The Principal Secretary, Road Construction Department, Government of v. Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14526 of 2012 ====================================================== Ram Pravesh Pd. Singh son of Sri Lal Prasad Singh resident of village Pandool, P.S. Parasbigha District Jehanabad. .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Road Construction Department, Government of Versus Bihar, Patna. 3. The Engineer-in-Chief-cum-Special Secretary, Road Construction Department, Government of Bihar, Patna. 4. The Deputy Secretary, Road Construction Department, Govt. of Bihar, Patna. 5. The Superintending Engineer, Road Construction Department, Magadh Road Circle, Gaya. 6. The Executive Engineer, Road Construction Department, Road Division No. I, Jehanabad. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. S. P. Mukherjee, Sr. Advocate, M/S. Shanti Pratap & Arvind Kumar Verma For the Respondent/s : None. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 5 05-03-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1. That this writ application is being filed for quashing the office order no. 85 contained in Memo no. 1107 dated 29.10.2011 issued under the signature of Superintending Engineer, Magadh Road Circle, Gaya, to the extent that additional financial benefits shall not be payable to the petitioner on account of conversion in regular establishment from work charge establishment. This application is also being filed for commanding the respondents to regularize the services of the petitioner with effect from the date of joining on 22.12.1979 in work charge establishment on a class IV post of Chowkidar in
Legal Reasoning
Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 2 Road Construction Department, Road Division no.1 Jehanamabad and further extend all consequential benefits flowing out from the aforesaid regularization. This application is also being filed for holding that the impugned non-regularization of the services of the petitioner in regular establishment with effect from the date of joining in work charge establishment on 22.12.1979 and further impugned non-payment of consequential benefits flowing out of the aforesaid regularization are illegal, arbitrary and without any lawful justification.”
Legal Reasoning
3. Mr. S.P. Mukherjee, learned senior counsel for the petitioner while assailing the impugned order dated 29.10.2011 has submitted that the regularization of service of the petitioner with effect from 29.10.2011 in place of 22.12.1979 is factually incorrect and legally impermissible. He has also submitted that the impugned order dated 29.10.2011 denying any financial benefit on account of such regularization is contrary to the spirit of regularization of service. 4. In this case, a counter affidavit has been filed wherein it has been explained that the petitioner was appointed as a Chaukidar in Work Charge Establishment on 22.12.1979 and his case for regularization was considered in terms of the order of this Court dated 14.3.2011 in CWJC No. 8260 of 2010 whereafter the order for regularization of service of the petitioner was passed on 29.10.2011. In the said counter affidavit, it has also been stated Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 3 that the petitioner was given the benefit of ACP in terms of the ACP Rules dated 25.6.2003 and the ACP Amendment Rules, 2006 dated 23.3.2006. The respondents have also explained that in terms of the Circular No. 2150 dated 29.4.2006, the petitioner was granted the benefit of first ACP in the pay-scale of Rs. 2610-4000 with effect from 9.8.1999 and the second ACP in the pay-scale of Rs. 2750-4400 with effect from 22.12.2003 as well as third ACP in the pay-scale of Rs. 5200-20200 with effect from 22.12.1999. The respondents, however, explained that when the petitioner had submitted his application for revising the date of his regularization, the matter was referred by the parent department to the general administration department which had given its opinion that the benefit of regularization could be given to the petitioner only from the date of the order and the additional financial benefits on the basis of such regularization could be given to the petitioner from the date of regularization. 5. In the considered opinion of this Court, the petitioner has been given whatever was legally payable to him. As a matter of fact, the case of the petitioner for regularization was rejected by the respondents on the ground that his appointment was made against an unsanctioned post. The petitioner thereafter had filed the writ application CWJC No. 8260 of 2010 and this Court had set aside the decision of the Three Men Committee rejecting the case of the petitioner for regularization and had Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 4 remitted the matter back to the Committee to consider the case afresh in the light of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Uma Devi(3) & Ors. reported in 2006(4)SCC 1. Thereafter, the Three Men Committee in its order dated 28.7.2011 had taken a decision for regularizing the services of the petitioner. Neither this Court had directed for giving such regularization to the petitioner from retrospective date nor the Three Men Committee in its order dated 28.7.2011 had allowed such regularization of the petitioner with retrospective effect. As has been noted above, the petitioner has been given full benefit of the 1st, 2nd & 3rd and the same has not been rescinded as yet. 6. Thus, the petitioner has also got benefit of his past service of Work Charge Establishment in terms of the amended ACP Rules which envisages that upon regularization of service, the previous service rendered in the Work Charge Establishment can be counted for the purpose of grant of ACP. As a matter of fact, the impugned order dated 29.10.2011, reading as follows:- ^^v/kh{k.k vfHk;Urk dk dk;kZy;] iFk fuekZ.k foHkkx] ex/k iFk vapy] x;k dk;kZy; vkns”k la0& 85 fnukad & 29-10-11 dk;kZy; vkns”k Jh jke izos”k izlkn flag] dk;ZHkkfjr pkSfdnkj] iFk fuekZ.k foHkkx] iFk ize.My la0&1] tgkukckn dks lh0MCyw0ts0lh0 la[;k 8260@2010 esa ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 14-03- 2011 dks ikfjr U;k;kns”k ds vkyksd esa f=lnL;h; lfefr }kjk fnukad 18-05-2011 ,oa fnukad 10-06-2011 dks iqu% fopkjksijkUr Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 5 ikfjr vkns”k esa fy;s x;s fu.kZ; ds vkyksd esa mi lfpo ¼iz0 dks0½] iFk fuekZ.k foHkkx] fcgkj] iVuk dk i=kad 10380 fnukad 13-09- 2011 ,oa eq[; vfHk;Urk …;k0‰] nf{k.k fcgkj miHkkx] iFk fuekZ.k foHkkx] fcgkj] iVuk dk i=kad 1890 fnukad 23-09-2011 ds funs”kkuqlkj dk;ZHkkfjr LFkkiuk ls fu;fer LFkkiuk esa ifj.kr fd;k tkrk gSA fu;fer LFkkiuk esa ifj.kr ds QyLo:i vfrfjDr fo(cid:217)kh; ykHk ns; ugha gksxkA g0@& v/kh{k.k vfHk;Urk] ex/k iFk vapy] x;k Kkikad %& 1107 fnukad %& 29-10-11 izfrfyfi Jh jke izos”k izlkn flag] dk;ZHkkfjr pkSfdnkj] iFk fuekZ.k foHkkx] iFk ize.My la0&1] tgkukckn dks lwpukFkZ ,oa vko”;d dkjZokbZ gsrq izsf’krA g0@& vLi’V v/kh{k.k vfHk;Urk] ex/k iFk vapy] x;k** is only the communication of the decision taken by the Three Men Committee dated 28.7.2011. The said order, therefore, cannot be faulted either on fact or in law because regularization of service of work charge employees in regular establishment cannot be given a retrospective effect specially when there was no such direction by this Court in CWJC No. 8260 of 2010 operative portion whereof reads as follows:- “Learned senior counsel for the petitioner submits that under the P.W.D. Code, which has force of a law framed under Article 309 of the Constitution of India, an employee of the work charged establishment becomes a regular employee if he continues under the establishment for certain period. He has also relied on some subsequent circular of the State Government in this regard. However, these matters were not placed before the Committee and not considered, therefore, this Court refrains from making any comment on that. Since this Court has found that the approach of the Committee in considering the case of the petitioner was not Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 6 correct, the resolution of the Committee as contained in Annexure-1 is set aside. The matter of the petitioner is remitted back to the Committee to consider his case in proper perspective strictly in view of the parameters laid down by the Constitution Bench judgment and only on the basis of unimpeachable facts and documents, as may be made available by the Department to it. Consideration in this regard must be made within a period of three months from the date of production of a copy of this order by the petitioner with a representation in which, if he requests for personal hearing, he shall be granted the same. The writ application is disposed of with the aforesaid observations and directions.” 7. It has to be noted that neither this Court in the aforesaid order had directed for retrospective regularization of the petitioner nor the Three Men Committee in compliance of the aforesaid order had allowed such regularization of the petitioner with retrospective effect. The operative portion of the order of the Three Men Committee dated 28.7.2011 in this regard reads as follows:- ^^6- psdfLyi esa nh x;h iqujhf{kr lwpuk esa oknh Jh flag }kjk lgefr O;Dr dh x;hA bl psdfLyi esa Lohd‘r ,oa fjDr in ds fo#) fu;qfDr laca/kh okafNr lwpuk ds izlax esa crk;k x;k gS fd dk;ZHkkfjr LFkkiuk esa Lohd`r ,oa fjDr in ds fo#) fu;qfDr dh x;hA U;wure 10 o’kksZa rd dk;Zjr jgus laca/kh “krZ iwjh gksrh gSA bl vk/kkj ij oknh Jh flag ekuuh; loksZPp U;k;ky; }kjk mek nsoh okys ekeys es a fu/kkZfjr iSjkehVjksa dks iwjk djrs gSa vkSj QyLo:i fu;ferhdj.k ds fy, budk nkok Lohdkj fd;k tkrk gSA g0@& vLi’V ¼jkts”k Hkw’k.k½ lfpo] lwpuk ,oa tu lEidZ foHkkx g0@& vLi’V …johUnz iaokj‰ iz/kku lfpo] yksd LokLF; vfHk0 foHkkx g0@& vLi’V …nhid dqekj‰ iz/kku lfpo] lkekU; iz”kklu foHkkx fcgkj ljdkj lkekU; iz”kklu foHkkx Kkikad & fo0ds0ua0& 2166@2010 lk0& 2393@iVuk&15] fnukad 28 Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 7 tqykbZ] 2011- izfrfyfi & ¼1½ Jh jke izos”k izlkn flag] iq=& yky izlkn flag] xzkeiks0& i.MqbZ] Fkkuk& ikjl foxgk …tgkukckn‰ dks muds vH;kosnu fnukad 01-04-2011 ds izlax esa lwpukFkZ izsf’krA …2‰ lfpo] iFk fuekZ.k foHkkx] fcgkj] iVuk dks lwpukFkZ izsf’krA g0@& vLi’V …uohu pUnz >k‰ ljdkj ds la;qDr lfpoA**
Decision
8. In view of the above, this Court must hold that the impugned order dated 29.10.2011 is only the communication of the decision taken by the Three Men Committee and does not suffer from any error. 9. The grievance highlighted by the learned senior counsel for the petitioner that the petitioner would stand deprived of additional financial benefit on account of regularization has to be understood in the background of the fact that the respondents have clearly mentioned that the benefit of past service of work- charge period has to be given to the petitioner for giving him the benefit of 1st, 2nd & 3rd ACP. There is nothing in the counter affidavit which would go to show as to why those financial benefits given to the petitioner on the head of 1st, 2nd & 3rd ACP has been sought to be withdrawn. 10. Learned counsel for the petitioner has, however, brought on record the letter of the Superintending Engineer dated 17.10.2012, which reads as follows:- ^^v/kh{k.k vfHk;Urk dk dk;kZy;] iFk fu0fo0] ex/k iFk vapy] x;kA Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 8 i=kad 1387 fnukad & 17-10-12 izs’kd] lsok esa] v/kh{k.k vfHk;Urk] ex/k iFk vapy] x;kA dk;Zikyd vfHk;Urk] iFk iz0 la0&1] tgkukcknA fo’k;%& Jh jke izos”k izlkn flag] dk;ZHkkfjr pkSdhnkj] iFk fuekZ.k foHkkx] iFk iz0la0&1] tgkukckn ds ,0lh0ih0 vkfn ds Hkqxrku ds lEcU/k esaA izlax%& vkidk i=kad 1865 fnukad 10-10-2012 egk”k;] mijksDr fo’k;d izklafxd i= ds lEcU/k esa dguk gS fd mi lfpo] iFk fu0fo0] fcgkj] iVuk ds i=kad 5751 …,l‰ fnukad 25-05-2012 ds funs”kkuqlkj lkekU; iz”kklu foHkkx] fcgkj] iVuk ds ijke”kZ ds vkyksd esa Jh flag dks fu;ferhdj.k dh frfFk ls foRrh; ykHk vuqekU; gksxkA vr% funs”k fn;k tkrk gS fd bl dk;kZy; ds i=kad 143 fnukad 25-01-2012 }kjk iznku fd;s x;s ,0lh0ih0 dks jn~n djrs gq, fu;ferhdj.k dh frfFk ls foRrh; ykHk fn;k tk; ,oa Hkqxrku dh xbZ jkf”k dh olwyh ,deqLr muds lsokUr ykHk ls dj yh tk;A bl lEcU/k esa bl dk;kZy; ds i=kad 832 …vuq0‰ fnukad 30-06-2012 }kjk lkekU; iz”kklu foHkkx] fcgkj] iVuk ds ijke”kZ ds vkyksd esa dkjZokbZ djus dk funs”k fn;k tk pqdk gSA fo”oklHkktu g0@& vLi’V 17-10-212 v/kh{k.k vfHk;Urk] ex/k iFk vapy] x;kA** 11. In fact, this order and the consequential order dated 30.10.2012 passed by the Executive Engineer have been sought to be assailed by filing I.A. No. 7478 of 2012. It has been asserted that before passing of the aforesaid order, the Superintending Engineer did not give any show-cause notice to the petitioner. This Court in fact having noted the aforesaid submissions had directed the respondents to file supplementary Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 9 counter affidavit by its order dated 24.1.2013 but such supplementary counter affidavit which has filed on 25.2.2013 does not say a word about any show-cause notice issued to the petitioner prior to passing of the order dated 12.5.2012 and 17.10.2012 seeking to make recovery of the ACP benefits from the petitioner. 12. In that view of the matter, this Court would find that the impugned order passed by the Superintending Engineer contained in letter no. 1387 dated 17.10.2012 as contained in Annexure-16 and its consequential order passed by the Executive Engineer in the office order contained in Memo No. 1958 dated 30.10.2012 (Annexure-17) are bad and unsustainable only on the ground of violation of principle of natural justice. 13. In any event, the ACP Amendment Rules, 2006 dated 23.3.2006 as contained in Annexure-D had clearly envisaged that for grant of ACP benefit to the regularized work- charge employee, the period of work-charge service shall be counted. That is how, an explanation was added by way of amendment in ACP Rules, 2003. Once, this provision was already made in the year 2006 and the petitioner’s services were regularized, he could not have been deprived of the ACP benefits which were already given to the petitioner under the order of the Superintending Engineer himself. To that extent, it would be relevant to quote paragraph nos. 8, 9, 10 & 11 of the counter Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 10 affidavit which reads as follows:- “8. That in terms of Government notification the service period of work charge establishment will be counted to the regular work charge establishment for promotion under ACP Scheme which is clear to see the notification issued by the Finance Department, State of Bihar dated 25.06.2003 as Bihar State Employee Service Condition (ACP) Rule 2003 and ACP Amendment Rule 2006 dated 23.03.2006 by which a new clarification II-K) has been added in clarification 4(II) of Rule 2003. 9. That in view of the above mentioned notifications and circulars, counting the service period of work charged establishment and also considering the circular no. 2150 dated 29.04.2006 issued by the Finance Department, State of Bihar first ACP in pay scale of Rs. 2610-60-2910-65-3300-70-4000 was granted to the petitioner w.e.f. 09.08.1999. 10. That after completion of 24 years service second ACP has been granted in the pay scale of Rs. 2750- 70-3800-75-4400 with effect from 22.12.2003. 11. That in view of the converted ACP Scheme 2010 bearing memo no. 7566 dated 14.07.2010 issued by the Finance Department, State of Bihar and also Section 38 of the Civil Service Code after completion of 30 years service the pay scale of Rs. 5200 to 20,2000 grade has given to the petitioner w.e.f. 22.12.99. All the said three financial benefits have been approved by the office of the deponent vide office order no. 05 issued bearing memo no. 143 dated 25.01.2012.” 14. Thus, when a conscious decision had been taken for grant of ACP to the petitioner without there being any misrepresentation on the part of the petitioner and in fact in terms Patna High Court CWJC No.14526 of 2012 (5) dt.05-03-2013 11 of the amended ACP Rules, 2006, the respondents cannot takeaway the benefit of 1st, 2nd and 3rd ACP. The order dated 17.10.2012 as contained in Annexure-16 and the consequential order dated 30.10.2012 as contained in Annexure-17 are hereby quashed and it is directed that no recovery of the financial benefits already given to the petitioner will be made. At the same time, the petitioner will also be not given any further financial benefit beyond what has already been given by way of 1st, 2nd & 3rd ACP. 15. As noted above, the petitioner on completion of sixty years of age has retired from service on 30.9.2012 and, therefore, when the pension rules also envisage counting of the work-charge period for a regularized employee, he will also be entitled for full financial benefits on the last salary drawn by him with all the benefits of three ACPs as was given to him during his service period. 16. This writ application, to the extent indicated above, is allowed in part. There would be, however, no order as to costs. Amin/- (Mihir Kumar Jha, J)