Patna High Court
The State Of Bihar And Ors. vs Dayanand Sinha And Ors. [Alongwith ... on 15 March, 2007
Equivalent citations: 2007(2)BLJR1243
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
JUDGMENT J.N. Bhatt, C.J.
Page 1244
1. In this group of 62 Letters Patent Appeals under Clause 10 of the Letters Patent of the Patna High Court, the challenge is against the judgment of the learned Single Judge, dated 28.6.2006, rendered in a group of writ petitions, lead petition being CWJC No. 16099 of 2001, whereby the learned Single Judge allowed the writ petitions under Article 226 of the Constitution of India and set aside the impugned orders with regard to disengagement, retrenchment and removal, as well as discharge of the original writ petitioners from Government service, with a further direction to the respondents to consider the cases of original writ petitioners for their regularization in the light of the direction of the Hon'ble Supreme Court and to complete the entire process within four months.
2. We have given our anxious thoughts and considerations to the divergent submissions raised before us in this group of appeals at the time of the marathon hearing when we agreed to take all these matters for final hearing upon joint request and, that is why, the entire group of appeals is being disposed of by this common judgment.
3. Let there be narration of sekeleton projection of facts giving rise to this group of appeals:
4. The original writ petitioners were in the Government service on daily wages. Minor Irrigation Department was created by the Government of Bihar with the aim of developing potentialities for irrigation in short span of time and to minimize cost out of the available water resources within the State of Bihar both underground, as well as, surfaces.
5. For the aforesaid purpose various irrigation schemes came to be launched by the Minor Irrigation Department which are being carried by the Irrigation Division within the State, namely, (i) Emergency River Pumping Set (ERP Sets); (ii) Lift Irrigation Scheme; (iii) Surface, Irrigaiton Scheme and (iv) Barrage Irrigation scheme.
Page 1245
6. Although the State has fertile land but it had no sufficient facility for irrigational purposes to obviate situations and to maximize the utilization of the available resources of water. Such schemes came to be initiated wherein original writ petitioners came to be engaged temporarily on daily wages under Lift Irrigation Scheme. So it is a contingent programme i.e. for certain purpose for a definite reason. It is no body's case that the original writ petitioners came to be engaged on sanctioned post, vacant post or on regular post by following the requisite procedure for recruitment, as required in public employment. No doubt, some of them worked for a long time. Therefore, we were very keen to probe and evaluate as to what nature of engagement they enjoyed since they are already disengaged or discharged or discontinued.
7. Reliance by the learned Single, Judge was placed on the decision of the Hon'ble Apex Court rendered in the case of Nar Singh Pal v. Union of India and Ors. for holding that the writ petitioners are entitled to be regularized as per the scheme which was evolved in one of the judgments of the Hon'ble Apex Court. However, our attention has been invited to by the learned Additional Advocate General III, Mr. Lalit Kishore to a decision of the Hon'ble Apex Court in Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors. . It is a land mark decision given by the Constitutional Bench of the Hon'ble Apex Court with regard to the law relating to public employment, absorption, regularization or permanent continuance of temporary, contractual, casual, daily wages or ad hoc employees appointed or recruited in public employment de hors constitutional scheme of the public employment.
8. Our attention is also invited to the observations made by the Hon'ble Apex Court in paragraph 54 of the said decision. Paragraph 54 indicates that those decisions which run counter to the principle settled in the decision (Umadevi's case) or in which directions running counter to what have been held therein, will stand denuded of their status as precedents.
9. Learned Additional Advocate General has stated before us that the aforesaid decision was cited before the learned Single Judge but it does not find any reference in the impugned common judgment. We are not going into those aspect further. Be that as it may, one thing is certain that this decision of the Hon'ble Apex Court has become final because of the Constitutional Bench decision on the points involved in his group of appeals and earlier judgments and directions prior to April, 2006, when the decision of the Hon'ble Apex Court in Uma Devi's (3) (supra) case came into being, are declared to be denuded of their status as precedence.
10. However, jointly, our attention has been invited to the observation made in paragraphs 45 and 53 of the judgment in the aforesaid case popularly known as Uma Devi (3) (supra). The observations made in paragraph 45 are reproduced hereunder with profit:
While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so Page 1246 as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired, by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution.
11. Similarly, observations made in paragraph 53 read herein as under:
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayaanappa , R.N. Nanjundappa v. T. Thimmiah and B.N. Nagarajan v. State of Karnataka referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process Page 1247 must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.
It could very well be visualized from the aforesaid observations, as well as, overall materials emerging from the entire factual profile coupled with the facts that the same questions are required to be investigated in regard to the facts of those cases to reach to the conclusion whether the appointments of the original writ petitioners are legal, regular or not.
It is in these facts, upon conensus, as well as, the subsequent decisions of this Court in other cases based on the decisions rendered in Uma Devi (3) case (supra), like in the The State of Bihar and Ors. v. Purnedra Sulan Kit 2006 (3) Patna Law Journal Reports 386 and The State of Bihar and Ors. v. Bipin Prasad Singh and Ors. analogous cases LPA No. 1211 of 2005 decided on 2.11.2006, we are inclined to issue the following directions to the State of Bihar in respect of the original writ petitioners in respect of whom the decision of the Learned Single Judge is challenged in these group of appeals:
(1) The Chief Secretary, Government of Bihar shall constitute a Committee of three Secretaries within a period of two months from today to examine the manner and mode and the type of appointment and whether such appointments are in consonance with the Recruitment Rules on regular posts, irregularly made or illegally made or not.
(2) Such Committee shall consider the individual case after giving an opportunity of hearing to the affected employees, the procedure for which the Committee will evolve its own modality and modus operandi so as to reach to a conclusion as to the nature of the appointments of the employees covered in this group of petitions and to ascertain whether their appointments are regular, irregular or illegal and whether they are falling within the ambit of the observations made in paragraphs 45 and 53 of the decision in Secretary, State of Karnataka and Ors. v. Uma Devi (3) (supra) case judgment.
(3) The Committee shall, undoubtedly, take a decision in the light of the law laid down by the Constitution Bench of the Hon'ble Apex Court in Uma Devi (3) (Supra) and in particular in the light of the observations which are quoted herein above.
(4) It shall, also, be remembered that the exercise of regularisation, if required, shall be a one time measure.
(5) The exercise by the Committee is directed to be completed within six weeks after the creation thereof and in the event of any necessity it will be open for the concerned party to seek extension of time by taking leave from this Court.
(6) The contention that in some of the cases out of the present group in earlier round of litigation finality has been attained and achieved shall, also, be examined by the Committee.
(7) Until the Committee concludes it process and exercise directed herein above, the status quo in respect of the petitioners obtainable as on today, is directed to be maintained.
Page 1248 In view of the aforesaid discussions and, relevant case law and settled proposition of law, all these Letters Patent Appeals preferred by the State are allowed and obviously, the impugned common judgment of the learned Single Judge shall stand quashed and set aside so far as the appeals preferred by the State are concerned. The Letters Patent Appeal preferred by the original writ petitioners viz L.P.A. No. 394, 759 and 760 of 2006 shall also stand disposed of with the above directions and observations. No costs.