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2013 DIGILAW 666 (PAT)

Anuj Kumar Singh v. State of Bihar

2013-06-19

S.N.HUSSAIN

body2013
ORDER This writ petition has been filed by the petitioners for the following reliefs:- (i) To command the respondents to absorb the service of the petitioners against the vacant/sanctioned posts of Assistant/Routine Clerk against which they are working since the month of October, 1994. (ii) Also to direct the respondents to absorb the service of the petitioners against the posts on which they are working with all consequential benefits. (iii) Also for any other relief /reliefs for which the petitioners are found to be entitled in the eye of law. 2. I.A.No.2312 of 2013 has been filed by the petitioners for adding the Five Member Committee constituted by the Bihar School Examination Board vide memo no.785 dated 17.07.2012 as party respondent and also claiming following two reliefs:- (iv) To quash the report of Five- Man Committee dated 27.08.2012 (Annexure-9) only to the extent by which the Committee has not recommended for absorption in Bihar School Examination Board, Patna. (v) Also to direct the respondents to absorb the services of the petitioners w.e.f. October 1994 the date on which the petitioners were appointed against the vacant/sanctioned posts. 3. No objection has been raised by the respondents against the said interlocutory application. However, this Court finds that since the Bihar School Examination Board and its authorities are themselves parties to this writ petition as respondent nos. 3 to 5 there is no occasion for impleading the Committee and its members as party respondents because the Committee is only a recommending body and the final decision in that regard had to be taken by the Board itself. In the said circumstances, the prayer for addition of parties is hereby rejected and the interlocutory application is partly allowed only to the extent of adding the aforesaid two reliefs. 4. The claim of the petitioners was that on 07.09.1994, the Bihar Intermediate Education Council (hereinafter referred to as ‘the Council’ for the sake of brevity) took a decision to fill up 21 vacant sanctioned posts of Class III and Class IV, i.e. Assistant/Routine Clerk/Calligraphist/Peon etc on daily wages due to exigencies of work, whereafter an advertisement was published on 09.09.1994 on the Notice Board of the Council inviting applications from eligible candidates, in pursuance of which the petitioners along with others applied for appointment on those posts, and they were called for interview by the Council, whereafter petitioner nos. 5, 9, 10 and 11 were found fit for the posts of Routine Clerk, whereas petitioner no.4 was found fit for the post of Calligraphist and the remaining petitioners were found fit for the posts of Assistant and hence Council decided to appoint them against the respective vacant sanctioned posts on daily wages. Accordingly appointment letters dated 28.10.1994 were issued and they joined the said respective posts in the month of October, 1994 and since then they continued working in the Council. Since the service records were excellent due to satisfactory work, the remunerations of the petitioners were increased from time to time by the Council and vide office order dated 10.10.2001 they were provided minimum scale of pay of their respective posts against which they were working and as such the petitioners became ad hoc employees of the Council. Furthermore, the petitioners were also granted existing dearness allowance on the minimum scale of pay vide office order dated 13.10.2001. 5. Learned counsel for the petitioners stated that vide order dated 06.07.2005, the Council regularized the services of three persons who were appointed along with the petitioners in the same manner on the vacant sanctioned posts. Thereafter on 22.12.2005, the Council issued its Resolution for taking steps for absorption of the services of the petitioners also and for their regularization finding that they were working on sanctioned posts having appointment letters and were getting dearness allowance and since there was precedence also they should be regularized from the date they were working on the sanctioned posts. However, before the said decision of the Council could be given effect to, the Bihar Intermediate Education Council Act, 1992 on the basis of which the Council was created, was repealed by the Bihar Intermediate Education Council (Repeal) Act, 2007. Hence the Council automatically stood dissolved from the said date of the repeal of the Act of 1992, but Section 3 of the Repealing Act, 2007 provided adjustment of employees of the Council. 6. Learned counsel for the petitioners submitted that in view of the aforesaid provision of the Repealing Act of 2007, the Government constituted Three-Man Committee for providing guidelines for adjustment/absorption/regularization of such employees of the Council, including petitioners. The Committee submitted its report and in accordance thereof, the Government issued Resolution dated 12.07.2012 fixing five criteria for regularization in paragraph I thereof. The Committee submitted its report and in accordance thereof, the Government issued Resolution dated 12.07.2012 fixing five criteria for regularization in paragraph I thereof. Out of them, the petitioners fulfilled four criteria, except criteria (Ga) and hence according to paragraph II of the said Resolution they were to be considered as per the decision of the Apex Court in case of the Secretary, State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC 1 . 7. Learned counsel for the petitioners averred that in pursuance of Government Resolution dated 12.07.2012, the Bihar School Examination Board (hereinafter referred to as ‘the Board’ for the sake of brevity) constituted Five-Man Committee vide its letter dated 17.07.2012 for the aforesaid purpose, whereafter the Committee enquired into the matter and submitted its report dated 27.08.2012 and the said report was approved by the Board on 31.08.2012. Thereafter, the Board vide letter dated 21.12.2012 sent its recommendation to the Government for absorption of the petitioners and other similarly situated employees. 8. Learned counsel for the petitioners argued that in the meantime 50 similarly situated employees who were appointed as daily wagers in the Council either along with petitioners or even after them approached this Court by filing CWJC No.753 of 2012 raising the same claim as is being raised by the petitioners and the said writ petition was allowed by a Bench of this Court vide order dated 20.02.2013. In the said circumstances, learned counsel for the petitioners claimed that the State Government had acted illegally against the petitioners even ignoring the recommendation of the Board. 9. A counter affidavit has been filed on behalf of respondent nos.1 and 2, namely the State of Bihar and its authorities and on its line learned counsel for respondent nos.1 and 2 argued that on 19.03.2013, the General Administrative Department of the State of Bihar issued a Resolution reconstituting the old Tripartite Committee for considering whether the appointments in question were legal or regular or otherwise as per the direction of the Apex Court in case of Uma Devi (supra). It was stated that the Committee was initially constituted on 26.03.2007 vide Resolution No.1013 of the Government and was reconstituted on several dates vide Resolution No.1217 dated 10.04.2007, Resolution No.2736 dated 13.08.2007, Resolution No.5054 dated 16.10.2009 and Resolution No.10175 dated 18.07.2012. It was stated that the Committee was initially constituted on 26.03.2007 vide Resolution No.1013 of the Government and was reconstituted on several dates vide Resolution No.1217 dated 10.04.2007, Resolution No.2736 dated 13.08.2007, Resolution No.5054 dated 16.10.2009 and Resolution No.10175 dated 18.07.2012. Hence, learned counsel for respondent nos.1 and 2 requested that the said Committee may be directed to expedite the matter and give its report. 10. On the other hand, learned counsel for the Board and its authorities i.e. respondent nos.3 to 5 stated that by the Repealing Act of 2007, the Council was dissolved and all of its employees were adjusted in the Board, but thereafter for about five years, no concrete step was taken by the State Government and only on 12.07.2012, the Government Resolution was notified in the Gazette in view of the report of the Three-Man Committee. 11. Learned counsel for the Board submitted that in view of the aforesaid Resolution, the Board immediately appointed Five-Man Committee as per the terms of the Government Resolution for looking into the matter. The Five-Man Committee submitted its report on 17.07.2012 which was approved by the Board on 31.08.2012. Thereafter the Director, Secondary Education, Government of Bihar vide letter dated 26.11.2012 called for the details/service history and appointment letters of persons who were not recommended for absorption, which were also sent to him. 12. Hence, in these circumstances, the Board sent its recommendation for absorption of such employees, including the petitioners, due to huge shortage of staff in the Board which is self dependent and is getting no financial help from the Government. But in spite of the said urgency, the Government did not take step for absorption of the petitioners and others, although the Board had specifically sent its recommendation for the said purpose. The said inaction of the government authorities is also adversely affecting the Board and its functions. 13. But in spite of the said urgency, the Government did not take step for absorption of the petitioners and others, although the Board had specifically sent its recommendation for the said purpose. The said inaction of the government authorities is also adversely affecting the Board and its functions. 13. From the arguments of learned counsel for the parties and the materials on record, it appears to be undisputed fact that notice was issued by the Deputy Secretary of the Council inviting applications from eligible candidates for appointment on the posts of Assistant/Routine Clerk/Stenographer/Typist/Calligraphist and Peon (Grade III and Grade IV) and in response thereto several persons, including the petitioners, filed applications and after interview they were selected on their respective posts and appointment letters were issued to them in October 1994 on the basis of which they immediately joined their respective posts and continued working on that post for much more than a decade and in the meantime their remunerations were increased from time to time and vide office order dated 10.10.2001 they were provided minimum scale of pay on their respective posts and as such they became ad hoc employees of the Council working on sanctioned posts and hence they were also granted existing dearness allowance on the minimum scale of pay vide office order dated 13.10.2001. Furthermore, the Council issued Resolution dated 22.12.2005 for taking steps for absorption of the services of the petitioners and for their regularization as they were found working on sanctioned posts having appointment letters and getting dearness allowances. 14. It is also not in dispute that before the Council could give effect to its aforesaid decision vide Resolution dated 22.12.2005, the then Bihar Intermediate Education Council Act, 1992 was repealed by the Bihar Intermediate Education Council (Repeal) Act, 2007 and hence Council automatically stood dissolved from the said date of repeal of the Act of 1992. However, since Section 3 of the Repealing Act of 2007 provided adjustment of employees of the Council, the petitioners along with others were adjusted in the Board. 15. Section 3 of the Bihar Intermediate Education Council (Repeal) Act, 2007 reads as follows:- 3. However, since Section 3 of the Repealing Act of 2007 provided adjustment of employees of the Council, the petitioners along with others were adjusted in the Board. 15. Section 3 of the Bihar Intermediate Education Council (Repeal) Act, 2007 reads as follows:- 3. Adjustment of employees of the Bihar Intermediate Education Council- (1) On and from the date of repeal of the Bihar Intermediate Council Act, 1992, all employees of the Council, shall remain, in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as is provided hereinafter. (2) The State Government shall constitute a Committee of Secretaries consisting of three Secretaries who shall prepare a detailed scheme of absorption, retirement, compulsory retirement or voluntary retirement, screening appointment and other service conditions of employees of the Council. The scheme prepared by the Committee of Secretaries shall be placed before the Government within four months from the date of enforcement of the present Act: Provided that it shall be open to the Government to modify, amend or suggest modifications or amendment in the scheme and the scheme thereafter shall be made operational in such form and intent as finally approved by the Government. Scheme approved by the Government shall be considered as statutory scheme framed under this Act. (3) After the scheme approved by the Government is enforced it shall be fully implemented in its approved form and intent within three months from the date of its enforcement. (4) The Committee of Secretaries constituted under Sub-section (2) of Section 3 above shall be competent to decide utility and deployment of employees of the Council during transition period and it shall not be open to any employee to question decision of Committee of Secretaries: Provided that the State Government shall be competent to amend, modify, alter or substitute the scheme so framed for removal of any difficulty in its implementation. 16. 16. The respondents have also not denied that in view of the aforesaid provision of the Repealing Act, 2007, the Government constituted a Three- Man Committee for providing guidelines for adjustment/absorption/regularization of such employees of the Council, including the petitioners, whereafter the Committee submitted its report to the Government and accordingly Resolution dated 12.07.2012 was issued by the Government fixing following five criteria for regularization of such employees in Paragraph I thereof. (a) Appointment done by competent authority. (b) Issuance of advertisement for appointment. (c) Rules of reservation were followed in appointment. (d) The candidate fulfilled the qualifications for appointment on such posts. (e) Appointment made against sanctioned and vacant posts. 17. Paragraph-II of the aforesaid Government Resolution dated 12.07.2012 provided that the employees who fulfilled four criteria, namely (i) appointment was made by competent authority, (ii) appointment was made against sanctioned and vacant posts, (iii) the appointee fulfilled the qualifications for the posts and (iv) he had completed 10 years of service on the said post, would be absorbed in the Board on its vacant posts as per the decision of the Apex Court in case of Uma Devi (supra). Hence in the above-mentioned facts and circumstances and as per the aforesaid Resolution of the Government itself, the petitioners were fit to be absorbed in the Board, especially when the Board had specifically claimed that there were several vacant sanctioned posts on which the petitioners could be appointed and due to the said vacancies, the Board was suffering. 18. According to the claim of the respondent-Board, the inaction of the Government in this regard has been causing great loss to the Board and hence the Board sent a letter to the Director, Secondary Education on 21.12.2012 informing that the petitioners were competent and experienced persons as they had worked for about 16-18 years and hence they must be absorbed on the vacant sanctioned posts in the Board. However, when this case was taken up by this Court on 20.02.2013 it was found that in the aforesaid circumstances, it was left for the State of Bihar to state as to what step it was going to take in the matter, especially when the Board in its aforesaid recommendation had specifically stated about the urgent requirement of the Board with regard to such employees who were found to be competent and experience, but the authorities of the State in spite of several adjournments did not come with any specific claim. Again on 15.04.2013, when the case was taken up, the State Council did not come up with any answer to the aforesaid query, nor any counter affidavit was filed as no instruction was sent by the Principal Secretary (respondent no.2) and hence the case was again adjourned, but as a last chance. 19. Now when the case was finally heard, learned counsel for the State of Bihar and its authorities came up with a counter affidavit only stating that the Tripartite Committee had been reconstituted for considering whether the appointments in question were legal or irregular or otherwise and the said Committee may be directed to expedite the matter and give its report as early as possible. This plea of the authorities of the State is nothing, but a lame excuse and mischievous attempt to unnecessarily delay the matter not only causing harassment to the petitioners, but also causing loss to the Board, especially when a Three-man Committee had already been formed by the Government under Section 3(2) of the Repeal Act of 2007 which submitted its report and accordingly the Government had issued the aforesaid Resolution dated 12.07.2012 which has been detailed in the above paragraphs. 20. Furthermore, the claim of the State and its authorities with regard to constitution of the Three-Man Committee on 26.03.2007 and its re-constitution on several subsequent dates, i.e. 10.04.2007, 13.08.2007, 16.10.2009 and 18.07.2012 appears to be absolutely perverse and absurd as there was no occasion at all for beating around the bush and reconstituting committee after committee year after year although the matter had already come to an end as per the earlier report of the Three-Man Committee which was duly approved by the Government and specific directions in that regard had been given vide Government Resolution dated 12.07.2012 as has been detailed above. 21. 21. In view of the aforesaid Government Resolution dated 12.07.2012 and also in view of the Board’s recommendation dated 21.12.2012 no importance can be legally given to the aforesaid plea of reconstitution of the Three-Man Committee or to the report of any other Committee of the Board, especially when it cannot be disputed by the authorities of the State, and it was admitted by the authorities of the Board that the petitioners were appointed by a competent authority on sanctioned and vacant posts having fulfilled all the required qualifications for the posts on which they had worked for much more than 10 years in the Council and thereafter they have also been working in the Board continuously. In the said circumstances, it cannot be disputed that petitioners were already regular Class III employees working on vacant and sanctioned posts in the Council for much more than 10 years before their absorption in the Board and their adjustment in the Board has to be in the same position as per the provisions of the Repealing Act of 2007. 22. Accordingly, this writ petition is allowed, the Five-Man Committee report dated 27.08.2012 is quashed only to the extent by which the Committee had not recommended the petitioners for absorption in the Bihar School Examination Board and the respondents, especially respondent no.4, namely the Chairman of the Board is hereby directed to absorb the services of the petitioners against vacant and sanctioned posts of Assistant/Routine Clerk since October, 1994 with all consequential benefits considering the services of the petitioners to be continuous with effect from October, 1994, the date on which the petitioners were appointed against the vacant sanctioned posts in the Council. The petitioners are also held to be entitled for salaries, allowances and other benefits of annual increments, merger of dearness allowance with basic pay, as adopted by the State Government, provident fund, earned leave and casual leave as well as the payment of difference of salary from the respective dates within four months from the date of receipt/production of a copy of this order before respondent no.4.