Md.Mujeebur Rahman v. The Union Of India

Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 2 Before I take up the issue for consideration, it would be necessary to notice the fact of the case in brief. The petitioner is a retrenched employee of 1991 census. His service was retrenched on 31.12.1992. On 1.4.1995, he was appointed on the post of Lab. Mechanic in the erstwhile Bihar College of Engineering, Patna University on daily wage but his service was terminated on 17.10.1995. The Bihar College of Engineering issued a limited advertisement on Notice Board on

4.9.1996 inviting applications from persons possessing experience of Lab. mechanic for appointment on daily wage basis for maintenance and up-keepment of Lab of the College. The petitioner also applied pursuant to the said notice on Notice Board. The petitioner was again engaged vide letter no.142/ Dt.26.11.96 (Electro) on the post of Lab. Mechanic, which post is now commonly known as Lab. Assistant, on a daily wages pursuant to limited advertisement on Notice Board by the Head of Department of Electronics of the erstwhile Bihar College of Engineering, Patna University. Since then the petitioner has continued to work on daily wage basis while some of other persons recruited on the basis of same advertisement have been regularized pursuant to different orders of this Court to which I would refer later on in my order. Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 3 The then Principal of Bihar College of Engineering, Patna on 15.7.2003 sent details of daily wages employees in response to the letter no.922/03 dated 17.6.2003 issued by the Project Officer, Patna University who were regularized and those who are still to be regularized. The Principal of the Bihar College of Engineering vide his letter dated 12.7.2003 (Annexure-12) sent details of vacancies of Class III and Class IV posts to the University meant for direct appointment/absorption, the name of the petitioner figured at Sl.No.23 as working against the Post of Lab Mechanic of having become vacant upon retirement of one Satya Narain Lal. The Government of India vide notification dated 28.1.2004 take over Bihar College of Engineering as fully funded Institute of the Central Government and rechristened as National Institute of Technology with all its assets and liabilities. As such, the petitioner by virtue of notification dated 28.1.2004 become an employee of the N.I.T., Patna. . It is relevant to state herein that on the same date the Patna University regularized the services of some Class III and Class IV daily wagers of Bihar College of Engineering which was not accepted by the N.I.T., Patna as they claimed that Patna University on 20.1.2004 lacked jurisdiction to regularize those Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 4 employees. The said tussle led to filing of C.W.J.C. No.8087 of 2004 by five such employees of erstwhile Bihar College of Engineering. The writ petition was disposed of by order dated

9.1.2006 with a direction to the respondents to take over the services of the petitioners of that case in their respective posts and utilize their services on regular basis and pay their remuneration including arrears of pay in accordance with law. Being aggrieved, the N.I.T., Patna preferred an appeal bearing L.P.A. No.245 of 2006 which too was dismissed on 21.8.2006. An appeal was carried to the Hon’ble Apex Court wherein a compromise was arrived at between the parties and the N.I.T. agreed to take back the services of such employees which is evident from Annexure-E to the counter affidavit. Another writ petition was filed by 16 daily wage employees for their regularization giving rise to C.W.J.C. No.12364 of 2001. The said writ application was disposed of by order dated 18.4.2008 (Annexure-13) with a direction to the respondents to consider their case for regularization. It is relevant to state herein that out of these 16 petitioners, 5 of them were already absorbed and regularized by the Senate of the Patna University in view of the order passed in C.W.J.C. No.8087 of 2004. The order of this Court dated 18.4.2008 Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 5 passed in C.W.J.C. No.12364 of 2001 was in effect confined to 11 petitioners. The N.I.T. accepted the direction of this Court and duly regularized them in service. Some of the employees who were still continuing on daily wages and had earlier not moved this Court too filed writ petition being C.W.J.C.No.5350 of 2008 which was disposed of by order dated 20.5.2011. The learned Judge directed the respondents to consider regularization of 8 of 10 petitioners who were appointed in the erstwhile Bihar College of Engineering against sanctioned post after following procedure laid down for making such appointment from the date on which they were engaged on daily wages. The learned Judge noticed that one of the petitioners has left service and as such no direction was passed in respect of him. The only other remaining petitioner namely petitioner no.6, the Court noticed that he has only continued as 9½ years as daily wage employee in the Examination Department and as such his case ipso facto would not come within the zone of consideration as he has not put in 10 years of service as stipulated in case of State of Karanataka vs Uma Devi, reported in (2006) 4 SCC 1. The learned Judge further observed that the said petitioner may continue to work as daily wage employee as NIT has no objection to his Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 6 continuance. It appears that the N.I.T. went in appeal against the order of learned Single Judge giving rise to L.P.A. No.1362 of 2011. The Division Bench of this Court vide order dated 2.9.2013 allowed the appeal and set aside the order of learned Single Judge. The Division Bench observed that the learned Single Judge erred in presuming that the Computer Science Studies Centre was part of the College establishment and the appointment of the writ petitioners was made by the College on a sanctioned post after due selection process as the notice was of a limited nature. The Division Bench further observed that the petitioners did not avail the opportunity of regular appointment pursuant advertisement dated 10.8.2006. The petitioner submits that he could not have applied pursuant to advertisement dated 10.8.2006 as he was over age on that date being 46 years of age. Had the respondents relaxed the age, he could have applied pursuant to said advertisement. He next submits that the petitioner was retrenched employee and many of such similar retrenched employees have been absorbed in the regular service. Considering the facts and circumstances of the case, if the petitioner files a representation raising his grievance before the Patna High Court CWJC No.11549 of 2007 (7) dt.09-12-2013 7 respondent authorities, the same would be duly considered in accordance with law within four months from the date of its filing. With the aforesaid observations and directions, this writ application stands disposed of. KHAN/- (Samarendra Pratap Singh, J)