IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17912 of 2010 Rajendra Prasad Singh Son of Late Nandan Singh resident of Mohalla Durgapur Goshala Katihar, P.S. & District Katihar …Petitioner Versus 1. The State Of Bihar 2. The Principal Secretary, Personnel & Administrative Reforms Department, Govt. of Bihar, Patna 3. The District Collector, Katihar 4. Katihar Municipality, Katihar through its Executive Officer, P.S. & District Katihar 5. The Special Officer, Katihar Nagar Parishad, P.S. & District Katihar 6. The Executive officer, Katihar Nagar Parishad, P.S. & District Katihar. …Respondents For the Petitioner :M/s Kripa Nand Jha & Bimal Kumar For respondent No.6 :Mr. Naresh Kumar Sinha For the State :Mr.Pushpanjali Sharma JC to G.P.4 ----------- 08. 20.07.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. Petitioner seeks appropriate directions/orders to quash the order dated 9th August, 2007 (Annexure-5), whereby his case for regularization was considered and rejected. Petitioner also prays for a direction to grant similar relief (s) as granted to other similarly situated employees of the Respondent-Katihar Nagar Parishad. Prefatorial facts, out of which the present writ petition germinates, are as under: Petitioner was engaged on daily wage basis by the Respondent Nagar Parishad sometime in the year 1986. It is his case that in the year 1988 his services along with others were regularized. In the year 2001, on the direction of the authorities of the Respondent-State, services of altogether 65 2 personnels including the petitioner, were directed to be disengaged/terminated. Accordingly, an order dated 31.05.2001 contained in Annexure-H/1 to the counter affidavit, was passed. Service of the petitioner stood terminated/disengaged with effect from 16.06.2001. Petitioner along with other similarly placed filed few writ petitions. The writ petition filed by the petitioner being CWJC No. 10944 of 2001 was heard along with two analogous writ petitions. A learned Single Judge of this Court by a reasoned order dated 01.05.2003 (Annexure-B to the counter affidavit) dismissed the writ petition on the ground that the regularization(s) made in respect of the petitioner and others was contrary to the statutory provision as contained in section 42(4) of the Bihar and Orissa Municipal Act,1922. Aggrieved at the said order, petitioner filed writ appeal being LPA No. 560 of 2003. Other writ petitioners also filed appeal vide LPA No.551/03. Both the appeals were made cognate and heard. By order dated 15.02.2003 (annexure-B/1 to the counter affidavit), those appeals were dismissed. In paragraph 8 of the order, this Court observed as under: “We fully agree with the view taken by the learned Single Judge. No case for interference with the impugned order is made out. However, it is made clear that the Municipality cannot be allowed to terminate the services of daily wages on one hand and subsequently engages another set of employees to carry out its work. If the Municipality intends to employ daily wages then the appellants and others should be given preference in the matter of engagement.” 3 It is the case of the petitioner that thereafter he was permitted by the Respondent-Nagar Parishad to render his services on daily wages basis. Petitioner once again approached this Court by filing writ petition being CWJC No. 4346/06(Annexure-3 to the writ petition) with a prayer that the respondents be directed to regularize his services on Class IV post. The said matter was heard in the presence of the counsel for the petitioner and Respondent-State. It does not appear therefrom that Respondent-Nagar Parishad was issued notice of the application. This Court considering the grievance of the petitioner that his case is required to be considered in the light of the resolution of the Government enhancing the cut-off date from 01.08.1985 to 11.12.199 (Annexure-6 to the writ petition), directed for consideration of his case. It appears from the said order (Annexure-3) the fact that petitioner earlier filed a writ petition challenging the order of his termination/disengagement was not taken note of by the Hon’ble Court. The said writ petition was disposed of in the following terms: “Learned counsel for the petitioner is granted liberty to bring the above facts to the notice of the competent authority. Let the competent authority examine the claim of the petitioner with regard to the submissions which have been taken note of in the present order. The authority shall take a decision in this regard within a period of four months from the date of receipt/production of a copy of this order. In case the order is to the detriment of the petitioner, speaking order should be passed. It shall be open to the petitioner to take some steps for challenging the same.” 4 In the light of the said order, respondents passed the impugned order dated 9th August,2007 (Annexure-5) which has been impugned in the present writ petition. This matter was taken up on 7.12.2010 when the counsel for the Respondent-Nagar Parishad pointed out that the writ petition was barred by principles of res judicata as the petitioner had, on previous occasion, filed a writ petition against his order of disengagement/termination which was held to be legal and valid and the writ petition was dismissed. Thereafter supplementary affidavit and supplementary counter affidavit have been filed which are on record. Learned counsel for the petitioner assails the order on the ground that the Respondent-Nagar Parishad has discriminated him in the matter of according permanence in the service of the Nagar Parishad and in fact person who were engaged after the petitioner on daily wages were granted regularization/permanence. It is next contended that resolution of the Government as contained in Annexure-6 has not been considered in its right perspective as a result whereof the impugned order has been passed by the Respondent-Nagar Parishad. Learned counsel for the respondents, on the other hand, submits that the present application seeking regularization would be barred by principles of res judicata. In this connection, he relies on Annexure-B/1 of the counter affidavit. It is contended that the issue respecting his 5 regularization was raised in earlier writ petition which was held to be valid and the order of disengagement/termination passed in respect of the petitioner and several others was held to be legal and valid. In the submission of the respondents, the present application seeking aforesaid relief(s) is fit to be dismissed on the said count itself, particularly when the petitioner did not bring to the notice of the court about the previous order having been passed by a Bench of this Court in the year 2003. With regard to the submission of the petitioner that he has been discriminated against in the matter of grant of permanence, it is submitted that there is no similarity between the case of the petitioner and the employees who are said to have been granted permanence by the Respondent-Nagar Parishad. In this connection, the respondent relies on the averments made in paragraph 6 and 8 of the supplementary counter affidavit. I have considered the submissions of the parties and perused the materials on record. It appears that the petitioner along with others were regularized by the Respondent-Nagar Parishad sometime in the year 1988 or immediately thereafter. The matter was thereafter referred to the State Government for granting approval. The Respondent-State authority did not approve the said regularization for diverse reasons. The matter was thereafter considered by the Respondent-Nagar Parishad and order of disengagement was issued in the year 2001 which 6 was assailed by the petitioner by filing CWJC No. 10944 of 2001.This Court found the order of disengagement/termination as legal and valid. The appeal filed thereagainst also stood rejected but with certain observation which I have already taken note of hereinabove. Learned counsel for the petitioner has taken a stand before this Court that the said issue stood concluded by the aforesaid order. It is contended that thereafter in the light of the observations made by the LPA Court, the petitioner was allowed to function as daily wager and, as such, he was entitled to be considered if the case of other similarly situate has been considered by the Respondent for granting permanence/regularization. In this connection, reliance has been placed on paragraphs 14 of the writ petition. Relying on Annexure-7/A of the supplementary affidavit, it is submitted that at least three persons, namely, Sri Amar Kumar Jha, Sri Ajay Kumar Singh and Sri Birendra Kumar Sinha were made permanent by different orders passed by Nagar Parishad, whereas the case of the petitioner was not considered by granting such permanence. It is the case of the petitioner that those persons were initially engaged on daily wage basis after the petitioner. Annexure-7/A is the information sent to the petitioner and copy attached with it, is part of the extract of notings in file which was initiated to furnish information to the petitioner in the light of his request made under Right to Information Act (RTI). The concerned order 7 granting regularization or permanence passed by the Respondent-Nagar Parishad are not on record. Petitioner tried to demonstrate from the said noting(s) that at least aforesaid three persons were granted permanence whereas the case of the petitioner was left out. The issue has been dealt with by the respondents in supplementary counter affidavit. In paragraph 5 thereof, it has been averred that in view of observations made by the LPA Court(Annexure-B/1 to the counter affidavit), the petitioner and few others were allowed to continue as Grade IV employee on contract basis. In paragraph 6 of the supplementary counter affidavit, the respondents have stated as under: “That it is humbly stated and submitted that it is wrong to say that service of any Class IV employee, junior than the petitioner were regularized. Petitioner is a Class IV employee. Though Mr. Amar Kumar Jha, Junior Engineer, Ajay Kumar Singh, Assistant Junior Engineer and Birendra Kumar Sinha, Tax Collector who were class III employees and have better and higher qualification than this writ petitioner whose regularization was approved by Nagar Vikash and Awas Vibhag Govt. of Bihar, Patna.” In paragraph 7 it has been categorically averred that the petitioner was allowed to discharge duty on class IV post on contract basis as and when his services required. Since the petitioner has raised the issue of discrimination at the hands of the Respondent-Nagar Parishad, it is incumbent upon him to satisfy the Court that the petitioner and the persons who have been preferred by the respondents for grant 8 of permanence constitute one and the same class or category to prove the point that two equals have been treated unequally by the respondent. The stand of the respondents is that the persons who were granted permanence were holding the post of class III on daily wage basis and considering the need they were considered and granted permanence which ultimately was approved by the Government. The petitioner was allowed to function as Jamadar on contract basis in view of the observation of this Court in LPA preferred by the petitioner. He was, therefore, allowed to discharge duty on Class IV post on contract basis. The two therefore, cannot be equated. If that is the case, then the petitioner cannot be justifiably heard submitting that he has been discriminated in the matter of regularization/permanence by the Respondent- Nagar Parishad. The challenge on the said count is not sustainable. In fairness to the counsel, the other submissions of the petitioner needs to be noticed. Referring to the impugned order, it has been contended that his case appears to have not been considered on the plea that the petitioner did not render service of 240 days in the year 1986 and, as such, he is not entitled to be considered. Learned counsel for the petitioner has referred to Annexure-6 in order to show that this is not the requirement. However, from Annexure-6, it appears that respondent-State came out with a policy decision to constitute a committee of 9 senior officers to submit its report taking into consideration that the cut-off date was enhanced to 11.12.1990 by resolution dated 10.5.2005. The report of the committee unfortunately is not on record. This Court, therefore, is not in a position to pronounce any view on the said submission of the petitioner. This issue is, therefore, left open. For all these reasons, this Court does not find any merit in this writ application which is accordingly dismissed. hr ( Kishore K. Mandal )