Jharkhand High Court
Shyam Kumar Thakur And Ors. vs Bihar State Electricity Board And Ors. ... on 4 February, 2004
Equivalent citations: [2004(1)JCR537(JHR)], 2004 AIR - JHAR. H. C. R. 2166, (2004) 1 JLJR 662 (2004) 1 JCR 537 (JHA), (2004) 1 JCR 537 (JHA)
Author: R.K. Merathia
Bench: R.K. Merathia
JUDGMENT R.K. Merathia, J.
1. Heard the parties. As both the cases are similar they were heard together and are being disposed of by this common judgment.
2. The petitioners have challenged the order of termination of their services issued on 24.4.1997, Annexure-4 series.
3. The petitioners case is that they filed writ petition being CWJC No. 1049 of 1991 (R), for a direction to regularize their services and to give them parity in the pay scales with the Assistant Teachers of the Schools and for quashing the advertisement made by the respondents for appointment of teachers.
On 8.5.1991, an order of status quo was passed. On 16.8.1991 the said application was dismissed upon the prayer for adjournment being refused. However, the same was restored. Taking advantage of dismissal of the writ petition, the respondents terminated the services of the petitioners against which they filed another writ petition being CWJC No. 1869 of 1991 (R). Both these writ petitions were heard and disposed of by a common, Judgment dated 26.1.1994. As there was a dispute whether the petitioners were appointment or not, this Court appointed a Conciliation Officer, who submitted a report that the petitioners have been appointed as Teachers on honorarium basis and they were working from 1986, 87 and 1988 in different schools, managed and sponsored by the Bihar State Electricity Board. This Court quashed the notice/order of their termination dated 20.8.1991 and allowed CWJC No. 1869 of 1991 (R). However CWJC No. 1049 of 1991 (R) was allowed in part directing the respondents-Board to pay the scale of pay to them at the rate which was being paid to the regular teachers of the schools with effect from the date of the order. This Court refused to grant any relief for regularization/absorption. However, the Board was directed to advertise the vacant post of the teachers and make appointments in accordance with law. The Board was further directed to consider the cases of the petitioners if they apply pursuant to the advertisement and found eligible taking into consideration their past work. The respondents-Board challenged the said judgment before the Hon'ble Supreme Court but on 3.1.1995 the Special Leave Petition was dismissed. On 15.2.1995, the respondents pursuant to the orders passed in CWCJ No. 1869 of 1991 (R) ordered for payment of salary with effect from 26.4.1994 i.e. the date of the judgment of this Court to be calculated on the basis of the basic pay scale along with dearness allowance.
4. Learned counsel for the petitioners submitted that there was no bar in appointing them as assistant teachers on honorarium if they were related to the employees of the Board, that if there was financial crisis and overstaffing, there was no reason to make advertisement for appointment of assistant teachers; that the termination order is bad as the notice pay was not paid equivalent to the regular teachers, that as the respondents did not succeed in the said cases, they acted in biased manner in terminating the services of the petitioners.
5. From the notice/order of termination it appears that the Board in view of the financial crisis and overstaffing was not in a position to continue payment of remuneration any more to the petitioners who were related to the employees of the Board. The petitioners did not apply for the post pursuant to the advertisement No. 2/95 therefore the Board has decided to terminate their services on giving one month notice pay and the compensation equivalent to 15 days average pay of each year.
6. Learned counsel for the respondents submitted that petitioners never worked in the schools on honorarium as alleged: that they were all related in one way or the other with the employees of the Board; that it is not known under what circumstances the report was submitted by the conciliation officer in CWJC No. 1869 of 1991 (R) to the effect that they worked in the schools on honorarium as teachers. The petitioners were not eligible to be appointed as assistant teachers, otherwise, while praying for regularization in CWJC No. 1049 of 1991 (R) there was no reason for challenging the advertisement made for appointment of teachers. If they were eligible, they should not have hesitated in applying against that advertisement. Again, when the advertisement was made pursuant to the said order of this Court they did not apply. Though the advertisements were made in 1995 as directed by this Court but no teachers were appointment due to the financial crisis and overstaffing. However, the Board advertised and appointed on temporary basis, the Deputy Director of Accounts and Controller of Thermal Power Station, Accounts Officers etc. according to the need and therefore the petitioners' contention that if there was financial crisis there was no occasion for the Board to make further appointments, is irrelevant and not tenable. Learned counsel for the respondents further submitted that as per the order passed by this Court in CWJC No. 1049 of 1991 (R) the petitioners were paid as regular teachers with effect from the date of the order i.e. 26.4.1994 on the basic pay scale. This Court did not order for paying equal pay treating them regular teachers from the dates of their alleged appointments. Therefore, the petitioners cannot claim that they are entitled to the same pay scale which was being paid to other regular assistant teachers, appointed in the schools in regular manner from earlier dates. The notice pay was paid according to the pay scale given to the petitioners on the basis of the said judgment.
7. Learned counsel for the petitioners relied on certain decisions and submitted that financial crisis is no ground for terminating their services.
These cases are of no help to the petitioners. In AIR 1987 SC 1281, it was held that paucity of find is not ground for paying differently to male and female stenographers doing same job. In 2002 (2) JLJR 39 the order of reversion was set aside on the ground of violation of the principles of natural justice.
8. The respondents relied on these cases. In the case of Shyam Narayan v. BSFC, 1997 (2) BLJ 15, it was held that financial crisis is a relevant consideration while terminating the services. In 2003 (5) Supreme 157, Officers & Supervisors of IDPL v. Chairman, it was held that financial crunch was, is a relevant consideration in the revision of pay scales.
9. After hearing the parties, I am satisfied that the notices/orders of termination need no interference in this writ petition for the following reasons.
The reasons given in the termination letters cannot be faulted. In view of the financial crisis and overstaffing. If the Board was not in a position to continue to pay the remuneration to the teacher and decided to terminate them after giving notice pay, their is nothing wrong in it. Only because the earlier order of termination was set aside by this Court, it cannot be said that the petitioners got a right of perpetual employment. Petitioners have admitted in the writ petition that no one was interviewed, nor any one was appointed as teacher against the advertisement No 2/95, issued pursuant of this Courts order.
The petitioners were rightly given the basic pay scale in terms of the judgment passed in CWJC No. 1869 of 1991 (R) with effect from the date of judgment. They cannot claim same pay which the other teachers were getting who were appointed in regular manner from prior dates. Therefore it can not be said that the amount of notice pay was wrong.
The vague and general statement that there arc so many juniors appointed much after the petitioners, are retained in service, is not supported by any material. No specific details have given.
It is admitted by the petitioners in the writ petition that they were not eligible to be appointed as teachers, as per the advertisement as they did not obtain 60 % marks and some of them were also not IA trained and they had crossed the age limit. Their contention that they were Board's employees and therefore the age bar of 50 years was applicable, cannot be accepted: There is nothing to show that they were employees of the Electricity Board. Obviously the Board's main object is generation and supply of electricity. It appears that the schools were patronized as welfare measure.
The contention of the petitioners that they acquired qualification and were eligible as they worked as teachers also cannot be accepted. Even for appointing a person, on the Board's muster rolls or in contingency, prior approval of the Chairman of the Board was to be taken for notifying a regular vacancy in the employment exchange and after following the procedure the vacancy was to be filled and there was ban on appointments, vide Board's Standing Order No. 476 EB Patna, dated 24.9.1975. Even the Service Regulation of the Board provides in Chapter II that recruitment shall be in accordance with rules/standing orders against specific vacancy sanctioned by the competent authority and no preferential treatment would be given to any person related to the employee. In view of these restrictions even for the appointments in the Board, the petitioners cannot claim that without facing competition they should have been treated as eligible.
10. Taking into consideration the entire facts and circumstances, these writ petitions are dismissed. Petitions dismissed.