Patna High Court
Bihar Intermediate Education Council ... vs The State Of Bihar & Ors on 24 October, 2016
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17414 of 2013
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1. Bihar Intermediate Education Council Employees Association Patna, Through Its
General Secretary, Anil Kumr Singh Son Of Ugreshwar Prasad Singh Resident Of
7/B, House No.2, Near Shiv Mandir, Indrapuri, Post - Keshari Nagar Police Station
- Patlipura, District - Patna
2. Sharfuddin Ali Son Of Late Fakir Ali Resident Of Nausa Mor Nausa Bagicha,
Police Station - Phulwarisharif, District - Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Education Department, Government Of Bihar, Patna
3. The Director, Secondary Education, Government Of Bihar, Patna
4. Bihar School Examination Board, Patna Through Its Secretary
5. The Chairman, Bihar School Examination Board, Patna
6. The Secretary, Bihar School Examination Board, Patna
7. Sheo Pujan Kumar Singh Son Of Not Known, Assistant Bihar School
Examination Board, Sinha Library Road, Patna Employees Of Bihar School
Examination Board, Who Have Become Seniors To Petitioner
8. Rajesh Ranjan Son Of Not Known, Upper Division Clerk, Bihar School
Examination Board, Sinha Library Road, Patna Employees Of Bihar School
Examination Board, Who Have Become Seniors To Petitioner
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
Mr. Amit Narayan,
Mr. Ajit Narayan Lal,
Mrs. Nirmala Kumari
For Respondent Nos.4,5, &6: Mr. Satyabir Bharti
For Respondent Nos. 7,8 & 9: Mr. Harsh Singh
Mr. Ravi Shankar Choudhary,
For Respondent Nos. 1 to 3 : Mr. Jitendra Kumar, AC to AAG 14
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 24.10.2016
Heard the parties.
2. In the present writ petition, petitioners are challenging the
resolution dated 12th July, 2012 issued by the Joint Secretary,
Education Department, Government of Bihar, Patna by which the
Patna High Court CWJC No.17414 of 2013
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date of absorption of the employees of the Bihar Intermediate
Education Council (hereinafter referred to as "Council") in Bihar
School Examination Board (hereinafter referred to as "Board")
be considered as the date of appointment in Board and
accordingly allowances will be paid. The petitioners further pray
to count the services of the employees of Council with effect
from 23.9.1991 or from the date of appointment and accordingly
seniority should be counted from this date and further prays to
keep 555 posts in Council from deputy Secretary to Class IV
posts intact. Prayer has also been made for quashing the seniority
list dated 4.12.2012 published by the Board and issuance of an
appropriate writ/direction to count the service of employees of
the Council with effect from 23.9.1991 and accordingly seniority
should be counted.
3. Though in the writ petition, number of reliefs have been
sought but the prayer has been confined to seniority only. In the
present case the sole question has been raised by petitioners of
getting seniority for the period they have discharged the duties in
the Council. The present case has been filed in a representative
capacity with regard to the persons who were earlier the members
of the Council and later on absorbed in the Board. So the present
order will be binding on all persons who have been absorbed in
Patna High Court CWJC No.17414 of 2013
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the Board, as it appears from the pleadings of the parties that
altogether 422 persons including these petitioners after the
creation of the Council vide Bihar Intermediate Education
Council Act, 1992 were employed but later on the Government
by Bihar Intermediate Education Council (Repeal) Act, 2007,
abolished the Council. In terms of Section 3 of the Repeal Act
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 final decision in
the matter of their service condition which would be provided
accordingly. So in view of operation of Section 3(1) of the
Repeal Act the petitioners continued to remain in the
employment but thereafter three men committee was constituted
and they took decision for their terms of absorption and their
condition of services in the Board. Clause (xiii) of Resolution
provides that the period spent in Council would be counted for
the purposes of pension and ACP and it has been provided in
Clause (V) that the absorption in service would be done
following reservation policy taking into consideration the
seniority. In pursuance thereof all the persons working in the
Council were absorbed in the services of the Board. There is only
Patna High Court CWJC No.17414 of 2013
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dispute with respect to their placement in the seniority list as in
the seniority list they have been shown juniors to those who were
appointed much after their induction in the Council. Claim has
been made by the petitioners that they have raised their objection
against their placement in the seniority list claimed that the date
of entry in Council be taken for reckoning their seniority.
4. Learned counsel for the petitioners compared their cases
with the employees of the Bihar Agriculture Produce Market as
in that case also Bihar Agriculture Produce Market Act has been
repealed by the Bihar Agriculture Produce Market (Repealing)
Act, 2006 and all employees have been absorbed in the
department of the State Government. They have been given
seniority counting their past service, in such view of the matter,
they should also be given the same benefit. It has been claimed
that the provisions of Intermediate Education Council Repeal
Act, 2007 is pari materia with Bihar Agriculture Produce
Market Act, 2007, and as such they should be bestowed with
same relief.
5. The private respondent as well as Board have categorical
taken stand that the Government has acted fairly in giving an
opportunity for their absorption on abolition of Council. Board
could have closed its door, instead of doing the same, they have
Patna High Court CWJC No.17414 of 2013
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been absorbed in the service. When an organization or
department is abolished the employees working in that
organization or the department, per se, cannot claim their
absorption, but on account of the provisions of the Act and
scheme framed thereunder they have been brought to the services
of the Board and they have been given the benefit of pension and
ACP, and the period spent in Council has been taken into
consideration for the aforesaid purposes. But the period spent in
Council cannot be given the benefit for the purposes of the
seniority which will cause prejudice to the employees which are
already in the Board and petitioners cannot claim any benefit
causing prejudice to the right of the employees of the Board and
as such the claim of the petitioners for reckoning the period spent
in Council is not required to be taken into consideration. He has
further submitted that the Government constituted a high power
committee. They considered the pros and cons of both sides
considered their cases deeply from every angles, framed the
scheme. The scheme which has been prepared is a policy
decision should not be interfered lightly unless it is shown
against to constitutional provision, suffers from arbitrariness and
de hors to any provision of the Act.
6. In support of submissions learned counsel for the
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petitioners has placed reliance on the following judgments:( i)
Roshan Lal Tandan v. Union of India and another, reported in
AIR 1967 SC 1889 (ii) General Manager SCR v. A.V.R.,
reported in (1974)4 SCC 335 (iii) Nirmal Kumar Choudhary v.
State of Bihar and others, reported in 1988(supp) SCC 107=1988
AIR 394 (iv) Vinay Kumar Verma and others v. State of Bihar
and others, reported in (1990) 2 SCC 647 (v) Dwijen Chandra
Sarkar and another v. Union of India and others, reported in
(1999) 2 SCC 119 (vi) Prabha Kumariv. The State of Biahr and
others, reported in 2008 (2) PLJR 219 (vii) Priya Ranjan Sharma
v. State of Bihar and others, reported in 2010(2) PLJR 387 (viii)
J.S. Yadav v. State of Uttar Pradesh and another, reported in
(2011)6 SCC 570 (ix) State of Uttar Pradeshand others v. Mahesh
Narain and others, reported in (2013)4 SCC 169 (x) Panchraj
Tiwari v. M.P. State Electricity Board and others, reported in
(2014) 5 SCC 101 (xi) Dr. Anshuman Singh and another v.
Union of India and others, reported in 2016(1) PLJR 219 and one
unreported judgment passed in C.W.J.C. No. 4452 of 2012 (Ram
Surat Singh v. State of Bihar).
7. Learned counsel for the Board has placed reliance on the
following judgments: (i) Tamil Nadu Education Department
Ministerial and General Subordinate Services Association and
Patna High Court CWJC No.17414 of 2013
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others v. State of Tamil Nadu and others, reported in (1980)3
SCC 97, paragraph nos. 3 and 7 on the principle of judicial
review with regard to policy decision of the Government in the
education matter (ii) Gurmail Singh and others v. State of Punjab
and others, reported in (1991) 1 SCC 189, paragraph nos. 6 and
18 (iii) Union of India and others vs. K. Savitri and others (1998)
4 SCC 358, paragraph no.10 (iv) Dwijen Chandra Sarkar and
another v. Union of India and others, reported in (1999)2 SCC
119, paragraph nos. 2,3, 4, 5,9, 10, 17 and 18, and Panchraj
Tiwari v. M.P. State Electricity Board, (2014)5 SCC 101,
paragraph nos. 4 and 17.
8. Learned counsel for the private respondent has placed
reliance on the following judgments: (i) Avas Vikas Sansthan and
another v. Avas Vikas Sansthan Engineers Assn. and others,
reported in (2006) 4 SCC 132, paragraph nos. 34, 50, 51, 53 and
65 and State of A.P. and others v. Mcdowell and Co. and others,
reported in (1996) 3 SCC 709 paragraph no.43.
9. In the present case the only issue revolves for
consideration about the past services which they have discharged
in the Council will be reckoned for the purposes of their seniority
which may cause prejudice to the existing employees of Board
who are there from earlier period. To understand the entire gamut
Patna High Court CWJC No.17414 of 2013
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of dispute, this Court would have to go for forensic examination
of Repealing Act as well as scheme framed by three men
committee for resolving the dispute that has been raised in the
present case. Section 2 of the Repealing Act, 2007 stipulates that
Bihar Intermediate Education Council Act as amended from time
has been repealed and consequences has been provided in
Section 3 relevant portion of provision is 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."
10. It will be relevant to quote sub-section 2 of Section 3 of
the Act:
"(2)The State Government shall continue 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
Patna High Court CWJC No.17414 of 2013
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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."
11. On close examination of Section 3(1) stipulates that 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 they have been paid on the date of
repeal of the Act till such time the State Government has taken a
final decision as is provided hereinafter.
12. Section 3(2) of the Act provides that the State
Government shall constitute a Committee of Secretaries
consisting of three Secretaries who will prepare a detailed
scheme of absorption, retirement, compulsory retirement or
voluntary retirement, screening appointment and other service
conditions of employees of the Council. So the legislature has
given the options as mentioned hereinabove.
13. Section 4 of the Act provides that all assets and
properties movable and immovable of the intermediate Council
would vest to the Board. The Government has constituted a three
men committee and after due deliberation, framed the scheme
and this Court would deal with the items of Scheme which are
relevant for the purposes of disposal of the case. It will be
Patna High Court CWJC No.17414 of 2013
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relevant to quote clause nos. (v), (x), (xi), (xii) and (xiii):
"v. lek;kstu ds volj ij izo`r vkj{k.k fu;eksa dk ikyu fd;k
tk;sxk rFkk ojh;rk dks n`f'ViFk esa j[krs gq, lek;kstu dh dkjZokbZ dh tk;sxhA
x. lacaf/kr dehZ dk lek;kstu dh frfFk ls fcgkj fo|ky; ijh{kk
lfefr esa fu;qDr ekuk tk;sxk rFkk fcgkj fo|ky; ijh{kk lfefr ds dfeZ;ksa ds fy,
vuqekU; Hkrs ns; gksaxsA
xi. lek;ksftr gksus okys dfeZ;ksa dks U;wure osrueku ds in ij
lek;kstu gksus dh fLFkfr esa osru laj{k.k dk ykHk ns; gksxkA
xii. lek;ksftr gksus okys dfeZ;ksa ij iqjkuh isa"ku ;kstuk izHkkoh gksxh
ftlds vUrxZr Hkax fcgkj baVjfefM,V f"k{kk ifj'kn eas dk;Zjr ftu dfeZ;kas dk
lkeatu fd;k tk;sxk] muds ekeys esa iwoZ dh rjg osru dh 10 %- ¼nl izfr"kr½
jkf"k muds osru ls dVkSrh dj cSd a esa la/kkfjr muds Hkfo'; fuf| [kkrk esa rFkk
bruh gh jkf"k lfefr }kjk isa"ku QaM esa tek dh tk;sxhA
xiii. lek;ksftr gksus okys dfeZ;ksa dh iwoZ dh lsok dh x.kuk isa"ku ,oa
,0lh0ih0 ds iz;kstukFkZ dh tk;sxhA**
14. In all the clauses of the scheme the word has been used
"Samayojan". As per the Oxford Hindi English Dictionary
Samayojan means arrangement/adjustment. As per Legal
Glossary Samajojan means adjustment. Clause (v) provides that
at the time of adjustment seniority as well as reservation policy
will be observed. Clause (x) stipulates that date of appointment
will be treated in the Board the day on which they have been
adjusted and they will be entitled to pay equal to the employees
of the Board. Clause (xi) provides that their minimum scale of
pay on the date of their adjustment will be protected. Clause (xiii)
provides that past services rendered in the Council will be
reckoned for the purposes of granting pension and ACP. So in the
present case benefit of past period has been taken into
Patna High Court CWJC No.17414 of 2013
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consideration for the pension scheme and also for ACP. So there
is no dispute with regard to granting pension as well as ACP as
the scheme has taken care of their past services will be counted
and their date of appointment in the Board will be date of their
adjustment.
15. Now the question has been left for consideration
whether the past period of service in the Council will be taken
into consideration for deciding the inter-se seniority of old
existing employees of the Board vis-à-vis newly adjusted
employee of Council. While exercising the judicial review the
principle has been laid down that the Court should maintain
judicial restrain in interfering with scheme unless the scheme is
found to be violative of any of constitutional provision or
statutory provision, otherwise the Court will be very slow to
interfere or to annul or to amend the scheme of absorption,
regularisation or adjustment.
16. To understand the parameters of interference in the
Scheme it will be relevant to consider the cases of the Hon'ble
Supreme Court as well as this Court dealt with the similar
situation either in a case of either amalgamation of two
organizations or adjustment of the employees of other
organization.
Patna High Court CWJC No.17414 of 2013
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17. Tamil Nadu Education Department Service Association
case (supra) Hon'ble Supreme Court has considered the
parameters of judicial review and limits of interference with
respect to decision of the Government based upon the advice of
the Expert Committee. In the case of Tamil Nadu Education
Department Ministerial and General Sub-ordinate Services
Association (supra), the Tamil Nadu State had schools at the
various levels, primary, middle and high, run by the public sector
consisting of Panchayats, District Boards and Government.
Panchayat Schools were absorbed by District Boards, eventually
those schools were taken over by the Government. The
Government vide its executive order decided to keep the
personnel so absorbed as a separate service in the Education
Department named the Tamil Nadu Educational Subordinate
Service. In the similar manner the ministerial services related to
non-teaching staff was also kept separate. This arrangement did
not provide promotional avenue to those employees who were
earlier the employees of the District Board. That caused hurt
burning led to agitation, representation and interpellations in the
legislative proceeding in the House. The Government again
rearranged the employees who were absorbed and the employees
who were already on the role of the Government. Originally
Patna High Court CWJC No.17414 of 2013
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Government servant were classified as A wing and those who
were absorbed were classified as B wing employee. In such way,
arrangement was made to create avenue for promotion for the
employees who have been absorbed. Later on the Government
has taken a decision for fusion of two wings employee in a
proper ratio and created single cadre.
18. The manner and method adopted for the fusion was
challenged ultimately reached to Apex Court. The question of
past service was also raised in the sense, whether past services
rendered by the group of employees who were working in
different undertaking absorbed and became Government servant
would earn credit of their past services would be reckoned for
their seniority. As the manner and method of fusion was
challenged the Court refused to interfere and stipulated that in
Service Jurisprudence integration is a complicated administrative
problem, in doing broad justice. would cause some bruise to a
few, cannot be ruled out. Some play in the joints, even some
wobbling, must be left to Government without fussy forensic
monitoring, since the administration has been entrusted by the
Constitution to the executive, not to the court. All life, including
administrative lift, involves experiment, trial and error, but within
the leading strings of fundamental rights and absent
Patna High Court CWJC No.17414 of 2013
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unconstitutional excesses, judicial correction is not right. The
Court has further said that there may be a better formula could be
evolved, but the court cannot substitute its wisdom for
government's save to see that unreasonable perversity, mala fide
manipulation, indefensible arbitrariness and like infirmities do
not defile the equation for integration and the Court has refused
to interfere in the matter. The Hon'ble Court has further said that
the court should not go for a quarrel if administrative policy is
revised. In the administrative policy, mathematical precision is
not possible, Court can not analyze minute administrative detail.
The Court can interfere, in a case of arbitrariness, discrimination,
mala fide and ulterior motive and the Hon'ble Court refused to
interfere with the policy decision of Government even though
there was some variation and contradiction. It will be relevant to
quote relevant portion of paragraph nos. 8, 9, 12 and 16 of the
aforesaid judgment:
"8. ............May be, a better formula could be evolved,
but the court cannot substitute its wisdom for
Government's save to see that unreasonable
perversity, mala fide manipulation, indefensible
arbitrariness and like infirmities do not defile the
equation for integration. We decline to demolish
the order on this ground. Curial therapeutics can
heal only the pathology of unconstitutionality, not
every injury.
9. The more serious charge is that length of service
for fixing seniority has inflicted manifest injustice
on the 'A' Wing i.e. regular Government staff, being
Patna High Court CWJC No.17414 of 2013
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born in arbitrariness and fed on mala fides. It is
fair to state the generalities and then proceed to
particularities. Here we must realise that all the
schools having been taken over by the State directly
the personnel had to be woven into the basic fabric.
Some relevant formula had to be furnished for this
purpose so that the homogenisation did not unfairly
injure one group or the other. In 1970 Government
chose not to integrate but to keep apart. Later, this
policy was given up. We cannot, as court, quarrel if
administrative policy is revised. The wisdom of
yesterday may obsolesce into the folly of today,
even as the science of old may sour into the
superstition now, and vice versa. Nor can we
predicate mala fides or ulterior motive merely
because Assembly interpellations have ignited re-
thinking or, as hinted by Counsel, that the
Education Minister's sensitivity is due to his having
been once District Board teacher. Democratic
processes-both these are part of such process-are
not anathema to judges and we cannot knock down
the order because Government have responded to
the Question Hour or re-examined the decision at
the instance of a sensitive minister.
12. ...........The crux of the matter is what is implicit
but not explicit in the order, that in the process of
integration and drawing up of combined seniority
lists the services of the quondom District Board
employees vis-a-vis the Government School
employees District Board service has been
reckoned. Can this be done by a prudent person or
is it outrageous to equate District Board service
with Government service? That is the question an
answer to which disposes of these writ petitions.
16. Aware of our jurisdictional limitation we do not
agree that the court can analyse such minutiae to
fault the policy and quash the order of Government,
i.e. G.O. No. 1968. For argument's sake, let us
assume that there is a volte face on the part of the
Government in shifting its stand in the matter of
computation of seniority with reference to length of
service. Surely, policy is not static but is dynamic
and what weighed with the Government when
panchayat institutions were amalgamated with the
Patna High Court CWJC No.17414 of 2013
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District Board institutions might have have given
up in the light of experience or changed
circumstances. What was regarded as
administratively impractical might, on later
thought and activist reconsideration, turn out to be
feasible and fair. The court cannot strike down a
G.O., or a policy merely because there is a
variation or contradiction. Life is sometimes a
contradiction and even consistency is not always a
virtue. What is important is to know whether mada
fides vitiates or irrational and extraneous factor
fouls. It is impossible to maintain that the length of
service as District Board employees is irrational as
a criterion. Let us assume for argument's sake that
the mode of selection by the District Boards is not
as good as by the Public Service Commission. Even
so it is difficult to dislodge the Government's
position that the teachers with mostly the same
qualifications, discharging similar functions and
training similar students for similar examinations
cannot be equated from a pragmatic angle without
being condemned as guilty of arbitrariness."
19. In the case of Gurmail Singh (supra), the appellants were
in service as Tubewell Operators in the Irrigation Branch of the
Public Works Department. The Government transferred all the
tubewells in this Branch to the Punjab State Tubewell
Corporation a Company wholly owned and managed by the State
Government. Consequent of this decision a notification was
issued to the effect that the posts sanctioned for Tubewell Circle,
Irrigation Branch, Punjab was no longer needed in public interest.
Accordingly all the posts were abolished. Later on notices were
served upon the persons who were absorbed in Punjab State
Patna High Court CWJC No.17414 of 2013
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Tubewell under Section 25 -F of the Industrial Dispute Act
terminating their services. That was challenged having not
followed the provisions of Section 25 F of the Industrial Dispute
Act. One question fallen in consideration in what manner they
would be treated in the Corporation, would the past services be
reckoned for their seniority as they were treated to be a fresh
entry in the Corporation which cause a heartburning to the
petitioner and similarly situated persons. The Court has said that
the employees employed in the Corporation from earlier cannot
be put to disadvantage on account of absorption of Tubewell
operator who were retrenched by the Government and absorbed
in the Corporation, the result would be that all persons who were
absorbed later will be junior in service to the Tubewell Operator
who were in the Corporation from the earlier period. The
Hon'ble Supreme Court did not find any fault with the action in
treating them as new entrant except giving them the benefit of the
past service for the retiral benefit as well as granted pay
protection. All employees were made entitled of their past
services for the purposes of computation of their pay and for
retirement benefits only would not be counted for claiming
seniority over the existing employees of Corporation. If the
period would be permitted to be counted would result in, injustice
Patna High Court CWJC No.17414 of 2013
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to those employees whose seniority is based on their terms and
conditions of service with the Corporation had entered into
service long ago before the present transfer proposal came to be
implemented. The Hon'ble Supreme Court held retrenched
employee can either claim compensation or seniority, not both. It
will be relevant to quote paragraph nos. 11, 17 and 18 of the
aforesaid judgment:
"11. This leaves for consideration the principal question in
this case as to whether in circumstances such as these,
the State is under an obligation to protect the terms and
conditions of service of the tubewell operators. The
State's case is that it had transferred its tubewells to the
Corporation. The operators, therefore, became surplus
and they were retrenched. Retrenchment compensation
was duly paid to them. It is suggested that the State's
obligation came to an end with this. It was under no
obligation to find any fresh or alternative employment
to the workers. However, being a welfare State, it did
arrange for such alternative employment. It was
obviously under the State's directions that the
Corporation went out of its way to confer a favour on
the appellants by agreeing to take them into its service.
It is submitted that the Corporation had its own terms
and conditions of service for its employees and could
not change those terms and conditions of service for
the benefit of those few employees whose services had
been taken over as an act of commiseration. It would
be unfair on the part of the Corporation to give the
Patna High Court CWJC No.17414 of 2013
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appellants benefit of their earlier service in the
Government and made them senior to. other employees
who had been serving in the Corporation right from the
beginning. It is, therefore, submitted that the two
chapters of service of the appellants, one with the
Government and the other with the Corporation are
two separate and independent chapters. The first
chapter has come to a close because the State
Government was not able to continue to operate the
tubewells by itself. The second chapter has commenced
with a totally independent offer by the Corporation to
the erstwhile Government servants of an employment in
the Corporation. This is a fresh employment subject to
the normal rules and regulations of the Corporation.
The appellants have no right to claim any continuity of
service in the circumstances.
17. Looking at the facts of this case in the above
perspective, it appears to us that the State Government
has acted arbitrarily towards the appellants. It is true
that the State Government was incurring losses and
decided to transfer the tubewells to the Corporation.
This decision would have been the most
unexceptionable, prudent and perhaps the only
decision that the Government could have taken, if it
had decided to completely cut itself off thereafter from
any responsibility or liability arising out of the
operation of the tubewells. But that the Government did
not do. As pointed out earlier, the State Government,
although transferring the tubewells, undertook to
recoup any losses that the Corporation might incur as
Patna High Court CWJC No.17414 of 2013
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a result of the transfer. The result, therefore, was that,
despite the transfer of tube- wells to the Corporation
the Government continues to bear the losses arising
from this activity. But, while doing so, it has abridged
the rights of the appellants by purporting to transfer
only the tubewells and retrenched the appellants from
service as a consequences. A grievance has been made
that, while several other members of staff belonging to
the irrigation department such as engineers, clerks, etc.
have been sent on deputation to the Corporation, the
State has only chosen to retrench the service of as
many as 498 tube- well operators. This differential
treatment may not amount to discrimination as
contended by the appellants because those others
belonged to categories of Government staff which
could come back to Government service in the event of
the Corporation finding their services unnecessary at a
future date, for one reason or another as they were
persons with general qualifications who could be fitted
into the other work of the irrigation branch. The
tubewell operators, however, could not have been sent
on deputation because there was no possibility at all of
their being fitted into the irrigation branch later, in
case the Corporation could find no use for them
because, once the tubewells had been transferred for
good to the Corporation, the Government could find no
openings for them in the service. While, therefore, we
do not agree with the appellant that the State
Government discriminated against the appellants as
compared with the other members of the staff by
Patna High Court CWJC No.17414 of 2013
21
sending them on deputation but not the appellants, we
think that this treatment meted but to the other staff
shows that the Government did not hesitate to burden
the Corporation with the liability of their salary etc.
while serving on deputation which would only augment
the losses, if any, that the Corporation would incur by
operating the tubewells. But when it came to the case of
the appellants, the Government has considered it fit to
retrench their services, simultaneously making some
arrangement or issuing some directions enabling the
Corporation to absorb them as if they were fresh
recruits. The assurance that they would be paid
according to their original scales of pay and at their
original leaves of pay came as a later development only
because of the pending litigation. It was very fair on
the part of the State Government to decide that, as the
tube- wells would be operated by the Corporation, it
would be prudent to run them with the help of the
appellants rather than recruit new staff therefore and
that the Government should bear the burden of any
losses which the. Corporation might incur as a result of
running the tubewells. But having gone thus far, we are
unable to see why the Government stopped short of
giving the appellants the benefit of their past services
with the Government when thus absorbed by the
Corporation. Such a step would have preserved to the
appellants their rightful dues and retirement benefits.
The conduct of the Government in depriving the
appellants of substantial benefits which have accrued
to them as a result of their long service with the
Patna High Court CWJC No.17414 of 2013
22
Government, although the tubewells continue to be run
at its cost by a Corporation wholly owned by it, is
something which is grossly unfair and inequitable. This
type of attitude designed to achieve nothing more than
to deprive the employees of some benefits which they
had earned, can be understood in the case of a private
employer but comes ill from a State Government and
smacks of arbitrariness. Acting as a model employer,
which the State ought to be, and having regard to the
long length of service of most of the appellants, the
state, in our opinion, should have agreed to bear the
burden of giving the appellants credit for their past
service with the Government. That would not have
affected the Corporation or its employees in any way
except to a limited extent indicated below and, at the
same time, it would have done justice to the appellants.
We think, therefore, that this is something which the
State ought to be directed to do.
"18. We would, however, like to clarify that the sole
purpose and object of our above direction is that the
appellants should be entitled to count their past
service with the Government for the purpose of
computation of their salary, length of service and
retirement benefits with the Corporation. This,
however, should not result in the appellants' claiming
any seniority over the staff which the Corporation has
otherwise engage right from its commencement in
1970. To permit such a claim would result in injustice
to those employees whose seniority is based on their
terms and conditions of service with the Corporation
Patna High Court CWJC No.17414 of 2013
23
which had been entered into a long time before the
present transfer proposal came to be implemented.
Though, as we have mentioned earlier, seniority in
service is not of much importance in this case as there
is no avenue of promotion to tubewell operators, the
question of seniority still becomes crucial in case the
Corporation should close down any of the tubewells or
decide on the retrenchment of its staff by reorganising
the operation of tubewells in such a way that some of
the staff may become surplus. In such an event, if the
appellants are given the benefit of their length of
service with the Government for all purposes, some of
the present employees of the Corporation may become
liable to be retrenched as junior in length of service to
some of the appellants. Clearly, this should not be
allowed to happen and the Corporation staff should
not suffer merely because the appellants, who have
been subsequently inducted into the Corporation, are
given all the benefits of the length of their service with
the Government. There can be no question of any of
the appellants being considered senior to such
operators on the Corporation's establishment. In fact
we cannot give such a direction without giving such
operators an opportunity of being heard. We would,
therefore, like to make it clear that, while the
appellants will have, for purposes of computation of
their salary, length of service and retirement benefits
the advantage of counting the period of their service
with the Government, this will not enable them to
claim any seniority over the former employees of the
Patna High Court CWJC No.17414 of 2013
24
Corporation."
20. In the case of K. Savitri (supra) the question was
specifically framed by the Hon'ble Supreme Court as to whether
employees having been rendered surplus in the parent
department, on being redeployed under the provisions of the
Central Civil Services (Redeployment of Surplus Staff) Rule,
1990 can claim the benefit of the counting of past services
rendered by them for the purpose of seniority or experience in
the redeployed organization. The Court has specifically held that
past services cannot be counted for the purposes of seniority in
the new organization, equally the past experience also would not
count as the so-called past services rendered will not be service in
the grade. It will be relevant to quote relevant portion of
paragraph 10 of the aforesaid judgment:
"10. Coming now to the question whether the said past
services can be counted as experience for promotion,
it appears that under Recruitment Rules for various
posts in the All India Radio called All India Radio
(Class III Posts) Recruitment Rules, 1964 (hereinafter
referred to as `the Recruitment rules) as amended
from time to time the post of Head Clerk is filled up by
promotion to the extent of 50% from amongst the
Clerk Grade II/Clerk Grade I/Stenographer with a
minimum of five years of service in the grades on the
basis of a qualifying departmental examination and
the criteria for promotion is seniority-cum-fitness. In
that view of the matter, since the past services of
redeployed surplus employee cannot be counted for his
seniority in the new organisation, equally the past
experience also would not count as the so-called past
Patna High Court CWJC No.17414 of 2013
25
services rendered will not be service in the grade."
21. In the case of Dwijen Chandra Sarkar (supra) the
question arose for past service while discharging the duty in the
Government later on appellant was transferred to the Post and
Telegraphs Department will be counted for the purposes of
seniority in the matter of granting promotion. Hon'ble Supreme
Court considered 1983 circular where the word "except
seniority" stipulated therein has been interpreted except seniority
past service will be counted for other benefit and held that they
would get the time bound promotion but not seniority. It will be
relevant to quote paragraph nos. 14, 18 and 19 of the aforesaid
judgment:
"14. The words " except seniority" in the 1983 circular, in
our view means that such a benefit of a higher grade
given to the transferees will in no way effect the
seniority of employees in the P & T Department when
the turn of the P & T employees comes up for
promotion to a higher category or post. The said
words 'except seniority' are intended to see that the
said persons who have come from another department
on transfer do not upset the seniority in the transferee
department. Granting them higher grade under the
scheme for time-bound promotion does not therefore
offend the condition imposed in the transfer order. We
are, therefore, of the view that the appellants are
entitled to the higher grade from the date on which
they have completed 16 years and the said period is to
be computed on the basis of their total service both in
the Rehabilitation Department and the P & T
Department.
18. Hence the transfer order and concerned circular of
1983 which required that the past service should not
count for seniority, cannot have any bearing on
Patna High Court CWJC No.17414 of 2013
26
eligibility for time bound promotion. Seniority and
time bound promotions are different concepts. as
stated above.
19. For the above reasons, we hold that the past service
of the appellants is to be counted for the limited
purpose of eligibility - for computing the number of
years of qualifying service, to enable them to claim
the higher grade under the scheme of time-bound
promotions."
22. In the case of Panchraj Tiwari (supra) Supreme Court has
considered the issue of Junior engineer working in the Rural
Electricity Cooperative Society who was later on merged with the
Madhya Pradesh State Electricity Board. The question of their
status in the Madhya Pradesh State Electricity Board came for
consideration in the matter of their designation, position, age of
superannuation and pensionary benefit. The Court has further
held that after merger they become part and parcel of services of
the Electricity Board. The Court has taken a view, once service is
merged with another service, the merged service gets its birth in
the integrated service and loses its original identity. There cannot
be a situation, where even after merger, absorption or integration,
such services which were merged or absorbed, still retain their
original status. The Court has further held that the absorbed
employees of the Rural Electricity Cooperative Societies shall be
placed with effect from the date of their absorption as juniors to
the junior most employee of the Electricity Board in the
Patna High Court CWJC No.17414 of 2013
27
respective category and they shall be considered for further
promotion as per the rules/regulations of the Electricity Board. It
will be relevant to quote paragraph 14 and 17 of the aforesaid
judgment:
"16. Chances of promotion are not conditions of service,
but negation of even the chance of promotion
certainly amounts to variation in the conditions of
service attracting infraction of Articles 14 and 16 of
the Constitution of India. No employee has a right to
particular position in the seniority list but all
employees have a right to seniority since the same
forms the basis of promotion.
"17. In the above circumstances, we set aside the judgment
in appeal. The absorbed employees of the Rural
Electricity Cooperative Societies, having due regard
to their date of appointment/promotion in each
category in the respective societies, shall be placed
with effect from the date of absorption, viz.,
15.03.2002as juniors to the junior-most employee of the Electricity Board in the respective category. Thereafter, they shall be considered for further promotions as per the rules/regulations of the MPSEB. All other principles/conditions of absorption shall remain as such. However, it is made clear that on such promotions, in the exigencies of service, the employee concerned would also be liable to be transferred out of the circle, if so required." Patna High Court CWJC No.17414 of 2013 28
23. Similar issue came for consideration before Hon'ble Supreme Court in the case of State of Haryana and another v. Deepak Sood and others in Civil Appeal No.4446 of 2008, arising out of SLP © No.14099 of 2006 there also after closure of the service of Octroi Branch of the Municipal Corporation they were absorbed in the Education Department of Haryana. They have also claimed that the period that they have discharge in the Octroi Branch for Municipal Committee should be counted for the purposes of granting benefit of ACP. The State resisted took the plea, past service would not be counted for any other purpose. The Division Bench has taken a view that surplus employee of Municipal Corporation who were absorbed in Education Department will not get the seniority but all other benefit would be given to them. That was challenged before Hon'ble Supreme Court placing reliance on the earlier judgment of the Hon'ble Supreme Court has held that those who have come on transfer or absorption led to fusion of their services, in the new organization and they will be entitled to all benefits counting their past services except for seniority. It will be relevant to quote relevant portion of the aforesaid judgment:
"A similar question came up before this Court in the case of (1) Dwijen Chandra Sarkar and another versus Union of India and another reported in AIR 1999 SUPREME COURT 598. In almost identical situation a person was transferred to another Patna High Court CWJC No.17414 of 2013 29 department on administrative grounds and his past service of 16 years was not counted. He challenged the same and matter ultimately reached before this Court and this Court after considering the matter came to the conclusion that granting them higher grade under the Scheme for time bound promotion does not therefore, offend the condition imposed in the transfer order. It was observed by this Court, "We are, therefore, of the view that the appellants are entitled to the higher grade from the date on which they have completed 16 years and the said period is to be computed on the basis of their total service both in the Rehabilitation Department and the P & T Department."
Their Lordships referred to earlier judgments given by this court i.e. in the case of Renu Mullick versus Union of India 1994 (1) SCC 373. In this case also in identical situation the benefit was given to incumbent likewise in Raksha Mantri versus V.M. Joseph reported in 1998(5) SCC 305 and in the case of A.P. State Electricity Board versus R. Parthasarathi reported in 1998 (9) SCC 425. The same principle was re-affirmed recently in the case of State of Maharashtra & Ors. Vs. Uttam Vishnu Pawar (2008) 2 SCC, 646 to which one of us(A.K.Mathur, J.) was a party, wherein in para 13 it was observed as under :-
"Therefore, in view of the consistent approach of this Court, it is no more res integra that the incumbent on transfer to the new department may not get the seniority but his experience of the past service rendered will be counted for the purpose of other benefits likepromotion or for the higher pay scale as per the Scheme of the Government."
Therefore, in the series of judgments given by this Court the view has been taken that in case of a transfer/absorption from one department to another or from public sector to State though the benefit of the seniority may be denied to the incumbent but not for other benefits like pay fixation and for the pensionary benefits. Therefore, when the benefit of past service Patna High Court CWJC No.17414 of 2013 30 rendered in the parent department was given for fixation of pay and pensionary benefits, there is no reason why the past service should not be counted for grant of ACP Grade. Consequently, we are of the view that the view taken by the Division Bench of the High Court in the impugned judgment and order is correct and there is no ground to interfere in this appeal. Consequently, this appeal is dismissed but with no order as to costs."
24. On conspectus of aforesaid judgment it is very much clear that on absorption in new establishment or organization, it can best said that the past services will or may be counted for the ACP and pensionary benefit, not the benefit of reckoning the period for seniority.
25. Let us examine the judgment cited by learned counsel for the petitioners. In the case of Roshan Lal Tandon (supra) Hon'ble Supreme Court has held that though direct recruits or promotees are brought by different sources but after integration they have no longer separate status and they cannot be discriminated for the purposes of promotion to the higher grade. This judgment is not applicable as question is quite different and distinct as in paragraph of the judgment Hon'ble Court says that when promotees and direct recruits were appointed to the higher grade it constitute one class. The recruits from both sources were integrated into one class and discrimination could not, thereafter, be made in favour of recruits from one source as against the Patna High Court CWJC No.17414 of 2013 31 recruits from the other source also. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade. So this judgment is completely not application to the present case.
26. In the case of Nirmal Kumar Choudhary (supra) there were three different wings of engineering in the Department of Agriculture in Bihar i.e. Irrigation, River Valley Projects and Minor Irrigation. The State of Bihar amalgamated the cadres of employees of the former two wings and subsequently the Directorate of the Minor Irrigation was made permanent. After amalgamation seniority list was published, dispute raised before the Hon'ble Supreme Court. There the Court has held that in the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. Hon'ble Supreme Court has held that seniority will be decided on the basis of length of service, not on the basis of date of their confirmation. The fact that case is quite different to the fact of the present case as in the present case there is Legislative Act that Council has been abolished and later on their employees were adjusted in the Board. The issue decided by the Hon'ble Patna High Court CWJC No.17414 of 2013 32 Supreme Court does not apply to the present case.
27. In the case of Vinay Kumar Verma (supra) there was merger of cadres by an executive order, merged the cadre of District Engineer with Rural Engineering Cell of the Public Works Department, both were integrated and became one organization. In paragraph 13 of the judgment cognizance of the fact has been taken that by the impugned order incumbents of the posts were brought into the cadre along with the posts. It has been held that conditions of service of the existing members of service are not being altered or affected to their prejudice in any manner. So it is not a case of outsider has come and caused the prejudice to seniority or the service condition of the existing members and approved the policy decision by an executive order. This case is not applicable to the present case.
28. In the case of Priya Ranjan Sharma (supra) the petitioner was employee of the Bihar State Road Transport Corporation and on account of poor financial condition of the Corporation prompted the State Government to come out with a scheme for absorption of employees of the Corporation. Accordingly petitioner was absorbed in the State Government. The Court has taken a view that the period spent in the earlier organization will be reckoned for granting the benefit of time bound promotion Patna High Court CWJC No.17414 of 2013 33 but will not affect the seniority existing employee of the department. It will be relevant to quote paragraph nos. 6 and 9 of the aforesaid judgment:
"6. In the case of R. Parthasarathi (supra) relied upon on behalf of the petitioner the respondent was an employee in the State Government service who came to be absorbed permanently in the Andhra Pradesh State Electricity Board. The Apex Court held at paragraph-3 of the judgement that the period of service spent in the State Government prior to absorption in the State Electricity Board was to be taken into consideration while considering his eligibility for having come into the promotion zone. In the case of Dwijen Chandra Sarkar (supra) relied on by the petitioner, the question was as to whether the service spent in one department was to be computed upon transfer to another department for the purpose of time bound promotion. Dealing with the issue of time bound promotion in paragraph Nos.11, 12 and 13, the Apex Court held that the aim and purpose of time bound promotion was to prevent frustration and stagnation. This does not get affected in any manner by the fact whether he was in one department or another as the issue of frustration and stagnation permeates throughout and therefore it was to be reckoned for the purpose of computing the benefit thereunder notwithstanding such subsequent absorption as it does not affect normal seniority of those already posted in the department.
9. If the period of service in the corporation under a policy scheme for absorption has to be considered for grant of time bound promotion, this Court has no hesitation in holding that it shall also have to be computed for the purpose of reckoning his period of pensionary service. Not to do so shall create an anomalous position. It shall not only frustrate the purpose of absorption, but shall create a peculiar situation where it was being counted for certain purposes and not for certain purposes with no tangible differentiation for the purpose."
Patna High Court CWJC No.17414 of 2013 34
29. In the case of J.S. Yadav (supra) Mr. J.S. Yadav was entered into service in Uttar Pradesh State Judicial Service Munsif, promoted as District Judge, while working as Legal Remembrance he was made member of Human Right Commission, on amendment of Human Right Commission Act, his period was curtailed which the Hon'ble Court rejected the action of the State and held that the period cannot be curtailed in any manner, on account of conferment of vested right. The Hon'ble Supreme Court has discussed the meaning of vested right, meaning of cadre, post and service and in paragraph 29 it has been held that accrued rights cannot be taken away by amending the statutory provisions arbitrarily. More so, the amending law must provide, taking away such right, expressly or by necessary implication. In the present case there is no challenge to the Intermediate Council Repealing Act but question has been raised of granted the seniority in the Board of the period which they have spent in the Council. So the proposition that has been laid in the case of J.S. Yadav (supra) does not apply as no vested right has been created to the petitioners that they will be entitled of counting past service rendered in the Council for counting their seniority in the service of Board as scheme itself provides that past service will be counted for the purposes of pensionary Patna High Court CWJC No.17414 of 2013 35 benefit as well as ACP but nor for seniority. In such view of the matter, this judgment does not apply to the present case as fact of that case is quite different than that of the present case.
30. In the case of State of Mahesh Narain (supra) the contesting person who was initially appointed as Junior Chemical Assistant in the Forensic Science Laboratory in the year 1968. The nomenclature of the said post was subsequently changed to Scientific Assistant. He was promoted to the post of Senior Chemical Assistant, was further promoted as Scientific Officer and accordingly he joined the post. The promotion was granted with a condition that the order of promotion would remain effective for period of one year or until the Service Rules were published. The Government of Uttar Pradesh framed Rule as Forensic Science Laboratories Technical Officers Service Rules, 1987. Rule 5 of the said Rules provides 75% posts from the direct recruit and 25% posts from the promotees and proviso of Rule 5 of the said Rules laid down that where permanent Scientific Officers were not available, such temporary and officiating personnel may also be considered for promotion to the said post may be made permanent on the next lower post. In the meantime, as officer concerned had already acquired 5 years of experience on the next lower post due to which they had become eligible for Patna High Court CWJC No.17414 of 2013 36 promotion to the post of Assistant Director, Forensic Science. As the case of the employee concerned was not considered. He moved to the tribunal and the Tribunal directed for consideration. In that context Hon'ble Supreme Court says that no Rule or Order is meant for benefit of employees should normally be construed in such manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve the issue in such a manner that it may avoid any loss to one without giving undue advantage to other. In that context the Court has said that delay on the part of the Department should not be permitted to recoil on the appellants, more so since the restructuring order in the said case itself provided that vacancies existing on 31.7.1983 should be filled up according to procedure which was in vogue before 1.8.1983 and on that context the promotion order of the employees was restored which they were entitled prior to the change of service rules as it was held that the change of service rules cannot be made to the prejudice of an employee who was in service prior to the change. In this case considering the facts and circumstances proposition laid is not applicable to this case as there is no change in the service condition but all the acts have been done for the benefit of the employees who were employed Patna High Court CWJC No.17414 of 2013 37 in the Council but they cannot reckon the period for the period of seniority over the employees of the Board who were in the Board prior to their adjustment.
31. In the case of Dr. Anshuman Singh (supra) petitioners were Assistant Professors in the Departments of Civil Engineering and Mathematics sought a direction to the respondent authorities to place them in Academic Grade of pay of Rs.9,000/-, as per recommendation of Screening Committee constituted by NIT, Patna. The Court has said that in exercise of judicial review it can not become a court of appeal not it would function to scrutinize the evidence and consider the relative merit of the candidates. It will be relevant to quote paragraph 26 and 27 of the aforesaid judgment:
"26. So far as issue of maintainability is concerned, I would like to point out that the Court is conscious of the limits of judicial review while considering the decision of the Selection Committee, comprising of experts and academicians. I would entirely agree with the submission of the respondents that the Court would not sit as a Court of appeal nor it would function to scrutinize the evidence and consider the relative merit of the candidates, as relied upon by the respondents in case of Basavalah (Dr.) vs. Dr. H.L. Ramesh & Ors and other analogous cases, reported in (2010) 8 SCC 372. However, if on the basis of materials available on record, it appears that a Patna High Court CWJC No.17414 of 2013 38 particular criterion set out in the norms for selection had escaped due considerations which may result into injustice, the Court can refer the matter for its reconsideration. In the instant case, the Screening Committee constituted by the NIT, had itself recommended for advancement of AGP of Rs.9000 to the petitioners. In the case of Dalpat Abasaheb Solunke etc.Dr. B.S. Mahajan & Ors, reported in A.I.R. 1990 SC 434 has observed that the decision of the Selection Committee can be interfered on grounds such as "illegality or patent material irregularity in the constitution of the Committee or procedure vitiating the selection proved mala fide affecting the selection etc.
27. Again the Hon'ble Apex Court in the case of Raj Kumar & Ors v. Shakti Raj & Ors, reported in (1997) 9 SCC 527 observed that in case of glaring illegalities the Courts can interfere in the selection matter. The relevant extract of paragraph 16 of judgment is quoted herein below:
"16. ........................But in his case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conductor acquiescence has no application to the facts in Patna High Court CWJC No.17414 of 2013 39 this case............."
32. It is very much clear this judgment has no relevance with purpose of this case.
33. The counsel for the petitioners strongly place reliance on the judgment of C.W.J.C. No. 4452 of 2012 (Ram Surat Singh V. State) and analogous cases as has claimed that the case of these petitioners is identical to the employees of Bihar Agriculture Produce Market Committee. In the case this Court has remanded back the matter for fresh consideration but has not granted the positive relief
34. Looking to the entire facts and circumstance it is apparently clear that after the repeal of the Council all employees have been absorbed in the Board. Their pay scale, pensionary benefit as well as period which they have spent in the council were allowed to be reckoned for the purposes of granting ACP and retiral dues and the Scheme has prohibited for taking into consideration their past services for counting their seniority as it ultimately affect the persons who were already in service of the Board and their absorption cannot be allowed to be at the cost of the employees of the Board. The Scheme which has been framed granted fair protection, properly struck a balance between the group of employees who were already existing there and the group of the present petitioners.
Patna High Court CWJC No.17414 of 2013 40
35. This Court is of the view that Scheme in no way can be said to be arbitrary, discriminatory or violates any statutory provision or constitutional provision rather fair protection has been granted to the petitioners and their group of employees.
36. In such view of the matter, this Court does not find any merit in this writ petition. It is accordingly dismissed.
(Shivaji Pandey, J) Vinay/-
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