BALMIKI SINGH & Ors. v. THE STATE OF BIHAR

Mr. Ganesh Prasad Singh, learned Senior counsel appearing on behalf of the petitioners, reference aforementioned relief had initially sought to attack the impugned order on several grounds but later on he has confined his submissions to only three of them, namely, (i) The basis fixed by the Government for absorption from amongst employees working under the private management Magadh Engineering College of their date of joining, instead of their date of appointment is arbitrary. (ii) The impugned order, contained in Annexure 10, seeking to cancel the earlier order of absorption even on the basis of date of joining was bad because respondent no.12 admittedly as per records had joined on 28.3.1984 but was wrongly shown in the records of the College (the seniority list) to have been joined the College on

26.7.1983. (iii) the respondent no.8 on the date of appointment under the private management of the College was over-age and respondents no. 13 and 14 were under age. Counsel for the State, on the other 5 hand, would submit that the principle of fixing the date of joining was decided by the State Government in keeping with the powers conferred to it under the Take Over Act, inasmuch as the recommendation of the Screening Committee making the basis of date of birth was found unacceptable for absorption of employees working under private management in the Engineering College. He has also produced the original records of the Screening Committee and the file in question in which such a decision was taken and from them the stand taken by the State in the counter affidavit that the recommendation of the Screening Committee was accepted subject to the modifications as spelt out in the counter affidavit seems to be correct. In that view of the matter, this Court must hold that the basis of date of joining in the given facts and circumstances of the case where the persons either the petitioners or the private respondents are claimed received letter appointment some 8-10 months back and have joined the post after a long gap is 6 perfectly justified. The view taken by the State Government for making the date of joining the basis for reckoning seniority for the purposes of absorption is therefore neither arbitrary nor irrational. Every takeover of private institution by the government has its own particular feature and therefore, in the present case of takeover of the Engineering College when the manner followed in the appointment by the private management had no transparency, the basis of date of joining of such employees being the proof of their commencement of working in the college for considering their seniority for absorption in government service cannot be said to be irrational so as to be struck down by this Court. Mr. Singh then would submit that even if everything be accepted, if the appointment by the private management was made on the same day and the persons joined in pursuance of their appointment on different dates, such date of joining cannot be made the basis of reckoning the seniority for the purposes of absorption. The difficulty in accepting such submission of 7 Mr. Singh is that such principle is not only confined to Magadh Engineering College rather for all the three Engineering Colleges. The same principle had to be followed and as noted above, the offer of appointment was never made by the private management either on the basis of any merit list or any fixed criteria. As noted above, the persons even at the age of 16 years have been appointed and on the other hand, the persons even being minor as in case of respondents no. 13 or over age one like respondent no.8 appointed therefore, such date of appointment by the private management by itself could have hardly any significant say in isolation for the purposes of absorption in government service. It is in this background that the date of joining of an employee in the college under private management could be treated to be the safest proof for continuation in service and reckoning seniority for considering the cases for absorption against specified limited number of posts in government service. This Court would, therefore, uphold 8 the Government decision with regard to the date of joining to be basis for reckoning seniority absorption Magadh Engineering College Engineering College. Once the main submission of Mr. Singh does not find favour from this Court the rest of the two submissions will require a fact finding enquiry. It is so because that the petitioners in their rejoinder affidavit to the counter affidavit filed by respondents no. 8 to 12 have brought on record a document which would go to show that respondent no.12 in pursuance of his appointment letter dated 5.10.1983 had submitted his joining report on 28.3.1984 as is clearly written in his own handwriting. The endorsement made thereon by the Director of Magadh Engineering College does not leave anything for speculation that the date of joining of such respondent no.12 was

28.3.1984. This aspect of the matter in fact further gets substantiated from the entries made in the service book showing the date

28.3.1985 and in the month of March onwards which would only be possible if the date of 9 joining of respondent no.12 was in the month of March, 1984 as shown in Annexure 12. This Court, therefore, has no difficulty in accepting that part of the submission of Mr. Singh, learned counsel for the petitioner, that the date of joining of respondent no.12 was 28.3.1984. At this stage counsel appearing for respondent no.12 would like to submit that such document should not be looked into as this would lead to deciding a disputed question of fact because respondent no.12 in his affidavit has stated that his date of joining should be 26.7.1983 as shown in the seniority list prepared by the Screening Committee. This Court would find it difficult to accept such submission because the date of appointment of respondent no.12 is 5.10.1983 and therefore, if his joining was accepted even before that date he will have to prove these facts by producing his another appointment letter which could have give him the date of joining i.e. 26.7.1983 as claimed by him. In the service book there are some sort of suggestion to this effect but then as noted above on the basis of 10 materials on record this Court must hold that the date of joining of respondent no. 12 on 28.3.1984 seems to be more probable. The submission of Mr. Singh as with regard to respondents no. 8, 13 and 14, however, would require not only looking into the individual facts but also the law governing appointment in private Engineering College prior to its take over. It is so because Mr. Singh submits appointment of respondent no.8 on account of his being overage and respondents no. 13 and 14 on account of their being minors was void ab initio. In order to hold that such appointment was void ab initio some law in form of Rules or Regulations governing the service condition of employees of a private Engineering College with have to indicate that there was any restriction of minimum or maximum age for appointment or employees in private Engineering College. The reference applicability to a guideline of the year 1982 by Mr. Singh on the one hand and its denial by Mr. Rajendra Prasad Singh, learned Senior counsel appearing on behalf of respondents no. 13 and 14, would itself 11 require another fact finding enquiry as to whether at any point of time it had received recognition of the State or any governmental body which also had put an obligation on the private management of Magadh Engineering College to appoint all the persons on class IV post after following the guidelines fixed regard conditions age, qualification etc. Prima facie it appears that if Magadh Engineering College had never received any recognition of the State Government it was always free to make appointment subject of course to the provisions of Indian Majority Act which lays down that a minor cannot be appointed in any service. It may be that on the basis of appointment secured by respondents no. 13 and 14 as minors they may be discontinued from government service and may be asked to quit even before attaining normal age of superannuation in government service but on that basis their appointment in private Engineering College absorption government service cannot be held to be bad unless as indicated above there be also any statutory bar for appointment of Class IV 12 employees in a private Engineering College. In any event the date of joining of respondents no. 8, 13 and 14 is not being challenged by the petitioners and therefore, the Secretary of the Department on receipt individual representation petitioners along with a copy of this order would be under obligation to hold a fact finding enquiry as with regard to decision for absorption of the petitioners vis-(cid:224)-vis the private respondents in the light of their service record and if it is found that absorption of respondent no.12 or any other private respondent was not justified on account of their later date of joining or that any of the petitioners or private respondents were illegally disqualified from being absorbed in service on the basis of criteria fixed by the State Government, he having concerned petitioner/respondent would be at liberty to pass a fresh order for displacing any of such respondent in the matter of takeover from service within the sanctioned post of Class IV employees and replacing him by petitioner(s). It is expected that the 13 Secretary would complete such exercise within a period of six months from the date of receipt/ production of a copy of this order and communicate his decision to the concerned petitioner/respondent. With aforementioned observations directions, application is disposed of. (Mihir Kumar Jha,J.) Surendra/