Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7852 of 2010 ====================================================== Sri Krishna Prasad S/O Late Sidheshwar Prasad R/O Vill.- Kulana, P.O.- Kusumbhar, P.S.- Akbarpur, Distt.- Nawada, At Present Working As Daily Wage Clerk In The Office Of The District Transport Office, Darbhanga .... .... Petitioner. Versus 1. The State of Bihar through the State Transport Commissioner, Department of Transport, Government of Bihar, Patna 2. The State Transport Commissioner, Department of Transport, Government of Bihar, Patna 3. The Principal Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna 4. The Joint Transport Commissioner, Department of Transport, Government of Bihar, Patna 5. The District Transport Officer, Darbhanga .... .... Respondents. ====================================================== with Civil Writ Jurisdiction Case No.8186 of 2010 ====================================================== Madan Mohan Lal Singh, S/O Sri Ramashish Singh, R/O Village- Kashipur, Post Office - Rajapakri,P.S. Rajapakari,District- Vaishali, Hazipur At Present Working As Daily Wages Clerk In The Office Of The District Transport Office, Patna. .... .... Petitioner. Versus 1. The State of Bihar through the State Transport Commissioner, Department of Transport, Govt. of Bihar, Patna 2. The State Transport Commissioner, Department Of Transport, Govt. of Bihar, Patna 3. The Joint Transport Commissioner, Department of Transport, Govt. of Bihar, Patna 4. The Principal Secretary, Department of Personnel and Administrative Reform, Govt. of Bihar, Patna. 5. The Deputy Secretary, Department of Personnel and Administrative Reform, Govt. of Bihar, Patna. 6. The District Transport Officer, Patna.
Legal Reasoning
consideration of regularization favourably. He moved this Court in C.W.J.C. No.2243 of 2000 for regularization of his services. The learned Single Judge noticed that two of the daily wages employees engaged subsequently to the petitioner were regularized. Furthermore, there was no change in the Government Policy of 1985 to regularize the persons appointed prior to
Arguments
.... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.8462 of 2010 ====================================================== Shambhu Rai S/O Sri Markande Rai R/O Vill.- M.I.G.-4 Chankyapuri Colony Gaya, P.S.- Rampur, Distt.- Gaya, At Present Working As Daily Wages Clerk In The Office Of The District Transport Officer, Gaya .... .... Petitioner. Versus 1. The State of Bihar through the State Transport Commissioner Department of Transport, Government of Bihar, Patna 2. The State Transport Commissioner, Department of Transport, Government of Bihar, Patna 3. The Joint Transport Commissioner, Department of Transport, 2 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 2 / 8 Government of Bihar, Patna 4. The Principal Secretary, Department of Personnel and Administrative Reform, Government of Bihar, Patna 5. The Deputy Secretary, Department of Personnel and Administrative Reform, Government of Bihar, Patna 6. The District Transport Officer, Gaya .... .... Respondents. ====================================================== with Civil Writ Jurisdiction Case No.11401 of 2010 ====================================================== Prabhakar Prasad S/O Late Bhola Prasad R/O Village- Bokhanpur Bahta Road, Gumti No. 2, P.S.- Isakchak, Distt.- Bhagalpur, at Present Working as Daily Wages Clerk in the Office of the District Transport Office, Bhagalpur .... .... Petitioner. Versus 1. The State of Bihar through the State Transport Commissioner, Department of Transport, Govt. of Bihar, Patna 2. The State Transport Commissioner, Department of Transport, Govt. of Bihar, Patna 3. The Joint Transport Commissioner, Department of Transport, Govt. of Bihar, Patna 4. The Principal Secretary, Department of Personnel and Administrative Reform, Govt. of Bihar, Patna 5. The Deputy Secretary, Department of Personnel and Administrative Reform, Govt. Of Bihar, Patna 6. The District Transport Officer, Bhagalpur. .... .... Respondents. ====================================================== Appearance : (In CWJC No.7852 of 2010) For the Petitioner/s : Mr. Anand K. Ojha Mr. Ashok K. Karna For the Respondent/s : Mr. (Aag9) (In CWJC No.8186 of 2010) For the Petitioner/s : Mr. Anand K. Ojha Mr. Ashok K. Karna For the Respondent/s : Mr. (Aag9) (In CWJC No.8462 of 2010) For the Petitioner/s : Mr. Anand K.Ojha Mr. Ashok K. Karna For the Respondent/s : Mr. (Ga10) (In CWJC No.11401 of 2010) For the Petitioner/s : Mr. Anand K. Ojha For the Respondent/s : Mr. (Aag9) ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 3 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 3 / 8 13 20-11-2013 In these batch of writ applications, are employees of Transport Department and have prayed for regularization of their services. 2. All the four petitioners were engaged on Daily Wage basis between 19.04.1980 to 17.06.1981. To be specific, petitioner Krishna Prasad of C.W.J.C. No.7852 of 2010 was engaged by District Transport Officer, Muzaffarpur on 27.05.1981, petitioner Madan Mohan Lal Singh of C.W.J.C. No.8186 of 2010 was engaged by District Transport Officer, Dhanbad on 19.04.1980; and petitioner Shambhu Rai of C.W.J.C. No.8462 of 2010 was engaged by District Transport Officer, Gaya on 29.08.1980, petitioner Prabhakar Prasad of C.W.J.C. No.11401 of 2010 was engaged by District Transport Officer, Bhagalpur on 17.06.1981. 3. Initially the petitioners were engaged temporarily but their services were extended from time to time by the Transport Commissioner. 4. One of these, namely, Krishna Prasad was even transferred from the office of District Transport Officer, Muzaffarpur to the office of District Transport Officer, Gaya by Transport Commissioner. Besides this, he was also given charge of the district of Sitamarhi. 4 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 4 / 8 5. The case of petitioner Krishna Prasad is slightly different as there is an earlier direction of this court for
Decision
01.08.1985. As noted above, the writ application was disposed of with a direction to the respondents to consider his case for regularization favourably. 6. The relevant portion of the order is quoted herein below for easy reference: “Having regard to the fact that there is a policy for regularization of the people, who had been appointed prior to 1985 and that policy having not been given a go by and in the meantime, two persons appointed in the same department after the appointment of the petitioner having been regularized, it would be appropriate on the part of the State Government to consider favourably the case of the petitioner for regularization in terms of the Government policy otherwise there would be discrimination for no just reason.” 7. As noted above, the other petitioners have not 5 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 5 / 8 moved this Court earlier. 8. The Department referred the cases of Krishna Prasad and others, some of whom are petitioner in these batch of cases, to the Department of Personnel and Administrative Reforms for consideration of regularization in view of direction of Division Bench in CWJC No.7539 of 2000, CWJC No.6504 of 2000, CWJC No.12794 of 2000, LPA No.798 of 2005 and CWJC No.12454 of 2006. 9. The Department of Personnel and Administrative Reforms returned the files on the ground that the cases of these petitioners were not referred by the Division Bench for consideration of their regularization by constituting three men high power committee. The matter, as such came back to Transport Department for consideration on the point of regularization. The Transport Department on 01.02.2010 rejected the representations of the petitioners for regularization, as such these writ applications. 10. It appears that during the pendency of these writ applications, the services of the petitioners were disengaged. This Court by order dated 06.07.2010 stayed the order of retrenchment dated 27.05.2010, so far as it related to petitioner Krishna Prasad. There is no order either way with respect to other petitioners. 11. Mr. Anand Kumar Ojha, learned counsel 6 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 6 / 8 appearing for the petitioners submits that the respondents did not consider the case of the petitioner Krishna Prasad in the light of order dated 12.03.2008 passed in CWJC No. 2243 of 2000 wherein direction was given to consider his case favourably after noticing that two of the employees engaged later on, have been regularized and their being a Government Policy to regularize the employees appointed or engaged prior to 1985. 12. The petitioner states that one time, the Department had even referred the matter to Staff Selection Commission, Bihar for its opinion on the point of regularization. The petitioner has further taken a ground that after his appointment/engagement he was even transferred from one district to the other district e.g. from Muzaffarpur district to Gaya district by the Transport Commissioner. 13. Learned counsel made common submissions with respect to other petitioners, namely, Madan Mohan Lal Singh of CWJC No.8186 of 2010, Shambhu Rai of CWJC No.8462 of 2010 and Prabhakar Prasad of CWJC No.11401 of 2010. He submits that all of them were engaged between 1980-1981, much prior to the cut off date on 01.08.1985 for favour of regularization. He submits that though the District Transport Officer was not the appointing authority, the irregularity would be deemed to be wiped out, as subsequently, extension of service was granted by 7 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 7 / 8 the Transport Commissioner, who was the competent authority to make appointments. He submits that the case of all the other petitioners would be more or less similar to that of Krishan Prasad (CWJC No.7852 of 2010), save and except there is no prior judicial order in this case. 14. The State has filed counter affidavits. The stand of the State is that the case of petitioners were considered by the Transport Department in the light of the decisions rendered by the Constituion Bench in case of The Secretary, State of Karnataka & Ors Vs. Uma Devi & Ors, reported in (2006) 4 SCC 1. Further the petitioners were not engaged or appointed either by the competent authority or against vacant and sanctioned post and some of them did not possess requisite eligibility. 15. I have heard the counsel for the parties. It would appear from the materials on record that the case of petitioner Krishna Prasad (CWJC No.7852 of 2010) would be distinguishable from the case of other petitioners because of a judicial order directing his case to be considered favourably in the light of the findings recorded in the said case. An appeal bearing L.P.A. No. 561 of 2008 was too rejected by order dated 28.07.2008 (The State of Bihar & Ors. Vs. Shri Krishna Prasad). I further find that the order rejecting regularization does not make any mention or reference to any finding recorded in order dated 8 Patna High Court CWJC No.7852 of 2010 (13) dt.20-11-2013 8 / 8 12.03.2008 passed in CWJC No.2243 of 2000 (Sri Krishna Prasad Vs. The State of Bihar & Ors.). This Court had given specific reasons for consideration of his case favourably. In the circumstances, the impugned order passed by the Transport Commissioner dated 01.02.2010, so far as it relates to petitioner Sri Krishna Prasad (CWJC No.7852 of 2010) is set aside and the matter is remitted to the Department for regularization in light of order in the said case. 16. So far as other petitioners are concerned, learned counsel submits that an opportunity may be granted to them to approach the respondents with their working details and other relevant documents. In case, such representations are filed, the same would be considered in accordance with law preferably within a period of four months from the date of receipt of a copy of this order. I have not expressed any opinion on merit of these cases. 17. All these writ applications are disposed of accordingly. Uday/- (Samarendra Pratap Singh, J)