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2018 DIGILAW 130 (PAT)

Yogendra Rai v. State of Bihar

2018-01-16

MADHURESH PRASAD

body2018
Madhuresh Prasad, J. – Heard counsel for the petitioners and the respondents State. 2. Petitioners who are the daily wage employees working in the Patna Collectorate had approached this Court earlier when their claim for regularization was pending. 3. This Court vide order dated 29.01.2013 passed in C.W.J.C. No. 1755 of 2013 had directed the authorities to examine the grievance and take appropriate decision within six months without expressing any merits on the claim of the petitioners. Pursuant thereto the order dated 10.05.2013 has been passed by the District Magistrate, Patna which is impugned in the instant writ petition. 4. The claim of the petitioners has been rejected by assigning reason that in the light of the departmental Resolution No. 639 dated 16.03.2006 and letter No. 1515 dated 19.03.2008, the petitioners do not fulfill the requisite qualification of having worked for 240 days in each year for five years prior to 11.12.1990 and as such the claim of the petitioners has been rejected. 5. Counsel for the State relying upon the said Resolution dated 16.03.2006 has placed before the Court Clause 3 of the said Resolution which is Annexure A to the counter affidavit filed by the State. 6. The same Clause 3 of the said Resolution has been interpreted by the Division Bench of this Court in the case of Ashok Kumar Sharma vs. the State of Bihar reported in 2016 (1) PLJR 232 , wherein regularization of the petitioners therein, who had earlier been regularized considering them fit on the ground of having completed 240 days of employment prior to the cut of date, had been withdrawn applying the same interpretation of Clause 3 which has been applied in the case of the petitioners in the instant case for not fulfilling 240 days of work on daily wages in each year, for five years prior to 11.12.1990. 7. Counsel for the petitioners relies upon the said judgment to submit that Clause 3 which is being relied by the respondent authorities to reject the claim of the petitioners has been held as per the said order of the Division Bench to apply to those persons who were engaged after 11.12.1990 and were seeking regularization of their appointment. Reliance is being placed on paragraph nos. 7 and 8 of the said judgment which has been reproduced herein below : – “7. Reliance is being placed on paragraph nos. 7 and 8 of the said judgment which has been reproduced herein below : – “7. Having considered the matter, in our view, learned counsel for the appellants is correct. Considering the history of events up to 1990, as noted above, what was considered for regularization was a daily wager having worked for more than 240 days simplicitor, was the earlier State Government decision and which had been extended pursuant to trade union agreement. This was also in consonance with the resolution of the State Government in the Personnel Department dated 10.05.2005, which is a part of the proceedings itself. This clearly shows that right till the year 2005, State was only contemplating regularization with restriction that the said daily wager must have worked for 240 days. There was a clear distinction maintained when the 2006 resolution was taken. There were two classes. First, where the State Government was bound by the trade union agreement in respect of daily wagers up to 11.12.1990 and second those who came thereafter. Therefore, there were two different categorizations in this resolution dated 16.03.2006. It is wrong to say that there was conflict between the Clause-1 of the said resolution and Clause-3. The two contemplated two different periods. The writ petitioners/ appellants, falling within the first period i.e. till 11.12.1990, were rightly treated and regularized as per Annexure-6 to the writ petition with effect from 22.12.2006. This distinction was not brought out clearly before the learned Single Judge because of which the learned Single Judge applied Clause-3 of this resolution, which applied to only those people who had joined as daily wagers after 11.12.1990. 8. Having considered the matter, in our view, the impugned order, being Annexure-7 to the writ petition, recalling the regularization order dated 22.12.2006 (Annexure-6 to the writ petition), is set aside. The effect would be that the three writ petitioners/appellants would be deemed to be working duly regularized vide Annexure-6 to the writ petition. As their services are terminated by Annexure-7 dated 02.01.2013 and have not worked since then, upon their reinstatement, they would be deemed as regularized employees but they would not get any back wages. They would be reinstated within two months from today. They would also be entitled to continuity in service.” 8. As their services are terminated by Annexure-7 dated 02.01.2013 and have not worked since then, upon their reinstatement, they would be deemed as regularized employees but they would not get any back wages. They would be reinstated within two months from today. They would also be entitled to continuity in service.” 8. Having considered the aforesaid submissions, this Court finds that in view of the Clause 3 of the said Resolution having been interpreted by the Division Bench of this Court to apply to those persons who were seeking regularization of their appointment as daily wager after 11.12.1990 and the distinction brought out in the said order of the Division Bench, the same would not apply to the instant petitioners who admittedly had worked as daily wagers for 240 days till 11.12.1990. The rejection order therefore, has to be set aside. 9. On quashing of the impugned order dated 10.05.2013 bearing memo no. 1594, the matter is left to the District Magistrate respondent no. 3 to consider the claim of the petitioners in light of the interpretation of Clause 3 as per the said Division Bench judgment of this Court to the extent that it cannot be made applicable to reject the claim of the petitioners who have completed 240 days of employment on daily wages up to 11.12.1990. The consideration must be completed within a period of three months from the date of receipt/production of a copy of this order. 10. With the aforesaid observations and to the extent indicated herein above, the writ petition is allowed.