IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5654 of 2011 1. Md.Shadab Shamim S/o Md. Shamim Alam Mohalla- Police Colony, P.S. Anishabad, Distt.- Patna 2. Rinki Kumari D/O Sri Laxmi Rajak Chankyapuri Colony, Qr. No. HIG- 46, Gaya 3. Mritunjay Kumar S/o Deogirish Prasad Bodh Gaya, Gaya, Bihar, Pin- 824231 4. Rohit Kumar S/o Sri Sukhlal Chaudhary Dr. Ramayan Yadav Path, P.O. Danapur Cantt., P.S. Danapur, Patna 5. Md. Marghubul Hasan Yehyapur, Seikhpura, Bihar 6. Siyaram Kumar S/o Sri Bishundeo Pandit, Bakanipur, Naya Tola, Distt.- Bhagalpur 7. Shyam Kumar S/o Dr. Vijay Kumar Sharma Vill.- Anjna, P.O. Gopalpur, P.S. Kalyanpur, Distt.- Samastipur. 8. Niraj Kumar S/o Sri Rajendra Singh Mohalla- Habibpur, P.O Sohsarai, Distt.- Nalanda 9. Ajay Prasad S/o Sri Vioshandeo Prasad Nayatola, Kesopur, P.O.- Jamlpur, Munger ---Petitioners. Versus 1. The Bihar State Electricity Board Through Its Chairman Vidyut Bhawan, Bailey Road, Patna 2. The Secretary, Bihar State Electricity Board Through Its Chairman Vidyut Bhawan, Bailey Road, Patna 3. The Director Of Personnel, Bihar State Electricity Board Through Its Chairman Vidyut Bhawan, Bailey Road, Patna ---Respondents. ------------- with Civil Writ Jurisdiction Case No.7411 of 2011 1. Pramod Kumar S/O Sri Ram Lal Singh R/O Vill. Dudhaela, P.S. Jamhor, Dist. Aurangabad 2. Ruby Ranjan W/O Of Sri Anil Kumar R/O Vill. & Post Diha P.S Ariyari, Distt. Sheikhpura 3. Jyoti Kumari W/O Abnish Kumar R/O Vill. Main. Road, Shastrinagar P.S. Kasim Bazar, Distt. Munger. 4. Poonam Kumari D/O Ram Kishun Prasad R/O Qr. No. 3195, Sector 8 D New, Bokaro Steel City, P.S Sector 9 Distt. Bokaro 5. Rekha Kumari W/O Ajit Kumar R/O Mohalla kharkhura, Balu Ani, P.S. Delha, Distt. Gaya. 6. Gautam Kumar S/O Sri Sheo Shankar Prasad R/O Vill. Bhelwa, P.O. & P.S. Chauradaro, Distt. East Champaran. 7. Umesh Paswan S/O Late Rambilas Paswan, R/O Vill. & Post Kerma,Via. Turk, Distt, Muzaffarpur. 8. Viresh Kumar Singh S/O Sri Ram Kumar Singh R/O Vill. & P.O. Narharpur, P.S. Maraura, Distt. Chapra 9. Rajeev Ranjan S/O Sri Devi Prasad Singh R/O Vill. Phulwaria , P.O. & P.S. Shah, Distt. Bhagalpur 2 10. Umesh Kumar Singh S/O Sri Ram Narayan Singh R/O Vill. Tekanpura, P.S. Surajpura, Distt. Rohtas. 11. Anil Kumar Das S/O Sri Nand Kishor Das R/O Vill. & Post Akbar Nagar, P.S.Akbar Nagar, Distt. Bhagalpur 12. Dhanjay Upadhayay S/O Sri Dharmdeo Upadhyay R/O Vill. & P.O. Koyla Nagar, P.S. Jagjivan Nagar, Distt, Dhanbad 13. Niranjan Kumar S/O Sri Raj Kumar Singh R/O Vill. . & Post Waridaliganj, P.S. Barosaliganj, Distt. Nawadah 14. Ajay Kumar Singh S/O Sri Ram Senehi Singh R/O Vill. Ekawaniyan, P.S. Kochash, Distt. Rohtas 15. Birendra Kumar S/O late Ram Chandra Chauhan R/O Vill. & Post Gowasa Sheikhpura, P.S. Pandarakh, Distt. Patna 16. Pankaj Prasunna S/O Sri Priyabarat Narayan Singh R/O Vill. Post Goh, P.S. Goh, Distt. Aurangabad 17. Baleshwar Prasad S/O Late Permanand Prasad R/O Vill. & Post kochahasa, Ps. Kinyar,Distt. Arwal 18. Sonulal mahto S/O Sri Gourchandra Mahto R/O Qr.No. L665, P.S. Sindri, Distt. Dhanbad 19. Dharmjay Kumar s/o Sri Devnandan Prasad, residentof village Chauodhraine Chack, P.O. Masthu, P.S. Barh, Dist. Patna. 20. Mihir Kumar Upadhayay S/O Sri Lalan Upadhayay R/O Vill. Khaira Bhutha, P.S Vikramganj 21. Sunil Prasad S/O Sri Rajendra Prasad R/O Vill. New Alkapuri, Rd. No. 12 House No. 17, P.S Gardanibagh, Patna 22. Vijay Kumar, S/O Sri D.N.P Sharma, Resident Of Vill. Zorawarpur, P.O. Baradih, P.S. Karakat, Distt. Rohtas 23. Gyaneshwar Kumar, S/O Sri Jagmohan Prasad. R/O East Boring Canal Road, Near Post Office, P.S. Budha Colony, Distt. Patna 24. Shambhu Kumar S/O Sri Ram Perwesh Singh Care City Medical Store Patna, J.P.Road, P.O. & P.S. Masaurhi, Distt. Patna 25. Rajesh Kumar Ray S/O Sri Sunil Ray R/O Vill. & P.S. Bekapur, Gola Road, Distt. Munger 26. Pallavi Kumar D/O Late R.V. Prasad R/O C.D.A. Colony, North shasrti Nagar, P.S. Shastri Nagar, Distt. Patna (All are at present posted as Junior Engineers under respondent no.2) ---Petitioners. Versus 1. The State Of Bihar Through Secretary, Deptt. Of Energy, Bihar Patna 2. Bihar State Electricity Board, Patna through its Secretary 3. Chairman Bihar State Electricity Board, Patna 4. Jt. Secretary Bihar State Electricity Board, Patna ---Respondents. ---------------------------------- 10 29.11.2011 Both the applications raise common issues and, therefore, have been listed together for consideration and disposal. The only distinction between the two cases is that CWJC No. 5654 3 of 2011 pertains to engagement and continuance of personnels on contract basis on the post(s) of Assistant Engineer in the Bihar State Electricity Board (for short ‘Board’) whereas CWJCNo. 7411 of 2011 concerns engagement of petitioners on contract basis as Junior Engineer in the respondent-Board. Order present shall govern both the cases. Heard Mr. Rajendra Prasad Singh and Mr. Yogendra Mishra learned senior counsels in support of CWJC No. 5654 of 2011 and CWJC No. 7411 of 2011 respectively and Mr. Anand Kumar Ojha, representing the respondent-Board in both cases. For the sake of convenience, relevant facts shall be drawn from CWJC No. 5654 of 2011. Since large number of posts in the cadre of Assistant Electrical Engineer were lying vacant and the respondent-Board required hands to discharge duties of the Assistant Electrical Engineer (for short ‘AEE’), it was resolved, as a policy decision, to engage AEEs on contract basis. Accordingly, an open advertisement (Annexure-1) was published inviting applications for engagement on contract basis as AEEs. Candidates who had obtained degree(s) in Electronics and Communication in Electrical branch from Govt. Colleges were held eligible to apply. The Board thereafter constituted a Committee which verified the documents and based on their marks secured at the degree level selected the petitioners and several others for engagement as AEEs on contract basis presumably against the sanctioned vacant post(s) initially for a 4 period of six months on 10.04.2007 on a consolidated remuneration of Rs. 10,000/- per month. The petitioners’ services were thereafter extended for another six months. On completion of the aforesaid period of one year, the respondent- Board continued to extend the period(s) of their engagement on contract basis and thereby permitted them to remain in service. It is the case of the petitioners’ that the Board always treated the petitioner in regular employment inasmuch as they were transferred from one place to another as and when exigencies so required. It is the case of the petitioners’ that in this manner they have been allowed to continue in the service of the Board for more than four and half years. There is no dispute that their engagement on contract basis has been extended lastly till 31.12.2011. Petitioners in these circumstances, approached the authority of the respondent-Board on several occasions for allowing them the scale of pay admissible to the post of AEEs, after regularization of their services against permanent vacant post but no action was taken. Stand of the petitioners is that they have rendered more than four and half years of services in the Board, although on contract basis, thereby gained requisite experience of the job and as such they are entitled for consideration for regularization /absorption. It is also the petitioners’ case that the Board in the past had made appointments in the years 1978 and 1987 on the basis of marks obtained at the degree level examination. Such appointments were made on temporary basis but subsequently regularized. 5 Learned counsel also highlights that recently in the past also appointment of AEEs on regular basis have been made by way of campus selection based on the marks obtained by the candidates. The petitioners also asserted that several Boards of different States have absorbed the employees engaged either on contract basis or ad hoc basis but against permanent vacant posts. Learned counsel for the petitioners, in support of the application, has contended that an open advertisement was issued by the respondent-Board even for engagement on contract basis and all candidates educationally eligible for the posts were permitted to file applications. On perusal of the terms of advertisement, it would appear that reservation policy was adhered to in the matter of selecting suitable candidates for engagement on contract basis. A selection committee was constituted by the Board and after due scrutiny a Panel/list of 320 candidates was published (Annexure-2) calling for personal interview. After the interview only 30 candidates were selected and offered engagement on contract basis after obtaining appropriate affidavit(s) from them. There is no dispute that at the time of initial entry an agreement was signed by and between the petitioner and the Board. Learned counsel with reference to the averments made in paragraph nos. 10 and 11 contended that there is no adverse report/comment/complaint against the petitioner during these years of their performing duties of the posts. With regard to the agreement signed by the parties and 6 the undertakings given by the petitioners at the time of their initial engagement on contract basis it has been contended that as per the terms of advertisement initial engagement on contract basis was for 06 months extendable by another 06 months. Keeping that in view, the aforesaid agreement was signed and undertakings were given but even on expiry of period of one year the Board permitted them to continue on the post(s) and extended their period(s) of retention from time to time. They have in this manner put in more than 4 years in the service of the Board. The undertakings given by the petitioners for their retention up to maximum of one year thus delves into insignificance and cannot be used against them. Learned counsel further contended that the Board have formulated a Rule called the Bihar State Electricity Board Civil Engineers Cadre Rules, 1976 ( for short ‘Rule’) under Section 79 ( c) of the Electricity (Supply) Act, 1948. Rule 8 thereof prescribes qualifications for direct recruitment to the post in the Temporary Service or a Cadre post. Sub Rule (v) of Rule 9 thereof prescribes preparation of Panels by the Selection Committee to be placed before the Board for final selections. Rule (vi) thereof states that panels prepared in accordance with sub- rule (iv) and approved by the Board would be valid for one year which is extendable up to six months. Relying on these provisions, it is argued that although the advertisement was made for selecting personnels to serve the Board on contract basis but in making such selection all the procedures required for making regular appointment 7 consistent with Articles 14 and 16 of the Constitution of India and the Rules framed in this regard were followed and as such the petitioners qualify for consideration of their cases for granting permanence in the service particularly when several posts are still lying vacant and the petitioners are allowed to continue on contract basis on these posts. Petitioners have also asserted that they have been rendering service on fixed remuneration for last four and half years in the hope and expectation that respondent-Board would come out with a scheme/ plan to grant them permanency in service by regularization. Petitioners have also stated that the judgment rendered by Hon’ble Supreme Court in the case of (Secretary, State of Karnataka and Ors. Vs. Umadevi and ors.) 2006(4) SCC1 would not be a hindrance in considering their claim for regularization/absorption in view of the fact that their initial engagement on contract basis was made after adopting a procedure consistent with Articles 14 and 16 of the constitution of India and their engagement order(s) was/were passed by the competent authority. Learned counsel for the respondent Board, on the other hand, submitted that petitioners were engaged on contract basis and their services shall be governed by the expressed terms of engagement. While selecting the petitioners on contract basis only marks secured by them was the relevant consideration. There was no written examination or computer literacy test. Regularization is a policy matter. This Court 8 invoking jurisdiction under Article 226 of the Constitution of India would not tread into that area. Any direction for regularization shall have financial implication and may affect the existing policy of the Board. The campus selection strictly on the basis of the marks was resorted to as one time measure considering the emergent situation(s) faced by the Board. The petitioner joined the Board as contract employees with open eyes and as such they cannot claim absorption/regularization on the sole ground of their continuing for few years in the said status. Having accepted the terms and conditions of engagement on contract basis and availed the orders granting extension they may not be entitled to regularization. A stand was also taken that the Board is bound by the order passed by a Division Bench of this Court in LPA No. 1067 of 2011 passed in the case of similarly situated employees. Petitioners have, on the other hand, taken a stand that there is apparently difference between the case dealt with by this Court in LPA No. 1067 of 2011 and the case of the petitioners who are fresh recruits. Learned counsel for the respondent further contended that ratio laid down in Uma Devi would not permit the Board to consider and grant the relief. The petitioners, on the other hand, relying on the ratio laid down in Uma Devi ( supra), particularly paragraph no. 39 thereof contended that in view of the facts of the present case the aforesaid judgment shall have no application and/or obstacle in consideration of their case. They have lurking hope and expectation that having given precious part of their service 9 career in the service of the Board and their satisfactory continuance against the vacant post(s) beyond the period of 01 year would earn them regular status. After making arguments at length, learned counsel for the petitioners takes a stand that without expressing any view on the rival submissions of the parties this Court may permit the petitioners to ventilate their grievance(s) before the appropriate authority of the respondent Board by filing appropriate representation in this regard who, in turn, may be commanded to consider and dispose of the said representation in accordance with law. Mr. Ojha learned counsel for the respondent, in view of the aforesaid stand taken by the petitioners is agreeable to the said stand. In the light of said understanding at Bar, the application is disposed of by the following order:- Let the petitioners approach the appropriate authority of the respondent Board by filing appropriate representation ventilating their grievance(s) within a reasonable period of time whereafter the concerned authority of the Board shall consider and dispose of the same in accordance with law as quickly as possible preferably within 04 weeks of its filing/presentation. Sym ( Kishore K. Mandal, J.)