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2013 DIGILAW 830 (PAT)

Bishundeo Tiwari v. State of Bihar

2013-07-16

AHSANUDDIN AMANULLAH, S.N.HUSSAIN

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JUDGMENT S. N. Hussain, J. & Ansanuddian Amanullah, J. This Letters Patent Appeal has been filed by the writ petitioners-appellants challenging order dated 03.03.2008 by which the learned Single Judge of this Court dismissed CWJC No.4568 of 2003 relying upon a decision of a division of this Court in case of Dilip Kumar Jha & Anr. Vs. The State of Bihar & Ors. reported in 1999 (1) PLJR 664 . 2. The aforesaid writ petition bearing CWJC No.4568 of 2003 was filed by the appellants along with proforma respondent nos. 5 to 8 of this Letters Patent Appeal for quashing office order no.7001 dated 28.04.2003 issued by the Bihar State Pollution Control Board, Patna (hereinafter referred to as ‘the Board’ for the sake of brevity) by which the services of the writ petitioners along with 16 others were terminated with effect from 28.04.2003 and for a further direction to the respondents to reinstate the petitioners to their respective posts with effect from 28.04.2003. 3. In the said writ petition, the respondents appeared and a counter affidavit was filed on behalf of respondent nos.3 and 4 contesting the claim of the petitioners. However after a detailed discussion the said writ petition was dismissed by a learned Single Judge of this Court vide order dated 03.03.2008 after arriving at the following findings:- “In CWJC No.11899 of 1995 stand of the Board was that since the pay scale of 1986 has been revised, as such the Board has right to make appointment on such posts which carries pay scale of proportionate revised pay scale of Rs.2500/-. The writ application was dismissed as no sanction of the Government had been taken before making appointment. The L.P.A. no.960 of 1998 has been dismissed on 21.2.2007 and the order passed in the writ application reported in 1999 (1) P.L.J.R. 664 has been affirmed. It has been held that Rule 8 of the Water Rules 1986 framed under Section 64 of the Water Act 1974 mandates deep and pervasive control of the State Government over the State Board. It is difficult for the Court to hold that in the matter of selection of candidates for appointment, the Board can deviate proviso to Rule 8 or that it can ignore any direction issued by the State Government to stop the selection when the same is held without complying with the requirement of Rule 8. It is difficult for the Court to hold that in the matter of selection of candidates for appointment, the Board can deviate proviso to Rule 8 or that it can ignore any direction issued by the State Government to stop the selection when the same is held without complying with the requirement of Rule 8. With regard to pay scale of Rs.2500/- it was held that it is not unreasonable restriction and cannot be interpreted as variable with the revision of the pay because proviso to the rule empowers the State Board to create post, make appointment, carrying pay more than Rs.2500/- with prior sanction of the State Government. In view of the reported decision in 1991 (1) P.L.J.R. 664 affirmed in L. P. A. No.960 of 1998 I do not find that the order of termination issued on the direction of the Deputy Secretary, Department of Forest and Environment can be held to be illegal. In the matters of appointment, termination, creation of posts and abolition of posts, the State Government can put restriction on the State Board. It has already been held that such restriction is not unreasonable restriction.” 4. Against the aforesaid order of the learned Single Judge, the appellants have filed this Letters Patent Appeal claiming that the Board had earlier supported regularization of petitioners which was a conscious decision of the Board after due enquiry, but only after receiving the letter of the Government, the authorities of the Board turned against the petitioners, although there was no valid ground for the same. 5. Learned counsel for the appellants stated that the appointment of the appellants were made by the Board and thus the Board and its authorities had to act independently on its own as per the provisions of law and they have not to tow the line of the Government. In this regard, he relied upon Rule 8 of Chapter 3 of the Water (Prevention and Control of Pollution) Rules, 1986 (hereinafter referred to as ‘the Rules’ for the sake of brevity) which had come into force on 30.04.1986. 6. In this regard, he relied upon Rule 8 of Chapter 3 of the Water (Prevention and Control of Pollution) Rules, 1986 (hereinafter referred to as ‘the Rules’ for the sake of brevity) which had come into force on 30.04.1986. 6. Learned counsel for the appellants submitted that the salary of the petitioners at the time of their appointment was much less than Rs.2,500.00 per month and hence the Board was fully entitled to make such appointment without any permission of the State Government as the Board was alone the master and had a free hand in framing the criteria for selection and appointing on its basis. In this connection he relied upon the decision of a Division Bench of this Court in case of Bihar State Pollution Control Board & Ors. Vs. Dilip Kumar Jha & Ors., reported in 2007(3) PLJR 109 . 7. Learned counsel for the appellants averred that the learned Single Judge has wrongly confused the instant matter of CWJC No.4568 of 2003 with the earlier writ petition of the petitioner bearing CWJC No.2148 of 2003 as the instant writ petition is only against the petitioners’ removal dated 28.04.2003, whereas the earlier writ petition was for regularization of petitioners’ service which was disposed of on 29.07.2004 due to removal of the petitioners. Hence, now this Court has only to see as to whether the removal of the petitioners from the sanctioned vacant posts on which they were appointed by a competent authority to whom power was delegated was legal and proper, especially when the appellants had served the Board since 1987, 1991 and 1984 etc. and they fulfilled all the criteria of Class IV posts. 8. On the other hand learned counsel for the respondent-State of Bihar stated that initial appointment of the appellants were found to be irregular and in any view of the matter, the appellants were casual employees and hence they can be removed from such posts at any time. He also submitted that admittedly appellants were casual/adhoc appointees and as such they had no legal right to be regularised and if they wanted regularization on the basis of working in the Board for more than 10 years they should have filed a representation before the authorities for the said purpose. 9. He also submitted that admittedly appellants were casual/adhoc appointees and as such they had no legal right to be regularised and if they wanted regularization on the basis of working in the Board for more than 10 years they should have filed a representation before the authorities for the said purpose. 9. Learned counsel for the respondent-State of Bihar averred that the learned Single Judge had found the initial process of appellants’ appointment to be illegal as the prescribed selection process was not followed by the authorities concerned. In any view of the matter, the appellants’ claim for regularization had been rejected by a Bench of this Court vide order dated 29.07.2004 passed in CWJC No.2184 of 2003. 10. Learned counsel for the respondents-State of Bihar argued that Rule 8 of the Rules was with respect to creation and abolition of posts in which there was no difference between Class I, II, III and IV posts and the Board was empowered to make appointment as per the aforesaid Rule. Hence, the Board having taken a decision in the matter, the same cannot be legally challenged. 11. Learned counsel for the respondents- Bihar State Pollution Control Board and its authorities stated that initial engagement of the appellants in the Board either on Class III posts or on Class IV posts had been made without any advertisement/notice and without following the rules of recruitment, roster and reservation and therefore initial engagement of the appellants was in violation of Articles 14 and 16 of the Constitution of India. However, they were continuing in the Board without any interruption and were being paid their wages as prescribed by the Labour and Employment Department, Govt. of Bihar or by the Board on the basic pay of Class III and Class IV posts with admissible dearness allowance without any increment. 12. Learned counsel for the respondent-Board submitted that the Board in its meeting dated 25.07.1986 had already resolved that since the service rules for the employees of the Board had not been framed, hence Rules applicable to the employees of the State of Bihar shall be applicable to the employees of the Board also. Direction as per the resolution of the said meeting had been issued by the Board vide office order dated 11.08.1986 under the signature of its Member-Secretary. Direction as per the resolution of the said meeting had been issued by the Board vide office order dated 11.08.1986 under the signature of its Member-Secretary. Hence, the alleged appointment of the appellants will also have to be considered as per the Rules applicable to the employees of the State Government. In this connection, learned counsel for the respondent-Board relied upon a decision of a Single Judge of this Court in case of Dilip Kumar Jha & Anr (supra) affirmed by the Division Bench of this Court in case of Bihar State Pollution Control Board & Ors. (supra) and stated that in the same breadth analogy may be taken that the State Government had a say in the matter of removal of such employees who are class III and Class IV employees. 13. Learned counsel for the respondent-Board also relied upon a Full Bench decision of this Court in case of Ram Sevak Yadav Vs. State of Bihar & Ors, reported in 2013 (1) PLJR 964 specially paragraph 41 thereof which is as follows:- “The public power to make appointment on public posts is conferred for public good. The power is given to the officer concerned by the government in trust, that it shall be used and not abused. If the trust is belied, the protection conferred upon a government servant stands denuded. The answerability and accountability is then individual of the officer. The government is duty bound to take appropriate civil/ criminal action against the officer. The illegality in the appointment is not a one way street. If there was someone willing to pay a price for the job, there was another waiting to take advantage of the same by fixing a price. It is not without reason that majority of such appointments relate to class III and IV posts. The standard by which the government professes to act is the same standard by which its actions shall be judged. Therefore whenever the government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously take action against the officials who belied the trust of the government. Those who made hay while the sun shined must see the darker cloudy days also”. 14. Therefore whenever the government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously take action against the officials who belied the trust of the government. Those who made hay while the sun shined must see the darker cloudy days also”. 14. Considering the averments made by learned counsel for the parties and the materials on record it transpires that the aforesaid decision of a Full Bench of this Court in case of Ram Sevak Yadav (supra) is with respect to general employees of the State Government and their appointments and their termination. The said decision does not in any way concern with the question of appointment in the Board which was governed by its own Act of 1974 and Rules of 1986. 15. From the arguments of learned counsel for the parties and the materials on record it also transpires that the petitioners were appointed on vacant sanctioned posts and their appointments were made by a competent authority of the Board to whom the power was delegated. It is also not in dispute that the appellants had fulfilled the requisite qualifications and other requirements for the posts. They have admittedly also served for much more than 10 years in the Board. 16. These aspects of the matter were placed before a Bench of this Court in CWJC No.2148 of 2003 which was filed by the appellants and others for regularization of their services, but in the meantime the order of appellants’ removal was passed by the Board on 28.04.2003 and hence the said writ petition was disposed of by a Bench of this Court on 29.07.2004 without going into the merits. In the said circumstances, the appellants had to file CWJC No.4568 of 2003 out of which this Letters Patent Appeal has arisen challenging their removal by the Board vide order dated 28.04.2003. 17. It may be stated in this regard that the legality of appellants’ appointment and their competence and their regular work etc. had been fully considered by the Board in its 68th and 69th meetings dated 07.07.2001 and 12.02.2002 and it was decided that the process of regularization of casual/adhoc employees in different categories would be completed by the 10th of April, 2002. had been fully considered by the Board in its 68th and 69th meetings dated 07.07.2001 and 12.02.2002 and it was decided that the process of regularization of casual/adhoc employees in different categories would be completed by the 10th of April, 2002. Thereafter they also took legal advice/opinion of the then Advocate General who in his opinion dated 20.08.2002 stated that the services of casual/adhoc employees can be regularised if their initial appointment had been made by the authority competent for the said purpose and sanctioned posts were available on which the said persons could be absorbed, especially when such employees had served for a long duration. In that opinion, reference was also made to a decision of the Apex Court in case of Union of India and others Versus Pradeep Kumar Saxena reported in 1995 (4) Supplementary S. C. C. 69. 18. Rule 8 of the Rules of 1986 clearly provided that the Board was competent to create such posts in different scales as it considered necessary for the efficient performance of its functions, make appointment against such posts, abolish such posts so created and consequently terminate the appointments made against such posts provided that the State Board shall obtain prior sanction of the State Government for the creation, abolition and appointment to the posts above the maximum pay scale of Rs.2,500.00 per month. 19. Admittedly at the time of appointment of the appellants their pay scale was much below Rs.2,500.00 and hence according to the said Rules the State Government had no role to play in the matter and it was specifically within the jurisdiction of the Board to create such posts, make appointments on such posts and terminate the appointments as per the Rules. Thus, the Board having decided in its aforementioned meetings in favour of the appellants and the opinion of the Advocate General also affirming the said resolution of the Board, there was no occasion for the authorities of the Board to take a U-turn in the matter and refer the matter to the State Government for approving the regularization of the appellants vide letter dated 17.12.2002. 20. In response to the aforesaid letter of the Board, the Deputy Secretary, Department of Environment and Forest, Government of Bihar issued letter dated 04.03.2003 stating that there was no question of their regularization assuming that the casual/adhoc appointment of the said employees were illegal. 20. In response to the aforesaid letter of the Board, the Deputy Secretary, Department of Environment and Forest, Government of Bihar issued letter dated 04.03.2003 stating that there was no question of their regularization assuming that the casual/adhoc appointment of the said employees were illegal. Thereafter, the said Deputy Secretary vide letter dated 19.04.2003 directed the Board for removal of such employees. The said authority did not even wait for the Board’s meeting fixed for 03.05.2003 although the Board was the only competent authority to take action in this regard. 21. The aforesaid letters of the Government were absolutely frivolous and misconceived as they had no authority to give such directions especially when the presumption that the appointments of such casual/adhoc employees were illegal, was not based on any valid materials or basis, rather it was against the materials on record considering which the Board had earlier taken the decision to regularise their services. In spite of the aforesaid facts, the Board meekly surrendered to the illegal directions of the Department and passed the impugned orders dated 28.04.2003 terminating the services of the appellants and other similarly situated persons. 22. So far the reliance of the respondents upon the decisions of this Court in case of Dilip Kumar Jha & Anr. (supra) affirmed by the Division Bench in case of the Bihar State Pollution Control Board & Ors. (supra) is concerned, the said decisions are with respect to Section 18 of the Act regarding powers of Central Board or the State Board in the performance of its functions under the Act. Hence, the said power of the State Government is limited only with respect to the functions of the Board as provided under the Act. 23. The functions of the Board are provided in Section 17 of the Act and from a bare perusal of the aforesaid provision it transpires that it does not include the matters of appointment, absorption or termination. Hence, in the instant case neither the said case laws, nor the said provision of law would be attracted. 24. However, with respect to creation and abolition of posts as well as appointments and termination against such posts will be governed by Rule 8 of the Rules which has been dealt in detail in paragraph 13 of the decision of a Division Bench of this Court in case of the Bihar State Pollution Control Board & Ors. (supra). 24. However, with respect to creation and abolition of posts as well as appointments and termination against such posts will be governed by Rule 8 of the Rules which has been dealt in detail in paragraph 13 of the decision of a Division Bench of this Court in case of the Bihar State Pollution Control Board & Ors. (supra). The said provision and its interpretation clearly shows that the State Government had no authority at all with regard to any appointment made by the Board on any post having basic salary less than of Rs.2500.00. Hence, admittedly the appellants having been appointed in the salary of much less than Rs.2500.00, the State Government or its Department had no authority to interfere in such matters. 25. It may be noted in this regard that the Board, apart from its being State under Article 12 of the Constitution of India is also a creation of Statute and is an independent and autonomous body capable of taking steps on their own as per the law governing the Board without any external pressure or influence. Hence, if any external pressure or influence is exerted on the Board against the provisions of law or the settled principles of law and such act is brought before the Court of law, it has to be set aside. These aspects of the matter have not been considered by the learned Single Judge in the impugned order dated 03.03.2008 passed in CWJC No.4568 of 2003. 26. In the said circumstances, this Letters Patent Appeal is allowed, the impugned orders are set aside and the reliefs claimed by the appellants in CWJC No.4568 of 2003 are allowed quashing the order of the Board dated 28.04.2003 and directing the authorities of the Board to reinstate the appellants to their respective posts with effect from 28.04.2003. 27. Since the earlier writ petition bearing CWJC No.2148 of 2003 filed by the appellants for regularization of their salaries was not considered on merit and was disposed of on 29.07.2004 due to the order of petitioners’ removal dated 28.04.2003, the appellants or any other similarly situated persons would be entitled to again raise their claim for regularization before an appropriate forum.