Patna High Court
Purnea Municipal Corporation, Purnea vs The State Of Bihar on 30 July, 2019
Author: Anjana Mishra
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1777 of 2018
In
Civil Writ Jurisdiction Case No.3933 of 2017
======================================================
1. The Mayor Nagar Nigam, Purnea through Its Municipal Commissioner
2. The Municipal Commissioner, Nagar Nigam, Purnea, through its Secretary,
Dist. Purnea.
3. The Executive Officer, Nagar Nigam, Purnea, District-Purnea.
... ... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary, Urban Development
Department Bihar, Patna
2. The District Magistrate, Purnea.
3. Amit Kumar Rastogi Son of Sri Mohan Lal Rastogi Resident of Gulabbagh,
P.S. Sadar, District-Purnea.
4. Niraj Kumar Singh son of Vijay Singh, Resident of Majhli Chauk, P.S.-K.
hat, District-Purnea.
5. Anirudh Kumar Singh son of Shailendra Kumar Singh Resident of Rani
Patna P.S. Mofassil, District-Purnea.
6. Pankaj Kumar Rai Son of Late Parmod Rai Resident of Survoday Nagar,
P.S. K. Hat, District-Purnea.
7. Rakesh Kumar Son of late Rajeshwar Prasad Resident of Tara Nagar, P.s. K.
Hat, District-Purnea.
8. Pankaj Kumar Yadav Son of Suresh Yadav Resident of Nageshwar Bagh,
P.S. Sadar, District-Purnea.
9. Ashutosh Kumar Chaudhary Son of Dhirendra Choudhary Resident of
Maghli Chauk Madhubani, P.S. K. hat Disrict-Purnea.
10. Dipankar Rai Son of Late Bankeshwar rai, Resident of Durgabari Bhatta
Bazar, P.S.-K. Hat, District-Purnea
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. P.N. Shahi, Sr. Advocate
Mr.Bijendra Kumar Singh, Advocate
Mr. P.K. Shahi, Sr. Advocate
Mr. Rashid Alam, Advocate
Mr. Nadimul Hasan, Advocate
For the State : Mr. Rakesh Ambastha, A.C. to A.A.G.-07
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE JUSTICE SMT. ANJANA MISHRA)
Date: 30-07-2019
Re : I.A. No. 1 of 2019
After having heard learned counsel for the
Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019
2/26
appellant, we are satisfied that sufficient cause has been
shown to condone the delay. Delay is accordingly, condoned
and the appeal shall be treated to be within time.
Re : L.P.A. No. 1777 of 2018
The Purnea Municipal Corporation, being
aggrieved by the order of the learned Single Judge passed
vide judgement dated 27.09.2018 in C.W.J.C. No. 3933 of
2017, has preferred the present Intra court appeal, seeking to
set aside the aforementioned judgement, whereby claims for
regularization of services of respondents No. 3 to 10 have
been allowed by holding that their cases are at par with one
Md. Jawed Anwar.
The dispute in the present context arose in the
year 2011 itself, when one Md. Jawed Anwar and eight others
filed C.W.J.C. No. 10206 of 2011 for regularization of their
services which was disposed of on 30.07.2012, with the
observation that if similarly situated persons have been
regularized, then the case of the petitioners shall be
considered "sympathetically" for regularization of their
services. The extract of the aforementioned order is quoted
hereunder:-
"The writ petition has been
preferred by the petitioners for
Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019
3/26
commanding the respondent authorities to
regularize their services in Nagar
Parishad, Purnea, on which they have
been working as daily wage employees. It
is submitted by learned counsel for the
petitioners that similarly situated persons
have been regularized. If the assertion of
the petitioners is found correct, the case of
the petitioners shall also be considered
sympathetically.
Writ petition is disposed of."
Another set of writ applications filed by Amit
Kumar Rastogi along with 11 others bearing C.W.J.C. No.
6565 of 2012 also came before this Court which was also
disposed of on the basis of the order passed in C.W.J.C. No.
10206 of 2011 (Md. Jawed Anwar & Ors.) by a common
order dated 24.10.2013. The said C.W.J.C. No. 6565 of 2012
along with two other writ applications were disposed of
giving the assertion as stated in the order which is quoted
hereunder:-
"Heard the parties.
It is urged by learned counsel
for the petitioners that the identical
issues as involved in these writ
applications have been decided by a
Single Bench of this Court vide order
dated 30.07.2012 passed in C.W.J.C.
No.10206 of 2011(Md. Jawed Anwar
and others v. The State of Bihar and
others), a copy of which has been
Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019
4/26
produced at the time hearing for
perusal of this Court.
In above view of the matter,
these writ applications also stand
disposed of in terms of the order dated
30.07.2012passed in C.W.J.C. No.10206 of 2011(Md. Jawed Anwar and others v. The State of Bihar and others).
It is made clear that if the assertion of the petitioners is found correct that similarly situated persons have been regularized, let their case be also considered sympathetically."
Accordingly, in compliance of the order passed by this Court, the Nagar Parishad, Purnea, now the Municipal Corporation (hereinafter referred to as the 'Corporation') issued notices to the respective petitioners of C.W.J.C. No. 6565 of 2012 for sympathetic consideration of their claims and on receipt of their separate replies and upon obtaining reports from the Office Superintendent and Legal Assistants, it came to light that the petitioners were never appointed in the service of the Nagar Nigam, Purnea against sanctioned vacant posts. The petitioners had worked on daily wages basis for scattered periods which was indicated in the order dated 12.11.2016 contained in Memo No. 1323 issued by the Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 5/26 Municipal Corporation, Purnea. It is relevant to mention that the petitioners of C.W.J.C. No. 10206 of 2011 had been taken in regular service of the Corporation without going through the records of their service.
This was followed by another litigation by one Manoj Roy who preferred C.W.J.C. No. 25058 of 2013 wherein this Court taking a different view of the matter ordered the Corporation to take steps for removal of all such employees whose services have been regularized in violation of the law laid down by the Full Bench of this Court in the case of Ram Sevak Yadav Vs. The State of Bihar reported in 2013(1) P.L.J.R. 964, and in the light of the judgement in the case of Uma Devi reported in (2006) 4 SCC 1. Thus, in the light of the aforementioned order, the Corporation recalled the order of regularization of the 9 writ petitioners who had been wrongly regularized in the service by virtue of the earlier orders passed in C.W.J.C. No. 10206 of 2011.
It is important to indicate here that once again the writ petitioners of C.W.J.C. No. 10206 of 2011 after seeking leave of the Court, preferred an L.P.A. bearing L.P.A. No. 1019 of 2014 against the order passed in C.W.J.C. No. 25058 of 2013 on the ground that neither of the petitioners Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 6/26 were parties in C.W.J.C. No. 25058 of 2013 nor had any notices been issued to them and a Bench of this Court set aside the portion of the order which related to the aforementioned 9 petitioners. Though, the Corporation preferred a review application, the said review application was dismissed and the 9 petitioners were taken back in service with effect from 02.08.2016.
Ultimately, the authority has taken a decision not to regularize the services of the petitioners of C.W.J.C. No. 6565 of 2012 on the specious ground that petitioners Anil Kumar Rastogi and others had worked on daily wages in piecemeal for broken periods and had not yet completed 10 years of regular service in the Nagar Nigam, Purnea as daily wagers. Moreover, their appointments were not made on the basis of competitive selections after general advertisement and following due norms and procedure of reservation and roster. It was also reasoned that their appointments were contrary to the directions of the letter No. 3812 dated 08.07.2011 issued by the Urban Development and Housing Department, Government of Bihar. Letter No. 66 dated 06.01.2012 issued by the General and Administration Department, Government of Bihar. Over and above their Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 7/26 appointments were contrary to the ratio of the law laid down by the Full Bench of this Court in the case of Ram Sevak Yadav Vs. The State of Bihar reported in 2013 (1) P.L.J.R. 964 as well as the case of Uma Devi (supra).
The aforementioned decision dated 12.11.2016 contained in Memo No. 1323 came under challenge in C.W.J.C. No. 3933 of 2017, whereby the case of the regularization of petitioners had been rejected. The petitioners' further claim for regularization of their services on Class-III and Class-IV posts in the Nagar Nigam on their regularization, as many of the similarly situated daily wagers who had been working since 11.12.1990 to 1995, some from 2007 to 2009 and two other daily wage workers had been regularized since 02.08.2016. Thus, the action of the Corporation in denying the said benefit to these petitioners whose cases were on similar and better footing should also be considered and the respondents be mandamused to regularize their services.
In the said writ application, the Corporation filed its counter affidavit clearly indicating that the Government had fixed clear guidelines and notified cut-off dates according to which the regularization of daily wagers could Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 8/26 be considered. It was contended that initially vide Government Resolution No. 5940 dated 18.06.1993, the cut- off date was fixed as 01.08.1985, but the same was further extended to 11.12.1990 by Resolution No. 4981 dated 10.05.2005. Another Resolution No. 639 dated 16.03.2006 laid down guidelines/procedure for regularization of services of the daily wage earners who had worked till 11.12.1990. However, so far as the case of the present petitioners are concerned, their prayer for regularization is not maintainable as vide Government Letter No. 1886 dated 25.06.2001, the Government declared daily wagers' appointment as illegal. Extract whereof is quoted hereunder:-
"dk;kZy; uxj ifj'kn] iwf.kZ;k¡] i=kad 886---@ isz'kd] uxj dk;Zikyd inkf/kdkjh] uxj ifj'kn~ iwf.kZ;k¡A lsok esa] vk;qDr] iwf.kZ;k¡ ize.My iwf.kZ;k¡A iwf.kZ;k¡] fnukad 01-06-2011 fo'k; & iwf.k;k¡ uxj ifj'kn~ ds nSfud osru Hkksfx;ksa ds 17 ¼l=g½ yksxksa ds lek;kstu ds laca/k esaA funsZ"k& Hkonh; i=kad & 245@lh0] fnukad &31-05-11 egk"k;] mi;qZDr fo'k;d funsZf"kr i= ds lEcU/k esa lknj lwfpr djuk gS fd uxj ifj'kn~ @uxj fuxe esa vko";Drkuqlkj iwoZ ls nSfud Je ij dfeZ;ksa ls dk;Z fy;k tkrk jgk gSA bu dfeZ;ksa dks nSfud etnwjh dk Hkqxrku fd;k tkrk gSA vquca/k ij dfeZ;ksa dks j[kus gsrq bl dk;kZy; ds i=kad&156 fnukad &06-02-10 ls iz/kku Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 9/26 lfpo egksn; ls Lohd`fr dh ek¡x dh x;h gSA ¼Nk;kizfr layXu½ ljdkj ds i=kad&1886 fnukad & 25-06-01 ds }kjk lwfpr fd;k x;k gS fd nSfud etnqjh ij dh x;h fu;qDr dks voS/k ?kksf'kr fd;k x;k gSA ¼Nk;kizfr layXu½ uxj ifj'kn~ dk;kZy; esa dfeZ;ksa ds deh dh otg ls dqy 65 nSfud dehZ ls vko";Drkuqlkj dk;Z fy;k tkrk gS tks cksMZ ls ikfjr@Lohd`r gSA lek;kstu ds lEcU/k esa Hkonh; ekxZ n"kZu nsuk pkgsxsA fo"oklHkktu g0@& uxj dk;kZikyd inkf/kdkjh] uxj ifj'kn~] iwf.kZ;k¡ It is further contended by the Corporation that the prayer for regularization was not maintainable in view of the extant circulars.
It was also brought to the record by the appellant Corporation in their counter affidavit that the General and Administrative Department, Government of Bihar, vide its office Memo No. 216 dated 20.01.2012, addressed to heads of departments/all Commissioners and all District Magistrates taking into consideration the observations made by this Court in order dated 06.09.2011 passed in C.W.J.C. No. 16 of 2010 had issued strict directions to follow the Government Resolution with respect to regularization of daily wage workers in Corporation. The directives which were contained in Annexure 'C' to the counter affidavit are Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 10/26 extracted hereunder:-
"i=kad &22@lk0&30@2011lk0----------@ fcgkj ljdkj lkekU; iz"kklu foHkkx isz'kd] uohu pUnz >k ljdkj ds la;qDr lfpoA lsok esa] iVuk] fnukad- 6-1-12 lHkh iz/kku lfpo@lfpo lHkh foHkkxk/;{k lHkh izeaMyh; vk;qDr lHkh ftyk inkf/kdkjh fo'k;%& jkT; ljdkj ds foHkkxkas@dk;kZy;ksa ds v/khuLFk nSfud osruHkksfx;ksa ds fu;ferhdj.k@lek;kstu ds laca/k esa ,d volj ¼one time measure½ ds rgr fu.kZ; ysus rFkk voS/k :i ls fu;qDr nSfud dfeZ;ksadks dk;ZeqDr djus ds lEcU/k esaA egk"k;] mi;qZDr fo'k; ds lEcU/k esa funs"kkuqlkj dguk gS fd bl foHkkx }kjk jkT;
ljdkj ds foHkkxkasa@dk;kZy;ksa ds v/khuLFk nSfud osruHkksfx;ksa ds fu;ferhdj.k@lek;kstu ds lEcu/k esa fu.kZ; ysus rFkk lek;ksftr ughs gks ldus okys nSfud dfeZ;ksa dks dk;ZeqDr djus gsrq fn"kk funs"k tkjh fd;s tkrs jgs gSaA nSfud osruHkksxh ds vk/kkj ij dfeZ;ksa ls dk;Z ysus dh ijEijk dks lekIr djus ds m|s"; ls ladYi la[;k 5940 fnukad 18-06-1993 ds rgr jktdh;
miØeksa ,oa ljdkj ds v/khuLFk nSfud osruHkksxh deZpkfj;ksa dks fu;qfDr esa vf/kekurk nsdj lek;ksftr djus rFkk 01-08-1985 ds ckn fu;qDr nSfud osruHkksfx;ksa dh lsok lekIr djus dk funs"k fn;k x;k iqu% ladYi la[;k& 489 fnukad 489 fnukad 10-05-2005 ds }kjk jkT; ljdkj ds foHkkxksa@dk;kZy;ksa esa nSfud osruHkksxh dfeZ;ksa dh fu;qfDr laca/kh dV&vkWQ MsV ¼01-08-1985½ dks iqufu/kkZfjr dj 11-12-1990 fd;k x;k rFkk ladYi la[;k & 639 fnukad 16-03-2006 ds rgr fnukad & 11-12-90 ds iwoZ ls dk;Zjr@dk;Zjr jgs nSfud osruHkksfx;ksdh fu;fer fu;qfDr @ lek;kstu gsrq izfØ;k fu/kkZfjr dh x;hA mDr ladYi dh dafMdk &4 ds rgr fnukad & 11-12- 1990 ds ckn dk;Z ij j[ks x;s lHkh izdkj ds nSfud osruHkksfx;ksa dks fnukad & 16-03-2006 ls ,d ekg ds vUnj gVk fn;s tkus dk funs"k fn;k x;k blds ckotwn fofHkUu foHkkxksa@ Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 11/26 dk;kZy;ksa esa nSfud osruHkksxh dfeZ;ksa ds dk;Zjr jgus dh lwpuk izkIr gks jgh ,oa muds lek;kstu ds laca/k esa okn Hkh nk;j fd;s tk jgsa gSaA ekuuh; mPp U;k;ky; iVuk }kjk lh-MCyw-ts-lh-
la0&15@2010 ¼fo"ks"oj flag&cuke&fcgkj jkt; ,oa vU;½ esa fnukad & 06-09-2011 dks ikfjr U;k;kns"k esa bl fLFkfr dks xEHkhjrk ls ysrs gq, fuEu fVIi.kh dh xbZ gSA&& "It is a matter of serious enquiry how a person appointed on daily wage was allowed to continue for such a long years and has now raised a claim for pensionable service. His predicament has also to be appreciated. That he is not entitled to a mandamus from the Court of Law is one aspect of the matter those who facilitated this state of affairs is another aspect of the matter.
The Court directs the Principal secretary, Department of General Administration to hold a through enquiry into this aspect and recommend to the State Government appropriately against all concerned, whosoever they may be, within a maximum period of four months from the date of receipt/presentation of a copy of this order before him."
vr% mi;qZDr ifjis{; esa vuqjks/k gS fd foHkkx esa mijksDr funsZ"kksa ds mijkar dh xbZ dkjZokbZ ls voxr djk;k tk;A lkFk gh ;g Hkh izfrosfnr fd;k tk; fd vHkh Hkh ;fn dksbZ nSfud osru ij dk;Zjr gS rks blds fy, ftEesokj dkSu gSa d`i;k "kh?kz fo"oklHkktu g0@& ¼uohu pUnz >k½ ljdkj ds la;qDr lfpoA"
It was further averred by the respondents that the Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 12/26 termination of the writ petitioners have been effected in view of the direction issued by this court in a Full Bench decision in the case of Ram Sevak Yadav Vs. The State of Bihar (supra) and also the decision in the case of Manoj Roy (C.W.J.C. No. 25058 of 2013) which was disposed of on 22.04.2014. It is important to indicate here that though in L.P.A. No. 1019 of 2014, the Court was of the opinion that the order with regard to the regularization of 9 persons who had been regularized by virtue of C.W.J.C. No. 10206 of 2011, should not have been disturbed, the order terminating the services of Manoj Roy was not interfered with and only those nine persons have been regularized in pursuance of L.P.A. No. 1019 of 2014. The writ petitioners, as contended by the appellant/respondent Corporation cannot be regularized as they had worked on daily basis in the Nagar Nigam in piecemeal for broken periods and any statement made to the contrary by the writ petitioners was false as they had not completed ten years of their service for regularization in the Purnea Nagar Nigam. Moreover, they had not been appointed against sanctioned vacant posts on which they can seek regularization of their services. Over and above, the case of the Corporation was that the writ petitioners' Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 13/26 regularization would be in the teeth of the Full Bench passed in Ram Sevak Yadav's case vs. the State of Bihar (supra) and also in the case of Uma Devi (supra). The decision of the Apex Court in the case of Uma Devi (supra). Thus, there was no question of regularizing the petitioners and their application was fit to be dismissed as their services had been validly terminated by means of a duly considered reasoned order which was wholly legal and valid in the eyes of law.
The aforementioned writ application was, however, disposed of, after noting the background of the litigation, in the following terms:-
"Heard learned counsel for the petitioners and learned counsel for the State as well as Purnea Nagar Nigam.
In the present writ petition, the petitioners are seeking relief of regularization of their services on the plea that Jawed Anwar and eight others and rest mentioned in paragraph no.9 of the writ petition, all together twenty two persons having been regularized in the services of Purnea Nagar Nigam. Though they were working alongwith the petitioners but petitioners have not been regularized. Short facts of this case are that Jawed Anwar and eight others were regularized as they have approached this Court in C.W.J.C. No. 10206 of 2011 making Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 14/26 a prayer that they have been working since long, they should be regularized.
In pursuance of the order passed by this Court they have been regularized in service. One Manoj Roy who was also in the same status of daily wages worker has approached this Court vide C.W.J.C. No. 25058 of 2013 (Annexure F to the counter affidavit), but the plea of Manoj Roy was not accepted rather direction was given to remove Javed Anwar and eight others from the service.
In pursuance thereof, their services were terminated, but they approached this Court in L.P.A. No. 1019 of 2014 and the order of the Learned Single Judge was set aside on the ground of failure to provide hearing to Javed Anwar and others.
The Purnea Nagar Nigam instead of taking right course Jawed Anwar and twenty one other persons whose names have been mentioned in paragraph no.9 of the writ petition have been regularized in service.
Now two courses have been left in the Purnea Nagar Nigam. Either Purnea Nagar Nigam should remove Jawed Anwar and others after due notice to them on consideration of their show cause or alternative course is that these petitioners who are also similarly situated persons should also be given same benefits of regularization.
Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 15/26 The whole process should be completed within a period of four months from the date of receipt/production of a copy of this order.
With the aforesaid observations and directions, this writ petition is disposed of." We have heard learned counsel for the parties and perused the entire orders which have been passed during the stretch of litigation.
At the very outset, we note that in the first round of litigation which had been initiated by Md. Jawed Anwar and others, the writ court had merely given a direction for a sympathetic consideration of the case of the petitioners. Following the said principle, another batch of writ applicants, who are the present respondents in the appeal, were also extended a similar order for "sympathetic consideration". The said orders have already been extracted hereinabove and, therefore, need no further reference. We, however, observe and deduce from the orders, that the learned Single Judges who were considering the issue had not gone into the merits of the case of the individual petitioners vis-a-vis their period/deputation of having worked as daily wage earners, nor had they even issued positive directions mandamusing Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 16/26 the respondent-Corporation to regularize them.
In the meantime, another daily wage earner who had also come to this Court for a similar relief was considered at length by the learned Single Judge in the case of Manoj Roy in C.W.J.C. 25058 of 2013, and accordingly issued clear cut directions for taking appropriate steps for removal of illegally recruited employees of the Corporation and passing necessary orders in their regard in the light of the Full Bench judgement in the case of Ram Sevak Yadav (supra).
In this context, it would be relevant to refer to the positive directions issued by the Single Judge in C.W.J.C. No. 25058 of 2013:-
"8. The orders regularizing the services of nine persons have been passed on 16.05.2013. From the orders, it appears that the respondents have just mentioned the order of this court as the reason for their regularization. At the cost of repetition, it is pointed out that there was no such order passed in CWJC No. 10206/2011. This court in the case of Ram Sevak Yadav vs. the State of Bihar (supra), dealing in detail all previous judgements of the Apex Court as well as of this court on the question of regularization of services/ appointment has held in paragraph 43 as follows:-
"43. We therefore sum up our Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 17/26 conclusions and answer the reference as follows:-
(A) Uma Devi (supra) prohibits regularization of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;
(B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularized under any circumstances.
(C) Irregular appointments can be regularized if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 18/26 intervention of any court orders."
9. In the circumstances, I direct the Municipal Commissioner, Nagar Nigam Purnea, to take steps for removal of all such employees whose services have been regularized in violation of law laid down by the Full Bench of this court in case of Ram Sevak Yadav vs. the State of Bihar (supra). Before taking such step, the Municipal Commissioner, Nagar Nigam, Purnea will be required to give them a notice as to why the orders regularizing their services be not recalled in view of the same being in contravention of law laid down by a Full Bench of this court in case of Ram Sevak Yadav vs. the State of Bihar (supra). The Municipal Commissioner will thereafter be required to consider their reply show causes and pass appropriate orders adhering strictly to the law laid down in the judgement of this court in the case of Ram Sevak Yadav vs. the State of Bihar (supra). Such exercise must be completed within six months from today." Taking clue from the aforementioned order, the appellant Corporation took immediate steps to remove the nine persons who had been so regularized in pursuance of the order passed in C.W.J.C. No. 10206 of 2011, but in view of the fact that the said nine persons were not heard in the writ application, this Court in L.P.A. No. 1019 of 2014 which was Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 19/26 preferred by the nine employees disturbed by virtue of order dated 22.04.2014 passed in C.W.J.C. No. 25058 of 2013 held that their removal, having been occasioned without impleading them and as the learned Single Judge had not noticed the said appellants, had passed orders which were detrimental to them in their absence, granted relief to them by setting aside the orders of termination. As a result, these nine employees who had earlier been regularized were reinstated in service. It is on this premise that the writ petitioners of C.W.J.C. No. 3933 of 2017 has again staked their claims and the same having been allowed has brought the Corporation before us in intra court appeal.
Before proceeding to decide the illegality which is being perpetuated on account of the continuance of such employees, it is necessary to revert back to the history of those nine persons whose services had been regularized as they had worked on daily wages in the Nigam. The periods for which they have worked are enumerated herein:-
Javed Anwar March-06 to Aug-06 6 Month April 07 to May-07 2 Month Sep-07 to Feb-08 6 Month May-08 to Aug-08 4 Month Oct-08 to June-09 9 Month Md. Kalamuddin Jan-06 to July-06 7 Month Feb-07 to May-07 4 Month Sep-07 to Feb-08 6 Month Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 20/26 July-10 to Sep-10 3 Month Chandan Kr. Sah Mar-06 to May-06 3 Month Aug-06 to Sep-06 2 Month Nov-06 to May-07 7 Month Sep-07 to Oct-07 2 Month Jan-08 to Feb-08 2 Month July-08 to Aug-08 2 Month Oct-08 to Sep-10 14 Month Dinesh Prasad Sep-06 to May-07 9 Month Sep-07 to Feb-08 6 Month July 08 to Aug-08 2 Month Oct-08 to Sep-10 14 Month Sant Lal Rai Sep-07 to Oct-07 2 Month Feb-08 1 Month Feb-09 to Sep-10 15 Month Jan-11 to Mar-11 3 Month Ravi Ranjan Kr. April-09 to Sep-10 15 Month Jan-11 to Oct-11 10 Month Abdul Salam Jan-06 to July-06 7 Month Sep-07 to Oct-07 2 Month Jan-08 to Feb-08 2 Month July-10 to Sep-10 3 Month Dhiren Kumar Aug-06 1 Month Sep-06 to Dec-06 4 Month Jan-07 to May-07 5 Month Nov-07 to Dec-07 2 Month June-08 to Aug-08 3 Month Oct-08 to Sep-10 21 Month Jan-11 to Mar-11 3 Month July-11 1 Month Sahid Alam Feb-07 to May-07 4 Month Sep-07 to Feb-08 6 Month June-08 to Aug-08 3 Month Oct-08 to May-09 8 Month Sep-09 to Aug-10 10 Month Dec-10 to Mar-11 4 Month From the aforementioned chart, it is amply clear that these nine persons having come to the Court despite Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 21/26 having broken periods of service as daily wagers. Their request had been sent to the Corporation by an order of this Court for sympathetic consideration but there was no averment in the said order regarding the entitlement or giving specifics regarding the period during which they have been engaged on daily wage basis. From the said order passed in C.W.J.C. No. 10206 of 2011, it is very much obvious that the Court had only ventured to issue a direction for sympathetic consideration in the light of the relevant rules and in accordance with law. By no stretch of imagination, can it be ever inferred that this Court had given a specific direction for regularization of their services even if they did not fulfill the necessary criteria or if it was against the mandate of Articles 14 and 16 of the Constitution of India.
We, thus, come to the conclusion that their regularization in pursuance of the order passed by this Court was against the mandate of law as there is no averment at any stage that they had come in after due advertisement and had been in continuous service in accordance with the principles and guidelines laid down in the Full Bench judgment reported in the case of Ram Sevak Yadav vs. The State of Bihar (supra). This having been held, this Court cannot Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 22/26 proceed further to support the case of the petitioners of C.W.J.C. No. 6565 of 2012 and other analogous cases who had also earned a similar order from this Court which was disposed of in terms of the order dated 30.07.2012 passed in C. W.J.C. No. 10206 of 2011 (Md. Javed Anwar & Ors. Vs. State of Bihar and Ors.). The text of the order is extracted hereunder:-
"In above view of the matter, these writ applications also stand disposed of in terms of the order dated 30.07.2012 passed in C.W.J.C. No. 10206 of 11 (Md. Jawed Anwar and others V. The State of Bihar and others.).
It is made clear that if the assertion of the petitioners is found correct that similarly situated persons have been regularized let their case be also considered sympathetically."
The learned Single Judge after hearing the matter has taken note and come to the conclusion in the following manner:-
"In pursuance of the order passed by this Court they have been regularized in service. One Manoj Roy who was also in the same status of daily wages worker has approached this Court vide C.W.J.C. No. 25058 of 2013 (Annexure F to the counter Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 23/26 affidavit), but the plea of Manoj Roy was not accepted rather direction was given to remove Javed Anwar and eight others from the service.
In pursuance thereof, their services were terminated, but they approached this Court in L.P.A. No. 1019 of 2014 and the order of the Learned Single Judge was set aside on the ground of failure to provide hearing to Javed Anwar and others. The Purnea Nagar Nigam instead of taking right course Jawed Anwar and twenty one other persons whose names have been mentioned in paragraph no. 9 of the writ petition have been regularized in service.
Now two courses have been left in the Purnea Nagar Nigam. Either Purnea Nagar Nigam should remove Jawed Anwar and others after due notice to them on consideration of their show cause or alternative course is that these petitioners who are also similarly situated persons should also be given same benefits of regularization."
The aforementioned order passed in the writ by the learned Single judge now provides alternative course to the Purnea Nagar Nigam which, in our opinion, does not appear to be the correct way to assess the situation. What is inherently wrong and illegal cannot be justified only because the Corporation has misconstrued the order passed by this Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 24/26 Court and issued orders in favour of some employees regularizing their services even though they were not entitled to be so regularized whereas, on the other hand, they have failed to extend the same to other daily wage employees who have also been claiming for their regularization. The opinion if left open as in the present case clearly amounts to allowing the corporation to perpetuate patent illegalities.
We have gone through the entire records of the case and it appears that the respondents of the present appeal have been terminated after following the due process of law as each of these eight respondents were duly noticed and even if there are vacant posts available, the entry of such persons having been made into the Corporation without following the norms of appointments cannot be sustained.
We also are of the firm opinion that those who have entered without following the procedure, could not have been retained and the Corporation ought to have taken necessary steps to show them the back door through which they had entered the Corporation. The process may be done in accordance with law and following the principles laid down in the case of Ram Sevak Yadav (Supra) and the decision of the Apex Court in the case of Uma Devi (Supra). Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 25/26 In this context, it is necessary to refer to the paragraph No. 17 and 18 of the Full Bench judgment in the case of Ram Sevak Yadav Vs. The State of Bihar (supra) :-
"17. A person appointed in rank illegality cannot complain that the termination procedure was arbitrary. Those who came in through the backdoor must go through the same door as observed in (1994) 2 SCC 204 (State of U.P. Vs. U.P. State Law Officers' Assn):-
"19..... This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door."
18. Employment under the State constitutes a national wealth. Every person eligible has a right to apply and be considered under Article 14 of the Constitution. The selection therefore, has to be by open advertisement, equal opportunity for participation to the eligible and competitive merit selection. To dilute the requirement in any manner shall not only be subverting the entire constitutional scheme but shall also open the flood gates of favoritism, nepotism and corruption reducing public employment to pocket boroughs."
Patna High Court L.P.A No.1777 of 2018 dt.30-07-2019 26/26 We are unable to understand that a resolution has been taken at the level of the Corporation to regularize all who have been working. Such a resolution, however, does not have the mandate of law and is fit to be ignored and it would do well to the Corporation not to proceed in furtherance of such resolution, especially in view of the fact of what has been observed by a catena of decisions of the Court and also referred to by us hereinabove.
In the result, the appeal stands allowed and the order of the learned Single Judge is set aside. The Purnea Municipal Corporation may take necessary steps to undo the earlier wrongs so that there is no further litigation in this regard and in doing so it should consider the ratio of the decisions which have been referred to above and such employees who are brought into the regular establishment contrary to the mandate of law may be weeded out in accordance with law.
(Anjana Mishra, J) Amreshwar Pratap Sahi, CJ. I agree.
(Amreshwar Pratap Sahi, CJ) Saif/-
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