IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1913 of 2008 Raghubansh Sharma, Son of Late Ram Swaroop Singh, resident of Village- Govindpur, P.S. Bikram, P.O. Datiyana, District-Patna -------------------------------Petitioner Versus 1. The State of Bihar through Principal Secretary to Government, Road Construction Department, Vishashwariya Bhawan, Bailey Road, Patna 2. The Chief Engineer, Mechanical Wing, Road Construction Department, Bihar, Vishwariaya Bhawan, Bailey Road,Patna 3. Superintending Engineer, Bihar, Vishashwariya Bhawan, Bailey Road,Patna 4. Under Secretary to Government, Road Construction Department, Bihar , Vishaswariya Bhavan, Bailey Road,Patna 5. Executive Engineer, Mechanical Division , Road Construction Department, Arrah ( Bhojpur 6. District Provident Officer, Bhojpur ( Arrah 7. Treasury Officer, Arrah Treasury, Bhojpur 8. Accountant General,Bihar, Birchand Patel Path,Patna ----------------------------- Respondents. ---------------------------------- 03 12-08-2011 Heard Sri Girish Nandan Prasad Singh, learned counsel for the petitioner , Sri P.K.Verma, learned Addl.Advocate General no.5, who appears on behalf of Respondent nos.1 to 7/State and learned counsel appearing on behalf of Respondent no.8/ Accountant General, Bihar, Patna. The present petition has been filed with a prayer to direct the Respondents to pay pension, D.C.R. Gratuity, commutation of pension and other post retiral dues. The petitioner was appointed in the year 1972 in Work-Charge Establishment under Public Works Department, Govt. of Bihar. The petitioner continued for a long time and finally on 4.11.2004 he retired from service, whereas he claims that he continued in service till 2007. The petitioner in the writ petition has 2 made specific pleading that other similarly situated persons were taken into regular establishment. However, the petitioner’s case was left out. The petitioner has given specific instances in the present writ petition regarding the case of other similarly situated persons. In this case a counter affidavit has been filed on behalf of Respondent nos.2, 5 and 7. In the counter affidavit, the Respondents have not disputed that other similarly situated persons were taken into regular establishment, but a plea has been taken that since at the relevant time the service book of the petitioner was not available, he was not considered for taking into regular establishment. Fact remains that the petitioner continued in the work-charge establishment for a long period. Learned counsel for the petitioner has heavily relied upon a Division Bench Judgment of this Court; reported in 2007 (1) PLJR 358 (Koshi Project Worker’s Association & Anr. Vs. The State of Bihar & Ors.). Learned counsel for the petitioner has specifically referred to paragraph nos.8, 9 and 10 of the said Judgment. It would be appropriate to quote the same, which are as follows: “8. On 4th December,1949 the State Government incorporated in P.W.D. Code volume-1, the condition of work-charge establishment and thereby provided , amongst others, that the post of work-charge establishment which are of permanent nature, i.e. required for 12 months in a year and for long and indefinite period, will be made permanent and included in the permanent establishment and men employed on these posts, having one year’s approved service will be included amongst permanent Government employees. 9.Subsequent thereto Government of Bihar published a Gazette notification on 16th April,1950 and 3 thereby notified its decision dated 15th April,1950 to incorporate the following, as a rule made under proviso to Article-309 of the Constitution of India:- “all the enactments, rules and orders, whether made under any enactment or otherwise, which regulated the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were in force immediately before the 26th January,1950, shall until provision is made by or under an act of the State Legislature, to regulate such recruitment and conditions of service, be in force as if they had been made by virtue of the power under the said proviso”. 10. In view of the said notification published on 26th April, 1950 the revised condition service of work-charge establishment as decided by the Government on 4th Feburary, 1949 became legislative service rules pertaining to the employees of the work- charge establishment of the Government. As a result of such decision of the Government which has not yet been cancelled or repealed by any enactment made by the legislature of the State, an employee working in the work-charge establishment for a period of more than one year is deemed to have become a member of the permanent establishment of the State Government.” In view of the Division Bench Judgment of this Court, learned counsel for the petitioner has argued that since the petitioner had continued for such a long time in the work charge establishment, it will be deemed that he was regularized. Sri P.K.Verma, learned Addl. Advocate General no.5 submits that it would be advisable that the petitioner may file a 4 detailed representation before Respondent no.2/ the Chief Engineer, Mechanical Wing, Road Construction Department, Bihar, Visheshwaraiya Bhavan, Bailey Road, Patna. It was submitted that if the similarly situated person has been taken in regular establishment, there is no reason for discriminating the petitioner. It was further submitted that if such representation is filed by the petitioner before the Respondent no.2, the Respondent no.2 will examine the same and pass appropriate order in accordance with law. Learned counsel for the petitioner has also agreed to the argument advanced by learned counsel for the Respondent/ State. In view of the stand taken by the parties, the writ petition stands disposed of granting liberty to the petitioner to file a detailed representation before Respondent no.2 within a period of six weeks from today. If such representation is filed by the petitioner, the Respondent no.2 is required to examine the same and pass appropriate order in accordance with law taking into consideration the fact that the petitioner was appointed in the work-charge establishment in the year 1972 and he continued for a long time. Respondent no.2 is required to take a final decision on the representation of the petitioner within a period of two months from the date of filing of such representation. If Respondent no.2 considers the claim of the petitioner as genuine, he is required to pass order for granting consequential benefits; such as retiral dues. Even in case of refusal, Respondent no.2 is required to pass speaking order and communicate the same to the petitioner within a period of two months from the date of filing of such representation. 5 With above observation and direction, the writ petition stands disposed of. NKS/- ( Rakesh Kumar, J.)