petitioners subsequent to the said order of the High Court was only for absorption/regularization of their services upon sympathetic consideration and the said representation was disposed of by the authority of the Board by a reasoned order in accordance with law. Hence, the claim of the petitioners of all the aforesaid three writ petitions are not sustainable in law and are fit to be rejected. 14. Learned counsel for the State of Bihar and its authorities also contested the claim of the petitioners and adopted the arguments of learned counsel for the Board in toto. 15. Considering the arguments of learned counsel for the parties as well as the materials on record it transpires that there is no dispute that on the basis of job contract notices of 2006, petitioners of CWJC No.1454 of 2012 were appointed on the posts of Assistant Electrical Engineers, whereas petitioners of CWJC No.953 of 2012 and 2097 of 2012 were appointed on the posts of Junior Electrical Engineers for a fixed period of six months from the date of joining the office extendable by a further period of six months only. It further transpires from the job contract Notice of 2006 that candidates were called merely on the basis of their marks obtained in diploma in Engineering and no written tests were held for the appointment of petitioners of either of the writ petitions. Furthermore, according to the requirements of contract appointment and the advertisement, the petitioners had filed affidavits clearly stating that they would not claim regular appointment/employment taking benefit of the contract. 16. So far the first point raised by learned counsel for the petitioners against the rejection of their applications by the Board vide order dated 06.02.2012 where the matter was remanded by a Bench of this Court vide order dated 29.11.2011 and the issuance of fresh advertisement in December, 2011 is concerned, it is clear from common order dated 29.11.2011 disposing of CWJC No.5654 of 2011 and CWJC No.7411 of 2011 itself that learned counsel for the petitioners in those cases took a stand that without expressing any view on the rival submissions of the parties this Court may permit the petitioners to ventilate their grievances before the appropriate authority of the respondents by filing appropriate representation in this regard, who in turn may be commanded to consider and dispose of the said representation in accordance with law. On the said understanding, the two writ petitions were disposed of with a liberty to the petitioners to approach the appropriate authority of the respondent-Board by filing appropriate representation ventilating their grievances within a reasonable period of time, whereafter concerned authority of the Board was directed to consider and dispose of the same in accordance with law as quickly as possible preferably within four weeks of the filing of the representation by the petitioners. 17. A bare reading of the said order which included stand taken by learned counsel for the petitioners of those cases shows that neither any view was expressed with respect to the genuineness or otherwise of the claim of the petitioners and the authorities of the Board were left free for deciding any such representation filed by the petitioners in accordance with law. Hence, the authority of the Board was quite justified in considering the representations of the petitioners in accordance with law as per the directions of this Court and decided it by a well considered speaking order dated 06.02.2012. 18. Hence, the authority of the Board was quite justified in considering the representations of the petitioners in accordance with law as per the directions of this Court and decided it by a well considered speaking order dated 06.02.2012. 18. It may be noted that the said representations filed by the petitioners of those cases were for a relief of regularization of their cases on the basis of working in the Board for more than last four years. While rejecting the said representations vide order dated 06.02.2012, the authority of the respondent-Board considered the entire matter in detail and held that in course of the examinations of the above representations it was observed that at the time of engagements of Engineers (Assistant & Junior) on contract it was mentioned in the advertisement and also in the offer of the engagement and the candidates had themselves filed affidavits at the time of joining that they would not claim regularization on the basis of their engagements made on contract basis. In other words, it was made clear by the Board that the regularization of the service would not be considered on the basis of service rendered on contract. It was further held that as per the terms of the advertisement and in view of the affidavits submitted by the petitioners at the time of joining the contract employment, it was not possible to regularize them in the Board’s service as per the Rules. 19. In view of the clear findings based on the materials on record as well as the Rules prescribed, this Court does not find that the authorities of the Board have violated any provisions of the Rules or any principle of law while deciding the matter vide order dated 06.02.2012. In furtherance thereof, it has been decided by the Board to allow certain weightage marks for experience for each completed year in the open market advertisement issued by the Board under Employment Notice issued in December, 2011 for appointment to the post of Assistant Electrical Engineers and Junior Electrical Engineers which is under challenge in the instant writ petitions. 20. In furtherance thereof, it has been decided by the Board to allow certain weightage marks for experience for each completed year in the open market advertisement issued by the Board under Employment Notice issued in December, 2011 for appointment to the post of Assistant Electrical Engineers and Junior Electrical Engineers which is under challenge in the instant writ petitions. 20. So far the second point raised by learned counsel for the petitioners with respect to continuation of their service beyond five years, whereafter it, according to them, did not remain contractual service is concerned, it is quite apparent that it is not in dispute that the petitioners were appointed only on the basis of contract for six months extendable by a further period of six months on a fixed pay of Rs.8,000.00 per month only without any scale or other emoluments. Clause 4 of the Job Contract Notice of 2006 also provided that the service of the petitioners can be terminated before the completion of the work by giving one month notice. In addition to that the petitioners had themselves filed their affidavits at the time of joining as required by the Board that they would not claim any facility admissible to the Government employee and would not claim for regular appointment/employment. 21. The mode of regular appointment is also completely different from the mode of job contract as the latter are appointed only on the basis of marks obtained in the diploma, whereas the former are appointed on the basis of written examination with cut off marks and interviews as well as certificates required for the said purpose. Furthermore, as per the job contract, the employees are paid fixed amount as their remuneration, whereas the payments of regular employees are on the basis of the pay scale with other consequential benefits. In the aforesaid circumstances, the respondent-Board was quite justified in deciding that as a policy matter, the Board cannot absorb or regularize such employees appointed on the basis of contract for a fixed period. 22. In a similar matter a Division Bench of this Court disposed of LPA No.1067 of 2011 (Birendra Kumar Singh & Ors. Vs. In the aforesaid circumstances, the respondent-Board was quite justified in deciding that as a policy matter, the Board cannot absorb or regularize such employees appointed on the basis of contract for a fixed period. 22. In a similar matter a Division Bench of this Court disposed of LPA No.1067 of 2011 (Birendra Kumar Singh & Ors. Vs. The State of Bihar & Ors) vide order dated 16.08.2011 after arriving at the following findings:- “In our view, the exception carved out in the above referred matters of Umadevi (3) and also explained in M.L.Kesari (supra) will not apply to the case of the appellants. The appellants were neither irregularly appointed nor were their appointment ad hoc or temporary. The appointment of the appellants was purely contractual governed by the terms and conditions of the employment agreement. Even a long tenure of contractual appointment would not create a vested right beyond the rights created under the terms of the agreement. It may be also noted that the appellants had not completed ten years’ service spoken about in the matter of Umadevi (3) (supra). In any case, they cannot claim absorption or regularisation or permanent continuance in service by virtue of their contractual appointment made from time to time. The appellants are not entitled to any relief under the principle of ‘legitimate expectation’ also. The appellants have not set up any claim of ‘legitimate expectation’. It is not established or even pleaded that the Board had ever adopted or followed the policy of regularizing the service of contractual employees or to continue such contractual employees on long term basis after completion of certain specified years of service. In absence of specific plea of ‘legitimate expectation’ set up by the appellants, the claim needs to be rejected. We agree with the learned single Judge. Mere contractual appointment did not create a right to absorption or regularisation in service unto the appellants. In the name of regularisation or absorption in service, the terms and conditions of their employment, willingly accepted by the appellants, cannot be altered by judicial pronouncement.” 23. Learned counsel for the petitioners has relied upon two decisions, one of the Apex Court in case of Manoj Kumar Singh Vs. In the name of regularisation or absorption in service, the terms and conditions of their employment, willingly accepted by the appellants, cannot be altered by judicial pronouncement.” 23. Learned counsel for the petitioners has relied upon two decisions, one of the Apex Court in case of Manoj Kumar Singh Vs. State of Bihar & Others reported in 2006(2) PLJR (SC) 363 and the other by a Division Bench of this Court in case of The Speaker, Bihar Legislative Assembly Versus Sanjay Kumar Singh & Ors. (LPA No.322 of 2008) decided on 15.09.2011. So far the decision of the Apex Court in case of Secretary, State of Karnataka Vs. Uma Devi (supra) is concerned, the Division Bench of this Court in its above decision dated 16.08.2011 had fully considered that aspect of the matter and had held that it would not apply to such cases. The decision of a Division Bench of this Court in case of Speaker, Bihar Legislative Assembly (supra) is only with respect to question of regularization of services of security personnel who were earlier appointed temporarily. It was not a matter of contractual appointment in which both the parties are bound by the terms of contract or by their own undertaking. In the said circumstances, the aforesaid case law although upheld by the Apex Court is not applicable to the facts and circumstances of this case. Mere contractual appointment does not create a right of absorption or regularization in service and the terms and conditions of the contract of employment already accepted by the petitioners cannot be legally altered by judicial pronouncements. 24. So far the third point raised by learned counsel for the petitioners with respect to campus selection is concerned, the specific claim of the respondents was that campus selection was made by the Board only as a one time measure considering the emergent situation as there was immediate requirement and the said process having been completed, it required no repetition. In this connection, a Division Bench of this Court in case of Pravin Kumar Vs. In this connection, a Division Bench of this Court in case of Pravin Kumar Vs. The State of Bihar & Ors, reported in 2011(4) PLJR 214 had specifically provided that the Board has to formulate a detailed procedure before they proceeded with any selection process, but in case of emergent situation, creation of zone of selection on a very objective and qualitative basis can be ignored, especially when it leaves large number of vacancies of those categories unfilled-up. The Board had requested time to make the recruitment process as per the conventional method which was to be completed expeditiously. In the instant case also, the Board has done exactly the same by making one time campus selection in very emergent situation and thereafter adopted the recruitment process as per the conventional method and issued Employment Notice in December, 2011 which is under challenge in the instant writ petition. 25. In the aforesaid facts and circumstances, this Court does not find any merit in the claim of the petitioners, nor does it find any illegality or irregularity in the process adopted by the Board. Accordingly, all the aforesaid three writ petitions are hereby dismissed. ?