Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.753 of 2012 ====================================================== 1. Suresh Prasad S/o Late Jamuna Prasad, Resident of Mohalla - East Lohanipur, Ambedkar Colony, P.O.- Kadamkuan, P.S. Kadamkuan, District – Patna. 2. Prabhunath Pandey S/o Late Ramjanam Pandey, Resident of Village - Gulab Chapra, P.O. Matukpur, District - Bhojpur at Ara. 3. Ranjeet Kumar Mishra S/o Late Jeevanand Mishra, Resident of Village + P.O. - Ratanpur Via - Taregan Bazar, District Supaul. 4. Pradeep Kumar-II S/o Late Jagarnath Prasad, Resident of Village - Purandarpur, P.O.- Simri Nagar, District - East Champaran. 5. Pradeep Kumar – 1, S/o Sri Sahdeo Yadav, Resident of Village + P.O. - Ekchari, P.S.- Kahalgaon, District – Bhagalpur. 6. Anil Kumar S/o Anorodh Prasad, Resident of Village - Vikhachak Naya Tola, P.O. - Anisabad, P.S.- Gardanibagh, District Patna -2 7. Sadhu Choudhary @ Sadhu S/o Jitan Yadav, Resident of Village - Salar Kalan, P.O.- Lon Bazar, P.S. - Phulwaria, District - Gopalganj 8. Safi Alam Ansari S/o Anir Alam Ansari, Resident of Village - West Ajimganj, Mamin Tola, P.S. Haveli Kharagpur, Distirct – Munger. 9. Surendra Kumar S/o Sri Bharat Singh, Resident of Village - Kheladia, P.O.- Gotwa, District – Rohtas. 10. Dilip Kumar – I, S/o Late Hardeo Prasad Singh Resident Of Village - Debri Maheshpur, P.O.- Somnathpur, P.S. Kahalgaon, District – Bhagalpur, 11. Md. Kaisar, S/o Late Abdul Kadir Resident Of Village - Lodi Katra, P.O.- Jhauganj, P.S. -Khajekelan, Patna City, Patna - 800008 12. Bhrigunath Yadav, S/o Late Roushan Yadav, Resident Of Village - Gopalpur Bhaishi, P.O.- Mateya, P.S. - Kuchaikot, District - Gopalganj 13. Rameshwar Rai, S/o Late Sadhu Prasad, Resident Of Village - Ghanshyampur, P.O.- Sadisopur, P.S. Naubatpur, District - Patna 14. Manoj Kumar Yadav S/o Late Sri Srimant Yadav Resident Of Village - Shankarpur, P.O.- Shankarpur, P.S.- Muffasil, District Munger 15. Ram Rekha Raut, S/o Late Sanup Raut, Resident Of Village - Akhta, P.O.- Akhta, P.S. - Bargania, District - Sitamarhi 16. Rabindra Yadav, S/o Shukhal Yadav, Resident Of Village - Karmeni Gangi, P.O.- Netua Dalalpur, P.S.- Kuchaikot, District - Gopalganj 17. Umesh Yadav, S/o Bhagirashan Yadav, Resident Of Village - Salarkhurd, P.O. - Paikoli Bado, P.S.- Phulwaria, District- Gopalganj 18. Anant Kumar Sinha, S/o Sri Ramji Yadav, Resident Of Village - Dharmpur, P.O.- Hulasganj, P.S.- Hulasganj, District Jehanabad
Legal Reasoning
19. Nanhu Yadav, S/o Sri Nandlal Yadav, Resident Of Village - Khajuriya Birti Tola, P.O.- Khajuriya, P.S.- Siddhbalia, District - Gopalganj 20. Bijendra Prasad, S/o Sri Jagdish Prasad, Resident Of Village - Matiapur, P.O.- Jamsot, P.S.- Sahpur, District - Patna 21. Vijay Kumar, S/o Late Rameshwar Prasad, Resident Of Village - Harirampur, P.O.- Rajipur, P.S.- Rani Talab, District - Patna 22. Anil Kumar, S/o Late Sahdeo Mahto, Resident Of Village - Khaspur, P.O.- Sadisopur, P.S.- Naubatpur, District- Patna 23. Umesh Prasad, S/o Late Ramji Prasad, Resident Of Village + P.O.- Ghuskuri, P.S.- Ariari, District – Sheikhpura. 24. Sanjeev Kumar Choudhary, S/o Sri Anandi Prasad Choudhary, Resident Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 2 Of Village - Janakpur, P.O.- Sahora, Via - Tatapur, P.S.- Sangarmpur, District - Munger 25. Manoj Kumar, S/o Shri Uttim Das, Resident Of Village - Jawadi, P.O.- Turki, District - Muzaffarpur 26. Pramod Kumar, S/o Late Rajnarayan Mishra, Resident Of Village + P.O.- Baghat Via- Manigachi, District- Darbhanga 27. Udai Kumar-II, S/o Rajnandan Singh, Resident Of Village - Kebdha, P.O.- Barni, P.S.- Dhenrwa, District- Patna 28. Udai Kumar, S/o Late Radhe Rai, Resident Of Village - Ghanshyampur, P.O.- Sadisopur, P.S.- Naubatpur, District- Patna 29. Vishuchand Yadav, S/o Late Mukhlal Yadav, Resident Of Village - Nadwan, P.O.- Jagdari Barkatta, P.S.- Bhore, District – Gopalganj. 30. Baleshwar Yadav, S/o Sri Bindeshwar Yadav, Resident Of Village + P.O.- Supi, P.S.- Makhdumpur, District – Jehanabad. 31. Dilip Kumar Singh, S/o Late Rajeshwar Prasad Singh, Resident Of Village - Mankutha Bigha, P.O.-Khanpura, P.S-Paliganj, District – Patna. 32. Chandrama Choudhary, S/o Sri Ambika Choudhary, Resident Of Village - Rampur Kalan Magirwa, P.O.- Radhaganj Bazar, P.S.- Phulwaria, District- Gopalganj. 33. Kalo Devi, D/o Bhagora Mahto, Resident Of Mohalla - Gosai Tola, P.O.- Patliputra, District – Patna. 34. Hari Mohan Yadav, S/o Late Ram Kishun Prasad Yadav, Resident Of Mohalla - Begumpur, Bhitari, Patna City, District- Patna. 35. Ramji Ram, S/O Sri Bala Ram, Resident Of Village + P.O.- Tehta, Math, P.S.- Makhdumpur, District- Jehanabad. 36. Madho Yadav, S/o Late Kamta Yadav, Resident Of Village - Lalu Ke Dera, P.O.- Lakhmi Ke Dera, P.S.- Shahpur, District – Bhojpur. 37. Prabhu Prasad, S/o Ramswaroop Prasad Yadav, Resident Of Village - Ranipur Khidki, P.O.- Jhauganj, Patna City, District - Patna 38. Pramod Kumar – I, S/o Sri Ramnandan Singh, Resident Of Village - Salkhani, P.O. Sindhiya Ghat, P.S.- Bhibhutipur, District - Samastipur 39. Hemant Kumar, S/o Late Jangali Ram Yadav, Resident Of Mohalla - Sheikhpura, Bailey Road, District Patna 14 40. Kamaldeo Kumar, S/o Chandradeep Prasad Verma Resident Of Village - Panithi, P.O.- Panithi, P.S.- Bihta, District - Patna 41. Upendra Kumar, S/o Sri Manik Singh, Resident Of Village + P.O.- Misi, P.S.- Bakhtiyarpur, District - Patna 42. Ram Sakal Rai, S/o Sri Sonelal Rai, Resident Of Village - Birsigpura, Mahmadabad, P.S.- Kalyanpur, District- Samastipur 43. Jeevan Kumar Yadav, S/o Sri Baleshwar Yadav, Resident Of Village - Jamnipur, P.O.- Mango Bandar, P.S.- Khera, District - Jamui 44. Shiv Kumar Yadav, S/o Late Dasai Yadav, Resident Of Village - Hardiya Ke Mathia, P.S.- Jagdishpur, District - Bhojpur 45. Ambuj Kumar, S/o Late Ramswaroop Singh, Resident Of Mohalla - 28, Patliputra Colony, District Patna 46. Umakant Prasad Yadav, S/o Sri Awadesh Prasad, Resident Of Village - Kolhar, P.O.- Fathua, P.S.- Fathua, District - Patna 47. Shankar Kumar, S/o Late Dalo Ram, Resident Of Village - Tuhwa Sota Dih, P.O. + P.S.- Belhar, District Banka 48. Dharamveer Paswan, S/o Rajnandan Paswan, Resident Of Village - Habibullah Chak, P.O. Narsanda,P.S.- Chadi, Distict, Nalanda Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 3 49. Shambhu Paswan, S/o Late Ganga Paswan, Resident Of Village - Ghahumi (Nehalpur) P.O. Lal Shahpur, P.S- Mabbi, O.P.- Sadar, District Darbhanga. 50. Ajay Kumar Ajay, S/o Late Adhik Lal Yadav, Resident Of Village + P.O.- West Ajimganj, Bhaiya Lal Tola, Haveli Kharagpur, District Munger. Versus .... .... Petitioners 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Principal Secretary, Human Resources Development Department, Government Of Bihar, Patna. 3. The Director, Higher Secondary Education, Human Resources Development Department, Government of Bihar, Patna 4. The Chairman, Bihar School Examination Board, Budha Marg, Patna. 5. The Five Member Committee through its Chairman, Sri S.N. Sinha ex- Vice Chancellor, B.R.A. Bihar University, Muzaffarpur. .... .... Respondents ====================================================== For the Petitioners : Mr. Chittaranjan Sinha, Sr. Advocate with Mr. Siddhartha Prasad, Advocate. For the Board : Mr. Ajay, Advocate. For the State : Mr. Suresh Kumar, AC to GP-5
Decision
P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 14 20-02-2013 Heard learned counsel for the petitioners and learned counsel for the respondents. 2. This writ petition has been filed by 50 petitioners most of whom were appointed between 1993 and 1997, whereas only petitioner nos.6, 9 and 25 were appointed after 2001 as daily wagers on Class-IV post by the Chairman of Bihar Intermediate Education Council (hereinafter referred to as ‘the Council’ for the sake of brevity). It is also claimed by learned counsel for the petitioners that they worked continuously in the Council and after Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 4 due process and the status report as well as the recommendation of Members of the Council, a Committee was constituted to analyze the work of the Council which deliberated and resolved to absorb/regularize the temporary staff working in 4th Grade against the vacant sanctioned posts, whereafter two committees were constituted by the Council for the purpose of regularization of the services of 4th Grade employees including the petitioners, who were also directed to appear before the committees along with the required documents. For considering the working of petitioners as well as the vacancy of 102 sanctioned posts in Class-IV, interviews were taken and documents were verified and altogether 94 daily wagers, including the petitioners, were regularized and their services were absorbed in the 4th Grade of the Council vide office order dated 06.07.2005 (Annexure-7). 3. Learned counsel for the petitioners submits that the Council was working under the Bihar Intermediate Education Council Act, 1992 but by the subsequent Bihar Intermediate Education Council (Repeal) Act 2007, the earlier Act of 1992 was repealed and the employees of the Council were directed to remain in employment as if the Act had not been repealed and they were directed to continue to be paid same salary and allowances as was payable on the date of repeal of the Act till Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 5 such time State Government had taken such final decision as provided under the Repeal Act. 4. Learned counsel for the petitioners avers that the petitioners had been getting regular pay scale since 2005 and even the Bihar School Examination Board (hereinafter referred to as ‘the Board’ for the sake of brevity) has been giving regular pay scale to the petitioners after their services were transferred to the Board by dint of section 4 of the aforesaid Repeal Act since 2007. Even the list of employees of the Board given on the website showed that petitioners were under regular appointment of the Board. 5. Learned counsel for the petitioners asserts that in the said circumstances, when they were not paid other benefits of salary like annual increment, merger of dearness allowances with basic pay (as adopted by the State Government), provident fund, earned leave and casual leave they approached the authorities concerned as the aforesaid benefits were being given to other similarly situated employees. Although the Chairman of the Council had already recommended for payment of arrears of salary from July 2005 to October 2005 vide order dated 25.04.2007 but no such benefits were given to the petitioners, hence they raised objection before the Board and when such Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 6 representations filed by the petitioners were ignored, they had no other remedy left except to move this court by way of filing this writ petition seeking directions to the respondents, specially the Chairman, Bihar School Examination Board (respondent no.4) to give them pay, allowances and other benefits like annual increment, merger of dearness allowance with basic pay (as adopted by the State Government), provident fund, earned leave and casual leave as well as a further payment of difference of salary from July 2005 to October 2005. 6. However, during the pendency of this writ petition there were further developments, as report dated 17.07.2012 was submitted by Five-Man Committee to the Board treating the petitioners as daily wagers and not even recommending for their absorptions in the Board and hence I.A. No.6149 of 2012 has been filed by the petitioners for adding the following reliefs to the main reliefs claimed in the writ petition:- (a) For adding the five member committee constituted by the Bihar School Examination Board, Patna vice memo no.785 dated 17.07.2012 as party respondent. The five member committee is being arrayed as party its Chairman Sri S.N. respondent through Sinha, Ex Vice Chancellor, B.R.A. Bihar University, Muzaffarpur. (b) For issuance of appropriate writ(s)/order(s)/ direction(s) for quashing the portion of the five member committee dated report of Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 7 27.08.2012 whereby the names of the petitioners have not been recommended for absorption in Bihar School Examination Board. (c) For issuance of appropriate writ(s)/order(s)/ direction(s) for commanding the five member committee and the respondents to absorb the petitioners in Bihar School Examination Board. (d) For issuance of appropriate writ(s)/order(s)/ direction(s) for commanding the respondents to maintain status quo with regard to services of the petitioners till the final adjudication of the present writ petition. 7. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and submits that the petitioners were appointed much earlier i.e. more than a decade back and according to their own case their services were regularized in 2005, but they filed the instant writ petition more than six years thereafter i.e. in 2011-2012. It is also stated that no such objections were raised by the petitioners either before the Council or even before the Board since 2007 and only when the matter was sent to the Five-Man Committee for finalizing the same, this writ petition has been filed. Hence, he submits that in these circumstances no benefit of order of regularization of 2005 can be given to the petitioners. Moreso, because there is no material before the Board to show that the petitioners had been regularized Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 8 as had been claimed by them in this writ petition. 8. Learned counsel for the respondents avers that on 02.07.2007 the Board had constituted a Three-Man Committee, which submitted its report on 12.07.2012 providing guidelines for absorptions of employees and regularization of their services. As per the said guidelines the Board had constituted Five-Man Committee vide order dated 17.07.2012 and the said Five-Man Committee headed by Sri S.N. Sinha, Ex-Vice-Chancellor of B.R.A Bihar University along with four other ex-officers of the department concerned submitted their report on 27.08.2012, which has been challenged by the writ petitioners by way of filing an interlocutory application bearing I.A. No.6149 of 2012. Hence, he submits that there is no merit in this writ petition, which is fit to be dismissed. 9. Considering the arguments raised by learned counsel for the parties as well as the materials on record, it is quite apparent that there had been some developments in the matter during the pendency of the writ petition, as report dated 17.07.2012 has been submitted by Five-Man Committee to the Board in which the petitioners have been treated as daily wagers. In the said circumstances, the interlocutory application bearing I.A. No. 6149 of 2012 is allowed and the reliefs claimed therein Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 9 are directed to be added to the reliefs claimed in the writ petition. 10. From a bare reading of the pleadings of the parties, it is quite apparent that the petitioners had specifically claimed in paragraphs 6 to 14 of the writ petition that most of them were appointed between the year 1993 and 1997 and only petitioner nos.6, 9 and 25 were appointed after the year 2001 in the Council as daily wagers and they regularly worked there and the matter of their absorption was considered, their documents were perused and interviews were taken, whereafter they were regularized and their services were absorbed in the Council vide its office order dated 06.07.2005. This aspect of the matter has at no place been denied or contradicted in the counter affidavit filed by the respondents and learned counsel for the respondents has only raised a bald argument that there is nothing before the Board to show that the petitioners had been regularized as per the claim in the writ petition. 11. It is not in dispute that the petitioners were working in the Council functioning under the Bihar Intermediate Education Council Act, 1992 which was repealed by the Bihar Intermediate Education Council (Repeal) Act, 2007 and according to the provisions of the said Act the employees of the Council were adjusted in the Board and they were to continue to Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 10 be paid same salary and allowances as was payable on the date of repeal of the Act. Furthermore, according to section 4 of the said Act all the assets and liabilities of the Council had devolved upon the Board. In the said circumstances, the Board and its authorities were duty bound to fulfill their liabilities with regard to payments of salary and allowances which were payable to the employees of the Council, who had been adjusted in the Board. 12. All the reliefs claimed by petitioners follow from their regularization which had been specifically claimed by the petitioners in various paragraphs of the writ petition, but have not been denied by the respondents. Hence, regularization of the petitioners and payments of their salary on the regularized posts by the Council stands not denied, and as such it is accordingly deemed to be accepted. Hence, the petitioners according to the provisions of the aforesaid Repeal Act are entitled for the salaries and allowances which were payable to them before their absorption in the Board. 13. So far the report of Five-Man Committee dated 27.08.2012 is concerned, a perusal thereof clearly shows that the aforesaid aspect of the matter had not at all been considered by the said Committee and the petitioners had been merely referred to as daily wagers and had been recommended for their removal Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 11 only because they had no appointment letter. 14. This shows a complete ignorance of the specific claims of the petitioners and the materials available, copies of which had been produced by the petitioners time and again before the authorities concerned, which clearly show that earlier all the petitioners were appointed on daily wages and were subsequently regularized and hence there was no question of any appointment letter, rather order of regularization of the petitioners and absorptions of their services in the Council was sufficient to prove the claim of petitioners, but surprisingly enough this aspect of the matter had not at all been considered by the Five-Man Committee. 15. In the said circumstances, it cannot be disputed that the petitioners had been appointed more than a decade back and their services had been regularized and they had been absorbed in the Council in the year 2005 and hence at the time of repeal of the Bihar Intermediate Education Council Act, 1992 functioning of the Council came to an end with the adjustment of its employees in the Board. The petitioners were already regular Class-IV employees, their services having been absorbed in the Council and hence their adjustment in the Board has to be in the same position as per the provisions of the Repeal Act of 2007. Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 12 16. Furthermore, according to the provisions of section 3.2 of the Act, Three-Man Committee of the Secretaries was appointed by the Board which provided merely a guideline and on the basis of the said guideline a Five-Man Committee was appointed by the Board for the said purpose, but the said Committee without considering the specific claim of petitioners and also the undisputed fact with regard to absorption of the petitioners and regularization of services in the Council submitted its report dated 27.08.2012. Hence the said report so far the petitioners are concerned, is illegal and perverse and the authorities cannot act in accordance thereof so far it concerns the petitioners. 17. Accordingly, this writ petition is allowed, the impugned report so far it concerns the petitioners is quashed and the respondents specially respondent no.4, namely the Chairman of the Board is hereby directed to absorb/adjust the petitioners in the Board treating them regular Class-IV employees having their services absorbed by the Council itself in the year 2005 and to pay them salaries, allowances and other benefits of annual increments, merger of dearness allowances with basic pay (as adopted by the State Government), provident fund, earned leave and casual leave as well as the payment of difference of salary Patna High Court CWJC No.753 of 2012 (14) dt.20-02-2013 13 from July 2005 when their services were absorbed on regular post till October 2005 as from November 2005 the petitioners were given regular salaries and these benefits must be paid to the petitioners within four months from the date of receipt/production of a copy of this order before respondent no.4. Harish/- (S.N. Hussain, J)