IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16109 of 2008 Nand Kumar son of late Shiv Chandra Singh, resident of village Amhara, P.S. Bihta, district Patna ...... Petitioner VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. Principal Secretary, Department of Agriculture, Government of Bihar, Vikash Bhawan, New Secretariat, Patna 3. Administrator, Bihar Agriculture Produce Market Committee, Pant Bhawan, Government of Bihar WITH CWJC No.2133 of 2007 1. Anil Kumar Sinha, son of Late Krishna Kumar Sinha, resident of Village Jaganpura, P.S. Phulwarisharif, District Patna 2. Ramanand Das, son of Shri Ramashraya Das, resident of village Rasulpur, P.S. Bhagwanpur, District Vaishali 3. Narsh Mistry, son of Late Balak Mistry, resident of village Balipur, P.S. Hulsganj, District Jehanabad 4. Ram Naresh Singh, son of Late Uttam Singh, resident of village Pratappur, P.S. Karju, Dsitrict Muzaffarpur 5. Nand Kumar, son of Late Sheo Chandandra Singh, resident of village Amhara, P.S. Bihta, District Patna 6. Ram Lagan Singh, son of Late Radho Singh, resident of village Bishanpur, P.S. Islaimpur, District Nalanda 7. Arun Kumar, son of Late Gajadhar Prasad, resident of Mohalla Fateh Bahadur Siwala Road, P.S. Kotwali Gaya, District Gaya 8. Ram Prasad Das, son of Late Ram Chandra Das, resident of village- Bahlolpur, P.S. Bhagwanpur, District Vaishali 9. Vijay Kumar Sinha, son of Late Akhauri Samliya, resident of Jaimangal Kunj, Beerkunwar Singh Nagar, Old Jakkanpur, P.S. Shastrinagar, District Patna 10. Raghubir Bhandari, son of Shri Sheo Nandan Bhandari, resident of village Bakhri Chowk, P.S. Gay Ghat, District Muzaffarpur 11. Birendra Kumar Chaubey, son of Late Markande 2 Chaubey, resident of village Garra, P.S. Ramgadh, District Kaimur 12. Shri Shashi Bhushan Tiwari, son of Bhola Tiwary, resident of village Repura, P.S. Karja, District Muzaffarpur 13. Prahlad Singh, son of Late Buhuneshwar Prasad Singh, resident of village Baligaon, P.S. Baligaon, District Vaishali 14. Braj Kishore Sharma, son of Ram Lakhan Sharma, resident of village Dighara, P.S. Pusa, District Samastipur 15. Dineshwar Jha, son of Late Tapeshwar Jha, resident of village Chandamanipur, P.S. Vaishali, District Vaishali 16. Sachchidanand Sinha, son of Late Sidheshwar Singh, resident of village Dawpura, P.S. Rahui, District Nalanda 17. Ram Chandra Yadav, son of Late Jhari Yadav, resident of Maijemankaili, Hardeo Men Tola, P.,S.Singhwara, District Darbhanga ...... Petitioners VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 3. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna 4. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna 5. The Agriculture Produce Commissioner, Government of Bihar, Patna 6. The Bihar State Agriculture Produce Marketing Board, through its Administrator, Pant Bhawan, Beli Road, Patna 7. The Controller, Bihar State Agriculture Produce Marketing Board, Pant Bhawan, Beli Road, Patna 8. The Executive Engineer, Bihar State Agricultural Marketing Board, Muzaffarpur Division, Muzaffarpur. ..... Respondents WITH CWJC No.2316 of 2007 1. Anil Kumar Rai, son of Shri Sahjanand Rai, resident of village Rannoochak (Gandhi Nikunj), Post Rannoochak- Makandpur, P.S. Nathnagar, District Bhagalpur 2. Shri Sharatchandra Chaturvedi, son of Late Sheoshankar Chaturvedi, resident of village Garra, Post 3 Nuanw, P.S. Nuanw, District Kaumur (Bhabua) 3.Shri Birendra Kumakr Verma, son of Late Sajeewan Lal, resident of village Rupaspur, Post Salempur, P.S. Alipur (Tikari), District Gaya 4. Shri Najmul Haque, son of Shri Abdul Sattar, resident of Mohalla Dahiyawan, Post Chapra, P.S. Chapra Town, District Chapra 5. Shri Ahmad Husain, son of Shri Nathuni Laheri, resident of village Bheluchak, Post Kabeerchak (Milkichak), P.S. Sadar Darbhanga, District Darbhanga 6. Shri Premchand Singh, son of Late Shri Mangal Saw, resident of village Badaukhar, Post Malhara (Daudnagar), P.S. Haspur, District Aurangabad 7. Shri Mohammed Nazim, son of Late Mohammed Sarajul, resident of village Barhat, Post Palasi (Madanpur), P.S. Palasi, District Arariya 8. Shri Tapeshwar Rajak, son of Late Ramdeo Rajak, resident of Mohalla New Mainpura (Pragatinagar) Post Danapur Cant, P.S. Danapur Cant, District Patna 9. Shardanand Prasad, son of Shri Mathura Prasad, resident of village Waleedad, Post Waleedad, P.S. Mehandeeya, District Jehanabad 10. Numan Khan, son of Late Suleman Khan, resident of village Bhusaila Post Danapur, P.S. Phulwarisharif, District Patna 11.Deepnarayan Mandal, son of Late Chhedi Prasad Mandal, resident of village Belateekar, Post Maheshadeeh, P.S. Banka, District Banka ...... Petitioners VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 3. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna 4. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna 5. The Agriculture Produce Commissioner, Government of Bihar, Patna 6. The Bihar State Agriculture Produce Marketing Board, through its Administrator, Pant Bhawan, Beli Road, Patna 7. The Controller, Bihar State Agriculture Produce Marketing Board, Pant Bhawan, Beli Road, Patna 4 8. The Executive Engineer, Bihar State Agricultural Marketing Board, Muzaffarpur Division, Muzaffarpur. ...... Respondents WITH CWJC No.2292 of 2007 1. Basant Kumar, son of Late Siyaram Rai, resident of village Sonbarsa, Post Sonbarsa, District Sitamarhi (Bihar) 2. Tulsi Rai, son of Late Pahadi Rai, resident of village Raghunathpur, Post Motihari, District East Chamaparan 3. Md. Shamsul Haque, son of Late Ash Mohammed, resident of village Belhiyan, Post- Raghunathpur District East Champaran (Bihar) 4. Jageshwar Singh, son of Anand Lal Singh, resident of village Belsandideeh, Post Belsandideeh, District Samastipur 5. Chhotan Kumar Singh, son of Shri Bishwanath Prasad Singh, resident of village Dhanusi, Post Baheelwara Ghansee, District Sitamarhi 6. Md. Ismaul Haque, son of Late Mutjia Ahmed, resident of villalge Daulatpur, Post Daulatpur P.S. Mufassil Ara, District Bhojpur 7. Sudheer Kumar Singh, son of Late Ramchandra Singh, resident of village Chhap, Post Chhap, P.S. Patu, District Muzaffarpur 8. Ram Shobhi Thamat, son of Jagdeesh Thamat, resident of village Jhitakee, Post Banganma, P.S. Lauthahe, District Madhubani 9. Yogendra Bhagat, son of Late Ram Auwtar Bhagat, resident of village Phulugnee, Post Meerganj, P.S. Thawe, District Gopalganj 10. Suraji Ram, son of Late Yadu Ram, resident of village Lodeepur, Post Sakharpur, P.S. Mehandiyan, District Arwal 11. Lalu Rai, son of Ram Snehee Rai, resident of village Pahlega Sahpur Diyara, Post Sonpur, Pahleja, P.S. Sonpur, District Chapra 12. Birendra Kumar Rai, son of Sheopujan Rai, resident of village Fatanpur, Post Bhaiswara, P.S. Garwa, District Chapra Saran 13. Sheo Shankar Prasad, son of Late Laxman Prasad, resident of village Bishunpur, P.S. Islampur, District Nalanda 5 14. Manoj Kumar, son of Shri Yadu Nandan Rai, resident of village Jilkabad, Post Jilkabad, Post Garwa, District Chapra (Saran) 15. Shri Rana Shyam Kishore Singh, son of Late Rana Ramyash Singh, resident of village Raspur Patsiya, P.S. Mohouddin Nagar, District Samastipur 16. Shri Shashikant Prasad, son of Late Matuk Rai, resident of village Jilkabad Chirari, Post Jilkabad, PS District . 17. Pramod Kumar Singh, son of Raj Nath Singh, resident of village Mahmadpur, Post Mahmadpur, PS Garkha, District Chapra (Saran) 18. Arun Kumar Data, son of Late Radhey Shyam Singh, resident of village Jilkabad Post Jilkabad, P.S. Garkha, District Chapra (Saran) VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 3. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna 4. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna 5. The Agriculture Produce Commissioner, Government of Bihar, Patna 6. The Bihar State Agriculture Produce Marketing Board, through its Administrator, Pant Bhawan, Beli Road, Patna 7. The Controller, Bihar State Agriculture Produce Marketing Board, Pant Bhawan, Beli Road, Patna 8. The Executive Engineer, Bihar State Agricultural Marketing Board, Muzaffarpur Division, Muzaffarpur. ...... Respondents WITH CWJC No.3511 of 2007 1. Harish Chandra Mishra, s/o Shree Nand Mishra, resident of village and P.O. Barri, P.S. Benipatti, District Madhubani, presently Tax Collector, Agriculture Produce Marketing Committee, Madhwapur, District Madhubani 2. Sheonandan Sahu, son of Shri Nandu Sahu, resident of village Dhepura, P.O. Keoti Ranway, District Madhdubani 3. Gopal Kumar Rai, son of Late Akshaywar Rai, resident 6 of village Ward No.1, Bhailwachauk, Jai Nagar, P.S. Jai Nagar, District Madhubani. ........ Petitioners VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 3. The Bihar State Agriculture Produce Marketing Board, through its Administrator, Pant Bhawan, Beli Road, Patna 4. The Subdivisional Officer- cum- Special Officer, Agriculture Produce Marketing Committee, Penipatti, District Madhubani 5. The Marketing Secretary, Agriculture Produce Marketing Committee, Benipatti, District Madhdubani ........ Respondents WITH CWJC No.4224 of 2007 1. Motiur Rahman son of Late Sheikh Mohammad Idrish, resident of village & PS Majhaulia, P.S. Majhaulia, District West Champaran (Bettiah) 2. Om Prakash son of Late Anandi Ram, resident of village Jehanabad Court, Mohalla Horilganj, P.O. + PS Jehanabad District Jehanabad 3. Shankar Yadav son of Sri Jugut Lal Yadav alias Shivnath Yadav, resident of village Awakar, P.O. Awakar, P.S. Benipatti, District Madhdubani 4. Ram Krishna Mahto, son of Late Banarash Mahto, resident of village Jaran (Chandrahas Nagar), P.O. Jaran Deori, P.S. Garaghat, District Muzaffarpur 5.Devanand Son of Late Yasodanand Prasad, resident of village Bhawanipur, P.O. Thikaha Bhawanipur, P.S. Sangrampur, District East Champaran 6. Binod Ram son of Late Laxman Ram, resident of village Lak Dhai Chanwara, P.O. Muzaffarpur, P.S. Town Thana Muzaffarpur, District Muzaffarpur 7. Raju Ram son of Late Ramprasad Ram, resident of village Lakdhi Dhai Chanwara, P.O. Muzaffarpur, P.S. Town Thana Muzaffarpur, District Muzaffarpur 8. Jagdish Ram son of Late Sukan Ram resident of village Bajitpur Bhutane, P.O. Chaumukh, P.S. Bochaha, District Muzaffarpur 9. Shyamlal Mallick son of Late Amir Mallick, resident of 7 village Sahwajpur, P.O. Bhikhanpur, P.S. Ahiyapur, District Muzaffarpur 10. Bharat Paswan son of Late Diwali Paswan resident of village Lakdhi Dhai Chanwara, P.O. Muzaffarpur, P.S. Town Thana, Muzaffarpur, District Muzaffarpur 11. Yogi Raut son of Late Ganesh Raut, resident of village Pakrihar, P.O. Tikaulia, P.S. Chanpatia, District West Champaran (Bettiah) 12. Azij Rai son of Late Chokti Rai, resident of village Pakrihar, P.O. Tikaulia, P.S. Chanpatia, District West Champaran (Bettiah) 13. Jalim Rai son of Late Chokti Rai resident of village Pakrihar, P.O. Tikaulia, P.S. Chanpatia, District West Champaran (Bettiah) ....... Petitioners VERSUS 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna 3. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna 4. Additional Secretary to the Government, Personnel and Administrative Department, Government of Bihar, Patna. 5. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Patna 6. The Agriculture Produce Commissioner, Government of Bihar, Patna 7. The Bihar State Agriculture Produce Marketing Board (Disolved) through its Administrator, Pant Bhawan, Bailey Road, Patna 8. The Controller, Bihar State Agriculture Produce Marketing Board (Disolved), Pant Bhawan, Bailey Road, Patna ...... Respondents -------- For the Petitioners : M/s Banwari Sharma, Shiv Kumar, Sharad Kumar Sinha, Bipin Kumar Sinha and Sunil Kumar Rai, Advocates For the State : M/s S. Arshad Alam, SC IV, K.P.Gupta, SC 5, Gautam Kumar Yadav, Juhi Kumari, SBN Singh, Anwar Karim @ 8 6 9.12.2009 Anwar, Ashok Kumar Gupta and Binay Kumar, Assistant Counsels For the Marketing Board : M/s B.K.Singh Chauhan and Binod Kumar Singh, Advocates --------- These six writ petitions along with two others were clubbed together for hearing and disposal at the stage of admission itself. But on account of substantial difference in facts as well as legal issues, two writ petitions have been separated and shall be governed by a separate judgment. In all these six writ petitions the petitioners were initially appointed on daily wages. The petitioners continued for several years. In the case of Nand Kumar (CWJC No.16109 of 2008), petitioner was appointed about 27 years earlier. He has worked as accounts clerk and claims to have received monthly salary in the minimum of pay scale with dearness allowance and other allowances for the last about 27 years. For the sake of convenience, the facts as well as relevant annexures shall be from the records of this writ petition. 2. The State Legislature passed the Bihar Agriculture Produce Market (Repeal) Act, 2006 (the 9 Repeal Act 2006) effective from 1.9.2006. As a result of Section 3 of the Repeal Act 2006, the Bihar Agriculture Produce Market Act, 1960 (hereinafter referred to as „the Act of 1960‟) and the Rules of 1975 framed thereunder stand repealed but certain decisions rendered earlier as well as disciplinary proceedings initiated or pending against the employees of the Board are saved. Under Section 4, the assets and liabilities of the Bihar Agriculture Produce Marketing Board or of the Marketing Committees or Bazar Samiti constituted under the Act of 1960, have vested in the State Government. The State Government by virtue of Section 5 has power, authority and jurisdiction to issue necessary directions or orders to secure the object of the Repeal Act 2006. Section 6 which is relevant for the purpose of these cases provides for absorption of officers and employees of Bihar Agriculture Marketing Board / Market Committee/ Bazar Samiti. The main issue falling for consideration in these cases is common viz. whether the daily wage employees like the petitioners are included in the words “all officers and employees” as used in Section 6 (i) of the Repeal Act 2006 and whether the 10 Committee of Secretaries constituted under Section 6(ii) can prepare a scheme denying absorption on the ground of employees being appointed by the Board/ Market Committee/ Bazar Samiti on daily wages or is it obliged to prepare a scheme in which absorption of such employees must also be provided for. 3. For the sake of convenience and easy reference, Section 6 is extracted herein below. 6. Absorption of officers and employees of Bihar Agriculture Marketing Board/ Market Committee/ Bazar Samiti. – (i) On and from the date of repeal of the Act, all officers and employees of the Board, shall remain in employment, as if the Act has not been repealed and they shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act till such time State Government has taken such final decision as is provided hereafter. (ii) The State Government shall constitute a committee of Secretaries consisting of three Secretaries who shall prepare detailed scheme of absorption, retirement, compulsory retirement or voluntary retirement, other service conditions of officers and employees of the Board and the Committee. Scheme prepared by group of Secretaries shall be placed before the State Government within two months from the date of enforcement of the present Act. The State Government shall thereafter approve the scheme : Provided that it shall be open to the State Government to modify, amend or suggest modification or amendment and the scheme thereafter shall be made operational in such form and intent as finally approved by the State Government. Scheme approved by the State Government shall be considered as statutory scheme framed under this Act. 11 (iii) After the scheme approved by the State Government is enforced it shall be fully implemented in its form and intent within three months from the date of its enforcement. (iv) Group of Secretaries constituted under Sub Section (ii) above shall be competent to decide utility and deployment of offices and employees of the Board or the Committee during transition period and it shall not be open to any officer or employee to question decision of group of Secretaries. (v) Scheme framed under this Act shall have effect, notwithstanding any other Act, Ordinance, Rule, regulation, direction, order or instruction and condition of service of officers and employees of the Board or the Committee, shall be governed and regulated under the scheme to the extent provision has been made in the scheme : Provided further that it shall be competent for the State Government to amend, modify, alter or substitute the scheme so framed for removal of difficulties in implementation of the scheme.” 4. On behalf of the petitioners a strong emphasis was led on Section 6 of the Repeal Act 2006 to submit that it provides only a scheme for absorption, and there is no liberty or scope granted to classify the officers and employees of the Board into those who entered as daily wagers and those who entered as regular employees. As a corollary of such submission, the resolution of the State Government in the Department of Agriculture dated 15.3.2007 contained in Annexure-B to the counter affidavit was also assailed, particularly clause 3.6 of the 12 resolution, on the same ground that it was not permissible or open for the Government or the Committee to decide that workers employed on daily wages shall be removed from service immediately after paying salary for one month. 5. The second submission advanced on behalf of the petitioners, who entered service as daily wagers, is based clearly on equity and compassion that after such long period of service they should not be removed from service only on the ground that they were engaged on daily wages. Attempt was made to take advantage of the fact that these petitioners have been getting salary in the minimum of the scale along with certain allowances for long number of years. 6. So far as first submission is concerned, in our view, it suffers from a misconception that persons, who are employed as daily wagers, stand on same footing of officers and employees of the Board in regular employment. Section 6 (i) itself makes it clear that after the repeal of the Agriculture Produce Market Act, 1960, all officers and employees of the Board are to continue in 13 employment as if the Act had not been repealed and they shall continue to be paid what they were getting earlier as salary and allowances till such time the State Government takes a final decision as per further provisions of Section 6. The effect of such provision is to allow officers and employees of the Board to continue in employment on the same footing and status as existed prior to the Repeal Act 2006 till such time the State Government takes a final decision as provided under the Repeal Act 2006. This provisions itself maintains the distinction between the status of daily wage employees and the regular employees of the Board. By no stretch of imagination such provision can be construed so as to treat the daily wage employees like the petitioners to have acquired same status as the regular employees only because the Board as per Act of 1960 stood repealed. The clause “..... shall continue to be paid same salary and allowances as was payable on the date of repeal of the Act ....” conveys the intention of the Legislature in no uncertain terms that officers and employees of the Board would retain their status and entitlements and if the same were different, the difference 14 would continue. Hence, the submission that now the Committee or the State Government are discriminating between daily wage employees and the regular employees has no substance because such difference continues and is recognized by the provisions in Section 6 (i) of the Repeal Act 2006 itself. 7. So far as power of the Committee of Secretaries constituted in terms of Section 6 (ii) is concerned, it extends to prepare a scheme of absorption as well as of retirement, compulsory retirement or voluntary retirement and other service conditions of officers and employees of the Board and the Committee. A scheme of absorption can, while following the rules of fairness and reasonableness can provide for non- absorption also of different categories of employees provided it does not violate any of the provisions of the Repeal Act 2006 or is not arbitrary and/or discriminatory so as to violate equity clause of the Constitution. No doubt, such scheme prepared by the group of Secretaries is only recommending in nature and the State Government has the final power to approve the scheme or to modify/ amend it 15 before it grants final approval. Once the scheme is approved by the Government, it has the status of a statutory scheme framed under the Act itself. It has to be enforced within the time indicated in Section 6 (iii) of the Repeal Act 2006. 8. In our considered view, the Committee of Secretaries could have treated the case of the daily wagers like the petitioners differently from the case of regular employees of the Board and the Committees, for the purpose of scheme of absorption. The power to frame a detailed scheme of absorption with power for retirement in various forms, when seen in the light of precarious nature of a daily wager‟s rights to continue in employment, the committee of Secretaries cannot be faulted in treating the daily wage employees on a different footing and deciding for their removal from service. Such recommendation of the Committee, in our view, is not beyond the scope of power given to the Committee of Secretaries and in any case the recommendation was only for consideration of the State Government and the final decision of the State Government, which has full power in such matters, cannot 16 be faulted on the ground of lack of power either under the Repeal Act 2006 or for alleged breach of Articles 14 and 16 of the Constitution of India. 9. The second contention advanced on behalf of the petitioners was on the basis of several earlier judgments of this Court given by even Division Benches that if the daily wagers have continued for long such as 7 years, 10 years or more, they should be treated to be regular employees. Such view was on account of sympathy, compassion and equity on account of long years of service rendered on daily wages. But such compassionate view in favour of daily wagers was considered in detail in the case of Secretary, State of Karnataka and others V. Uma Devi and others, reported in (2006) 4 SCC 1 and it was clearly held by the Constitution Bench that appointments made contrary to Articles 14 and 16 of the Constitution of India dehors the rules of appointment, would be illegal appointments as distinguishable from irregular appointments and they, like a still born child, can never be infused with life. The Constitution Bench judgment in that case directed for one time consideration of cases of 17 those employees who had continued in employment for more than 10 years without the help of court orders, only if their appointments were irregular and not illegal. Earlier judgments taking a contrary view were declared to have lost their value as precedents. Hence, it is no longer possible for this Court to follow the earlier judgments or even later judgments taking a contrary view than what has been laid down in clear terms by the Constitution Bench in the case of Uma Devi (supra). Had the service of these petitioners been regularized prior to the judgment in the case of Uma Devi, the matter would have been on a different footing because in that judgment the Constitution Bench has clarified that past transactions will not be reopened on account of that judgment. However, it is not the case of the petitioners that their services were ever regularized in the past. Hence, we find ourselves unable to take a lenient view or compassionate view on account of long length of service of the petitioners as daily wage employees, although it was strenuously pleaded by highlighting that there is no dearth of posts for them and the appointing authority has retained them in service for 18 long years. 10. One more legal aspect has persuaded us to hold in favour of the decision of the State Government. It is well settled in law that on account of abolition of a department or posts under the Government, if the abolition is for valid reasons and not malafide, the incumbents of such posts even though in regular employment, lose the right to hold the post which has been abolished. Hence, if the Government on the recommendation of the Committee of Secretaries has decided not to absorb the daily wage employees like the petitioners into a regular government service, such decision cannot be treated as illegal or malafide. In the present facts, sympathy alone