Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16044 of 2010 ====================================================== Radhe Lal S/O Late Ram Narayan Lal R/O Vill.- Morwa, P.S.- Tajpur, Distt.- Samastipur Versus .... .... Petitioner 1. The State Of Bihar 2. Secretary, Department of Art Culture & Youth, Government of Bihar, Patna 3. The Deputy Secretary, Art Culture & Youth Department, Government of Bihar, Patna-cum - Chairman, Enquiry Committee, Bihar Research Society, Patna 4. Secretary, Department of General Administrator (Samanya Prasasan) Government of Bihar, Patna 5. Principle Secretary Department of Finance, Government of Bihar, Patna 6. Joint Secretary Department of Finance, Government Of Bihar, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.16375 of 2010 ====================================================== Santosh Kumar Pathak S/O Late Thakur Pathak R/O Vill.- Samar, P.S.- Bokhara, Distt.- Sitamarhi Versus .... .... Petitioner 1. The State Of Bihar 2. Secretary, Department of Art Culture & Youth, Government of Bihar, Patna 3. The Deputy Secretary, Art Culture & Youth Department, Government of Bihar, Patna-cum - Chairman, Enquiry Committee, Bihar Research Society, Patna 4. Secretary, Department of General Administrator (Samanya Prasasan) Government of Bihar, Patna 5. Principle Secretary Department of Finance, Government of Bihar, Patna 6. Joint Secretary Department of Finance, Government Of Bihar, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.16244 of 2010 ====================================================== Parmeshwar Thakur S/O Late Ram Krishna Thakur R/O Vill.- Ufardaha, P.S.- Bahera, Distt.- Darbhanga 1. The State Of Bihar 2. Secretary, Department of Art Culture & Youth, Government of Bihar, Versus .... .... Petitioner
Legal Reasoning
Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 2/11 Patna 3. The Deputy Secretary, Art Culture & Youth Department, Government of Bihar, Patna-cum - Chairman, Enquiry Committee, Bihar Research Society, Patna 4. Secretary, Department of General Administrator (Samanya Prasasan) Government of Bihar, Patna 5. Principle Secretary Department of Finance, Government of Bihar, Patna 6. Joint Secretary Department of Finance, Government Of Bihar, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.16117 of 2010 ====================================================== Nand Lal Prasad S/O Late Rama Prasad R/O Badhabalia Bujurga, P.O.- Mathiya Naraipur, P.S.- Kubersthan, Distt.- Kushinagar (U.P.) Versus .... .... Petitioner 1. The State Of Bihar 2. Secretary, Department of Art Culture & Youth, Government of Bihar, Patna 3. The Deputy Secretary, Art Culture & Youth Department, Government of Bihar, Patna-cum - Chairman, Enquiry Committee, Bihar Research Society, Patna 4. Secretary, Department of General Administrator (Samanya Prasasan) Government of Bihar, Patna 5. Principle Secretary Department of Finance, Government of Bihar, Patna 6. Joint Secretary Department of Finance, Government Of Bihar, Patna
Legal Reasoning
.... .... Respondents ====================================================== Appearance : (In CWJC No.16044 of 2010) For the Petitioner : Mr. Birendra Nath Mishra and Mr. Sunil Kumar Karn, Advocates For the Respondents : Mr. Brishketu Sharan Pandey, A.C. to AAG7 (In CWJC No.16375 of 2010) For the Petitioner : Mr. Birendra Nath Mishra and Mr. Sunil Kumar Karn, Advocates For the Respondents : Mr. Brishketu Sharan Pandey, A.C. to AAG7 (In CWJC No.16244 of 2010) For the Petitioner : Mr. Birendra Nath Mishra and Mr. Sunil Kumar Karn, Advocates For the Respondents : Mr. Rakesh Kumar,SC 21 and Mr. Samarendra, Advocate (In CWJC No.16117 of 2010) For the Petitioner : Mr. Birendra Nath Mishra and Mr. Sunil Kumar Karn, Advocates For the Respondents : S.C. 20 Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 3/11 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 4 27-08-2013 These four petitions have been pending in this Court for the last three years and show reluctance and pathetic attitude of the so called welfare State to take final decisions. 2. Counter affidavits and rejoinders have been filed. With consent of the parties, these writ petitions have been heard for final disposal at this stage itself. 3. Bihar Research Society was formed by the Provincial Government in the year 1909. Its patron for quite some time was the Chief Justice of Patna High Court and, thereafter, the Governor of Bihar. It was housed in what is presently the Patna Museum Complex and till 1916 when the present Patna High Court was formerly created, the Patna High Court functioned from the said premises of the Bihar Research Society. Bihar Research Society was one of the premier institutions of research of Assia being the second largest of such organizations, the first largest being what is now known as National Museum at Kolkata. 4. Those were the days. Long after Independence, the Society, which was virtually a part of Patna Museum, went into utter neglect. It virtually ceased to operate. Ultimately after a century of glorious times, in the year 2000, the State Government Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 4/11 appointed an Administrator for this dead Society. In 2009, the Bihar Research Society (Taking Over) Act, 2007 (Bihar Act 6 of 2008) ( for brevity `the Act’) was enacted to provide for taking over by the Government of the Bihar Research Society, situated in Patna Museum, Patna for effective management and conservation and preservation of manuscripts/xylographs and books kept therewith and for developing a research centre of Indology and Tibetology and publication etc. This Act was notified in the Bihar Gazette (extraordinary) on 1st February, 2008 and was to come into force with effect from such date as may be notified by the State Government in the official gazette, which notification was issued on 02.03.2009. In the said notification of enforcement, it was stated that with immediate effect all the assets, rights and liabilities everything would now vest in the State Government. In the Act, which is Annexure 1 to the first writ petition, there is Section 5, which is quoted hereunder:- “5. Determination of services of staff and other employees of Bihar Research Society- (1) From the date of the notified order, all previously employed regular members of staff in Bihar Research Society shall be treated as employed on ad hoc basis in the Bihar Research Society (Research and Publication Wing of Patna Museum), till a decision is taken for the final adjustment by the State Government; (2) The State Government will set-up a screening or verifying Committee to determine the services of Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 5/11 employees of Bihar Research Society. This committee will examine the appointment procedure, (i.e. recommendation of competent authority recommendation or approval by the Executive and General Body of Bihar Research Society), appointment service-history, applications/documents of claim for appointment of working employees of Bihar Research Society and will review the same. The committee will submit the report to the State Government within a time frame (maximum 90 days); letter, (3) The State Government, on receipt of the report of the committee, will consider case of each member of staff of Bihar Research Society separately in the merits of the case, whether to absorb a particular employee in Government Service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract and shall be, where necessary, redetermine the rank, pay, allowance and other conditions of service; (4) The service of previously regular appointed employees in Bihar Research Society shall be adjusted to Government service in accordance with relevant the recommendation of the Department and on the approval of competent authorities (i.e. Personnel and Administrative Reforms, Finance and Law Departments).” regulations rules and on 5. A reference to the said Section 5 would show the confused state of mind of the State. Sub-section (1) of section 5 states that all previously employed regular members of Bihar Research Society staff shall be treated as employed on ad hoc basis in Bihar Research Society (Research and Publication Wing of Patna Museum) till final adjustment is made by the State. Thus, very plainly, it provides for continuity of service to the employees Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 6/11 though on ad hoc basis till their final adjustment. It does not contemplate termination. Sub-section (2) of section 5 provides for a Committee, which is to give its report about the employees within 90 days. Those 90 days obviously would be 90 days from the enforcement of the Act, which, as noted above, was 02.03.2009. Surprisingly, either in ignorance of sub-section (1) of Section 5 or having some confusion, sub-section (3) thereof provided that after considering the report, the State Government would decide whether to absorb a particular employee in Government Service or whether to terminate his service or to allow him to continue on ad hoc basis for a fixed term or on contract. This is in clear contradiction to the intention as envisaged under sub-section (1) of section 5. 6. Why I say this is because the intention of sub- section (1) of section 5 is subject to the Committee finding them employed properly with approval and they would be continued on ad hoc basis till they are finally adjusted by the State Government. But when we read sub-section (3), what it provides, is that once the Committee has enquired into the nature of their appointment, the State Government instead of adjusting them could dismiss them, could put them into fixed term contract or ad hoc appointment, thus, ultimately terminating them. This is the virtual Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 7/11 contradiction between sub-section (1) and sub-section (3) of section 5. Why I am emphasizing this aspect is that while sub- section (1) does not give or show any discretionary power in the Government, sub-section (3) gives full discretion to the Government to deal with the employees in any manner they like including dismissing them. Then we have sub-section (4), which is more in consonance with sub-section (1), which says that services of previously appointed regular employees shall be adjusted to Government service. Thus, the first sub-section of section 5 and the last sub-section thereof i.e. sub-section (4), clearly evince intention of the Government to absorb/adjust the erstwhile employees in Government service, while sub-section (3) sticks out like a sore thumb giving discretionary powers virtually to the extent of authorizing the Government to do, what they may think, with the employees. Court must notice that a glorious organization of international repute set-up by the Government ran into ground purely because of Government apathy and whatever employees were left are again at the mercy of the Government. 7. Subsequently on 25.06.2009, an advertisement was issued by the Government through the Department of Art, Culture & Youth, calling upon the employees of the Society to appear before a Committee and lodge their claims of employment. This Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 8/11 was necessary because as noted earlier sometime in the year 1990s the Society because of Government apathy virtually became defunct. No research work was done, nothing was done, the premises was locked up, no employee was paid any emolument and ultimately in the year 2000 an Administrator was appointed. Whereafter again nothing was done and only on paper the Society had survived with no working schedule, no funds and virtually nothing till its take over in 2009. Thus, for considerable period, there being no work, the Society being locked-up and employees having not been paid, they could not be expected to report for duty as there was no person nor place for them to report for duty nor was there any work. The State realized these facts and, therefore, the advertisement, as contained in Annexure 2 was issued. In response to the said advertisement, six people appeared and filed papers with regard to their employment. They included the four petitioners of these four writ petitions. At various levels and by the statutory Committee, it took more than two years to examine bona fides of their claims. After two years of this extensive exercise, the Committee clearly found that these six applicants including the four writ petitioners have been duly appointed with the approval of the State Government and they were put in regular pay scale till the Society became defunct. The Committee, headed by the Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 9/11 Principal Secretary, Department of Art, Culture and Youth examined the matter as noted above and found them to be regularly employed, but there was no express recommendation as to what should be done with them. Accordingly, by order dated 21.01.2011 the four writ petitioners were directed to be treated as Peons irrespective of their earlier engagements and were temporarily employed for a period of eleven months on contract. Thereafter, the Committee, as contemplated under sub-section (2) of Section 5 of the Act, was reconstituted by the Government on 19.08.2011 consisting of the Principal Secretary of the Art, Culture and Welfare Department and three Joint Secretaries being from the General Administration, Finance and Law, respectively. The Committee once again went into the whole aspect of the matter and noticed that there were authentic papers available with the Society to show that the four writ petitioners were, in fact, duly employed on regular basis. The Committee, accordingly, recommended three of the petitioners to be retained as Peons with exception of petitioner Santosh Kumar Pathak (C.W.J.C. No. 16375 of 2010), who was recommended to be retained as Daftari. The matter was then sent to the Government for final decision in the year 2011 itself, where, as per counter affidavit, it is still under active consideration, probably awaiting some inertia to be applied Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 10/11 and in absence whereof directions of this Court to awake them up from deep slumber. 8. The petitioners are being continued on contractual basis being deprived of their rights, privileges and amenities of a permanent Government service. They are working more as a bounded labourers being fully exploited by the State taking full advantage of lack of employment opportunities and giving no choice to such Class IV employees, which is a complete negation of a welfare State and in complete conflict with Articles 39 and 43 of the Directive Principles as contained in the Constitution of India. 9. In my view, once the State decided to take over the Society and also directed to take a decision to adjust the erstwhile employees of the defunct Society, it should have been taken to its logical conclusion of adjustment of such employees immediately in 2009 when the Act was enforced. Four years have gone by and no final decision to adjust the employees has been taken. What has been taken is to let them continue on ad hoc basis on contractual appointments and not to finally adjust them as contemplated by sub-section (1) of section 5, read with sub-section (4) of the Taking Over Act. This shows clear non-sensitivity on the part of the State. First because of their apathetic attitude, a premier Patna High Court CWJC No.16044 of 2010 (4) dt.27-08-2013 11/11 institution became defunct and then step-motherly treatment to the erstwhile employees with no sense of urgency anywhere. I fail to see why if there is a perennial requirement, appointment on ad hoc or short term contract is given depriving the employee of all or any of the benefits of a permanent employee. This is not ordinarily to be done by a welfare State. 10. Accordingly, in my view, it is a fit case, in which directions have to be issued because in absence of direction, the State does not move. Thus, the State is directed to conclude the process of adjustment in Government service within a period of two months in case of these four writ petitioners. Their continuance on ad hoc basis on contract must come to an end with permanent adjustment. I make it clear that section 5 of the Act predominantly contemplates adjustment and it does not contemplate any other thing. This Court would certainly request the Government and the authorities to be more sensitive to the rights of poorly paid low grade employees and show more compassion to them. 11. With the aforesaid observations and directions, all
Decision
these four writ petitions stand disposed of. MPS/- (Navaniti Prasad Singh, J)