Jharkhand High Court
The State Of Jharkhand Through Its ... vs Krishna Nandan Singh Son Of Sri ... on 24 February, 2020
Equivalent citations: AIRONLINE 2020 JHA 1287
Author: Sujit Narayan Prasad
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 166 of 2018
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1.The State of Jharkhand through its Principal Secretary,
Public Health Engineering Department, Govt. of Jharkhand,
P.O & P.S Doranda, District Ranchi.
2.The Engineer in Chief, Public Health Engineering
Department, Govt. of Jharkhand, P.O & P.S Doranda, District
Ranchi.
3.The Superintending Engineer, Public Health Engineering
Department, Govt. of Jharkhand, P.O & P.S Doranda, District
Ranchi.
4.The Executive Engineer, Public Health Engineering
Department, Govt. of Jharkhand, P.O & P.S Doranda, District
Ranchi. ... . Appellants
Vs.
Krishna Nandan Singh Son of Sri Rameshwar Prasad Singh
Resident of Karma Par Tand, Rukka, Irba, P.O Irba, P.S.
Ormanjhi District Ranchi
.... ... ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Ajit Kumar, Advocate General
Mr. Chanchal Jain, A.C to A.G
For the Respondent : Mr. Rajiv Kumar, Advocate
Mr. Naiyar Eqbal, Advocate
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C.A.V on 11.12.2019 Delivered on 24/02/2020
Per Sujit Narayan Prasad, J.:
The instant intra-court appeal has been filed under clause 10 the Letters Patent against the order dated 11.08.2017 passed in W.P. (S) No. 352 of 2017 whereby and whereunder, the writ petitioner has been held entitled for pay-scale applicable to the Filter Operator, Grade-I and direction was given to the respondents-State of Jharkhand to release consequential benefits to the writ petitioner taking into account that the petitioner's services are of permanent/regular establishment.
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2. Before entering into the legality and propriety of the impugned decision, it is relevant to refer certain factual aspects, which are necessary for proper appreciation of the lis:
The writ petitioner, who is an I.T.I. certificate holder, came in employment on 11.10.1979 and worked under the Public Health Engineering Department vide order dated 29.09.1979 at Rukka Filtration Plant, Ranchi. Thereafter, he was taken into regular work-charged establishment w.e.f. 01.10.1984 vide order dated 30.06.1988. In the meanwhile, the erstwhile State of Bihar took a policy decision on 15.12.1983 to the effect that in Filtration Plants, having capacity of one million gallon to 15 million gallon, there shall be Filter Operator, Grade-I and the same policy was reiterated in the policy decision dated 29.12.1992 issued by the then Engineer in Chief-cum-Special Secretary of the concerned Department.
The petitioner had completed five years of continuous service in the establishment but as per the policy decision, the pay of Filter Operator has not been extended to him, which led the writ petitioner to file writ petition, being C.W.J.C. No. 941 of 1995(R) which was disposed of vide order dated 03.05.1995 directing the respondent no. 2 to fix the pay of the petitioner. But pay having not been fixed, a contempt case was filed. In the meantime, the State-respondents had filed a review application, which was allowed on the ground that no opportunity of filing counter affidavit was given to the respondents-State of Jharkhand, accordingly the writ petition was ordered to be reheard, which was reheard and disposed of vide order dated 3 07.08.1998 whereby direction was given to the Engineer in Chief-cum-Special Secretary to recommend the case of the petitioner in the light of the notifications dated 15.12.1983 and 29.12.1992 to the Finance Secretary, who in turn, was directed to grant approval if the writ petitioner was found entitled to. But the claim of the writ petitioner was rejected vide order dated 12.12.1998 by passing a non-speaking order, which was challenged by way of filing writ petition, being C.W.J.C. No. 1061 of 1999(R). The writ Court vide order dated 01.02.2001 quashed the order dated 12.12.1998 with a direction to the respondents-authorities to re-consider the case of the petitioner and dispose of the representation of the petitioner afresh by passing reasoned order.
For non-compliance of order dated 01.02.2001 passed in C.W.J.C. No. 1061 of 1999 (R), the petitioner filed a contempt case, being M.J.C. No. 676 of 1999, which was disposed of with liberty to the petitioner to file representation before the Secretary, P.H.E.D, State of Jharkhand showing details of his service career and fixation of pay. With the liberty aforesaid, the writ petitioner filed representation before the concerned authority but the claim of the petitioner was again rejected vide order dated 12.06.2001, which was the subject matter of W.P. (S) No. 3017 of 2001 but the same was dismissed for non- prosecution. The petitioner thereafter filed another writ petition, being W.P. (S) No. 4263 of 2009, which was disposed of vide order dated 22.05.2015, by which, impugned order dated 12.06.2001 was quashed and the matter was remanded to the 4 Principal Secretary of the Department to consider the claim of the petitioner afresh and to pass reasoned order. Pursuant thereto, the respondents-authorities heard the matter and vide order dated 28.09.2015 rejected the claim of the petitioner.
3. Being aggrieved with the order dated 28.09.2015, the petitioner preferred writ petition being W.P. (S) No.352 of 2017, which was disposed of vide order dated 11.08.2017. The learned Single Judge by considering the judgment rendered by the Hon'ble Full Bench of this Court in the case of Ram Prakash Singh Vs. State of Jharkhand reported in (2005) 3 JLJR 38 has passed a direction upon the respondents to immediately release the consequential benefits to the petitioner taking into account that the petitioner's services are of permanent (regular) establishment.
4. The appellants-State of Jharkhand being aggrieved with order dated 28.09.2015 passed in W.P. (S) No. 352 of 2017 has preferred the present appeal.
5. Learned Advocate General, appearing for the appellant- State of Jharkhand, has argued with vehemence, by assailing the impugned order, taking ground that judgment rendered by the Hon'ble Full Bench of this Court in the case of Ram Prakash Singh (Supra) has wrongly been interpreted by learned Single Judge.
He further submits that writ petitioner had been given all the benefits in pursuance to the judgment rendered in the case of Ram Prakash Singh (Supra) by taking over his post under permanent/regular establishment and, accordingly all financial 5 benefits like that of up-gradation of pay-scale under Time Bound Promotion/Assured Career Progression Scheme and also the replacement of pay-scale as per pay revision recommendations have been given to the writ petitioner. His contention is that even under the guidelines/notifications issued on 15.12.1983 and 29.12.1992, there is no stipulation that an employee working under work-charged establishment if taken over under the permanent establishment, will be entitled to get promotion to the higher hierarchy.
Learned Advocate General further submits that there is no post like that of Filter Operator, Grade-I under the cadre of Filter Operator. Moreover, even assuming that there is a post of Filter Operator, Grade-I, the writ petitioner since was working under the work-charged establishment, therefore in the light of judgment rendered by Hon'ble Full Bench of this Court in the case of Ram Prakash Singh (supra) he cannot be entitled for the pay-scale of the Filter Operator, Grade-I.
6. Per contra, Mr. Rajiv Kumar, learned counsel appearing for the writ petitioner-appellant has defended the impugned order by submitting that the learned Single Judge while passing the order has committed no error.
According to him, the petitioner is entitled to get the benefit of the pay-scale of higher post on the basis of policy decisions dated 15.12.1983 and 29.12.1992.
7. This Court, having heard learned counsel for the parties, before going across the legality and propriety of the impugned order, deem it fit and proper to discuss the difference in 6 between the work-charged establishment and permanent establishment.
Work-charged establishment means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed, whereas the permanent establishment has status of permanency and will continue forever.
8. The difference in between the work-charged establishment and the permanent establishment fell for consideration before the Hon'ble Apex Court in the case of State of Rajasthan Vs. Kunji Raman reported in AIR 1997 SC 693, wherein the Hon'ble Apex Court drew the distinction between work-charged establishment and permanent (regular) establishment in the following terms:
"A work-charged establishment as pointed out by this Court in Jaswant Singh v. Union of India (1979) 4 SCC 440, broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works".
The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointment are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. 7 Thus a work-charged establishment is materially and qualitatively different from a regular establishment. ......"
9. So far as employees engaged on work-charged establishments are concerned not only their recruitment and service conditions but also the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged on the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the government. It is well-settled that the Government has the power to frame different rules for different classes of employees.
10. The Hon'ble Apex Court thus held that the work-charged establishment broadly means the establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their 8 employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed.
11. The Division Bench of Hon'ble Patna High Court in the case of State of Bihar & Ors Vs. Bimli Devi in L.P.A. No. 1566 of 2015 disposed of vide order dated 24th November, 2015 has also laid down the distinction in between work- charged establishment and permanent establishment by taking aid of the judgment rendered in the case of State of Rajasthan Vs. Kunji Raman (supra) and has been pleased to hold that the work-charged employees would be entitled to receive pension but not family pension after death of the employees.
12. Similarly, the Hon'ble Full Bench of this Court in the case of Ram Prakash Singh (Supra) has been pleased to laid down, after taking into consideration of the judgment rendered in the case of Jaswant Singh & Ors v. Union of India & Ors reported in AIR 1980 115 as also the circular as contained in memo no. 1344 dated 04.02.1949 and Rule 59 of the P.W.D. Code, that the work-charged employees if had worked continuously for a period of five years, their services will be taken over in the permanent establishment but no compassionate appointment would be provided to the dependents in the case of death of the employees in harness.
13. The Hon'ble Full Bench of this Court after considering the various factual aspects at paragraph 17 laid down following propositions:
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"17.I, therefore, hold that :
(i) The work-charged employees, who have completed more than five years of continuous service against one post in the work-charged establishment and otherwise eligible, have a right of consideration of their cases for taking over their services in the permanent (regular) establishment, irrespective of their dates of appointment.
But the work-charged employees, working on daily wages, not holding any post, are not so entitled.
(ii) The dependants of work-charged employees are not entitled to claim appointment on compassionate ground and entilted to claim appointment on compassionate ground; and
(iii) The work-charged employees working against a post, in regular scale of pay, on their retirement and after their death, their heirs/dependants are entiltled to claim death-cum-retiral benefits, such as, pension/family pension, gratuity, leave encashment etc. apart from G.P.F. and Group Insurance amount, if otherwise fulfills the requisite qualifying period to earn pension, gratuity and leave encashment.
14. Likewise, Rule 59 of the P.W.D. Code contains a provision that works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision of a specific work or of sub-works of a specific project or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature their pay should, for the time being, be charged direct to works. Note 3 thereof contains a provision that posts borne on work-charged establishments which are required throughout the year for maintenance works etc., or for a long and indefinite period should be made permanent and included in the permanent establishment with the approval of Government.
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15. It is further evident, as has been held in the said judgment, that work charge employees have been given a right of consideration of their cases for taking over their services in the permanent (regular) establishment irrespective of the dates of appointment with a condition that their dependent would not be entitled to get appointment on compassionate ground. The claim of the writ petitioners claiming therein for compassionate appointment has been rejected, which was also the subject matter of the Full Bench judgment.
16. It is further evident that the Hon'ble Full Bench has further held that the work-charged employees on their retirement and after their death, their heirs/dependants are entitled to claim death-cum-retiral benefits. This suggests that taking over of the service in the permanent (regular) establishment does not confer any right upon the employees for consideration of appointment of their dependent on compassionate ground meaning thereby the post which has been taken over will be ceased to exist after the death or the retirement of the concerned employee.
17. Herein, the reference of circular dated 29.06.2005 as also the circular dated 01.08.2007 is required to be made, which has been issued in terms of the judgment rendered in the case of Ram Prakash Singh (Supra) which contends that the work-charged employee after having been taken over under the permanent establishment, the post would automatically stand 11 abolished. The judgment of the Hon'ble Full Bench also mentions the circular dated 12.08.1969 which clarifies the position that the work-charged establishment will be taken over under the permanent establishment holding them entitled for the pensionary benefit as also the dependent is held not entitled for compassionate appointment.
18. In the context of difference in between work-charged establishment and permanent establishment, the difference between taking over in the permanent establishment and absorption is also required to be seen.
19. The Full Bench of this Court in the case of Ram Prakash Singh (Supra) as also the State of Jharkhand in the Circulars dated 29.06.2005 and 01.08.2007 has considered the issue of taking over the services under work-charged establishment. Such decision has been taken in view of the meaning of work-charged establishment, as has been dealt with herein above and at the risk of repetition the same is being reiterated that the work-charged establishment is not a permanent establishment rather it remains in existence till the completion of the particular project and since the employees are being engaged in order to perform the work at project, there is no question of any sanctioned post and the Full Bench of this Court as also the State Government in its Circulars dated 29.06.2005 and 01.08.2007, basing upon the Govt. Guidelines issued by the Department of Finance, as contained in circular dated 04.02.1949 has taken a decision to take over 12 the services of the employees working under the work-charged establishment.
Since the employees working under the work-charge establishment work without any sanctioned post and as such it will be treated to be working against the non-sanctioned post. Such appointees would be allowed to continue till attainment of the age of superannuation and the date when he will attain the age of superannuation, post will stand vanished automatically and that is the reason the Full Bench of Hon'ble High Court as also in the case of State of Bihar & Ors Vs. Bimli Devi (Supra) has been pleased to hold disentitling the wife of the employees for family pension or grant of compassionate appointment to the dependents of the employees, who died in harness.
20. The meaning of absorption is different to that of taking over.
In case of absorption, the appointees will be absorbed against the regular post and the moment the decision of absorption against a post will be taken, the said appointees will be entitled to get all the benefits attached to the said post. This goes to suggest that taking over in the service will be in absence of post while absorption will be against a sanctioned post.
21. The question herein is that when there is wide difference in between the permanent establishment and the work- charged establishment, as reflected herein above, in case of death of employees working under the work-charged 13 establishment being taken over in the permanent establishment, their dependants would not be entitled to get appointment on compassionate ground, as such there is no question of getting pay-scales of the higher post as because the taking over is in absence of a post while such situation is not applicable in case of absorption.
In the light of the aforesaid legal position, this Court has proceeded to examine the factual aspect of the matter.
23. Admittedly, herein the petitioner was working under the work-charged establishment, therefore, his appointment is not against sanctioned post, however, he has been taken in the permanent establishment sometimes in the year 1988 and as such he will be entitled to get monetary benefits of the post, upon which, he was working under work-charged establishment and further he will not be entitled to get anything save and except the benefit of the post upon which he was working under work-charged establishment, which according to State has already been paid to the petitioner and the same has not been disputed by learned counsel appearing for the writ petitioner-respondent.
24. Learned counsel for the petitioner has approached the writ Court for getting pay-scale of the Filter Operator, Grade-I, but on the basis of policy decision of the State Government, whereby and whereunder, the Filter Operator, Grade-I has been decided to be engaged in the Water Filtration Plant having different capacity, the writ Court has granted the aforesaid 14 relief treating the services of the petitioner as under the category of absorption.
25. This Court has already reflected herein above the distinction in between taking over and absorption.
Admitted position herein is that the writ petitioner's services had been taken over under the work-charged establishment and he has been paid entire monetary benefits of the post upon which he was working under work-charged establishment.
26. As has been said herein the effect of taking over would be automatically vanishing of the post, as the appointees retires after taking over from the permanent establishment as because in the process of taking over appointees are to be taken over along with the post while in the matter of absorption the post remains in the regular establishment.
27. It is evident from the order passed by learned Single Judge that although consideration has been made of the judgment rendered by the Hon'ble Full Bench in the case of Ram Prakash Singh (Supra) but misconstruing the same and considering the effect of absorption, the impugned order has been passed.
28. This Court, therefore, is of the view that when the admitted case of the writ petitioner is that he had been appointed under work-charged establishment, and subsequently his services have been taken over in permanent establishment, the consequence would be that the day he will superannuate from services, there will be no such post under 15 the permanent establishment but ignoring this aspect of the matter, the learned Single Judge treating the services of the writ petitioner as an absorption has passed the impugned order directing for giving pay-scale of the higher post of Filter Operator, Grade-I.
29. This Court, therefore, is of the view that since there is wide difference in between absorption and work-charged establishment while factually also absorption appointment is under work charged establishment, he cannot be allowed to take benefit of the pay-scale of the higher hierarchy otherwise there will be no difference in between taking over and absorption vis-a-vis the work-charged establishment and permanent establishment.
30. It appears to us that the learned Single Judge has considered the case of the writ petitioner treating it to be a case of "absorption" but as would be evident from the appointment letter of the writ petitioner dated 30.06.1998 his services have been "taken over" under the permanent (regular) establishment.
31. For ready reference, the relevant portion of appointment letter, though it is in Hindi, is reproduced hereunder as:
"vfHk;ark izeq[k&lg&fo'ks"k lfpo] yksd LokLF; vfHk;a=.kk foHkkx fcgkj iVuk ds Kkikad 555 fnukad 15-06-1988 ds }kjk fuEufyf[kr dk;ZHkkfjr deZpkfj;ksa dh lsok muds uke ds lkeus vafdr frfFk ds fnukad 22-10-1984 rd ik¡p o"kksZa dh lsok dh gSA fu;fer dk;ZHkkfjr LFkkiuk ds vUrxZr ifjf.kr dh tkrh gSA ftlds QyLo:i muds osru egxk¡bZ HkÙksa ,oa vU; HkÙksa 2215 yksd LokLF; jk¡ph tykiwfrZ ;kstuk ds en ls dh tk;sxhA"
32. The meaning of word "taking over" in hindi is "ifjf.kr"
whereas the meaning of word "absorption" in hindi is "lkeatu" 16
that is 'adjustment of service', therefore, these two words are different and distinct and further from the discussions made herein above, we are of the considered view that it is not a case of absorption.
33. In view of the above factual aspects, we are of the view that the learned Single Judge has not appreciated the judgment rendered by the Hon'ble Full Bench in its right perspective and further we are of the view that the petitioner since has been taken over as Filter Operator, the post from which has also superannuated after making payment of all financial benefits pre/post retiral, he cannot be held entitled to the pay-scale of the Filter Operator, Grade-I.
34. In view of the discussions made herein above, we are of the view that the order passed by the learned Single Judge suffers from infirmity.
Accordingly, the same is set aside.
35. In the result, the appeal stands allowed.
36. Consequent upon disposal of the appeal, I.A. No. 3107 of 2018 stands disposed of.
I agree (Dr. Ravi Ranjan, C.J.)
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Alankar/-
A.F.R./-