The State Of Bihar & Ors vs Mukti Nath Singh on 8 December, 2009

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Patna High Court - Orders

The State Of Bihar & Ors vs Mukti Nath Singh on 8 December, 2009

State has preferred this Letters Patent Appeal against the judgment and order dated 05.08.2008 passed by a learned Single Judge of this Court whereby the writ petition preferred by the respondent bearing C.W.J.C. No. 999 of 2001 was allowed. As a result the writ petitioner succeeded in getting quashed an order dated 27.10.2000 which reverted the writ petitioner from Class III post in the regular establishment to a Class IV post in the work charge establishment and maintained order dated 23.10.1981 by -2- which his services were regularized on the post of Sub- divisional Clerk.

The writ petition, as appears from the order under appeal, has been allowed on the premise that since 1949 there exist government circulars enabling employees of work charge establishment to be made permanent if the project continued for certain period and on the premise that under a scheme of regularization of 1981 writ petitioner was regularized from a Class IV post in the work charge establishment to a Class III post in the regular establishment. The writ Court has noticed that the policy decision of 1981 was subsequently clarified in 1983 that regularization should not be used for promoting a Class IV post holder in the work charge establishment to a Class III post in the regular establishment but the writ Court came to a view that for such lapses and illegalities by the Officers the writ petitioner could not be reverted back, particularly after 19 years.

On behalf of the appellant, learned counsel for the State has placed reliance upon a Full Bench judgment of this Court in the case of Durganand Jha Vs. State of Bihar reported in 2007 (4) PLJR, 259 to submit that precisely the -3- same question fell for consideration in that case and after noticing several judgments of the Apex Court including that in the case of Secretary of State of Karnataka Vs. Uma Devi reported in (2006) 4 SCC, 1, the Full Bench took notice of the manner of entry into service in the work charge establishment and held that since such entry is without complying with the requirements of equality of opportunity as per Articles 14 and 16 of the Constitution of India, such work charge employees engaged on Class IV posts in the work charge establishment could not be promoted/regularized on Class III posts by the State authorities as such action would violate the provisions of law and circulars governing recruitment to Class III posts in the regular establishment and would also be against the mandate of Articles 14 and 16 of the Constitution.

Learned counsel for the respondent drew our attention to several judgments passed by the Single Judge or by the Division Bench of this Court noticed in the judgment under appeal to submit that necessary consideration of 1949 circulars and subsequent circulars governing regularization from work charge establishment to regular establishment -4- were not adequately noticed by the Full Bench in the case of Durganand Jha (Supra) and, hence, Full Bench decision in that case requires re-consideration.

There may be an appropriate case which may require further clarification to protect a regularization done in accordance with the then existing policy decision of the State because even according to the judgment in the case of Secretary of State of Karnataka Vs. Uma Devi (Supra) it has been observed in paragraph 53 in the following words:

"We also clarify that regularization, if any already made, but not subjudice, need not be re-opened based on this judgment, but there should be no further by-passing of the Constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

So far as the earlier judgments are concerned, in paragraph 54 of that judgment it has been clarified by the Constitution Bench of the Supreme Court that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what has been held therein will stand denuded of their status as -5- precedents.

In our considered opinion, in the present case the position could have been different if the writ petitioner had been regularized as per policy of the State of 1981 against a Class IV post and the matter would have rested. If the matter was not subjudice, it could not have been reopened on the ground of the law laid down by the Constitution Bench of the Supreme Court. But in the present case we are of the firm view that the writ petitioner was not entitled to be regularized on a Class III post in the regular establishment. The matter was already subjudice before the judgment in the case of Uma Devi (Supra) was pronounced because the impugned order was passed on 27.10.2000.

Learned counsel for the appellant has rightly placed reliance upon another Division Bench judgment of this Court in the case of Bishnudeo Thakur Vs. The State of Bihar dated 02.03.2009 passed in CWJC No. 10119 of 2002. In that judgment Division Bench has noticed the judgment and order under appeal in this case and has held that the said judgment does not lay down correct law and is in teeth of the Full Bench judgment in the case of Durganand Jha (Supra). -6-

A copy of that judgment has been annexed as Annexure-2 to the memorandum of appeal.

We find no good reason to take a different view of the matter. In view of the aforesaid discussion, this Letters Patent Appeal is allowed and the writ petition is dismissed. There will be no order as to cost.

AMIN                     (Shiva Kirti Singh, ACJ)


                        (Shyam Kishore Sharma, J.)

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Patna High Court - Orders