Jharkhand High Court
Krishna Nandan Singh vs State Of Jharkhand Thr Its Pr Secretary ... on 11 August, 2017
Author: S.N. Pathak
Bench: S.N. Pathak
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W.P.(S) No. 352 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 352 of 2017
.....
Krishna Nandan Singh, S/o Sri Rameshwar Prasad Singh,
Resident of - Karma Par Tand, Rukka, Irba, Ormanjhi, Ranchi
.... Petitioner
Versus
1. State of Jharkhand through its Principal Secretary Public Health
Engineering Department, Govt. of Jharkhand, Ranchi
2. Engineer-in-Chief, Public Health Engineering Department,
Ranchi
3. Superintendent Engineer, Public Health Engineering
Department town Anchal, Ranchi
4. Executive Engineer, Public Health Engineering Department
town Anchal, Ranchi.
.. Respondents
CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK
For the Petitioner : Mr. Rajiv Kumar, Advocate.
Mr. Ram Lakhan Yadav, Advocate
For the Respondents : Mr. J.C. to A.G.
C.A.V. on 17.07.2017 PRONOUNCED ON 11.08.2017
Dr. S.N. Pathak, J. Heard the parties.
2. Petitioner has approached this Court with a prayer for quashing
order dated 28.09.2015, passed by the respondent No. 1, whereby and
whereunder he has passed order against the record of the case as well upon
the parameter which had already earlier adjudicated upon by citing decision
bereft the context not germane to the issue at hand. Further prayer is that the
respondents be directed to treat him as Filter Operator Grade-I as directed by
order dated 01.02.2001 passed in CWJC No. 1061 of 1999 (R) as well as
order dated 10.04.2001 passed in MJC No. 676 of 1999 (R) in view of the fact
that order dated 12.06.2001 was quashed vide order dated 22.05.2015 passed
by this Court in W.P(S) No. 4263 of 2009.
3. The factual exposition as has been delineated in the writ petition is
that the petitioner, who is an ITI holder, was appointed on 29.09.1979 and
joined on 11.10.1979 as Filter Operator on temporary basis in Rukka Filtration
Plant. A decision was taken, as contained in Memo No. 639 dated 30.06.1988,
in terms of decision of the Finance Department, Govt. of Bihar that those work
charged employees who had completed five years of continuous service in the
establishment w.e.f. 01.10.1984, have been directed to be regularized. In the
meantime, the State of Bihar, had taken a policy decision on 13.12.1983 to
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W.P.(S) No. 352 of 2017
appoint a Filter Operator Grade-I for filtration plants having capacity of one
MGD. Since the pay of the petitioner was not being fixed, a writ application
was preferred by him being CWJC No. 911 of 1995 (R), which was disposed of
on 03.05.1995, directing the Special Secretary-cum-Engineer in Chief, Public
Health Engineering Department, Bihar, Patna to fix the pay-scale of the
petitioner as the petitioner is legally appointed employee and working on the
post in question in terms of the representation made by him. The State filed a
review application on the ground that no opportunity for filing counter-affidavit
was given to them and the said review application was allowed and a direction
was given to re-hear the writ application. Subsequent thereto, CWJC No. 941
of 1995 (R) was once again heard and vide order dated 07.08.1998, the
petitioner was directed to file a detailed representation to the Special
Secretary-cum-Chief Engineer, PHED, who was to make his recommendation
in light of the policy decision to the Finance Secretary, Govt. of Bihar. On
12.12.1998, the representation of the petitioner was rejected by a non- speaking order, which was subject matter of challenge in CWJC No. 1061 of 1999 (R) and this Court vide order dated 01.02.2001, set aside the order dated 12.12.1998 rejecting representation of the petitioner with a direction to the authority concerned to reconsider the matter by passing a fresh and reasoned order after giving an opportunity of hearing to the petitioner. The Hon'ble Court was further pleased to direct the authorities to reconsider the case in light of the decisions given in the order dated 07.08.1998 after giving an opportunity of hearing to the petitioner. Thereafter, the Contempt Application being M.J.C. No. 676 of 1999, which was preferred by the petitioner, was also disposed of vide order dated 10.04.2001 with liberty to the petitioner to file a fresh representation before the Secretary, PHED, State of Jharkhand, who was to decide such representation by a reasoned order within a period of two months. Consequent thereto, the impugned order dated 12.06.2001 has been passed, rejected claim of the petitioner on the ground that the petitioner was appointed as work charged employee and there is a bar on absorbing the work charge employee into regular establishment vide notification dated 23.10.1987, and the respondents have ignored the other point of the same notification, wherein it was stated that those employee, who have completed five years of service on 23.10.1984, were to be regularized.
4. Petitioner again filed a writ petition being W.P.(S) No. 3017 of 2001, which was admitted for hearing but the same was dismissed for non- prosecution. Thereafter, the petitioner filed another writ petition bearing W.P(S) 3 W.P.(S) No. 352 of 2017 No. 4263 of 2009 and this Court was pleased to quash the same repelling the sole ground of rejection that the petitioner was taken into regular establishment contrary to notification dated 23.10.1987 and the respondents - Principal Secretary was directed to pass a fresh order. Subsequent thereto, order dated 28.09.2015 has been passed, which is under challenge in the present writ application.
4. Mr. Rajiv Kumar, learned counsel for the petitioner assisted by Mr. Ram Lakhan Yadav, submitted that the respondents have illegally and arbitrarily rejected claim of the petitioner. Learned counsel further submitted that the other similarly situated persons of the same Department have been granted higher pay scale and, therefore, petitioner is also liable for the same and similar benefits. Learned counsel further argued that the Resolution of the Finance Department dated 23.10.1987 clearly specifies a cut-off date as 21.10.1984 and any work charged employee who has completed five years of satisfactory service before the said cut-off dated i.e. 21.10.1984, has to be absorbed in regular establishment. Learned counsel further throwing challenge to the order dated 28.09.2015, argued that the respondents authorities have not even taken care of the observations made in order dated 22.05.2015, passed in W.P.(S) No. 4263 of 2009 in which order contained in Memo No. 1276, dated 12.06.2001 was quashed and set aside and any order based on the same premises is not tenable in the eyes of law and as such the order dated 28.09.2015 based on the same plea that petitioner worked as a regular work charged establishment and never worked on the sanctioned post and never taken into regular establishment, is fit to be quashed.
Learned counsel strenuously urges that memo no. 639, Dated 30.06.1988, is very clear that although those work charged employees who have completed five years of satisfactory service on 22.10.1984 shall be absorbed in regular establishment and the petitioner having completed five years of service prior to cut off date, was shown to have been taken in regular establishment with effect from 01.10.1984. The Resolution dated 23.10.1987 also reveals decision of the State Government for regularising such employees in work charged establishment who completed five years of continuous satisfactory service also on 21.10.1984. All these aspects have never been taken into consideration by the respondents authorities and as such in the earlier writ petition W.P.(S) No. 4263 of 2009, the Memo No. 1276, Dated 12.06.2001 (Annexure-6) was quashed and set aside and the matter was remanded back. But again the respondents authorities without considering the 4 W.P.(S) No. 352 of 2017 same, have passed an order based on the same facts which are not tenable in the eyes of law and as such the order dated 28.09.2015 is fit to be quashed and set aside.
5. Counter affidavit has been filed by the respondents.
Learned counsel appearing on behalf of the respondents submitted that the writ petition is devoid of any merit on facts as also in the eyes of law and is, therefore, liable to be dismissed at the admission stage itself. Learned counsel further stated that there is difference between permanent government employee and permanent work charged establishment employee, which has been duly explained in the order dated 28.09.2015. It is also stated that the petitioner has already been paid retiral benefits such as Group Insurance, Earned Leave and Pension has also been fixed based upon the admissible pay scale payable to the petitioner. It is further stated that the admissible pay-scale of the petitioner has been granted by the concerned authorities and since petitioner has never been appointed on the post of Filter Operator Grade-I and considering the difference in the service condition of permanent government employee and permanent work charged establishment employee, the pay scale applicable to the permanent employee cannot be granted and is not applicable in the petitioner's case as the petitioner is superannuated as regular work charged establishment employee. Therefore, the petitioner is not entitled for any relief and the writ petition is liable to be dismissed.
6. Be that as it may, having gone through the rival submissions of the parties and upon going through the records, this Court is of the considered view that case of the petitioner needs consideration. The respondents authorities have not considered case of the petitioner in right and true perspective. When the order under Memo No. 1276, dated 12.06.2001 (Annexure-6) has already been quashed in the earlier writ petition i.e. W.P.(S) No. 4263 of 2009, again the same cannot be taken into consideration which is not at all in existence. The respondents authorities have also taken into account the writ petition i.e. W.P.(S) No. 3017 of 2001, which was dismissed for non-prosecution and as such, writ petition W.P.(S) No. 4263 of 2009 was not maintainable based on the same facts. This contention of the respondents are misconceived as the Court had passed orders on merits with an observation and direction which ought to have been complied by the respondents. It was open to them to prefer an appeal, which was not done at any point of time and as such, the order passed in W.P.(S) No. 4263 of 2009 5 W.P.(S) No. 352 of 2017 attained finality. It cannot be said that the respondents have passed the impugned order dated 28.09.2015 after taking into account of the order passed in W.P.(S) No. 4263 of 2009. When the petitioner had completed five years of service on 23.10.1984 and any work charged employees who had completed five years of satisfactory service before cut off date i.e. 22.10.1984 has to be absorbed in regular establishment and as such, question does not arise that the petitioner was not a permanent government employee and was a work charged employee appointed under the Bihar P.W.D. Code 59. As regards Bihar P.W.D. Code 59, dealing with the work charged establishment, this Court, in the case of Ram Prasad Singh Vs. State of Jharkhand reported in (2005) 3 JLJR 38 in its Full Bench decision has considered Rule 59 of the Bihar P.W.D. Code, which reads as under:
"Rule 59 of the Bihar P.W.D. Code deals with work-charged establishment and reads as follows:
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 machjinery in connection with such work or sub-work. When employees borne on the temporary establishment are employed on work of this nature the pay should, for the time being, be charged direct to works."
Note 3 below Rule 59 being also relevant is quoted hereunder:
"Note 3. 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."
The work-charged establishment has also been defined by the Supreme Court in the case of Jasbant Singh v. Union of India, reported in (1979) 4 SCC 440.
It has also been decided that services of all the work-charged employees who have completed five years of satisfactory services on one post, against whom there is no proceeding, shall be taken over in the permanent/regular establishment. It has also been held that as far as powers of the Finance Department are concerned, the Guidelines having been issued by the State, the State Government cannot challenge its own decision. In fact the State of Jharkhand has already accepted the guidelines issued on 04.02.1949 which is a Statutory Rule and the cases of work charged employees have to be considered after taking over their services in the permanent/regular establishment as has been held in the case of Tulsi Prasad Singh, the Patna High Court has held that the work charged employees, who had completed five years of services, are entitled to be 6 W.P.(S) No. 352 of 2017 considered for taking over their services in the permanent (regular) establishment. Similar is the view taken in the case of Arjun Sharma v. State of Bihar and others reported in 2001(2) JLJR 203. The guideline dated 4th February, 1949 was also held to be a Rule, framed under proviso to article 309 of the Constitution of India and the cut-off date of 21st October, 1984 fixed vide Resolution No. 5074, dated 20th September, 1990, was not accepted and the Court held that the executive instruction cannot override the 1949 statutory Rule, as has been held in the Full Bench Judgment reported in (2005) 3 JLJR 38. There has to be a reasonable classification for treating government employees. There cannot be class amongst class. The services of the petitioner already regularised, cannot be treated differently, it amounts to discrimination and as such, violative of Articles 14 and 16 of the Constitution of India. Admittedly petitioner retired as Filter Operator which shows that the petitioner worked on the post of Filter Operator and as such, petitioner is entitled for the salary in the pay scale of Filter Operator, Grade-I. In such view of the matter, petitioner is entitled for the pay scale applicable to the Filter Operator Grade-I.
7. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements and observations, it cannot be said that the service of the petitioner are not of permanent regular establishment and is of work charged establishment and as such, petitioner is entitled for the same pay scale meant for the employees of permanent/ regular establishment. Petitioner's case cannot be differentiated and he cannot be deprived of his legitimate rights. Resultantly, the writ petition stands allowed with a direction to the respondents to immediately release consequential benefits to the petitioner taking into account that the petitioner's service are of permanent regular establishment.
(Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated August 11, 2017 punit /RC