Patna High Court
Sri Upendra Prasad vs State Of Bihar Ors. on 29 January, 2002
Equivalent citations: 2002(1)BLJR515
JUDGMENT S. Narayan Roy, J.
1. Heard Counsel for the parties.
2. This writ application is directed against the orders, as contained in Annexures-9 and 10 both dated 26-9-2001 and 28-9-2001, respectively. Vide order, as contained in Annexure-9, direction was issued to terminate the services of the petitioner and others and vide order, as contained in Annexure-10, the petitioner and others have been terminated from services. A further prayer has also been made for issuance of a writ of mandamus commanding upon the respondents to treat the services of the petitioner as a regular employee and to give him the consequential benefits.
3. It is submitted by learned Counsel appearing on behalf of the petitioner that the petitioner was appointed as a chowkidar in Engineering Cell of the State Family Welfare Bureau of the Health, Medical Education and Family Welfare Depertment, Government of Bihar, and was posted at Bhagalpur Sub-Division on daily wages with effect from 1-5-1981. In the year 1985, a selection committee was constituted to appoint/promote the employees working in the Department, and accordingly, this petitioner and other was interviewed by the selection committee and the selection committee appointed the petitioner on permanent basis in work charged establishment vide office order No. 12 dated 4-1-1986, as contained in Annexure-1, and thereafter, again the petitioner was absorbed by a selection committee on the post of Store Keeper in work charged establishment of Engineering Cell of the State Family Welfare Bureau, Bhagalpur Sub-Division, as against a scale of Rs. 580-860 vide order as contained in Annexure-2 in the year 1988, and, ultimately, he was rent on deputation in the Headquarters vide order as contained in Annexure-5 dated 5-5-1999 and was posted in the Account Section of the State Family Welfare Section, Patna, and accordingly, this petitioner was relieved from the Engineering Cell of the Department vide order dated 8-5-1999, as contained in Annexure-6, and while the petitioner was working on deputation in the Headquarters, a show-cause notice was served upon him as to why his services should not be terminated. The petitioner pursuant there to filed his show-cause, as contained in Annexure-8, and, ultimately, the orders, as contained in Annexures-9 and 10, respectively, have been passed terminating the services of the petitioner.
4. Learned Counsel appearing on behalf of the petitioner submitted that the petitioner though was working on temporary basis in the work charged establishment under the Engineering Cell of the Department since 1981, he continued in the services for several years and was on deputation till issuance of the orders, as contained in Annexures-9 and 10, and, therefore, his services would not have been terminated, rather he would have been absorbed as a regular employee under the State Government. Learned Counsel also submitted that the petitioner though worked on daily wages from 1981, he was given a scale in the work charged establishment vide order, as contained in Annexure-1 dated 4-1-1986 and thereafter, he was posted as Store Keeper in the work charged establishment against a particular scale, as referred to in Annexure-2, in the State Family Warfare Bureau, and, therefore, he could not have been treated as a casual employee and the orders impugned, in that view of the matter, are wholly without jurisdiction, arbitrary and unreasonable.
5. A counter-affidavit has been filed on behalf of the State respondent Nos. 1 and 2 stating therein that the petitioner was engaged purely on temporary basis, which would be manifest from Annexures-1 and 2 and the same was liable to be terminated at any time without any notice to him. It is also stated in the counter-affidavit that in the year 1994-95 civil work load of Engineering Cell came down abruptly, and, therefore, the Executvie Engineer of Engineering Cell was liable to term nate the employees working in the work charged establishment, but, somehow or the other, the petitioner continued in the work charged establishment in connivance with the official and when this fact was detected, he has been terminated.
6. From the materials on record, it appears that the petitioner initialy was engaged on daily wages in the year 1981 and thereafter, he was engaged as a chowkidar in the work charged establishment under the respondents as against a scale of Rs. 350-425 and thereafter, he was posted as a Store Keeper as against a scale of Rs. 580-860 vide order, as contained in Annexure-1 dated 4-1 -1986 in the State Family Welfare Bureau of the Department. It would be manifest from Annexure-2 that this petitioner was appointed as a Store Keeper after absorbing him on temporary basis, but against a scale aforesaid and thereafter, he was posted in the headquarters on deputation and continued in services till issuance of the impugned notifications dated 26-9-2001 and 28-9-2001, respectively. No plausible explanation, however, has been given in the counter-affidavit as to the continuance of the petitioner in service in the work charged establishment for about 20 years.
7. Learned Counsel appearing on behalf of the petitioner submitted that since the petitioner was getting a scale as a work charged employee, he is entitled to be treated at par with the employees working in the regular establishment, and, therefore, he was entitled for regularisation of his services in view of the resolution of the Finance Department, as contained in Memo No. 1344 dated 4-2-1999, which states that the posts in the work charged establishment, which are of permanent nature and is required for 12 months in the year and for long and indefinite period, will be made permanent and shall be included in permanent establishment and the employees working on these posts having one year's approved service will be included amongst permanent Government employees. In this connection, learned Counsel placed reliance upon the case of Tulsi Prasad Singh v. The State of Bihar and Ors. 2001 (3), Patna Law Journal Reports, 15, whereby and whereunder a learned Single Judge of this Court held that the statutory rule as contained in Memo No. 1344 dated 4-2-1949, being a rule framed under proviso to Article 309 of the Constitution still holds good and it is applicable to the employees of work charged establishment and the condition of services of the employees of work charged establishment is identical to those of temporary Government servants.
8. For the reasons aforementioned, now it appears to me that the petitioner since continued in the work charged establishment for about 20 years and was getting a scale, the authorities instead of terminating his services could have considered his case for absorption as a regular employee. The action of the State authorities, in this view of the matter, must be held to be arbitrary and unreasonable.
9. In the result, this application is allowed, the orders as contained in Annexures-9 and 10, are set aside and the matter is remitted to the authority concerned to consider the case of the petitioner for his absorption in service in light of the observations aforesaid and to take a decision in the matter within a period of two months from the date of receipt production of a copy of this order.
10. No order as to costs.